partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
dev | 001-60668 | ENG | DEU | CHAMBER | 2,002 | CASE OF BOHMER v. GERMANY | 3 | Violation of Art. 6-2 | Ireneu Cabral Barreto | 8. On 14 June 1991 the Hamburg Regional Court convicted the applicant, a German national born in 1966, on charges of receiving stolen goods and theft and sentenced him to two years' imprisonment. The execution of the sentence was suspended on probation for a period of four years. 9. On 18 March 1993 the Ahrensburg District Court convicted the applicant on charges of negligent drunken driving and negligent driving without licence and imposed a fine. Thereupon, the Hamburg Regional Court decided to prolong by two years the applicant's probationary period. 10. On 15 September 1995 the Hamburg Prosecutor's Office charged the applicant and two co-accused with several counts of fraud, committed between March 1993 and April 1994. 11. Moreover, on 28 September 1995 the applicant was issued with a penal order (Strafbefehl) by the Hamburg District Court in the framework of a summary procedure. He was sentenced to a fine of 30 German marks (DEM - approximately 15 Euro) per day for thirty days for an offence of fraud, committed in February 1994 to the detriment of Mr H. Upon the applicant's objection, lodged with the assistance of Mr Klingbeil, main proceedings were instituted before the District Court. On 24 November 1995 these proceedings and the proceedings concerning the charges of September 1995, were joined. 12. In May 2000 the Hamburg District Court convicted the applicant of fraud and sentenced him to ten months' imprisonment. The proceedings concerning the charge of fraud to the detriment of Mr H. were provisionally stayed pursuant to section 154 (2) of the Code of Criminal Procedure as it appeared unnecessary to sanction the offence in question separately, the applicant having been sentenced to ten months' imprisonment in respect of the other fraud offences. 13. On 21 December 1995 the Kiel District Court issued a penal order against the applicant, convicting him of fraud, committed in August 1994. He was sentenced to a fine of DEM 20 per day for fifty days. 14. When the postman found nobody at the applicant's home, the order was served in accordance with the relevant legal provisions, by way of a notification in his letter-box on 10 January 1996 to collect the said decision deposited at the local post office in his absence. Since the applicant did not lodge an objection in time, the penal order acquired legal force as the final judgment in the matter on 25 January 1995. On 11 October 1996 the Rendsburg District Court granted the applicant's request for retrial. 15. On 2 April 1996 the Hamburg Regional Court informed the applicant of its intention to revoke the suspension of his sentence of 1991 and invited him to comment within a period of one week after service of the letter. Due to the applicant's absence from home, the letter was served by way of a notification in his letter-box on 6 April 1996 to collect the said letter at the local post office. 16. On 18 April 1996 the Hamburg Regional Court revoked the suspension of the applicant's sentence to two years' imprisonment, imposed on 14 June 1991. 17. In the reasons given for its decision, the Regional Court, referring to section 56f (1)(1) of the Penal Code, found that the applicant had committed criminal offences during the period of probation and had thereby shown that he did not fulfil the expectations upon which the suspension of the sentence was based. 18. The Regional Court noted that, subsequent to the said suspension, the applicant had been convicted of further criminal offences and that these convictions had become final. Thus he had been convicted of traffic offences by the Ahrensburg District Court on 18 March 1993 and of fraud by the Kiel District Court on 21 December 1995. The court considered that in particular the applicant's conviction of another offence relating to property had shown that he did not fulfil the expectations upon which the suspension of his sentence was based. Taking into account that the period of suspension had already once been prolonged, other, more lenient measures than revoking the suspension were not possible. 19. Due to the applicant's absence, the order was also served by way of a notification in his letter-box on 23 April 1996 to collect the decision of 18 April 1996 deposited at the local post. 20. On 17 May 1996 the applicant, assisted by Mr Klingbeil, submitted an application for the reinstatement of the proceedings against the decision of 18 April 1996 and lodged an appeal against the said decision. 21. By letter of 15 August 1996 the Hamburg Court of Appeal informed the applicant's counsel that, considering the Public Prosecutor's decision to stay the execution of the sentence (Vollstreckungsaufschub) until 4 August 1996, it would await the outcome of the proceedings before the Kiel District Court regarding his request for reinstatement. 22. On 22 August 1996 the Court of Appeal decided to grant the applicant's request for reinstatement and adjourned the appeal proceedings to await the final outcome of the Kiel proceedings relating to his request for reinstatement. The Court of Appeal considered that the question whether or not the applicant had committed a further offence of fraud was decisive for its decision on revoking his suspension. It noted that this request had been unsuccessful at first instance, but appeal proceedings were pending. The Court of Appeal dismissed the applicant's request to await the outcome of the proceedings relating to his request for retrial. 23. On 24 September 1996 the Court of Appeal informed the applicant that, following deliberations, the case remained adjourned to await the outcome of the Kiel proceedings for reinstatement. 24. On 14 October 1996 a hearing took place before the Court of Appeal, which heard the statements made by Mr H. and the further witness, police officer B., in the presence of the applicant's counsel. The applicant, waiting outside the court building, did not attend the hearing in order not to be seen in case of a confrontation with Mr H., as suggested by his counsel. 25. Following the hearing, the Court of Appeal dismissed the applicant's appeal against the decision of 21 December 1995 on the ground that the reasons given in that decision were correct in their conclusion. 26. According to the Court of Appeal, the applicant “had not fulfilled the expectations upon which the suspension of his sentence ... was based, as he committed new offences during the period of suspension” (“hat die Erwartungen, die der ... Strafaussetzung zugrunde lagen, nicht erfüllt, weil er in der Bewährungszeit neue Straftaten begangen hat”). 27. In its reasoning, the Court of Appeal noted the applicant's final conviction by the Ahrensburg District Court on 18 March 1993. 28. As regards the penal order issued by the Kiel District Court on 21 December 1995, it considered that the applicant's pending request for retrial might result in the hearing of numerous witnesses. As the prolonged period of suspension had already expired four months ago, the Court of Appeal found that it could not await the outcome of these proceedings. 29. The Court of Appeal turned next to the proceedings pending before the Hamburg District Court. It noted that, following the applicant's successful appeal against the penal order of 28 September 1995, the District Court had joined these and further criminal proceedings involving the applicant and two other accused and relating to several charges of fraud. In the latter proceedings, trial proceedings had not yet been opened on account of difficult investigations. The Court of Appeal stated that it would not await the outcome of these proceedings either. Rather, it opted for a procedure under section 308 of the Code of Criminal Procedure to examine the question whether or not, in addition to the conviction by the Ahrensburg District Court of 1993, the applicant's criminal offence to the detriment of Mr. H. could constitute a reason for revoking the suspension of his sentence. 30. The Court of Appeal considered that, having questioned Mr. H. and a further witness, the police officer B., in presence of the applicant's defence counsel, “it had been able to obtain certainty that the applicant was guilty of fraud to the detriment of witness ... [H.] (section 263 of the Penal Code)” (“hat dem Senat ... die Gewissheit verschafft, dass sich der Beschwerdeführer gegenüber dem Zeugen ... [H.] des Betruges schuldig gemacht hat (§ 263 StGB)”). 31. In this respect, the Court of Appeal took note of both witnesses' indications as to the circumstances of the offence in question as well as to the criminal information laid by the victim H. and the subsequent investigations. Thus, the Court of Appeal found that the applicant had offered H. a mobile phone and a video camera at a low price. When the transaction was to be carried out some time later at a parking place on the motorway, the applicant had taken H.'s money and disappeared without handing over the promised goods. While H. had not identified the applicant on police photographs shown to him at the police department the day after the offence, he did recognise him in a collection of police photographs which had been presented to him by the police officer B. The Court of Appeal considered that both witnesses' statements were true. The court argued that H. had openly talked about his bad conscience regarding the low price of the two objects and he had also admitted that, because he was ashamed, he had not told the truth as to the circumstances of the applicant's disappearance on the occasion of his questioning by the police. Moreover, police officer B. had remembered many details and had also explained an amendment to the minutes of H.'s questioning. 32. Furthermore, the Court of Appeal indicated that it had inspected the files of the proceedings pending before the Hamburg District Court inasmuch as the collection of police photographs was concerned. The Court of Appeal noted that, when the scene of identifying the applicant had been re-enacted, the witness H., following an initial hesitation as to a photograph showing another person, had clearly recognised the photograph showing the applicant. In these circumstances, the Court of Appeal considered not necessary to re-enact the consultation of police photographs, which had been taken place at the police department one day after the offence. 33. The Court of Appeal did not take up the suggestion of the applicant's counsel for an open confrontation between the witness H. and several persons, including the applicant. It considered that so much time had elapsed since the offence that the applicant's appearance could have considerably changed. Furthermore, it had not been sure whether the applicant would have participated in such a confrontation. In this situation, it rather relied on the memory of the witness H. 34. The Court of Appeal concluded that the strict conditions were met for considering an offence, prior to final conviction, as a reason for revoking a suspension. In cases as the present one, awaiting the final conviction would, on account of the considerable possibilities of delay, lead to the unbearable result that criminal offenders could commit further offences during the probationary period without any risk of suffering disadvantages. 35. According to the Court of Appeal, the applicant's conviction by the Ahrensburg District Court and his criminal offence against H. had shown that, contrary to the initial prognosis, the applicant was not able to live a law-abiding life. While the conviction by the Ahrensburg District Court merely disclosed a general lack of reliability and could not, taken alone, justify revoking the suspension, the applicant had proceeded in the case H. in a way similar to that followed for the offence underlying his 1991 conviction. Accordingly, the suspended prison sentences had had no impact on the applicant. More lenient measures could not therefore be envisaged. 36. The decision was served on the applicant's counsel on 18 October 1996. 37. On 22 January 1997 the Federal Constitutional Court refused to admit the applicant's constitutional complaint. 38. Subsequently, the Pardon Division at the Hamburg Court of Appeal suspended the execution of the sentence pending the proceedings before the Court. 39. Sections 56 to 58 of the Penal Code govern the suspended execution of sentences. Section 56 concerns the conditions for suspension and reads as follows: “1. Upon a sentence of imprisonment of no more than one year, the court shall suspend the execution of the punishment and grant probation if it can be expected that the sentence will serve the convicted person as a warning and he will commit no further crimes in the future even without the influence exerted by serving the sentence. Particularly to be considered are the personality of the convicted person, his previous history, the circumstances of his offence, his conduct after the offence, his living conditions and the effects which can be expected as a result of the suspension. (2) The court may also suspend the execution of a longer term of imprisonment which does not exceed two years under the provisions of subsection (1) and grant probation if a comprehensive evaluation of the offence and personality of the convicted person reveals the existence of special circumstances. In making the decision the efforts of the convicted person to make restitution for the harm caused by the offence should particularly be considered.” 40. According to section 56a, the competent court determines the period of probation of between two and five years. It may subsequently be reduced to the minimum or prolonged to the maximum before its expiration. The court may impose conditions on the convicted person (section 56b), and may issue instructions to the convicted person for the duration of his period of probation (section 56c) or place the convicted person under the supervision of a probationary officer (section 56d). According to section 56e, such decisions may be taken or amended at a later stage. 41. As regards the revocation of a suspension, section 56f of the Penal Code provides inter alia that “1. The court shall revoke the suspension of a sentence if the convicted person commits a criminal offence during the period of probation and, thereby, shows that he did not fulfil the expectations upon which the suspension of the sentence was based ... 2. The court shall, however, refrain from revocation when it suffices: (1.) to impose further conditions or instructions, in particular to place the convicted person under the supervision of a probation officer; or (2) to prolong the period of probation ...” 42. Section 154 of the Code of Criminal Procedure provides for the provisional stay of the prosecution in the following terms: “1. The public prosecutor may decide not to prosecute (1) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect to be imposed - for another offence ... ... 2. Once proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor. ....” 43. Court decisions other than conviction and sentence may be challenged in proceedings instituted under section 304 of the Code of Criminal Procedure. In such proceedings, the appellate court may order investigations or proceed to own investigations (section 308 (2)). | 1 |
dev | 001-109189 | ENG | TUR | CHAMBER | 2,012 | CASE OF TUŞALP v. TURKEY | 3 | Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award | András Sajó;Guido Raimondi;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 4. The applicant was born in 1945 and lives in İzmir. He is a journalist/columnist and author of a number of books. 5. On 24 December 2005 a daily newspaper Birgün published an article entitled “Stability” written by the applicant. The article read as follows: “Stability ... has lost its dictionary meaning and become a sickening word. From the Prime Minister to ministers, all statesmen and politicians keep on repeating it... it is used as a protective shield for ‘robbery and profiteering’. By mentioning stability at every opportunity some want to pave the way for a ‘religion based regime’. In sum, ‘the key word of the moderate regime’ that the Prime Minister and his men have set their minds on is primarily ‘stability’. In longing for a society that doesn’t speak up or interfere, the stability in command sacrifices justice, rights and freedoms, independence, equality, modernity, participation, pluralism and legal order. The rest is not needed, they settle for stability in government. No one should be concerned. Stability is continuing. The Prime Minister and his men are continuing to be stable in creating their absurdities. They cannot reconcile modern law with the Islamic law imprinted in their brains at puberty. Stability is continuing. The Prime Minister and his men are continuing to be stable in swearing. Don’t be anxious. Stability has a special meaning for the Prime Minister. The Prime Minister, forgetting which chair he occupies, shows on every occasion what a master denouncer he is. He who just yesterday was denouncing Turkey to the outside world for the headscarf of his wife and daughter, today makes up a crime and denounces those who support Prof. Dr Yücel Aşkın of the Van 100 yıl University. Outside he incites America for whom he is a civil servant and inside his civil servants ‘the prosecutors’. Whether you like it or not stability is continuing. Every word that comes out of his mouth shocks, even if denied and corrected. The act of looking you in the eye and lying is considered as governing the country. The day he says there are no convictions under Article 301 of the Turkish Criminal Code two journalists are convicted under it. And when he reopened Aliağa State Hospital a year and a half after it had become operational or when he cut the ribbon once again many years later at Çankırı State Hospital neither he nor his men blushed. Stability is continuing. The man is lying about matters from national income to inflation to the budget. Don’t believe it. Stability is continuing. From teachers to judges, from prosecutors to the police, from imams to doctors, the man uses these posts like the property of his own party. Don’t be angry. In respect of the Minister of the Interior and the Minister of Foreign Affairs, who are both defendants in the proceedings concerning the embezzlement of 1 trillion liras from the Refah Party, the Minister of Justice, Cemil Çicek, states that they will be acquitted. This is not considered as interfering with the judiciary. Abdullah Gül says he thinks Orhan Pamuk will not be punished. This is not considered as interfering with the judiciary. But he is able to denounce at the meeting of TÜSİAD those requesting justice for rector Aşkın. He does not know what crime or punishment are. He doesn’t read, he doesn’t learn. He is content with what entered his head at Imam Hatip School when he was 12-13 years old. They think that we have forgotten the fact that even on the first day of the AKP government there were ministers accused of corruption. No one seems to care that those against whom criminal proceedings were brought for corruption, namely Kemal Unatıkan, Hilmi Güner, Binali Yıldırım, Abdullah Gül and Abdulkadir Aksu, entered the Assembly and subsequently became part of Government. For whatever reason, the fact that Mr Recep Tayyip Erdoğan, who is Prime Minister in the AKP government, completes this painting is disregarded. For whatever reason, no one remembers the fact that [the Prime Minister] granted immunity to his nine friends from the Istanbul Municipality who were facing corruption charges by admitting them to the Assembly. Didn’t the poor sons join their corrupt fathers? Didn’t Bilal Erdoğan launder his wealth by giving the gold and dollars he received for his wedding and circumcision to his father-in-law? Weren’t the judges who gave this judgment promoted to higher courts? Didn’t Erkan Yıldırım become rich when he bought a boat and started carrying passengers when his father Binali Yıldırım governed the transport sector? Was is not Kemal Unakıtan who made sure that his son Ahmet Unakıtan’s chickens were fed four thousand tons of corn without any import duty being added? Would the list of Keman Unakıtan’s acts of corruption and rule-breaking fit on this page if I recited them? Could Abdulkadir Aksu, the Minister of the Interior, give a reply to the allegations regarding Murat Aksu? Don’t be anxious. Don’t be alarmed. Don’t get angry. Don’t believe it. Don’t be ambitious. The stability of today is your work of art. It is you who glorified stability. Now you may swell with pride. No need to get anxious. Consistency is maintained in the way you understand it. If consistency is to freeze in earthquake tents still covered in snow, if it is dead babies who could not reach their first year, childbirth without doctors, children without schools, schools without teachers, hospitals without doctors, the starvation of teachers, and the poverty of workers and civil servants, it will surely be maintained. Do not get anxious. If consistency is Turkey becoming a drug haven once again, decreasing the age of using drugs to 11, 12-year-old prostitutes wandering in the streets, there is consistency in this country. Do not get distressed. If consistency is the police, the gendarme, public officials, parliamentarians, ministers and mafia jerks taking to the roads there is consistent consistency in this country. Do not take offence. Hear once more the shouting of the great poet, Nazım. Become aware of how you perceive consistency. If consistency is ‘your farms, the valuables in your safes and your bank accounts’ or your allocations and your salaries, everybody knows that a consistent consistency is in power. If consistency is dying from hunger by the side of the road or trembling in the cold like a dog or shivering from malaria in the summer, everybody sees that your consistent power is on the right road. If consistency is American bases, American bombs, American navies, American missiles, all the world understands that your consistent consistency kneels and obeys. If consistency is ‘sucking our scarlet blood in your factories’, we hail such consistency. If consistency is ‘the claws of your village lords’, maintain such consistency. If your consistency is a ‘catechism’, we do not clasp our hands before such consistency or rub our faces on it. We oppose it. If your consistency is ‘the police truncheon’ we do not obey or give in to such consistency. We fight. We do not appreciate your walls or your handcuffs; we do not give a damn about your consistency or commitment. Know that.” 6. On 2 January 2006 the Prime Minister of Turkey, Mr Recep Tayyip Erdoğan, brought a civil action for compensation against the applicant and the publishing company before the Ankara Civil Court of First Instance on the ground that certain remarks in the article above constituted an attack on his personal rights. 7. Before the first-instance court the applicant maintained, inter alia, that the aim of the article in question had not been to insult the Prime Minister but to criticise him. He submitted that his article had to be read in the context of the interviews given by the Prime Minister. In this connection, he submitted quotations from two interviews given by the Prime Minister and a press release from the Ministry of Justice. The content of these quotations referred notably to stability in Turkey and its positive effects, freedom of expression in Turkey, and the independence of the judiciary. 8. On 6 December 2006 the Ankara Civil Court of First Instance ordered the applicant and the publishing company jointly to pay compensation to Mr Recep Tayyip Erdoğan in the amount of 5,000 Turkish liras (TRY), plus interest at the statutory rate applicable on the date of the publication of the article. 9. In its decision the court referred to the following passages: “Stability has lost its dictionary meaning and become a sickening word. From Prime Minister to ministers to politicians the word is in everyone’s mouth... But there is no need to worry because stability is continuing. The Prime Minister and his men are continuing to be stable in creating their absurdities... The Prime Minister and his men are continuing to be stable in swearing... Stability has a special meaning for the Prime Minister. The Prime Minister, forgetting which chair he occupies, shows on every occasion what a master denouncer he is. He who just yesterday was denouncing Turkey to the outside world for the headscarf of his wife and daughter, today makes up a crime and denounces those who support Prof. Dr Yücel Aşkın of the Van 100 yıl University. Outside he incites America for whom he is a civil servant and inside his civil servants ‘the prosecutors’. Whether you like it or not stability is continuing. Every word that comes out of his mouth shocks, even if denied and corrected. The act of looking you in the eye and lying is considered as governing the country. The day he says there are no convictions under Article 301 of the Turkish Criminal Code two journalists are convicted under it. And when he reopened Aliağa State Hospital a year and a half after it became operational or when he cut the ribbon once again many years later at Çankırı State Hospital neither he nor his men blushed... Stability is continuing. The man is lying about matters from national income to inflation to the budget. Don’t believe it. Stability is continuing. From teachers to judges, from prosecutors to the police, from imams to doctors, the man uses these posts like the property of his own party. Don’t be angry. In respect of the Minister of the Interior and the Minister of Foreign Affairs, who are both defendants in the proceedings concerning the embezzlement of 1 trillion liras from the Refah Party, the Minister of Justice, Cemil Çicek, states that they will be acquitted. This is not considered as interfering with the judiciary. Abdullah Gül says he thinks Orhan Pamuk will not be punished. This is not considered as interfering with the judiciary. But he is able to denounce at the meeting of TÜSİADthose requesting justice for rector Aşkın. He does not know what crime or punishment are. He doesn’t read, he doesn’t learn. He is content with what entered his head at Imam Hatip School when he was 12-13 years old. ” 10. The court stated that the press had certain privileges so as to provide free and impartial news, to be able to discuss views and opinions and to enlighten the public. However, like all freedoms these privileges were not without limits. In this connection it noted that freedom of the press was limited by Article 28 of the Constitution, Article 24 of the Code of Obligations and Article 24 of the Civil Code in so far as it concerned the protection of honour and reputation of persons. 11. The court further considered, inter alia, that the press, while performing their duty to inform the public of issues and events of public interest, may have to criticise certain persons and institutions. In such circumstances two rights competed, namely the freedom of the press and personal rights, and one of the rights would require more protection than the other. 12. In this connection, the court considered, inter alia, that politicians should bear the burden of being subjected to heavy criticism and that they should particularly be more tolerant of virulent criticism if they occupy a higher function in the State. However, it held that this was not without limits. It considered that in its duty to inform, the press was limited in its criticism, even of politicians by, inter alia, the following: a) truthfulness b) public interest c) topicality d) interconnectedness between the thoughts, the subject and the words used. 13. The court opined that in the present case the remarks contained in the article went beyond the limits of acceptable criticism, there was no harmony between the form and the content, the content went beyond the subject of criticism, and that through the words used there was an unjustified attack on the plaintiff’s personal rights. 14. The applicant appealed. 15. On 7 February 2008 the Court of Cassation refused the applicant’s request for a hearing as the value of the case did not reach the threshold required under domestic law and upheld the judgment of the first-instance court. This decision was served on the applicant on 4 March 2008. 16. On 9 June 2008 the Court of Cassation refused to examine the merits of the applicant’s request for a rectification of its decision since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted. 17. On 6 May 2006 Birgün published another article written by the applicant entitled “Get well soon”. The article read as follows: “I thought long and hard about whether to send this article to the newspaper advertisement service or to the editor in charge of articles. I guess a half-page newspaper advertisement wouldn’t have been bad. It was high time I put in an advertisement which said ‘read me’ in large print and which was of a modern design and under which I put my signature. However, I needed some money for my dream to come true. But, I would not overcome this problem by putting a paid advertisement in the newspaper as both the euro and Turkish lira were taken out of circulation a long time ago in my newspaper, which had no boss. In the last analysis, I found out that I had to find some other solutions as the conditions for submitting an advertisement were not ripe. Since I was the child of a ‘country where solutions were inexhaustible’, I could overcome this problem by standing on my own feet. And I did. In recent years my colleagues have been asked whether their columns are their property. And now I decided to use my column for my private matters as ‘it is my property’. Maybe I would use the ‘get well’ advertisement as a step to improve private relations that would ‘lead to some good’. The contrary could also be experienced. My innocence would be disregarded and my well-intentioned attempt could be misunderstood. It would be deemed as ‘a libellous and deriding statement against honour, pride and dignity which infringes personal rights and a severe, intolerable and unbearable insult’. Then I would feel sorry for not taking the opportunity to make a ‘get well visit’. I would regret not talking face to face, taking his five minutes by adding ‘take care’ to my ‘get well’ wish. But I know for sure that I could never succeed in making such an appointment in spite of my journalistic experience. I am not exaggerating. I really could not. Because I would not, for instance, call ‘Mr Undersecretary’ the top civil servant who emphasised ‘the necessity of replacing the republic and the principles of secularism with integration with Islam’ and ask for an appointment in days like these where ‘tanks make their appearances in the streets and we feel an urgent need for unity and solidarity’. One might ask then, if I could not call the press agent. My answer to them would be, in Kasımpaşa jargon, that ‘they are dead on their feet paying their hotel bill’. Moreover, I wouldn’t do that either. Because by my nature, I refuse to be rude to somebody all along. Suppose that giving way to despair, I dialled the number. It would appear that there is no such office in the central organisation of the Prime Minister’s Office any more. Several journalists from the supporting media organisations who are ‘holding a press card and members of a religious order’ are coupled together and wandering in the building like cats on hot bricks. However, its functioning has changed. When you dialled the number, you immediately realise that the journalist you get on the phone is not a press agent but an ‘executive director for proofreading press statements’. You don’t even have to call them. Mostly, they call you. So far I haven’t called them and they haven’t called me. However, ‘those who have been called’ state that the voice at the other end of the telephone says every time ‘he did not say that’ or ‘he did not mean to say that’. Under these circumstances I give up making a big announcement. From my column I say to Prime Minister Recep Tayyip Erdoğan, get well soon. I leave him in the hands of the Turkish doctors. But as a dabbler in amateur psychology I would like to draw attention to a small detail. Having regard to the fact that he defames the birds in the air and the wolves in the mountains, he responds to criticisms with swearing, for him University professors are immoral, the opposition party meagre, journalists shameless, and he also makes inappropriate remarks about the mothers of the voters, I consider it useful for both his and the public’s mental health to investigate whether he had a high-fevered illness when he was young ... As he has become such a nervous wreck in that he dismissed a question like the erection of the “Pontic Genocide Memorial” in Thessaloniki and tore the visitors’ book in the house of Mustafa Kemal, I suspect that he is suffering from a psychopathic aggressive illness. I wish him a quick recovery.” 18. On 9 May 2006 the Prime Minister of Turkey, Mr Recep Tayyip Erdoğan brought a civil action for compensation against the applicant and the publishing company before the Ankara Civil Court of First Instance on the ground that certain remarks in the above article constituted an attack on his personal rights. 19. Before the first-instance court the applicant maintained, inter alia, that the aim of the article in question had not been to insult the Prime Minister but to criticise him. He claimed that since the plaintiff was a politician and Prime Minister of Turkey, he had to be open to political criticism. In this connection, the applicant pointed out that the plaintiff should be particularly tolerant towards heavy criticism as a result of incidents or events he had created. In support of his submissions he submitted quotations from a number of columnists criticising various incidents involving the Prime Minister and an interview with Dr M.K., member of the AK party and member of parliament, where the latter considered, inter alia, that the Prime Minister had been tense in recent months and that as a result his responses had been automatic. 20. On 20 September 2006 the Ankara Civil Court of First Instance ordered the applicant and the publishing company jointly to pay compensation to Mr Recep Tayyip Erdoğan in the amount of TRY 5,000, plus interest at the statutory rate applicable on the date of the publication of the article. 21. In its decision the court referred to the following passages below: “...under these circumstances I give up making a big announcement. From my column I say to Prime Minister Recep Tayyip Erdoğan, get well soon. I leave him in the hands of the Turkish doctors. But as a dabbler in amateur psychology I would like to draw attention to a small detail. Having regard to the fact that he defames the birds in the air and the wolves in the mountains, he responds to criticisms with swearing, for him University professors are immoral, the opposition party meagre, journalists shameless, and he also makes inappropriate remarks about the mothers of the voters, I consider it useful for both his and the public’s mental health to investigate whether he had a high-fevered illness when he was young ... As he has become such a nervous wreck in that he dismissed a question like the erection of the “Pontic Genocide Memorial” in Thessaloniki and tore the visitors’ book in the house of Mustafa Kemal, I suspect that he is suffering from a psychopathic aggressive illness. I wish him a quick recovery.” 22. The court considered that the article taken as a whole had alleged that the Prime Minister had psychological problems and that he had a hostile attitude suggesting he was mentally ill. It held that a politician naturally had to bear and tolerate reasonable criticism. However, the court considered that, in the instant case, the remarks made in the article went beyond the limits of acceptable criticism and belittled the Prime Minister in the public and the political arena. In its view, the allegations were not the kind that one could make about a Prime Minister. 23. The applicant appealed. 24. On 6 December 2007 the Court of Cassation refused the applicant’s request for a hearing as the value of the case did not reach the threshold required under domestic law, and upheld the judgment of the first-instance court. This decision was served on the applicant on 30 January 2008. 25. On 31 March 2008 the Court of Cassation refused to examine the merits of the applicant’s request for a rectification of its decision, since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted. 26. Enforcement proceedings were initiated by the Prime Minister against the applicant and the publishing company in respect of the compensation awarded by the domestic courts. Two case files were opened (nos. 2007/2289 and 2008/1624) by the Ankara Enforcement Court. 27. According to the documents submitted by the Government the sum due in respect of case no. 2008/1624 amounted to TRY 8,611.88 and was fully executed. It appears that the applicant paid TRY 2,859.79 of this sum. The sum due in respect of case no. 2007/2289 amounted to TRY 8,384.42 and had not yet been executed on 31 August 2010. 28. A description of the relevant domestic law at the material time can be found in Sapan v. Turkey, no. 44102/04, §§ 24-25, 8 June 2010. | 1 |
dev | 001-22839 | ENG | POL | ADMISSIBILITY | 2,002 | KRANZ v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Edmund Kranz, is a Polish national, who was born in 1919 and lives in Bydgoszcz. The facts of the case, as submitted by the applicant, may be summarised as follows. On 19 July 1966 the applicant and his wife obtained a divorce decree. On 5 November 1975 the applicant’s ex-wife filed with the Bydgoszcz District Court (Sąd Rejonowy) a petition for division of the matrimonial property. On 16 October 1978 the Bydgoszcz District Court gave a decision. Both parties appealed. On 30 May 1979 the Bydgoszcz Regional Court (Sąd Wojewódzki) quashed the first-instance decision and remitted the case. In 1982 the applicant’s ex-wife donated her share in the disputed property to A.H. and E.H., who became parties to the proceedings. On 2 December 1990 the applicant sent a letter to the Minister of Justice, complaining about the slow progress of the proceedings. On 15 February 1991, in reply to his complaints, the President of the Bydgoszcz Regional Court acknowledged that the proceedings were indeed lengthy. Prior to 1 May 1993, the Bydgoszcz District Court held a number of hearings and obtained several expert reports. On 2 October 1996 the Bydgoszcz District Court gave a decision. The court granted ownership of the entire property (plot of land and a house) to A.H. and E.H. The court also ordered them to pay off the applicant’s share in the estate. On 5 June 1997, on the applicant’s appeal, the Bydgoszcz Regional Court partly amended the first-instance decision. On 19 September 1997 the applicant lodged a cassation appeal. In March 1998 A.H. and E.H. sold their share in the property to a certain J.S. On 28 April 1999 the Supreme Court (Sąd Najwyższy) quashed the decision of 5 June 1997 and remitted the case to the Bydgoszcz Regional Court (Sąd Okręgowy). On 20 December 2000 the Bydgoszcz District Court issued an interim order allowing the applicant to install central heating in his part of the house. On 25 June 2001, upon an appeal by J.S., the Bydgoszcz Regional Court quashed this decision. It appears that the proceedings are pending before the Bydgoszcz Regional Court. | 0 |
dev | 001-79014 | ENG | POL | CHAMBER | 2,007 | CASE OF BOGDANOWICZ v. POLAND | 4 | No violation of Art. 5-3 | Nicolas Bratza | 4. The applicant was born in 1953 and lives in Gdynia. 5. On 5 September 2003 the applicant was arrested and placed in custody. He was suspected of having committed offences of kidnapping and acting in an organisation of a criminal character. 6. On an unknown date the Gdańsk District Court ordered that the applicant be detained until 14 December 2003. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. The court also stressed his relapse into crime. 7. Subsequent decisions as to the extension of the applicant’s pre-trial detention were taken on 25 November 2003, 18 December 2003, 17 February 2004, 3 June 2004, 28 September 2004, 22 December 2004 and 30 March 2005. 8. In all the above-mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order. In addition, they indicated the need to conduct further investigations and the probable collusion of the accused. 9. On many occasions the applicant unsuccessfully requested his release from detention and, also unsuccessfully, appealed against decisions extending his pre-trial detention. 10. On 4 February 2004 a bill of indictment was filed against the applicant and thirteen co-accused. The applicant was charged with kidnapping and acting in an organisation of a criminal character. 11. From 30 September 2004 to 4 May 2005 the applicant was serving a prison sentence in respect of another conviction. 12. On 30 June 2004 the first hearing was held before the Gdańsk Regional Court. Hearings scheduled for 14 and 22 September 2004 were postponed due to the necessity of replacing one of the judges. 13. On 6 October 2004 a new judge was assigned to the case. 14. Subsequent hearings were held on 5 January 2005, 12 January 2005, 2 March 2005, 9 March 2005, 16 March 2005, 30 March 2005, 6 April 2005, 13 April 2005, 27 April 2005, 4 May 2005, 18 May 2005, 30 May 2005, 1 June 2005, 15 June 2005, 29 June 2005, 19 July 2005, 17 August 2005, 7 September 2005, 21 September 2005, 13 October 2005, 9 November 2005, 7 December 2005, 21 December 2005, 11 January 2006, 8 February 2006, 1 March 2006 and 29 March 2006. 15. The applicant’s pre-trial detention ended on 1 June 2005. 16. The proceedings are pending before the first-instance court. 17. On 18 April 2002 the applicant was arrested and placed in custody. 18. On 19 April 2002 the Gdańsk District Court ordered that the applicant be detained for three months on suspicion of having committed armed robbery and having acted in an organisation of a criminal character. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. 19. From 18 April 2002 to 28 August 2003 the applicant was serving a prison sentence in respect of another conviction. 20. The applicant’s detention was extended on the following dates: 9 July 2002, 12 September 2002, 23 May 2003, 25 July 2003, 28 November 2003, 23 March 2004, 7 April 2004 and 22 June 2004. 21. In all the above-mentioned decisions the courts mainly relied on the same grounds for detention as those given for the making of the first detention order. In some of the decisions, the courts also indicated the need to conduct further investigations. 22. On 12 December 2002 a bill of indictment was filed against the applicant and eighteen co-accused. The applicant was charged with armed robbery and acting in an organisation of a criminal character. 23. The first hearing, scheduled for 25 April 2005, was cancelled due to a judge’s illness. 24. Subsequent hearings were held on 16 May 2003, 23 May 2003, 13 June 2003, 24 June 2003, 27 June 2003, 1 December 2003, 19 December 2003, 29 December 2003. In January and February 2004 altogether five hearings were held. Hearings scheduled for 18 March 2004 and 1 April 2004 were cancelled due to a judge’s illness. Subsequently, hearings were held on 21 May 2004, 28 May 2004, 18 June 2004, 23 July 2004, 17 September 2004, 22 October 2004, 19 November 2004, 28 January 2005, 25 February 2005, 25 March 2005, 15 April 2005 and 22 April 2005. 25. On 30 September 2004 the applicant was released from detention. 26. On 14 December 2004 the applicant’s complaint lodged under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time was rejected on formal grounds. 27. On 29 April 2005 the Gdańsk Regional Court convicted the applicant of the offences and sentenced him to three years’ imprisonment. On 13 February 2006 the applicant appealed. 28. The proceedings are pending before the Gdańsk Court of Appeal. 29. For a description of the relevant domestic law, see Kozik v. Poland, no. 25501/02, judgment of 18 July 2006. 30. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) entered into force (“the 2004 Act”). It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act. 31. On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date, but only when they had not yet been remedied. | 0 |
dev | 001-76775 | ENG | SWE | ADMISSIBILITY | 2,006 | SZABO v. SWEDEN | 1 | Inadmissible | null | The applicant, Mr Ernő Szabó, is a Hungarian national who was born in 1953. He is currently serving a prison sentence in Hungary. He was represented before the Court by Mrs L. Farkas, a lawyer practising in Budapest. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 December 2000 the Malmö District Court (tingsrätten) convicted the applicant of committing a drugs offence with aggravating circumstances and of attempting to commit a drug smuggling offence with aggravating circumstances on 21 September 2000, and sentenced him to ten years’ imprisonment. The court also ordered that he be permanently expelled from Sweden. On 6 February 2001 the Skåne and Blekinge Court of Appeal (hovrätten) upheld the judgment of the District Court. The applicant did not appeal against the appellate court’s judgment, which accordingly became legally binding on 6 March 2001. On 26 March 2001 the National Prisons and Probation Authority (Kriminalvårdsmyndigheten) determined the period during which the applicant was to remain in prison. It noted that he had begun to serve his sentence on 6 March 2001 and that the last day of the prison term, having regard to the total period spent in detention, would be on 22 September 2010. The Authority further determined that the applicant would be eligible for conditional release on 25 May 2007 at the earliest. On 15 August 2002 the National Prisons and Probation Administration (Kriminalvårdsstyrelsen, hereafter “the Administration”) declared its intention to make a request to the applicant’s country of origin, Hungary, for him to serve the remainder of his sentence there. The applicant declared on 2 September 2002 that he did not consent to such a transfer. On 2 October 2002 the Administration requested the transfer of the applicant to Hungary under the Convention on the Transfer of Sentenced Persons (hereafter “the Transfer Convention”) and its Additional Protocol. On 4 November 2002 the Swedish Ministry of Justice forwarded this request to the Hungarian Ministry of Justice. In an order dated 13 December 2002 the Budapest Regional Court decided that the conditions for taking over enforcement of the Swedish sentence were met. On 8 January 2003 the Hungarian Ministry of Justice informed its Swedish counterpart that the Minister of Justice had approved the transfer of the applicant to Hungary, that the competent Hungarian court had converted his sentence into ten years’ imprisonment in conformity with Hungarian law and that he would be eligible for conditional release on 22 September 2008 at the earliest. On 14 July 2003 the Administration made a final decision on the applicant’s transfer to Hungary. It stated that, since the applicant’s expulsion had been ordered and he would most probably be expelled to Hungary, there were grounds under the Transfer Convention and the Additional Protocol for the applicant to serve the remainder of his sentence in Hungary. The applicant appealed against the decision to the Government, stating, inter alia, that he would be serving a longer sentence in Hungary and that he would be placed in a “higher security prison” where the conditions would be much more severe than those in Swedish prisons. On 4 September 2003 the Administration confirmed its decision. On 25 September 2003 the Swedish Government, stating that it shared the Administration’s conclusion, dismissed the applicant’s appeal. The applicant was transferred to a Hungarian prison on 28 October 2003. The applicant was summoned to appear before the Budapest Regional Court, sitting as a first-instance court, on 8 January 2004. On that date a single judge decided that the applicant’s sentence was to be converted into ten years’ imprisonment under Hungarian law, to be served under a strict prison regime (fegyház). The effect of the latter condition was that he would become eligible for conditional release after having served four-fifths of the sentence. The applicant appealed against that decision and requested to serve his sentence under a normal prison regime (börtön), which would have made him eligible for release on parole at an earlier date. On 17 February 2004 the Budapest Regional Court, sitting as a chamber of three judges at second instance, dismissed the appeal. The Hungarian courts did not make any fresh assessment of the applicant’s guilt but accepted the Swedish courts’ findings as to the facts of the case. Section 3 of the Drug Offences Act (Narkotikastrafflagen; 1968:64) provides that anyone who commits a drugs offence with aggravating circumstances shall be liable to between two and ten years’ imprisonment. In addition, under section 3 of the Smuggling of Goods (Penalties) Act (Lagen om straff för varusmuggling, 1960:418), which was in force at the material time, the same range of prison sentences applied in respect of drug smuggling with aggravating circumstances. With regard to attempted offences, the latter Act referred to chapter 23 of the Penal Code (Brottsbalken, 1962:700), section 1 of which stipulates that the punishment for an attempted offence shall not exceed the applicable penalty for a complete offence and shall not be less than imprisonment if the penalty for a complete offence is two or more years’ imprisonment. Pursuant to section 20 of the Term of Imprisonment (Calculation) Act (Lag om beräkning av strafftid m m, 1974:202), the National Prisons and Probation Administration determines the expiry date of the prison term for a person who has started serving a sentence. If the sentence exceeds one month’s imprisonment, the Administration must also determine the earliest date of conditional release. It further sets the probationary period, which, in accordance with chapter 26, section 10, of the Penal Code, corresponds to the remaining portion of the sentence but cannot be less than one year. Chapter 26, section 6, of the Penal Code provides that a person sentenced to imprisonment shall, as a rule, be conditionally released when he or she has served two-thirds of the sentence. Under chapter 26, section 7, of the Penal Code, if the sentenced person breaches to a significant extent the conditions for serving the sentence, the date of release on parole can be postponed to a later date, but not by more than 15 days on any one occasion. The preparatory work in respect of the latter provision (Vissa reformer av påföljdssystemet, 1997/98:96) states that “to a significant extent” means that release may be postponed only for the more flagrant breaches and that a general assessment of whether the inmate has misbehaved is not sufficient. Incidents such as escape or attempts to escape, refusal to work, contact with drugs, drunkenness and threats or violence towards other inmates or a civil servant are examples of cases entailing a postponement of a prisoner’s conditional release. No postponement is to be ordered, however, if the breach results in a criminal indictment. Chapter 26, sections 11-23, of the Penal Code provide that certain restrictions and supervision by a probation officer may be imposed during the probationary period on a person who has been conditionally released. If the person breaches his obligations during that period, he may forfeit all or part of his conditional liberty. The Execution of Criminal Verdicts (International Co-operation) Act (Lag om internationellt samarbete rörande verkställighet av brottmålsdom, 1972:260) is based, inter alia, on the Transfer Convention and its Additional Protocol. Under the Act, an appeal lies to the Government against a decision of the Administration concerning any issue other than the appointment of officially assigned counsel. The objectives of the 1983 Transfer Convention (European Treaty Series, ETS, No. 112), including its 1997 Additional Protocol (ETS No. 167), are to develop international co-operation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. According to the Preamble to the Transfer Convention, these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society. Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer. Article 9 of the Transfer Convention (“Effect of transfer for administering State”) provides: “1. The competent authorities of the administering State shall: a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11. 2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow. 3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...” Article 10 of the Transfer Convention (“Continued enforcement”) provides: “1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State. 2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.” Article 11 of the Transfer Convention (“Conversion of sentence”) provides: “1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State; b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction; c. shall deduct the full period of deprivation of liberty served by the sentenced person; and d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed. 2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.” Article 3 of the Additional Protocol (“Sentenced persons subject to an expulsion or deportation order”) provides: “1. Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison. ...” Article 7 of the Additional Protocol (“Temporal application”) provides: “This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force.” Article 21 of the Transfer Convention contains a similar provision on temporal application. The Explanatory Report to the Additional Protocol recalls in paragraph 30 that persons may be expelled only subject to the provisions laid down in Article 1 of Protocol No. 7 to the European Convention on Human Rights. The Additional Protocol entered into force in respect of Sweden on 1 March 2001 and in respect of Hungary on 1 September 2001. | 0 |
dev | 001-121325 | ENG | BEL | ADMISSIBILITY | 2,012 | SIMONS v. BELGIUM | 3 | Inadmissible | null | 1. The applicant, Ms Carine Simons, is a Belgian national who was born in 1967 and lives in Ougree. She was represented before the Court by Mr M. Neve, Mrs S. Berbuto and Mrs E. Berthe, lawyers practising in Liège. The Belgian Government (“the Government”) were represented by their Agent, Mr Marc Tysebaert, General Counsel, Federal Public Department of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 13 March 2010 the Liège police were informed that a man had been stabbed with a knife. At the scene, the applicant told the police officers that the victim was her partner and that she herself had inflicted the wounds. The officers found a trail of blood leading to her home, where they discovered other traces of blood and a blood-stained kitchen knife. 4. The applicant was arrested that same day at 4 p.m. She was interviewed by investigators between 11.59 p.m. and 2.32 a.m. as a “suspect”. She was not assisted by a lawyer and – she alleged – was not informed beforehand of her right to remain silent, but her rights as provided in the “Franchimont Act” of 12 March 1998 were read to her prior to the interview. She was thus informed that her statements could be used in evidence, that she was entitled to ask for a verbatim record to be made of any questions put to her, together with her answers, and to request any supplementary investigative act or interview, that she could use any documents in her possession, provided the questioning was not delayed, and that, during or after her interview, she could have documents included in the case file or deposited in the registry. The applicant confessed to being the perpetrator of the stabbing and, in response to the investigators’ questions, gave a detailed account of the incident, explaining in particular that it had followed an argument, of which she described the context and circumstances. 5. The next day, from 11.08 a.m. to 11.34 a.m., the applicant was questioned by an investigating judge. She was not assisted by a lawyer and – she alleged – was not informed of her right to remain silent. She confirmed the statements she had made to the police. The investigating judge then informed her that she was being charged with attempted murder, with intent, and that she had the “right to choose a lawyer”. He issued a detention order with the following reasoning: “... the offence is punishable by a one-year prison sentence, in respect of a lesser indictable offence, or by an even harsher sentence; ... the maximum duration of the sentence exceeding a 15-year term of imprisonment; ... the documentary evidence in the file, the findings of the reporting officers, the witness statements, and the statement and confessions of the person charged, constitute serious indications of guilt; ... the extreme seriousness of the facts, representing a danger for public safety and entailing bodily harm, requires that a detention order be issued against the person charged; ...” 6. The applicant appeared, assisted by her lawyer, on 18 March 2010, before the Committals Division (chambre du conseil) of the Liège Court of First Instance, which found the detention order to be lawful and properly served, and remanded her in custody for one month. On 14 April 2010, after a further appearance by the applicant, the Committals Division ordered the extension of that measure. It did so once again on 12 May 2010. 7. The applicant appealed to the Indictments Division of the Liège Court of Appeal against the order of 12 May 2010. Referring to the Salduz v. Turkey judgment ([GC] (no. 36391/02, ECHR 2008), the Dayanan v. Turkey judgment (no. 7377/03, ECHR 2009) and the Bouglame v. Belgium decision (no. 16147/08, 2 March 2010), her counsel argued that the fact that the applicant had not been assisted by a lawyer during her police interview or her examination by a judge constituted a breach of the right to a fair trial as enshrined in Article 6 §§ 1 and 3 (c) of the Convention, and also of Article 5 § 1 of the Convention, under which any deprivation of liberty had to be “in accordance with a procedure prescribed by law”. Counsel thus submitted that the records of the interview and examination should be removed from the case-file and that the applicant should be released. 8. In his submissions of 3 June 2010, the Principal Public Prosecutor at the Liège Court of Appeal called on the Indictments Division to dismiss those arguments. He observed, in particular, as follows: “... in a judgment of 5 May 2010 (P.10.0257.F/1) ..., the Court of Cassation noted that, having regard to all the statutory safeguards generally afforded to the person charged so as to ensure respect for the defence rights, from the time of the decision to prosecute, it could not be concluded automatically that it was definitely impossible for a person to have a fair trial when the assistance of a lawyer was lacking during the first twenty-four hours of deprivation of liberty. ... on a number of occasions the Court of Cassation has observed that neither Article 5 § 1 nor Article 6 §§ 1 and 3 of the Convention ..., as interpreted by the Court ..., obliges investigating divisions to discharge a detention order with immediate effect on that ground alone (Cass. 29 December 2009, P.09.1826.F/1, Cass. 13 January 2010, P.09.1908.F/1 and Cass. 12 May 2010, P.10.0772.F/1). ... in a judgment of 31 March 2010, confirming its case-law ... the Court of Cassation further indicated that Articles 28 quinquies and 57, paragraph 1, of the Code of Criminal Procedure, concerning the secrecy of the preliminary and judicial investigations, precluded the presence of a lawyer at that stage (P.10.0501.F/1). ... at no stage of the proceedings did the defendant ask to be assisted by a lawyer ... ... furthermore, the decision [Bouglame v. Belgium] ... sums up the lessons of the Salduz judgment but finds that the application is inadmissible, as the proceedings have to be considered as a whole ...”. 9. In a judgment of 3 June 2010 the Indictments Division agreed with the Principal Public Prosecutor on that point, finding that “[his] submissions ... fully address[ed] the arguments for the defence as to the absence of a lawyer during the defendant’s questioning”. It nevertheless ordered the applicant’s release on the ground that public safety no longer required that she be detained. 10. According to the information provided by the parties, the judicial investigation is still pending and the case is not yet ready for trial. 11. In the above-cited Bouglame case, where the applicant had complained of being prevented from having contact with his lawyer before his examination by the investigating judge, the Court found that the refusal to allow contact had been “explained by the applicable law as it [stood], namely section 16(2) of the Law of 20 July 1990 [on pre-trial detention], which [did] not provide for assistance by counsel during questioning by the investigating judge or prior thereto”. 12. Sections 16 and 20 of the Law of 20 July 1990 on pre-trial detention read as follows: “§ 1. In cases of absolute necessity for public safety alone, and if the act is punishable by a one-year prison sentence, in respect of a lesser indictable offence, or by an even harsher sentence, the investigating judge may make a detention order ... § 2. Unless the person charged is a fugitive or is evading arrest, the investigating judge shall, before making a detention order, question the person [on the acts constituting the charges and potentially justifying a detention order] and hear his or her observations. Failure to question the person charged shall entail his or her release. The investigating judge shall also inform the person charged of the possibility of an order being made for his or her detention and shall hear his or her observations on that matter. Failure to satisfy these conditions shall entail the person’s release. ...” “§ 1. Immediately after the first examination, the person charged may communicate freely with counsel. ...”. 13. The Court of Cassation has, on a number of occasions, been called upon to examine – both in disputes concerning pre-trial detention and in appeals on points of law against appellate judgments on the merits – legal argument alleging a violation of Article 6 §§ 1 or 3 (c) of the Convention on the ground that the suspect had not received assistance from a lawyer during his or her police custody or while being questioned by the police or investigating judge. For a long time that court took the view that, although Belgian law did not provide for the presence of a lawyer to assist a suspect when he or she was deprived of liberty, this did not automatically entail a violation of the right to a fair trial. In the court’s opinion, the restriction had to be assessed in the light of all the statutory safeguards generally afforded to the accused so as to ensure respect for his or her defence rights from the time of the decision to prosecute: formalities for the suspect’s examination under Article 47 bis of the Code of Criminal Procedure; the brevity of the statutory police custody period (24 hours); the immediate remittance to the person charged, when served with a detention order, of all the documents referred to in sections 16(7) and 18(2) of the Law of 20 July 1990; the right of the person charged to communicate immediately with counsel in accordance with section 20(1) and (5) of that law; access to the case file prior to his or her appearance before the investigating judge, as provided for by section 21(3) of that law; the presence of counsel for the charged person during the recapitulation interview provided for in section 22(3) of that law; and the rights granted, in particular, by Articles 61 ter, 61 quater, 61 quinquies, 136 and 235 bis of the Code of Criminal Procedure. The court found that this series of safeguards prevented the absence of counsel during the first twenty-four hours of deprivation of liberty from irretrievably compromising the fair handling of the case (see, for example, the judgments of 5 May and 22 June 2010, P.10.0257.F/1 and P.10.0872.N/1). However, in a judgment of 15 December 2010 (P.10.0744.F/1), the Court of Cassation quashed, for a violation of Article 6 of the Convention, a trial court decision that relied on self-incriminating statements given to the police during police custody without any possibility of assistance by a lawyer. It found, in particular, as follows: “... The right to a fair trial, as enshrined in Article 6 § 1 of the Convention ..., implies that the person arrested or held at the disposal of the courts should have the effective assistance of a lawyer In so far as it allows such access to a lawyer only after the first examination by the investigating judge, section 20, first paragraph, of the Law of 20 July 1990 on pre-trial detention must be regarded as incompatible with Article 6 of the Convention. The fairness of a criminal trial should be assessed in the light of the proceedings as a whole, ascertaining whether the defence rights have been upheld, examining whether the person charged has had the possibility of challenging the authenticity of the evidence and of opposing its use, verifying whether the circumstances in which evidence for the prosecution has been obtained cast doubt on its credibility or accuracy, and assessing the influence of any unlawfully obtained evidence on the outcome of the criminal proceedings. ...” 14. The Court of Cassation has further found that Articles 5 § 1, 6 § 1 and 5 § 3 (c) of the Convention do not oblige investigating divisions to discharge a detention order with immediate effect on the sole ground that prior to his or her examination by the investigating judge the person charged had been interviewed by the police and had given a confession to them without being allowed access to counsel from the very first questioning (see, for example, the judgments of 29 December 2009, 13 January 2010 and 23 June 2010, P.09.1826.F/1, P.09.1908.F/1 and P.10.1009.F/1). 15. The relevant domestic law was changed by the Law of 13 August 2011 amending the Code of Criminal Procedure and the Law of 20 July 1990 on pre-trial detention, in order to grant rights, including the right to consult and be assisted by a lawyer, to any person who is questioned or deprived of liberty. Section 2 of that law provides that before the first interview of a person concerning offences with which he or she might be charged, the person has “the right ... to a confidential consultation with a lawyer of his or her choosing or a lawyer appointed to assist him or her, provided that the potential charges concern an offence that could justify a detention order, with the exception of the offences referred to in section 138, 6o, 6o bis and 6o ter”. Section 4 adds a section 2 bis to the Law of 20 July 1990 on pre-trial detention, reading as follows: “§ 1. Anyone who is deprived of liberty pursuant to sections 1 or 2 hereof, or in accordance with a warrant under section 3, shall be entitled, from that time onwards and prior to the first subsequent interview by the police or, failing that, by the Crown Prosecutor or investigating judge, to have a confidential consultation with a lawyer of his choosing. If he has not chosen a lawyer or if that lawyer is unavailable, contact shall be made with the duty service organised by the Bar Council of French-speaking and German-speaking Lawyers, and the Flemish Bar Council or, failing that, by the chairman of the Bar or his representative. ... § 2. The person concerned shall be entitled to receive assistance from a lawyer during the interviews that take place within the time-limit provided for in the preliminary section and sections 1º, 2, 12 or 15 bis. ...” | 0 |
dev | 001-22657 | ENG | TUR | ADMISSIBILITY | 2,002 | CATIKKAS v. TURKEY | 4 | Inadmissible | Nicolas Bratza | The applicant, Hallo Çatıkkaş, is a Turkish national, who was born in 1929 and lives in Adana. He is represented before the Court by Mr Mesut Beştaş, Ms Meral Beştaş and Mr Şerif Yılmaz, lawyers practising in Diyarbakır. The facts of the case, as submitted by the applicant, may be summarised as follows. On 18 May 1995 the applicant was taken into police custody on account of an unnamed intelligence report according to which he was accused of aiding and abetting the PKK. On 19 May 1995 the Şırnak Police Headquarters requested from the local health clinic in İdil that the applicant be examined by a doctor. On an unspecified date the applicant was seen by a doctor in İdil who noted in his medical report that there existed no bruises on the applicant’s body resulting from the use of force. It is further noted in the medical report that the applicant complained of health problems that were only indicated with the initials “HT” and “PIS”. On 25 May 1995 the applicant was interrogated by police officers. During the interrogation he was forced to sign a statement without knowing the contents of it. In the meantime, on 26 May 1995 O.Ö., a former PKK activist, was interrogated by police officers. He alleged that the applicant had aided and abetted the members of the PKK between 1990 and 1992 and that he had been together with the applicant’s son E. in the “mountain team” of the PKK. O.Ö. added that the applicant’s son had fled to Germany using the PKK’s money. He concluded that the applicant’s other son F. had died during an armed clash between the PKK and the security forces in 1988 or in 1989. On 26 May 1995 the applicant was brought before the public prosecutor. He gave a statement with the help of a translator, as he was unable to speak Turkish. The applicant rejected the allegations against him and stated that he had sent his son E. to Germany when he had become aware of his son’s involvement in the PKK. He further stated that his son F. had died while he was working in Istanbul but not during an armed clash. On the same day the applicant was brought before the İdil Magistrate’s Court. He gave a statement with the help of a translator. He reiterated that he had no involvement in the activities of the PKK. The judge ordered his detention on remand. At a hearing held before the Diyarbakır State Security Court on 31 August 1995 the applicant denied the allegations against him. The court rejected the applicant’s request of release pending trial because of the serious nature of the alleged offences and the state of the evidence. In a letter addressed to the Diyarbakır State Security Court and dated 20 November 1995 O.Ö. stated that he had erroneously accused the applicant and that he regretted having done so. On 21 November 1995 the Diyarbakır State Security Court convicted the applicant of aiding and abetting members of the PKK. The court further sentenced him to three years and nine months’ imprisonment under Article 169 of the Turkish Criminal Court and Article 5 of the Prevention of Terrorism Act. On 9 July 1996 the Court of Cassation quashed the decision of the Diyarbakır State Security Court on the grounds that the latter had not established whether or not the applicant’s son F. had died in an armed clash and the applicant’s other son E. had still been in Germany. Furthermore, the Diyarbakır State Security Court should have clarified whether or not the person accused of aiding and abetting the PKK in O.Ö.’s statement of 26 May 1995 had been the applicant. At a hearing held on 17 September 1996 the Diyarbakır State Security Court decided to release the applicant pending trial. On 2 June 1998 the Diyarbakır State Security Court acquitted the applicant. The court found that there existed no evidence to convict the applicant. This decision became final on 6 July 1998 because the parties did not lodge an appeal with the Court of Cassation. | 0 |
dev | 001-77749 | ENG | BIH | CHAMBER | 2,006 | CASE OF JELIČIĆ v. BOSNIA AND HERZEGOVINA | 1 | Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Rait Maruste | 7. The applicant was born in 1953 and lives in Banja Luka. 8. Between 7 January 1977 and 31 January 1983 the applicant deposited in total 70,140 German marks (DEM) in her savings account at the then State-owned Privredna banka Sarajevo Filijala Banja Luka. In Bosnia and Herzegovina, as well as in other successor States of the former Socialist Federal Republic of Yugoslavia (“SFRY”), such savings are commonly referred to as “old” foreign-currency savings, having been deposited prior to the dissolution of the SFRY. The relevant background information on this subject is set out in detail in the Chamber’s decision on the admissibility of the present application (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII). 9. On 31 December 1991 the balance in the applicant’s account, which included accrued interest, was DEM 235,924 (in the former SFRY, foreign-currency deposits earned high interest). 10. On several occasions in 1992 and 1993, the applicant managed to withdraw in total DEM 9,352, regardless of statutory restrictions which had been introduced in the late 1980s. 11. On 3 October 1997 the applicant initiated civil proceedings against the Banjalučka banka, the legal successor of the Privredna banka Sarajevo Filijala Banja Luka, seeking the recovery of her entire “old” foreign-currency savings and accrued interest. 12. On 26 November 1998 the Banja Luka Court of First Instance established that the balance in the applicant’s account indicated above was DEM 295,274, including accrued interest. The court also found that the applicant had DEM 4,896 in another account at the same bank. The Banjalučka banka was ordered to pay the applicant, within 15 days, DEM 300,170 (approximately 153,475 euros (EUR)), default interest on the above amount at the rate applicable in the country of the currency (namely Germany) from 3 October 1997, legal costs in the amount of 9,076 dinars (approximately EUR 290) and default interest on the last-mentioned amount at the statutory rate from the date of the judgment. 13. On 5 February 1999 the Banja Luka Court of First Instance mistakenly held that the Banjalučka banka had not appealed against the judgment of 26 November 1998 and accordingly issued a writ of execution (rješenje o izvršenju). On 25 February 1999 the Banja Luka Court of First Instance established that an appeal had in fact been submitted. On 4 November 1999 the Banja Luka District Court rejected that appeal and the first-instance judgment of 26 November 1998 therefore became enforceable. 14. Meanwhile, the applicant filed an application with the Human Rights Ombudsperson, who referred the application to the Human Rights Chamber (the human rights bodies set up by Annex 6 to the 1995 General Framework Agreement for Peace). 15. On 12 January 2000 the Human Rights Chamber found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 arising from a failure to enforce the judgment of 26 November 1998. The Human Rights Chamber held the Republika Srpska responsible and ordered it to ensure full enforcement without further delay. 16. After the Banjalučka banka had failed to execute the judgment voluntarily, on 22 March 2000 the competent court sent a fresh writ of execution to the Republika Srpska Payment Bureau (Služba za platni promet Republike Srpske). 17. On 28 July 2000 the Supreme Court of the Republika Srpska rejected an appeal on points of law (revizija) against the judgment of 26 November 1998. 18. On 8 November 2000 the writ of execution was returned to the competent court, execution having been impossible on account of a statutory prohibition (see paragraph 24 below). 19. On 30 January 2001 the applicant converted part of her savings (DEM 20,000) into privatisation coupons under the Privatisation of Companies Act 1998. She subsequently sold those coupons on the secondary market, allegedly for DEM 9,000. 20. On 18 January 2002 the privatisation of the Banjalučka banka was completed and the applicant’s “old” foreign-currency savings became a public debt of the Republika Srpska pursuant to section 20 of the Opening Balance Sheets Act 1998. 21. On 7 March 2002 and 9 February 2004 the applicant converted a further part of her savings (EUR 20,452 in total) into privatisation coupons as before. She subsequently sold those coupons on the secondary market, allegedly for EUR 8,794 in total. 22. On 15 April 2006 Bosnia and Herzegovina took over the debt arising from “old” foreign-currency savings from its constituent units pursuant to section 1 of the Old Foreign-Currency Savings Act 2006. 23. The judgment of 26 November 1998 has not yet been enforced. 24. Enforcement of such judgments has been prevented in the Republika Srpska since 3 May 1996 in accordance with the relevant instructions of the government of the Republika Srpska (Odluka o obustavljanju isplate “stare” devizne štednje, Official Gazette of the Republika Srpska (“OG RS”) no. 10/96 of 27 May 1996, and Zaključak, OG RS no. 24/99 of 4 October 1999) and the following legislation: (a) The Foreign-Currency Transactions Act 1996 (Zakon o deviznom poslovanju, OG RS no. 15/96 of 8 July 1996, amendments to which were published in OG RS no. 10/97 of 30 April 1997); (b) The Postponement of Enforcement Act 2002 (Zakon o odlaganju od izvršenja sudskih odluka na teret sredstava budžeta Republike Srpske po osnovu isplate naknade materijalne i nematerijalne štete nastale uslijed ratnih dejstava i po osnovu isplate stare devizne štednje, OG RS no. 25/02 of 20 May 2002, amendments to which were published in OG RS no. 51/03 of 1 July 2003); (c) The Foreign-Currency Transactions Act 2003 (Zakon o deviznom poslovanju, OG RS no. 96/03 of 24 November 2003); (d) The Temporary Postponement of Enforcement Act 2003 (Zakon o privremenom odlaganju od izvršenja potraživanja iz budžeta Republike Srpske, OG RS no. 110/03 of 20 December 2003); (e) The Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske, OG RS no. 63/04 of 15 July 2004, amendments to which were published in OG RS no. 47/06 of 11 May 2006); and (f) The Old Foreign-Currency Savings Act 2006 (Zakon o izmirenju obaveza po osnovu stare devizne štednje, Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 28/06 of 14 April 2006 – “the 2006 Act”). 25. In accordance with section 20 of the Opening Balance Sheets Act 1998 (Zakon o početnom bilansu stanja u postupku privatizacije državnog kapitala u bankama, OG RS no. 24/98 of 15 July 1998, amendments to which were published in OG RS no. 70/01 of 31 December 2001), as amended, liability for any debt arising from “old” foreign-currency savings shifts from the bank in which the savings have been deposited to the Republika Srpska upon the completion of the bank’s privatisation. 26. On 15 April 2006 Bosnia and Herzegovina took over from its constituent units the debt arising from “old” foreign-currency savings (section 1 of the 2006 Act). 27. The 2006 Act has been in force since 15 April 2006. The following are its relevant provisions. “(1) This Act defines the procedure, manner and deadlines for the fulfilment of the obligations of Bosnia and Herzegovina arising from old foreign-currency savings deposited in local banks in the territory of Bosnia and Herzegovina. (2) While Bosnia and Herzegovina shall be responsible for the fulfilment of obligations arising from old foreign-currency savings, the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District of Bosnia and Herzegovina shall provide the means. ... (4) In accordance with the 2001 Agreement on Succession Issues, successor States to the former Socialist Federal Republic of Yugoslavia shall be liable for foreign-currency accounts opened at banks which had their seat in their respective territories. Bosnia and Herzegovina shall provide assistance, within the scope of its international activities, to the holders of such foreign-currency accounts ... (5) Bosnia and Herzegovina shall fulfil its obligations defined in paragraphs 1 and 2 above following a verification process.” “(1) Under this Act, old foreign-currency savings are foreign-currency savings in banks located in the territory of Bosnia and Herzegovina as at 31 December 1991, including interest earned until that date, less any payment after that date and any funds transferred to special privatisation accounts. (2) Old foreign-currency savings defined in paragraph 1 above shall not include foreign-currency savings in branch offices located in the territory of Bosnia and Herzegovina of the Ljubljanska banka, Invest banka or other foreign banks.” “According to preliminary data ... old foreign-currency savings amount to 1,979,000,000 Bosnian markas. The amount shall be determined in the verification process.” “Any interest accrued after 1 January 1992 but not paid shall be cancelled. Interest for the period between 1 January 1992 and the entry into force of this Act shall be calculated afresh at an annual rate of 0.5%.” “The fulfilment of obligations arising from old foreign-currency savings, if not verified in accordance with this Act, can only be requested in court proceedings.” “... (2) Following the verification process, each claimant shall be provided with a certificate which identifies him or her and the amount of his or her old foreign-currency savings. (3) The certificate referred to in paragraph 2 above ... shall include, inter alia, the following: ... (c) a statement that the claimant will renounce any legal action following a cash payment; ...” “... (5) Following the verification process, a written decision shall be given to each claimant. (6) It shall be permitted to appeal against a [first-instance] decision to the [competent second-instance body]. It shall be permitted to pursue an administrative dispute before the competent court against a [second-instance] decision. (7) The legislation concerning administrative procedure of the Entities and District shall apply to the verification process.” “An application for verification can be submitted by [16 October 2006] and the verification process shall be completed by [15 January 2007].” “... (2) Should the claimant accept the amount determined in the verification process, the claimant shall sign a verification certificate. Following the claimant’s waiver of the right to appeal, a maximum of 100 Bosnian markas, or the total amount of savings lower than 100 Bosnian markas, shall be paid ... (3) Furthermore, by the end of 2007 a maximum of 1,000 Bosnian markas, or the total amount of savings lower than 1,000 Bosnian markas, shall be paid. The remaining amount shall be reimbursed in State bonds in accordance with this Act ... ...” “... All State bonds shall be issued at the same time ... at the latest by 31 March 2008 on the following conditions: (a) they shall become due within no more than thirteen years and at the latest by 31 December 2020 ...; (b) they shall earn interest at an annual rate of 2.5%; (c) they shall be redeemable before their maturity.” “(1) Final judicial decisions concerning old foreign-currency savings shall also be subject to verification ... (2) ... The provisions of this Act concerning the cancellation of interest, cash payments and State bonds shall apply.” “The competent court shall of its own motion submit any pending case to the verification process in accordance with this Act.” 28. This Act was in force from 23 July 1998 until 25 May 2006. The following were the relevant provisions: “A person who has ‘old’ foreign-currency savings in a bank located in the Republika Srpska and who is a citizen of the Republika Srpska at the date of the entry into force of this Act shall be entitled to coupons for the purchase of shares pursuant to this Act. A person who is entitled to coupons in accordance with this section may decide to convert into coupons his or her entire savings or a part thereof.” The privatisation coupons acquired in accordance with the above provisions were transferable; this included the possibility of selling them on the secondary market (section 22(2)). Any conversion into privatisation coupons was irrevocable (section 25(3)). 29. This Act has been in force since 12 November 2004. Section 10(3) provides that “old” foreign-currency savings may be used for the purchase of State-owned business premises and garages on condition that a minimum of 40% of the price is paid in cash. 30. In accordance with Article 239 of the Criminal Code 2003 (Krivični zakon Bosne i Hercegovine, OG BH nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments to which were published in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004 and 30/05 of 17 May 2005), non-enforcement of a final and enforceable decision of the former Human Rights Chamber amounts to a criminal offence: “Any official of the institutions of Bosnia and Herzegovina, of the Entities or of the Brčko District of Bosnia and Herzegovina who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, of the Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina, or who prevents the enforcement of any such decision, or who frustrates the enforcement of the decision in some other way, shall be punished by imprisonment for a term between six months and five years.” | 1 |
dev | 001-23554 | ENG | GBR | ADMISSIBILITY | 2,003 | CHADWICK v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza;Viera Strážnická | The applicant, Eric Albert Chadwick, is a United Kingdom national, who was born in 1942 and lives in Surrey, England. He is represented before the Court by Salhan and Co., a firm of solicitors practising in Birmingham, England. The respondent Government are represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office, London. The facts, as submitted by the parties, may be summarised as follows. On 9 December 1994 the applicant was arrested on suspicion of being involved in a conspiracy to manufacture a controlled drug (amphetamine sulphate). He co-operated with the police during interview, answering the questions put to him. The applicant told the police during interview that he had been working with a co-conspirator, Liam Walsh, on the production of a drug and had been aware that Walsh was a police informant. The applicant admitted that, at Walsh’s instigation, he had procured some of the ingredients (BMK) for the production of the drug. However, his intention all along had been to persuade others to become involved in the project and that he had acted with Walsh’s knowledge and, as he believed, with the knowledge and approval of the police operating in the framework of a broader police entrapment operation aimed at netting, amongst others, Ian Pollock. The applicant, along with Walsh and Pollock and another co-defendant, David Wilson, was tried before a jury at Birmingham Crown Court from 26 February 1996 to 28 March 1996. The charge against the applicant related to the production of a controlled drug contrary to section 1(1) of the Criminal Law Act 1977. The applicant’s and his co-accused’s lawyers were notified before the start of the trial that the prosecution would be making an ex parte Public Interest Immunity (“PII”) application. No indication was given of the categories of materials to be incorporated in the application. However, the applicant acknowledges that his lawyers were informed in the case summary received from the prosecution that “one matter” which would be raised with the judge would be the position in respect of Walsh’s full “profile”. The defence lawyers were subsequently informed that the PII hearing had been fixed for 16 February 1996 before His Honour Judge Taylor. At that hearing, the judge ruled in favour of the prosecution. However, he stated that a schedule of information given by Walsh had to be served on Walsh’s lawyers and that consideration ought to be given to disclosure to the applicant and the other co-accused. The prosecution sent a schedule of Walsh’s activities as an informant to Walsh’s lawyers with a request that they comment on why the schedule should not be disclosed to the lawyers of the other co-accused. Walsh’s lawyers objected to disclosure to his co-accused. According to the applicant, his lawyers were aware that the trial judge granted PII in respect of at least “one matter” between 26 February and 4 March 1996, but cannot confirm whether a PII order was sought or made in respect of other materials. The schedule was produced at the trial by Walsh’s lawyers, without objection from any party. According to the Government, the bulk of the source documentation from which the schedule was prepared was disclosed during the trial, some of it in edited form with the approval of the trial judge. There was a further ex parte hearing during the course of the trial, following an application for disclosure by Walsh’s counsel. The prosecution declined to state the category of material raised during the hearing. The judge approved the prosecution’s PII claim for the material in question. The essence of the prosecution’s case was that the applicant had been intimately involved in the preparation of false documents for the purchase on behalf of the L&W Distribution Company (“L&W”) of a range of chemicals used in the manufacture of amphetamine sulphate including BMK. The documents had been prepared with the knowledge of Walsh, who was a police informant and, at the relevant time, in Sudbury prison along with the applicant and Pollock. L&W was not a legitimate trading company, and had no legitimate need of BMK. An order was placed with Hammond Chemicals through a third party, J., acting on behalf of a company called Trans Global International. Hammond Chemicals was suspicious of the order and informed the police, which authorised a controlled release of the BMK. The applicant, who was on home leave from Sudbury prison, received delivery of a quantity of BMK at Walsh’s home, Walsh being in Sudbury prison at the time. Around this time, the applicant had also bought a quantity of glucose and other chemicals. The applicant split up the chemicals he had obtained, keeping some and storing others with his sister. He had never himself spoken to the police about his involvement in what he claimed was an entrapment operation with the intention of claiming a reward. The prosecution stressed that Walsh had been repeatedly told by the police not to get involved in the manufacture of drugs. Two police officers were called to confirm that Walsh was acting on his own initiative and without any encouragement from the police. According to the applicant, he had intended to give evidence at the trial in line with what he had told the police during the interview. A proof of evidence had been prepared in this connection for use at the trial. Evidence of what was said at the police interview was adduced in open court by the prosecution. On 11 March 1996, two men visited the applicant at his home and threatened him and his family with severe physical violence and told him that if he said anything in court about Pollock, “he had better make sure he had good fire insurance”. The applicant contacted his solicitor who recalled that the applicant “sounded very frightened and upset”. The solicitor relayed the information the following morning to the applicant’s barrister. After the close of the prosecution case and before the applicant was due to give evidence, the trial judge, pursuant to section 35 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), informed the applicant of the consequences of his not giving evidence. The applicant was warned: “You have heard the evidence against you. Now is the time for you to make your defence. You may gave evidence on oath and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer questions, the jury may draw such inferences as appear proper. That means that they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?” The applicant chose not to give evidence on account of his fear of the consequences for himself and his family. He did not opt to go into the witness box and decline to answer questions about Pollock since, according to the applicant, he did not know at that stage of the proceedings whether the trial judge would accept his plea that he was in fear of Pollock. Walsh did not testify at the trial. Pollock and Wilson gave evidence. Pollock was cross-examined by the applicant’s counsel on the basis that Pollock was intimately and actively involved in the manufacture of drugs, had presented himself to the applicant as a “soldier” for major drug dealers including a certain “Frank”, had sent another “soldier” to give the applicant money to finance the operation and had received from the applicant 2.5 litres of BMK at a specific location. According to the applicant, most of the cross-examination of Pollock was conducted by the prosecution. At a stage when the cases for all the defendants had been concluded and before the summing up, the applicant’s counsel applied to the trial judge for a voire dire with a view to laying an evidential basis to persuade the judge not to direct the jury to draw an adverse inference from the applicant’s silence in court. The application was made on the basis of the threats which the applicant had received, threats which, the applicant’s counsel argued, could be confirmed by hearing the applicant’s solicitor on the voire dire. The application was opposed on the ground that the correct course of action would be for the applicant to go into the witness box and, whenever a question was asked which he did not wish to answer through fear, to decline to answer it and give the reason. It was also opposed on the basis that it would be unfair for the applicant’s counsel to be permitted to cross-examine Pollock in a manner designed to incriminate him and for the applicant then to be able to avoid inferences on the basis of a fear of the consequences of giving evidence to the same effect. According to the applicant, prosecution counsel in effect summarised for the judge the nature of the applicant’s fears and his defence barrister was only able to correct the version given by prosecution in the briefest of terms. The judge refused the application, although he was prepared to accept that the applicant was afraid. After the ruling had been given, counsel for the prosecution stated in the presence of all concerned: “I take it from [the] ruling that you have agreed ... that it would not be right to call [the applicant] on a voire dire, and if [counsel for the applicant] wishes to establish a reason he can only do so by calling his client to give evidence in front of the jury, he then being cross-examined in the way I had indicated.” The judge replied that that was implicit in what he had said. Counsel for the prosecution stated that that was his understanding, but it was as well for the matter to be plain. The applicant’s counsel did not make an application to allow the applicant to give evidence and to decline to answer questions in respect of Pollock. The judge put the applicant’s case to the jury as it appeared from the transcripts of the police interviews. According to the applicant, since neither he nor Walsh testified at the trial there was no evidence before the jury that the applicant had acted at Walsh’s instigation or that the applicant believed that Walsh was a police informant or that the police had approved of the applicant’s actions in the light of the wider entrapment plan. The trial judge directed the jury in accordance with the relevant practice guidelines at the time on the circumstances in which it may draw an adverse inference from the applicant’s silence in court. The trial judge stated: “Now, what then are you permitted to consider about ... the failure to give evidence? Now, when a defendant does not give evidence, that is his right. The right to silence, as it is sometimes called, has not been removed. A defendant is entitled, as indeed have [the applicant and Walsh] made it perfectly clear they are entitled not to give evidence. But the law provides now that you may draw such inferences as appear proper from their failure to do so. But before you draw such inferences you have first to be satisfied that there is a prima facie case against them. So the first thing that you must do is to consider whether there is what we call a prima facie case without taking into account the failure to give evidence. You must be satisfied that the prosecution have established that there is a case to answer before drawing any inference from silence. Now, if you do draw such an inference and you are satisfied that there is a case to answer, then you may ... , but you don’t have to, you make take into account the failure to give evidence. Now what proper inferences can you draw from the [applicant’s] decision not to give evidence? If you conclude that there is a case for him to answer then you may think that [the applicant] would have gone into the witness box to give you an explanation, or give an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no case to answer - or he has no answer, I should say, to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. ... It is open to you, it is open to you to hold against [the applicant] his failure to give evidence but only, only if the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or that none could have stood up to cross-examination. Now, in [the applicant’s] case, [his counsel] has made a suggestion to you as to why he hasn’t gone into the witness box and his answer is because he, [the applicant], has said it all in his interviews; nothing more to say. Well, you must consider whether that is a good enough explanation because I have already told you that which is said by a defence, a defendant, in interview, in a statement which is not made on oath, not repeated on oath, therefore not subject to cross-examination .... . You may wonder, therefore, whether that is a good explanation. It is a matter for you. (...). (...) Inference from failure to give evidence cannot of its own prove guilt. Again, I am sorry to repeat this but it is very important to this case because it is the nub of it or the crux of it, namely that it is what the defendants had in their minds which matters, and it is therefore for the prosecution to disprove the explanation which they have given. (...).” 6. The applicant’s conviction and appeal On 28 March 1996 the applicant was found guilty as charged and sentenced to nine years’ imprisonment. Walsh and Pollock were also convicted, each receiving sentences of nine and seven years respectively. The jury were unable to agree a verdict in relation to Wilson. Wilson was later convicted following a new trial. The applicant appealed against his conviction and sentence to the Court of Appeal with the leave of the Single Judge. He contended before the Court of Appeal that the trial judge should have heard evidence on the voire dire since he had been informed by counsel that the applicant was afraid to give evidence. 7. The applications for disclosure and PII during the appeal proceedings During the course of the proceedings on appeal, the applicant and Walsh applied for disclosure of certain specific and identified documents, in particular the schedule of Walsh’s activities as a police informant. The Government point out that the applicant’s application as framed did not appear to have been an application for all material in possession of the police or the prosecution in relation to Walsh’s history as an informant. The Court of Appeal ruled on 20 November 1997 that the applicant and Walsh were entitled to full disclosure in relation to Walsh’s history as an informant, “save that the Maltese Falcon Intelligence Log dated 27 September 1993 be disclosed in edited form.” The latter document was included in the original PII application to the trial judge and was covered by PII immunity in its entirety. However, the prosecution indicated that it was prepared to disclose the content of this document in an edited format. The Court of Appeal approved this proposal. The prosecution also disclosed a further eight extracts from pocketbook entries of police officers. This information had already been served on the defence in the form of intelligence/information reports at the original trial, with the approval of the judge. The applicant cannot confirm whether any or all of the materials at issue were the subject of the trial judge’s order. The applicant does confirm that the documents listed in the Court of Appeal’s order were disclosed to his lawyers, but did not extend to the further material which the applicant sought. It is the applicant’s understanding that a further disclosure order was made by the Court of Appeal in relation to documents sought by Walsh, and specified as extending to the applicant, but that no documents were disclosed to the applicant. The issues relating to Walsh’s activities as an informant were again raised by the applicant in applications dated 28 April 1998 and 18 May 1998 to amend and supplement the applicant’s original grounds of appeal. The original schedule of informing was appended to the application of 28 April 1998. The application dated 18 May 1998 stated that full disclosure had not yet been given in accordance with the Court of Appeal’s order of 20 November 1997. The application further noted that the prosecution had claimed PII at the trial and that “it is believed that [the Court of Appeal] will be asked by the Prosecution to consider that much of this evidence requested by [the applicant] in this case should not be disclosed.” The applicant invited the Court of Appeal to reconsider the material that the trial judge had decided should not be the subject of disclosure, and to ask itself whether the judge had exercised his discretion properly in relation to disclosure of material which might have assisted the defence, in particular in relation to a schedule of informing concerning Walsh used at the trial. The application of 18 May 1998 also invited the Court of Appeal to have regard to whether or not the requirements of Article 6 of the Convention had been complied with in his case as regards the issues of the judge’s failure to hear evidence on the voire dire and non-disclosure of evidence. On 18 May 1998 the prosecution gave written notice to the accused’s lawyers that the Crown intended to make an ex parte application on notice to the Court of Appeal. The letter stated that the Crown were not able to disclose the category or categories into which the documentation would fall. The Government point out that the application for PII in the Court of Appeal was identical to that made to the trial judge save that the Maltese Falcon Intelligence Log was disclosed during the appeal proceedings, albeit in edited form. On 21 May 1998 the Court of Appeal, following an ex parte hearing, granted the Crown’s application in full, including the editing of the Maltese Falcon Intelligence Log and the editing of various passages from the supporting source documentation. The order of the Court of Appeal dated 21 May 1998 contained the following statement: “PII properly claimed in relation to disclosure”. The applicant states that his lawyers only became aware that the prosecution had made an ex parte application when they arrived outside the courtroom at 10 a.m. on 21 May for a 10.30 hearing and were informed that they could not go into the court because a PII hearing was being conducted in respect of their case. The applicant does not know which documents were covered by the Court of Appeal’s ruling of 21 May 1998. 8. The outcome of the appeal The Court of Appeal refused the applicant leave to amend his grounds of appeal in order to raise arguments based on Article 6 of the Convention. On 22 May 1998 the Court of Appeal, following a hearing, dismissed the applicant’s appeal against conviction and sentence. In delivering the judgment of the Court of Appeal, Lord Justice Rose expressed the view that no evidence called on behalf of the applicant on the voire dire could have been of any possible assistance to the defence and might, had the applicant’s account of intimidation been subjected to cross-examination, been of positive disadvantage to the defence. He considered that the trial judge was under no obligation to hear evidence on the voire dire regarding the applicant’s fear of reprisal. Lord Justice Rose then stated: “At the close of the prosecution case, it is common ground that the judge had, in accordance with section 35(2), satisfied himself, in the presence of the jury, that the accused knew that he could give evidence, and, if he chose not to give evidence, or, having been sworn, refused to answer particular questions, without good cause, it would be permissible for inferences adverse to his case to be drawn. The warning of risk was heard by [the applicant], as well as by the members of the jury. That warning having been given, [the applicant] (advised by leading counsel) indicated that he would not be giving evidence. In our judgment, the fact that at a subsequent stage the judge gave a ruling entirely in accordance with what was to be anticipated, by virtue of the risk to which he had expressly drawn [the applicant’s] attention, does not change the position adversely to the interests of the defendant. The reality is that [the applicant] knew, from the time of the judge’s warning at the close of the prosecution case, of the risk that a direction would be given permitting adverse inferences to be drawn, and in the light of that knowledge and of the advice which he was given, he decided to take his chance and not give evidence. In our judgment, the subsequent ruling cannot be regarded as having in any way impinged on the safety of his conviction.” As to the applicant’s further contention that he was not advised that he could give evidence and not answer particular questions, Lord Justice Rose referred to what the trial judge had said in relation to section 35(2) of the 1994 Act. On 25 May 1999 the Court of Appeal refused the applicant leave to appeal to the House of Lords. The interpretation given by the domestic courts to section 35 of the Criminal Justice and Public Order Act 1994 as well as the specimen direction applicable at the relevant time are described in the Court’s Condron v. the United Kingdom judgment (no. 35718/97, ECHR 2000-V) and Beckles v. the United Kingdom judgment (no. 44652/98, 10 November 2002) . Domestic law and practice at the material time on the prosecution’s duty of disclosure of material to the defence and the circumstances in which such material can be withheld for reasons of public interest immunity are described in the Court’s Rowe and Davis v. the United Kingdom judgment ([GC], no. 28901/95, ECHR 2000-II). | 0 |
dev | 001-22080 | ENG | AUT | ADMISSIBILITY | 2,001 | STEINER v. AUSTRIA | 4 | Inadmissible | Georg Ress | The applicant, Ernst Steiner, is an Austrian national, born in 1941 and living in Marchtrenk/Austria. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 December 1973 the Roman Catholic Rectory of Saint Nicolaus (Römisch-katholische Stadtpfarrkirche St. Nikolaus, hereafter “the Rectory”), the owner of an estate in Hall/Tyrol, concluded a contract with Mr M. S., the owner of three adjacent estates, authorising him to use its estate for the construction of a sales hall. The agreement was subject to the condition that M. S. obtained the prior permission by the M. company, the tenant of the Rectory’s estate. M. S. later transferred his entitlement as regards the sales hall to the L. company. On 2 October 1985 a donation contract of 23 December 1982 between the L. company as donor and the applicant as recipient was deposited with the Hall District Court and subsequently entered into the land register. The purpose of this contract was to transfer to the applicant the ownership of the sales hall, including the part of the building that had been constructed on the Rectory’s estate. On 16 December 1987 the Rectory brought an action against the applicant before the Innsbruck Regional Court, requesting that the entry of the above donation contract into the land register be declared null and void. In an alternative claim the Rectory requested a declaratory judgment that the applicant had no property rights regarding the part of the sales hall constructed on the Rectory’s estate. On 18 December 1987 the Innsbruck Regional Court refused to deal with the action for lack of competence and transferred the case to the Wels Regional Court. The Rectory’s appeal against this decision remained unsuccessful. In March 1988 the court file arrived at the Wels Regional Court. At the hearing of 13 June 1988 the Wels Regional Court closed the proceedings and announced that the judgment would be given in writing. By judgment of 21 October 1988 the Wels Regional Court dismissed the plaintiff’s main as well as its alternative claim. It found that the Rectory lacked legal interest in the matter since its own legal position was in no way affected by the registration of the donation. On 12 October 1989 the Linz Court of Appeal, upon the Rectory’s appeal, partly quashed the judgment for errors of law and referred the case back to the Wels Regional Court. On 13 June 1990 the Supreme Court, on both parties’ appeals, quashed the Court of Appeal’s decision and referred the case back to the Regional Court. On 7 November 1990 the H. company, the successor of the M. company as tenant of the Rectory’s estate, intervened in the proceedings as coplaintiff. Hearings took place on 8 November 1990, 4 February, 23 April and 11 July 1991. On the latter date the applicant requested the court to revoke the co-plaintiff’s admission to the proceedings. On 22 January 1992 the Wels Regional Court rejected the applicant’s request. On 14 February 1992 the applicant appealed against this decision. On 6 April 1992 the Linz Court of Appeal dismissed the applicant’s appeal. On 24 June 1992 the Wels Regional Court announced a hearing to be held at the Innsbruck Regional Court on 17 and 18 September 1992, at which 22 witnesses residing in Tyrol would be heard. On 27 August 1992 the applicant requested the court to cancel that hearing. He referred to the imminent change of judges. On 29 January 1993 the Wels Regional Court, following a change of the competent judge, resumed the proceedings and heard a number of witnesses. The parties to the proceedings requested the court to hear further witnesses. Those not residing in Wels should be heard by way of judicial assistance. On 16 July, 17 August and 24 September 1993 judicial assistance hearings were held at the Vienna District Court. Further judicial assistance hearings were held at the Baden District Court on 16 November 1993, at the Innsbruck District Court on 16 February 1994, and at the Hall District Court on 24 March 1994. On 18 November 1994 the Wels Regional Court held a hearing, at which it heard witnesses proposed by the applicant, and subsequently rejected the requests to hear further witnesses as irrelevant. It announced that the written version of the judgment would be served as soon as witness Z. had been heard by way of judicial assistance at the Vienna District Court. Witness Z. failed to appear before the Vienna District Court on 4 and 18 January 1995. He was heard on 10 March 1995. On 25 August 1995 the Wels Regional Court granted the Rectory’s claim and ordered that the entry in the land register of the donation contract between the L. company and the applicant concerning the part of the building located on the tenant’s estate of the Rectory be annulled. The court, having regard to the documentary evidence and the statements of the witnesses heard, found that in the absence of an agreement by the tenant of the Rectory’s estate (the M. company), the authorisation by the Rectory of December 1973 was not valid. Therefore M. S. and his successors could not lawfully acquire any ownership rights regarding the part of the sales hall situated on the Rectory’s estate. On 6 December 1995 the Linz Court of Appeal dismissed the applicant’s appeal of 3 October 1995. On 27 March 1996 the Supreme Court refused to deal with the applicant’s appeal on points of law. The decision was served on the applicant’s counsel on 7 May 1996. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows. "(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal." | 0 |
dev | 001-77382 | ENG | CZE | ADMISSIBILITY | 2,006 | DUCHOŇOVÁ v. THE CZECH REPUBLIC | 4 | Inadmissible | Peer Lorenzen | The applicant, Ms Zuzana Duchoňová, is a Czech national who was born in 1961 and lives in Brno. In a letter of 4 May 2000 the applicant informed the Ministry of Justice (ministerstvo spravedlnosti) that in 1998 and 1999 Ms B., her sister-in-law living in Switzerland, had forced her into prostitution in Ms B.’s establishment under threat that she would tell the applicant’s husband that his wife had prostituted herself during her visits in Switzerland. On 15 May 2000 the Ministry of Justice informed the applicant that her criminal complaint for defamation and blackmail, to which she had joined a claim for damages, had been transferred to the Břeclav District Prosecutor’s Office (okresní státní zastupitelství). On 23 May 2000 the latter informed her that the complaint would be dealt with by the Brno Municipal Prosecutor’s Office (městské státní zastupitelství) which, in turn, on 20 June 2000, transferred it to the Brno-Bystrc Police District Office (obvodní oddělení policie). Having questioned the applicant on 20 July 2000 and her husband and son on 30 July 2000, the Police District Office sent it back to the District Prosecutor’s Office on 19 September 2000. On 4 October and 29 November 2000 respectively, the applicant informed the District Prosecutor’s Office that she maintained her criminal complaint claiming damages of CHF 150,000 (EUR 95,000). She further criticised the prosecutor for the fact that her husband and son had been implicated in the investigation proceedings and interviewed by the police. In a letter of 4 December 2000 the District Prosecutor, having summed up the previous procedural steps taken by the authorities involved in the case, replied that the hearing of the applicant’s husband and son had been necessary in order to established the relevant circumstances. The prosecutor further noted: “In your letters of [4 May, 4 October and 29 November 2000 respectively] ... you further claimed damages of CHF 150,000. At this stage of the proceedings, ... there is nothing which would deprive you from filing a civil action for protection of ‘personal rights’ and claim damages if you feel to be injured by the statements of Ms [B.]. Within the framework of the criminal proceedings, which however are not yet pending because, as you have already been said above, the case is only in a stage of examination of the facts ..., not in a stage of criminal prosecution within the meaning of the Code of Criminal Procedure, you could claim damages caused by a criminal act of a third person. ... [T]his is, however, premature at this stage of the proceedings. I inform you that the case is in the stage of examination within the meaning of section 158(3) of the Code of Criminal Procedure. It was not yet possible to proceed with the criminal prosecution and, so far as you seek the financial compensation, you have to address a civil court with a civil action.” In a letter of 3 March 2001 the Hustopeče u Brna Police District Office informed the applicant that her criminal complaint against Ms B. could not be settled, the District Prosecutor’s Office not yet having received letters rogatory for a Swiss prosecutor to hear Ms B. in Zürich where Ms B. had her residence. On 14 November 2001 Ms B. was questioned. She denied the applicant’s accusation. On 10 May 2002 the applicant’s son was again questioned, but used his right not to testify. On 28 May 2002 the applicant and her husband were reheard. They maintained the contents of their previous arguments and statements. In a letter of 26 June 2002 the District Prosecutor informed the applicant that the examination of her criminal complaint was still pending and should finish by 30 August 2002. On 12 August 2002 Ms B. was again questioned, denying the applicant’s accusation. Her son corroborated Ms B.’s statement. On 20 August 2002 the applicant was informed that the file had been sent to the Břeclav Criminal Police Investigation Service (Služba kriminální policie a vyšetřování) with a proposal to institute criminal proceedings. By a resolution (usnesení) of 16 September 2002 the Criminal Police Investigation Service decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there was no reasonable suspicion that Ms B. had committed any criminal offence. The ruling further stated: “Having examined the facts as provided for in section 158 of the Code of Criminal Procedure, [the police authority] did not find any facts which would prove that any criminal offence had been committed. ... Bearing in mind that criminal legal relations were not affected, no criminal prosecution of a particular person could be commenced. [It is clear] that [the problem concerns] the civil legal relations which could be settled in a civil way.” On 27 January 2003 the District Prosecutor, following the applicant’s complaint (stížnost), quashed this resolution, and sent the case back to the Criminal Police Investigation Service for further investigation. By a resolution of 29 July 2003 the latter, having complemented the examination of the facts, again decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there were no factors which would confirm the applicant’s incriminating statement that she had been blackmailed by Ms B. or that the latter had defamed her. On 27 November 2003 the Ministry of Justice sent a copy of the resolution to the applicant. In a letter of 4 December 2003 addressed to the Ministry, the applicant expressed her disappointment with the results of the examination proceedings and with the manner in which her criminal complaint had been dealt with. She pointed out that the resolution had not been notified to her. On 13 August 2004 the applicant filed a complaint against the Criminal Police Investigation Service’s resolution of 29 July 2003. On 11 October 2004 the Brno Regional Prosecutor (krajský státní zástupce) found it unsubstantiated stating, inter alia: “Your submission was not examined as a complaint against the aforesaid resolution ..., because while the police authority immediately dispatched the resolution ..., it did not succeed to notify it to you and, after the mail having been consigned at the post office ... , you did not collect it within the ten following days. The last day of this time-limit is considered ... as the day of the delivery of the mail, from which a three-day time-limit for filing a complaint starts running. For these reasons, the complaint filed after the expiry of the time-limit had to be rejected without an examination on the merits ... ... In the examination proceedings [the police authorities] collected all material in evidence necessary for clarification and examination of [your criminal complaint]; however, the suspicion of committing an offence was not confirmed. This conclusion does not affect the fact that you can claim damages [against Ms B.] by way of a civil action brought to a competent court.” Chapter nine of the Code governs the procedure before the formal institution (commencement) of criminal prosecution. Under this chapter, the police authorities inter alia receive and obtain relevant information and evidence and conduct investigations with a view to detecting criminal offences, establishing their perpetrators and preventing criminal activities (examination proceedings – prověřování). The procedure before the formal institution of a criminal prosecution may result in a decision to refuse to act in a matter under section 159a(1)-(4) (odložení věci) or to refer a matter to the minor offences, disciplinary or other authority under section 159a(1) (odevzdání věci), or to institute a formal criminal prosecution (zahájení trestního stíhání) under section 160(1). In accordance with section 159a(1), a prosecutor or police authority is to refuse to act in a matter if there is no suspicion that a criminal offence has been committed and no other steps are appropriate, such as for example referring the matter to the competent minor offences authority or disciplinary authority. Under section 159a(2), a prosecutor or police authority is to refuse to act in a matter also if the institution (commencement) of a criminal prosecution is not permitted pursuant to section 11(1). Under section 159a(4), a prosecutor or police authority is to refuse to act in a matter if there are no factors allowing the institution of a criminal prosecution under section 160. Once the reasons for the refusal ceased to exist, the criminal prosecution shall commence. In accordance with sections 159a(5) and 159a(6), a copy of the decision not to act in a matter is to be served on a victim, who has a right of appeal against it. The person on the basis of whose motion the decision was given is notified about it if he or she asks for. Section 159b provides for a temporary refusal to act in a matter. The institution of formal criminal prosecutions is governed by Chapter ten, Section one. Under section 160(1), a police authority is to immediately instigate a criminal prosecution (zahájení trestního stíhání) if the information obtained indicates that a criminal offence has been committed by a particular person and if there is no reason for refusing to act in the matter pursuant to sections 159a(2), 159a(3) or 159b(1). According to section 11, any natural person has the right to protection of his or her personal integrity (osobnost), in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics. Pursuant to section 13(1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction. Section 13(2) provides that in cases when the satisfaction obtained under Section 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. Under paragraph 3 of section 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred. | 0 |
dev | 001-75292 | ENG | TUR | ADMISSIBILITY | 2,006 | DEMIR v. TURKEY | 4 | Inadmissible | null | The applicants, İsmail Demir, Kadri Göçmen, Murtaza Gündoğan, Şükrü Cengiz, Cafer Ardıç and Nezir Boğan, are Turkish nationals. They are represented before the Court by Mr Hüseyin Aygün and Mr Özgür Ulaş Kaplan, lawyers practising in Tunceli. The facts of the cases, as submitted by the parties, may be summarised as follows. Until 1994 the applicants lived in Yakatarla, Şahverdi and Akören villages, in the districts of Ovacık and Hozat, in Tunceli province, where they own property. In 1994, security forces forcibly evacuated Yakatarla, Şahverdi and Akören on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Tunceli, Mersin and Bursa where they currently live. On 14 and 17 May 2002 the representatives of the applicants filed petitions, on behalf of the applicants, with the offices of the Tunceli Governor and the Hozat District Governor requesting permission to return to their villages and compensation for the damage they had suffered. On 7 June 2002 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants’ representatives: “... The Şahverdi, Yakatarla and Akören villages are being considered under the ‘Return to the Village and Rehabilitation Project’. Thus, the residents of those villages can reside in Hanuşağı, Arslandoğmuş, Burnak, Kızık, Koyungölü, Söğütlü, Topuzlu, Ziyaret, Mollaaliler, Çakmaklı, Cevizlidere, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages in Ovacık district or Sarısaltık, Çaytaşı, Karaca, Tavuklar, Karabakır, Geçimli, İnköy, Beşelma, Dalören, Akpınar, Yenidoğdu, Kavuktepe and Türktaner villages in Hozat district. ... Your petition containing requests of permission to return to village will be considered under the ‘Return to Village and Rehabilitation Project’.” On 11 September 2002 the representative of the applicants lodged a petition with the Public Prosecutor’s office in Tunceli complaining about the dereliction of duty by the Tunceli Governor and the Hozat and Ovacık District Governors (görevi ihmal). On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Public Prosecutor’s office at the Court of Cassation. On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to start the proceedings into the allegation of dereliction of duty against the Tunceli Governor (dilekçenin işleme konulmaması). On 23 June 2003 the Tunceli Administrative Council decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and Ovacık District Governors. On 7 July 2003 the representatives filed an objection with the Malatya Regional Administrative Court against the decision of the Tunceli Administrative Council. On 2 October 2003 the Malatya Regional Administrative Court rejected the objection. On 30 October 2003 the Tunceli Public Prosecutor decided not to conduct investigation into the applicants’ allegations against the Hozat and Ovacık District Governors. On 20 November 2003 the representative of the applicants filed an objection with the Elazığ Assize Court against the decision of the Tunceli Public Prosecutor. On 4 December 2003 the Elazığ Assize Court rejected the objection. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI). | 0 |
dev | 001-111840 | ENG | TUR | CHAMBER | 2,012 | CASE OF İBRAHİM GÜRKAN v. TURKEY | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - finding of violation sufficient | Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque | 4. At the time of the events the applicant was serving in the Turkish Navy. On 8 July 2008 the military prosecutor filed an indictment against the applicant with the Kasımpaşa Military Criminal Court (Kuzey Deniz Saha Komutanlığı Askeri Mahkemesi). He accused the applicant of wilfully disobeying his superior contrary to section 87 of the Military Criminal Code. 5. On 18 February 2009 the Kasımpaşa Military Criminal Court, composed of a military officer with no legal background and two military judges, found the applicant guilty as charged and sentenced him to two months and fifteen days’ imprisonment. 6. On 21 July 2009 the Military Court of Cassation rejected the applicant’s appeal. The applicant stated that he learned of this decision on 23 September 2009 when he was summoned to the prosecutor’s office. The applicant served his prison sentence between 5 November and 25 December 2009. 7. The relevant provisions of the Constitution provide: “Judicial power shall be exercised by independent courts on behalf of the Turkish Nation.” “In the performance of their duties, judges shall be independent; they shall give judgment according to their personal conviction, in accordance with the Constitution, statute and the Law. No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars, or make recommendations or suggestions to them. ...” “Judges ... shall not be removed from their office or compelled to retire without their consent before the age prescribed by the Constitution.” “The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law...” “Military courts shall be composed of two military judges and a military officer.” 8. In a decision dated 7 May 2009 and published in the Official Gazette on 7 October 2009, the Constitutional Court examined the independence and impartiality of military courts on account of the presence of a military officer on the bench. The Constitutional Court firstly pointed out that the officer sitting on the bench of the military criminal court was appointed on a case by case basis by his hierarchical superiors and continued to perform his other military duties while also acting as a judge. Noting that the military officer remained in the service of the military authorities, the Constitutional Court found that military courts could not be considered as compatible with the principle of judicial independence guaranteed under Article 9 of the Constitution. As a result, the Constitutional Court decided to repeal section 2(1) of Law no. 353 on the Composition and Functioning of Military Courts. The decision of the Constitutional Court became effective one year after its publication in the official gazette. | 1 |
dev | 001-22735 | ENG | TUR | ADMISSIBILITY | 2,002 | AKSOY v. TURKEY | 4 | Inadmissible | Ireneu Cabral Barreto;Mark Villiger | The applicant, Memduh Aksoy, is a Turkish national, who was born in 1971 and lives in Ankara. He was represented before the Court by Mr Tevfik Demirel, a lawyer practising in Ankara. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926. The Government submit the following in the light of the intelligence reports concerning the applicant: The applicant, a non-commissioned officer, was a member of the Revolutionary Islamic Opinion. He established contacts with Captain R.Y who was discharged from the army. He adopted extreme religious ideology. He refused to participate in social meetings because he believed that men and women should gather in separate rooms. He had an antisocial character and his wife carried an Islamic scarf. His superiors considered the applicant as an insubordinate and undisciplined soldier. He was sentenced to ten days' confinement for being absent when called out, ten days' confinement for negligence and three days' confinement for disobedience. A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion. The relevant provisions of the Constitution are as follows: “None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.” “Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.” “All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ...” Article 129 §§ 2, 3 and 4 of the Turkish Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control. Section 22 (c) of the Military Legal Service Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions.” Section 50 (c) of the Military Personnel Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.” Section 94 (b) of the Military Personnel Act provides: “(b) Discharge from the army for the acts of insubordination and immoral conduct: Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers' cases concerning their discharge from the army should be examined by the Supreme Military Council.” Article 99 of the Regulations on assessment of officers and non-commissioned officers provides: “Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.” | 0 |
dev | 001-69261 | ENG | UKR | CHAMBER | 2,005 | CASE OF FUKLEV v. UKRAINE | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Zoryana Bortnovska | 6. The applicant was born in 1935 and lives in Berdiansk. He is a former employee of a Joint Stock Company, the Iskra Brick Factory (“the IBF”). He worked at the IBF from 1 December 1996 to 24 November 1997, when he was dismissed from his position as a senior engineer at his own request. At the time of his dismissal the applicant was not paid the wages owed to him. 7. In March 1997 a construction company, the Closed JSC Donetskzhelezobetonmontazh (hereafter the CJSC), instituted bankruptcy proceedings against the IBF on account of its failure to comply with contractual obligations. 8. The bankruptcy proceedings were initiated on 8 April 1997 by the Zaporizhzhia Regional Arbitration Court (“the ZRAC”). The applicant acted in these proceedings as a representative of the IBF. 9. On 20 August 1997 the ZRAC declared the IBF bankrupt. It also established a liquidation commission to manage its debts. The liquidation commission consisted of representatives of the Berdiansk State Municipal Council, the Berdiansk State Tax Inspectorate, the Financial Department of the State Municipal Council, the Ukrayina Bank (a State-owned bank) and the CJSC. The liquidators were obliged to elect the chairman and members of the liquidation commission within a period of ten days. 10. On 23 September 1997 the commission made an inventory of the IBF’s property. 11. On 16 January 1998 the liquidation commission elected Mr Bogushko as its chairman. 12. Between October 1998 and 14 December 2000, in accordance with the submissions of the parties, the liquidation commission was not in operation. 13. On 5 October 1998 the then chair of the liquidation commission, Ms Chulkova, resigned. 14. On 14 December 2000 the liquidation commission elected Mr Fenenko as its chairman. 15. On 19 January 2001 the President of the ZRAC decided that the bankruptcy proceedings concerning the IBF should be referred from Judge A.E. Kuznetsov for consideration by another judge (Judge V.G. Serkiza). 16. On 19 November 2001 the President of the Zaporizhzhia Regional Commercial Court (the “ZRCC”, former Zaporizhzhia Regional Arbitration Court as renamed in 2001 as a result of “small judicial reform”), decided that the bankruptcy proceedings concerning the IBF should be referred for consideration from Judge V.G. Serkiza to another judge (Judge L.P. Turkina). 17. On 22 March 2002 the ZRCC found that the liquidation commission appointed in 1997 had deviated from its duties. It also informed the members of the liquidation commission that they had incurred criminal liability for failure to comply with the judgments and decisions of the domestic courts. 18. On 22 March, 10 April and 3 June 2002, the ZRCC requested the liquidation commission to submit a report on the results of the operation. 19. On 2 April 2002 the liquidation commission elected a new chairman, Mr Otryshko. The commission discussed the proposal for the friendly settlement of the IBF’s debts. The new chairman of the commission submitted a report to the ZRCC that made no reference to the IBF’s salary debts. 20. On 21 May 2002 the IBF’s shareholders agreed to enter into a friendly settlement with the creditors. 21. On 2 July 2002 the liquidation commission decided to conclude a friendly settlement in the bankruptcy proceedings pending against the IBF. 22. On 3 July 2002 the ZRCC held a hearing with a view to discussing the possible friendly settlement and the report by the liquidation commission. The hearing was adjourned until 23 July 2002. 23. On 23 July 2002 the ZRCC terminated the bankruptcy proceedings concerning the IBF by way of a friendly settlement between the IBF and its creditors (the CJSC and the Berdiansk State Tax Inspectorate). 24. In January 1998 the applicant instituted proceedings in the Berdiansk City Court (the “Berdiansk Court”) against the IBF, seeking the recovery of salary arrears. 25. On 24 February 1998 the Berdiansk Court allowed the applicant’s claims and ordered the IBF to pay him 2,080.38 Ukrainian hryvnas (UAH) . 26. In April 1998 the applicant instituted proceedings in the Berdiansk Court, seeking compensation for the delay in the payment of salary arrears awarded to him by the decision of 24 February 1998. On 6 May 1998 the Berdiansk Court rejected his claims as being unsubstantiated. On 4 June 1998 the Zaporizhzhia Regional Court upheld that decision. 27. On 22 May 1998 the Bailiffs’ Service of the Berdiansk Court served notice on the IBF to pay the applicant the sums due. 28. On 6 May 1998 the Berdiansk Court rejected the applicant’s additional claims for compensation for the delay in payment of salary arrears as it was unsubstantiated. That judgment was upheld on 4 June 1998 by the Zaporizhzhia Regional Court. 29. On 22 May 1998 the Berdiansk Court’s bailiffs (“the court bailiffs”) instituted enforcement proceedings in the case and requested the IBF to pay the applicant the sum due. 30. On 28 May 1998 the court bailiffs requested the IBF to provide correct information as to its bank accounts, so that the sums due the applicant could be procured. 31. A resolution to initiate enforcement proceedings in the case was issued by the Berdiansk City Bailiffs’ Service (the “bailiffs”) on 5 March 1999, following the transfer of jurisdiction for the enforcement from the court bailiffs. 32. On 8 April 1999 the bailiffs informed the applicant that the judgment could not be executed immediately on account of the entry into force of the new Enforcement Proceedings Act and the referral of all the enforcement proceedings from the jurisdiction of the courts to the jurisdiction of the Bailiffs Service of the Ministry of Justice. 33. On 22 April 1999 the bailiffs initiated enforcement proceedings in the case. 34. On 20 April 2000 the bailiffs informed the applicant that a request had been sent to the ZRAC on 20 March 2000 concerning the inactivity of the liquidation commission. It also stated that no response had been received from the ZRAC. 35. On 24 May and 14 September 2000 the bailiffs informed the applicant that the writ of execution could not be sent to the liquidation commission as the commission did not exist de facto. It also informed the applicant that the writs of execution issued by the Berdiansk Court had only been received on 22 April 1999 by the bailiffs. 36. On 17 July and 28 October 2000 the applicant complained about the non-enforcement of a judgment in his favour to the General Prosecution Service and the Ministry of Justice. On 6 November 2000 the General Prosecution Service transmitted his complaints to the Higher Commercial (formerly Arbitration) Court (“the HCC”). On 18 January 2001 the HCC forwarded his complaints to the ZRAC for a reply. 37. On 31 January 2002 the bailiffs informed the applicant that the most recent chair of the liquidation commission was Ms I. Chulkova. They also stated that, in accordance with section 65 of the Enforcement Proceedings Act, writs of execution had to be transferred to the liquidation commission from the bailiffs. 38. On 4 February 2002 the bailiffs suspended the enforcement proceedings until the election of a new chairman of the liquidation commission and the formation of a new commission. 39. On 10 June 2002 the Berdiansk District Council of the Zaporizhzhia Region informed the bailiffs about the membership of the liquidation commission and its chairman (Mr Otryshko). This information was to be provided to the applicant. 40. On 27 June 2002 the bailiffs terminated the enforcement proceedings pending before them in the applicant’s case by transmitting the writs of execution to the liquidation commission for the IBF. 41. On 31 July 2002 the applicant complained to the bailiffs about the failure to enforce the judgment. 42. On 13 August 2002 the bailiffs informed the applicant that they were no longer responsible for the enforcement of the judgment of 24 February 1998. 43. In September 2002 the judgment of 24 February 1998 was partly enforced by the liquidation commission and the applicant was paid UAH 1,000 in compensation. 44. On 28 October 2002 the applicant complained to the ZRCC about the failure to enforce the judgment in his favour. By a letter of 13 November 2002, a judge of the ZRCC informed the applicant of the friendly settlement in the case. She also stated that the applicant could not be considered a creditor of the IBF as he had not applied to the court in the course of the IBF bankruptcy proceedings to be declared a creditor. She also refused to provide him with documents concerning the bankruptcy proceedings in the case. 45. On 20 December 2002 the applicant lodged complaints with the HCC concerning the failure to pay his salary arrears and the inactivity of the liquidation commission and the bailiffs. On 18 February 2003 the HCC informed the applicant that his complaints had been forwarded to ZRCC for a reply. 46. On 5 March 2003 the applicant lodged complaints with the ZRCC, seeking a declaration that he was a creditor of the IBF and an order requiring the IBF to enforce the judgment of 24 February 1998. He also sought a declaration that the friendly settlement reached by the IBF and its creditors was unlawful. By a letter of 18 April 2003, the ZRCC informed the applicant that, as he had failed to lodge a request to be recognised as a creditor during the bankruptcy proceedings in the case (April 1997 – July 2002), he could not claim to be a creditor and could not therefore seek to have the friendly settlement declared unlawful. 47. On 26 November 2001 the applicant lodged complaints with the Berdiansk Court, seeking a declaration that the inactivity of the Head of the State Execution Service Department was unlawful in view of his failure to enforce the judgment of 24 February 1998. 48. On 28 November 2001 the complaint was left without consideration for failure to comply with the formalities prescribed by law. 49. On 25 December 2001 the applicant again lodged a complaint with the Berdiansk Court against the bailiffs, seeking to have their failure to enforce the judgment of 24 February 1998 declared unlawful. In December 2001 the Berdiansk Court rejected this complaint on account of the applicant’s failure to comply with the requirements as to its form and content. The applicant was allowed ten days to rectify the matter. 50. On 8 January 2002 the applicant resubmitted his complaint. 51. On 20 March 2002 the Berdiansk Court rejected his complaints as being lodged out of time. 52. On 11 June 2002 the Zaporizhzhia Regional Court of Appeal (the “Court of Appeal”) quashed that decision and remitted the case to the same court for a fresh consideration. 53. On 6 September 2002 the applicant lodged additional complaints with the Berdiansk Court, seeking the annulment of the bailiffs’ resolution of 27 June 2002 on the termination of the enforcement proceedings. 54. The proceedings concerning the failure of the bailiffs to act and the resolution on terminating the enforcement proceedings were disjoined, forming two separate proceedings: case no. 2-973/2002 and case no. 2-1378/2002. 55. On 20 November 2002 the Berdiansk Court found in favour of the applicant in the first case (no. 2-973/2002). It also declared unlawful the failure of the bailiffs to enforce the judgment for a lengthy period (four years and nine months) and found the applicant’s complaints to be substantiated. The applicant appealed against this decision as he thought that a mere acknowledgment of the fact that the bailiffs had acted unlawfully was not sufficient to rectify the situation. On 24 April 2003 the Court of Appeal upheld the judgment given on 20 November 2002 and dismissed the applicant’s appeal. 56. On 20 November 2002 the Berdiansk Court dismissed the applicant’s claims concerning the allegedly unlawful termination of the enforcement proceedings in his second case as being unsubstantiated (case no. 2-1378/2002). The applicant appealed to the Court of Appeal, seeking the resumption of the enforcement proceedings and an extension of the time allowed for lodging an appeal. On 5 May 2003 the Court of Appeal quashed the judgment of 20 November 2002 and did not consider the applicant’s complaints as they had been lodged out of time (section 39 of the Enforcement Proceedings Act). 57. On 15 May 2003 the applicant requested the Berdiansk Court to extend the time for considering his complaints against the bailiffs’ resolution of 27 June 2002 on terminating the enforcement proceedings in his second case (no. 2-1378/2002). In particular, he alleged that the delay in lodging his complaints was due to the fact that he had received the resolution of 27 June 2002 in a version that was illegible (it was sent to him twice, on 23 July and 6 August 2002). He had lodged his complaints only on 6 September 2002 as he could not read the documents supplied to him by the bailiffs, which were allegedly of a very poor quality. He has not given the Court any further information as to the outcome of these proceedings. 58. On 19 August 2003 the applicant lodged a cassation appeal against the ruling of 24 April 2003 in the first case (no. 2-973/2002). 59. On 20 April 2004 the Registry of the Supreme Court informed the applicant that his appeal had been received. It also stated that it was pending for consideration before the Supreme Court. 60. On 1 November 2004 a panel of three judges of the Supreme Court dismissed the applicant’s appeal as it found no infringements of the rules of substantive or procedural law. It also found that there were no grounds for remitting the appeal for consideration by the Chamber of the Supreme Court. | 1 |
dev | 001-97751 | ENG | LTU | ADMISSIBILITY | 2,010 | SEDBARIENE v. LITHUANIA | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicant, Ms Marė Šedbarienė, is a Lithuanian national who was born in 1943 and lives in Tauragė. On 10 April 2005 the applicant's son, M.Š., who was 20 years old at the time, was found dead in the grounds of a kindergarten. His body showed traces of violence. The same day, the authorities opened a pre-trial investigation on suspicion that a murder had been committed (Article 129 § 1 of the Criminal Code). On 11 April 2005 the authorities issued the death certificate, which stated that the cause of death had been the loss of body temperature. On 12 April 2005 the investigator requested the Mykolas Romeris University Forensic Medicine Institute (hereinafter the “MRU FMI”) to establish M.Š.'s cause of death. On 19 May 2005 the MRU FMI's expert, D. Vitkus, in a report (no. M327/05 (03), “the first expert report”), found that M.Š.'s blood alcohol level content (BAC) and urine alcohol level content had been 2.8 and 4.9 respectively, which showed that, before his death, M.Š. had been highly intoxicated and could have died from alcohol poisoning. Given that there were no cracks in M.Š.'s skull and his inner organs had not been damaged, there was no ground to conclude that his death was the result of violence. The expert report also stated that, after sustaining the injuries, the applicant's son could have lived for a few hours and that the injuries which M.Š. had sustained would have amounted to a light health impairment for a living person. The applicant and her lawyer contacted another expert, A. Garmus, asking if he would conduct a new expert examination. On 17 September 2005 that expert produced his report (no. A-KJ-38-51, “the second expert report”), stating that the cause of M.Š.'s death could have been (galėjo būti) a severe head injury, since M.Š. had sustained no fewer than fourteen blows to the head. The expert ruled out alcohol poisoning or loss of body temperature as possible causes of death. On 31 August 2005 the prosecutors transferred the case to the Tauragė District Court, charging Donatas V. and Darius V. with having lightly impaired the health of the applicant's son, as well as offences of theft and robbery. On 7 February 2006 the Tauragė District Court, on a request of the prosecutor and the applicant's counsel, commissioned the MRU FMI to conduct a new expert examination. On 28 March 2006 the MRU FMI's experts, J. Rybalko and R. Sitienė, concluded their examination and presented their results in a report (no. EKM 42/06(01), “the third expert report”), stating that M.Š. had died from alcohol poisoning and that there was no causal link between his death and the injuries he had sustained. Furthermore, there was no evidence that M.Š. had died from a loss of body temperature. In view of inconsistencies in the expert reports as to the cause of M.Š.'s death, at a hearing held on 18 May 2006 the applicant asked the Tauragė District Court to commission the experts who had already given their reports, as well as an expert on toxicology and a neurosurgeon, to conduct one more expert examination. The court dismissed the applicant's request without giving any reasons. On 22 May 2006 the Tauragė District Court convicted Donatas V. and Darius V. of slightly impairing the health of the applicant's son (Article 138 § 1 of the Criminal Code), theft (Article 178 § 1 of the Criminal Code) and robbery (Article 180 § 1 of the Criminal Code). In so finding, the court noted that, at midnight on 9 April 2005, Donatas V. and Darius V., being intoxicated and with the aim of stealing from the applicant's son, had attacked him, hitting him approximately nine times in the area of his head, face and hands. When M.Š. fell, Donatas V. and Darius V. took his jacket, wallet and two mobile telephones, and ran away. Donatas V. and Darius V. were sentenced to three years' imprisonment. The court also granted the applicant's claim for pecuniary damages in the amount of 360 Lithuanian litai (LTL, approximately 105 euros (EUR)). The applicant appealed, claiming that the lower court had wrongly convicted Donatas V. and Darius V. of robbery, when they should have been convicted of manslaughter. The applicant argued, inter alia, that the trial court had restricted her right to submit evidence and make requests. Given that there were different hypotheses as to the reasons for her son's death, she requested a supplementary expert report. However, the trial court dismissed her motion. Moreover, the trial court did not grant her request to have the experts examined at the hearing. Lastly, the applicant submitted that the first-instance court had inaccurately examined the evidence and had therefore reached wrong legal conclusions. In the meantime, the applicant's counsel approached A. Garmus with a request that, for a second time, he determine the cause of M.Š.'s death. A. Garmus consented and, on 5 July 2006, produced a new report (no. A-KI-42-52, “the fourth expert report”). The applicant's counsel presented that report to the appellate court. The report stipulated that M.Š. had died from multiple head injuries. The report ruled out alcohol poisoning as a possible cause of death, finding that the third expert report had been inconclusive and unfounded. On 11 September 2006 the Klaipėda Regional Court examined the case on appeal and upheld the lower court's judgment. The appellate court upheld the trial court's decision not to order a new expert examination and not to summon the expert, J. Rybalko, to the hearing, since, under domestic law, an expert is to be summoned only if the court decides that his testimony is necessary to explain or to supplement a written report. The Klaipėda Regional Court also noted that the applicant's right to take part in the criminal proceedings had not been breached, given that she had had a lawyer who had attended the hearing and had been able to put questions to the accused, the witnesses and those experts who had been present before the trial court. Moreover, upon a request by the applicant, the expert, A. Garmus, had prepared his second expert report. The applicant thus actively participated in the proceedings and the principle of adversarial proceedings had not been breached. On 13 March 2007 the Supreme Court examined the applicant's cassation appeal. Observing that the appellate court had joined the second expert report by A. Garmus to the case and yet had refused to analyse it without giving any grounds for such a refusal, the Supreme Court concluded that the appellate court had breached the applicant's right to put forward evidence and take part in the investigation. The Supreme Court also noted that the applicant and her lawyer had asked the appellate court to summon the experts D. Vitkus, J. Rybalko and A. Garmus for questioning in open court, since they had had different views about the cause of M.Š.'s death. Nonetheless, the appellate court dismissed that request, again without explanation. The Supreme Court concluded that the appellate court had committed an essential breach of criminal procedure, restricting the applicant's rights, and had failed to deal with the case thoroughly and impartially and to adopt a fair decision. The case was remitted to the court of appeal for fresh examination. On 5 July 2007 the Klaipėda Regional Court varied the trial court's judgment. The court noted that the experts had agreed on only one essential point, namely, that the loss of body temperature had not caused M.Š.'s death. However, they had come to different conclusions as regards the actual cause of death. For D. Vitkus, it was alcohol poisoning. For A. Garmus, the likely cause of death was a head injury. In view of diverging conclusions, it was necessary to elucidate which evidence was more reliable. The appellate court observed that, under domestic law, it was free to assess the evidence, relying on its inner belief. Expert or specialist reports had evidentiary value because they had been drafted by a person having specialist knowledge. Whilst conceding that the judges did not have such specialised competence, the appellate court nevertheless noted that the presence of contradictory evidence was not an absolute ground for a new expert examination to be conducted. This time, the Klaipėda Regional Court analysed the evidence which had not been examined at first instance. In particular, the appellate court studied the second expert report by A. Garmus. Experts D. Vitkus, J. Rybalko, A. Garmus and an expert in toxicology, P. Martinek, were summoned and questioned. The appellate court noted that the experts D. Vitkus, J. Rybalko and P. Martinek, when questioned at the hearing, testified that M.Š.'s BAC had been 4.9, which was a lethal dose in medical theory. For the court, A. Garmus, when questioned, was not able to constructively contradict (konstruktyviai paprieštarauti) those expert conclusions and agreed that, had there been no sign of head injuries, the single cause of death could have been certified as alcohol poisoning. Given the above, the appellate court concluded that A. Garmus's previous evaluation, dismissing alcohol poisoning as the cause of death, had to be rejected (visiškai paneigtas) as clearly unfounded and based on an unobjective, unilateral and tendentious evaluation of the evidence. In the opinion of the court, having examined all the material in the case file and having had recourse to all possibilities of obtaining supplementary evidence, no objective and reliable data had been established to contradict the other experts' conclusion that M.Š. had died of alcohol poisoning. At the same time, there was no reliable evidence to confirm, without a doubt, a supposition that M.Š. had died from head injuries. Consequently, when resolving the matter of the accountability of Donatas V. and Darius V., the applicant's argument that the true cause of M.Š.'s death had not been established and that therefore yet another expert report was necessary, was unfounded. The appellate court partly amended the judgment of 22 May 2006, reducing the applicant's award for pecuniary damages to LTL 240 (approximately EUR 70). On 22 January 2008 the Supreme Court upheld the lower court's reasoning and dismissed the applicant's cassation appeal. It observed that the appellate court had granted the request of the applicant's representative for the third expert report, had admitted in evidence the fourth expert report and examined it, had summoned and questioned the experts and had given reasons for the decision not to grant the applicant's request for yet another expert opinion. The Supreme Court concluded that the applicant's allegation that the lower courts had committed a breach of criminal procedure, because they had not collected enough evidence to establish the cause of her son's death, was unfounded. Article 7 of the Code on Criminal Procedure provides that criminal proceedings are adversarial (laikantis rungimosi principo On 16 January 2006 the Constitutional Court | 0 |
dev | 001-5198 | ENG | TUR | ADMISSIBILITY | 2,000 | ALTIN v. TURKEY | 4 | Inadmissible | Christos Rozakis | The applicant is a Turkish national, born in Yeşilhisar and living in Kayseri, Turkey. A. Circumstances of the case The applicant was formerly a public prosecutor. In 1993 he wrote a letter to the Minister of Interior criticising him as well as a political party forming part of the coalition government for, inter alia, the continuation of the terrorist campaign. He stated that the party in question had been elected on the backs of the terrorists. Furthermore he criticised a number of new amendments made to the law on criminal procedure which were intended to increase the rights of the accused. The applicant repeated the same views and opinions in a book which he published. On 9 June 1994 the Supreme Board of Judges and Public Prosecutors (Hakimler ve Savcılar Yüksek Kurulu : “the Supreme Board”) held that his statements were highly political and incompatible with the objectivity required by his functions. The Supreme Board transferred him to a lesser jurisdiction for disciplinary reasons. The applicant requested the Supreme Board to rectify (“yeniden inceleme”) its decision. On 15 February 1994 his request was rejected. The applicant then raised an objection (“itiraz”) to the decision before the Objections Examination Board (İtirazları İnceleme Kurulu: “the Objections Board”). On 16 March 1995 the Objections Board upheld the Supreme Board’s decision. On several occasions in 1994 the applicant made oral comments to his colleagues or published poems expressing his disapproval of the activities of the above-mentioned political party. He gave a television interview in which he criticised the Supreme Board’s decision to transfer him as well as the Board’s structure. On 9 March 1995 the Supreme Board again ruled that the applicant’s statements and conduct were highly political and incompatible with the objectivity requirements of his office. The Supreme Board found, inter alia, that the applicant had been behaving “like a professional politician”. The Supreme Board also found that the applicant had spent his sick leave in a distant locality without prior permission. On the basis of these two grounds the Supreme Board again transferred the applicant to a lesser jurisdiction for disciplinary reasons. The applicant requested the Supreme Board to rectify this decision. On 20 April 1995 his request was rejected. The applicant then raised an objection to the initial decision with the Objections Board. On 25 September 1995 the Objections Board upheld the decision. Subsequently the Supreme Board noted that the applicant had been given two disciplinary punishments. It held on 29 February 1996 that, in accordance with section 69 § 2 of Law no. 2802, the applicant should be removed from office. The applicant requested the Supreme Board to rectify this decision. In the meantime, on 3 April 1996, the applicant resigned from his functions. On 23 September 1996 the Supreme Board re-examined the applicant’s disciplinary file and upheld the decision of 29 February 1996. The applicant raised objection to the decision of the Supreme Board. In his petition of 5 May 1997 to the Objections Board the applicant wrote inter alia that he had voluntarily (“kendi isteğimle”) resigned and requested that the administrative punishment (removal from office) be, at least, converted to a lighter form of punishment. The applicant was heard in person by the Objections Board on 5 May 1997. On the same day the Objections Board ruled that the Supreme Board’s decision of 29 February 1996 was taken in accordance with the law. B. Relevant domestic law According to Article 68(b) of the Code on Judges and Public Prosecutors, conduct of a judge or public prosecutor which is considered incompatible with the impartiality requirements of his functions renders him liable to be transferred to a lesser jurisdiction. According to Article 69 of the Code, any judge or public prosecutor who has been sanctioned for disciplinary reasons on two occasions by being transferred to a lesser jurisdiction shall be liable to be removed form office. | 0 |
dev | 001-5212 | ENG | FIN | ADMISSIBILITY | 2,000 | JÄÄSKELÄINEN AND OTHERS v. FINLAND | 4 | Inadmissible | Georg Ress | The applicants are Ms Aino Jääskeläinen (“AJ”), Mr Martti Kinnunen (“MK”), Ms Kirsti Kinnunen, Mr Esa Kinnunen and Ms Eija Pietiläinen. The third applicant is the widow of Mr Jaakko Kinnunen (“JK”), who was the first and the second applicant’s brother. The fourth and the fifth applicant are Mr Jaakko Kinnunen’s children. The applicants are all Finnish nationals, born in 1939, 1947, 1945, 1953 and 1964 respectively. They reside in Tampere, Hyrynsalmi, Tampere, Kajaani and Hyvinkää, respectively. The first applicant represents the other applicants before the Court. In proceedings before the Kajaani District Court (kihlakunnanoikeus, häradsrätten) in 1986 AJ, JK and MK unsuccessfully contested the validity of a will drawn up by their parents KK and EK and allegedly amended without the plaintiffs’ knowledge. In 1987 the plaintiffs’ appeal was dismissed by the Court of Appeal (hovioikeus, hovrätten) of Eastern Finland and in 1988 leave to appeal was refused by the Supreme Court (korkein oikeus). A procedural complaint and request for annulment were refused by the Supreme Court in decisions rendered in extraordinary proceedings in 1989 (by justices P, T and others) as well as on 1 June 1990 (by justice T and others). In proceedings before the Kajaani District Court in 1990 AJ, JK and MK unsuccessfully contested the manner of proving the will. Their appeal was dismissed in 1991, and the Supreme Court refused leave to appeal on 8 May 1992. They continued to petition various other bodies in vain, accusing various judges and officials of offences in office when dealing with the matter: for instance, in an attempt to acquire real property for himself the local chief of police (VJ) had changed the wording of the will before having it registered; when registering the will one judge had unlawfully accepted the amendment to it; when the will had been proven another judge had unlawfully accepted that the chief of police could represent the surviving testator, although the latter had been legally incapacitated and should have been represented by a guardian ad litem; a third and a fourth judge had unlawfully rejected AJ’s, JK’s and MK’s actions of 1986 and 1990 for contesting the will and the manner in which it had been proven; and a subordinate of the chief of police (EH) eventually appointed guardian ad litem had unlawfully failed to safeguard his ward’s interests. Three officials lodged a criminal complaint against AJ, JK and MK. The public prosecutor brought charges in June 1991, accusing them of continued public defamation and false denunciation starting in April 1988. The Kajaani City Court (raastuvanoikeus, rådstuvurätten) held hearings on 3 June, 26 August and 7 and 18 October 1991 in this case and in five other cases, all having been joined. In the second case EJ charged AJ with various counts of defamation; in the third case AJ charged VJ and EH with slander etc.; in the fourth case AJ charged EJ with false denunciation; in the fifth case AJ, JK and MK charged VJ and EH with fraud etc.; and in the sixth case VJ charged AJ, JK and MK with false denunciation. On 31 October 1991 AJ, JK and MK were convicted, sentenced to conditional imprisonment and ordered to pay damages and costs. Their convictions comprised 25, 14 and 14 individualised counts, respectively, whereas their own charges were all rejected. The City Court found, inter alia, that the defendants must have known that the complainants had not committed the crimes imputed to them in a wide public context during a period of several years. The accusations had been particularly insulting towards the end of this period, even though it had been established in a number of decisions that the complainants had not committed unlawful acts or abused their respective positions. The accusations had been capable of subjecting the complainants to contempt or of impeding their careers. The Court of Appeal refused AJ’s, JK’s and MK’s request for a hearing or a remittal of the case. By judgment of 22 December 1992 the Court of Appeal acquitted them on certain counts but increased their respective sentences to seven months’, two months’ and four months’ conditional imprisonment. They were further ordered to pay an accessory fine in the respective amounts of FIM 11,760, FIM 1,320 and FIM 1,000. In July 1993 JK died. On 30 June 1995 the Supreme Court (justices P, T and others) refused leave to appeal. In July 1991 the Prosecuting Counsel of the Court of Appeal brought criminal proceedings against AJ, JK and MK for continued false denunciation of a former judge involved in the civil proceedings regarding the will. At an oral hearing on 29 April 1992 before the Court of Appeal as the first instance, the Prosecuting Counsel amended the indictment. The defendants contested the charges and later requested a re-hearing. On 10 November 1992 the Court of Appeal convicted all three defendants of continued public defamation committed in 1988-89 and sentenced them to a fine in the respective amounts of FIM 4,900, FIM 3,300 and FIM 2,500. They were also ordered to pay compensation for moral damage. The Court of Appeal found that the public accusations against the former judge had been capable of impeding his career as a member of the Bar. On 30 June 1995 the Supreme Court (justices P, T and others) struck out the charges against the deceased JK, quashed AJ’s and MK’s convictions in part and reduced their fines to FIM 2,940 and FIM 1,500. Meanwhile, in June 1993 AJ, JK and MK had brought a further civil action before the Kajaani District Court, contesting the will and the manner in which it had been registered. This action was also unsuccessful. The appeal of AJ, MK and JK’s successors was dismissed in May 1994. They were refused leave to appeal to the Supreme Court on 30 June 1995. On 30 June 1995 the Supreme Court also refused AJ’s, JK’s and MK’s further procedural complaint and annulment requests relating to the first set of criminal proceedings and some of the civil proceedings. In his memorandum the référendaire stated that in order to avoid bias the complaint and requests could not be presented to the panel of the Supreme Court which was dealing with the two criminal cases against AJ, JK and MK. | 0 |
dev | 001-4571 | ENG | NLD | ADMISSIBILITY | 1,999 | S.N. v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson;Josep Casadevall | The applicant is an Iranian national, born in Teheran in 1969 and, according to the most recent information contained in the file, living in the Netherlands. He is represented before the Court by Ms C. Fedee-Dreessen, a lawyer attached to the ‘s-Hertogenbosch Foundation for Legal Assistance to Asylum Seekers (Stichting Rechtsbijstand Asiel ‘s-Hertogenbosch) based in Eindhoven. The proceedings in question in the present case concern the applicant’s application for recognition of his refugee status in the Netherlands. The following is a summary of the proceedings: The applicant entered the Netherlands on 2 October 1994 on a valid Iranian passport bearing his own name. A photocopy of the passport was made by the immigration authorities before it was handed back to the applicant. The applicant applied for recognition of his refugee status (or in the alternative, a residence permit on humanitarian grounds) the following day. According to the report of the interrogation referred to in the following paragraph, the passport contained a Ukrainian visa. The applicant was interrogated (nader gehoor) by an official of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) of the Ministry of Justice on 10 October 1994. No lawyer or other assistant was present. The applicant spoke his own language, Farsi, and was assisted by an interpreter. The applicant stated that the Ukrainian visa had been arranged for him by an acquaintance called M. whose address he did not know. M. was an active member of the Mujahedin organisation, which is illegal in Iran, but the applicant was unable to state particulars on M.’s activities. After arriving at Amsterdam Airport the applicant had given his passport to an assistant of the person who had arranged his journey for him. He had not had to pay for his journey; M. had done that, apparently on the instructions of the Mujahedin. None of the applicant’s relatives – parents, siblings – had ever been in trouble with the Iranian authorities or with any organisations or groups in Iran. Neither had the applicant himself. The applicant claimed to be a member of the Mujahedin but held no membership card. His activities in Iran had consisted of writing “code-like slogans” (code-achtige leuzen) on walls, on the instructions of one H. who was his contact with the party. He was unable to explain the meaning of these code-like slogans. In addition, he had taken part in a demonstration in the town of Qazwin on 14 August 1994 aimed at obtaining provincial autonomy for that locality. This demonstration, in which 300 to 400 persons had participated, had been indirectly organised by the Mujahedin. It had resulted in the wrecking of a public building. The demonstration had been video taped. On 21 September 1994 the applicant’s contact H. had failed to turn up for an appointment and on 24 September 1994 the applicant had gone into hiding. The applicant had been warned by M. on 30 September 1994 that H. had been arrested and that his (the applicant’s) life would be in danger if H. mentioned him to the authorities. The applicant had been able to leave Iran on his own passport because M. had contacts who could influence the passport officials via the Mujahedin organisation. M. himself had come to Teheran airport to see the applicant off. The applicant stated that he had nothing further on which to base his request for recognition of his refugee status. He feared that, if returned to Iran, he would be imprisoned and made to tell the authorities everything he knew about the Mujahedin, after which he would be executed. The Mujahedin are an organisation outlawed in Iran. It follows a Communist ideology and is opposed to the present Iranian government. On 26 October 1994 the Deputy Minister of Justice gave a decision refusing the applicant’s applications. Firstly, he did not consider it credible that the applicant had ever been involved in the activities of the Mujahedin, given that he had never held a party card and was unable to explain the code-like slogans which he had allegedly written on walls. The applicant’s participation in the demonstration in Qazwin on 14 August 1994 was in itself not decisive, in view, especially, of the large number of participants and the fact that the applicant was not among its leaders. Secondly, the applicant had been able to return to his home and remain there in perfect safety at least until 24 September; if the Iranian authorities had wanted to prosecute him they would presumably have arrested him immediately. Thirdly, the applicant had left Iran travelling under his own name and on a valid passport which was checked by the authorities at his departure. In view of these circumstances the applicant’s application for recognition of his refugee status was manifestly ill-founded. Finally, no cogent reasons of a humanitarian nature to grant the applicant a residence permit had been suggested, nor were any such reasons apparent. The applicant lodged an objection (bezwaarschrift) to the Deputy Minister against this decision. In so far as it was directed against the refusal of recognition of his refugee status, against which no objection was possible, the applicant’s objection was transmitted to the Regional Court of The Hague to be dealt with on the basis that it constituted an appeal. The applicant also applied directly to the President of the Regional Court of The Hague for an interim measure consisting of a decision preventing his expulsion pending the further proceedings. A single-judge chamber of the Regional Court of The Hague, sitting in Haarlem, dealt with all three of the remedies instituted by the applicant – the objection against the refusal of a residence permit, the appeal against the refusal of recognition of his refugee status, and the application for an interim measure – together. A hearing was held on 19 September 1996. The applicant had not been expelled in the meanwhile. The Regional Court gave a decision on 11 October 1996. It held that the applicant’s story was not credible, and in so far as it was true, insufficient in any case to grant him recognition of his refugee status. The applicant was not able to provide any information at all about the Mujahedin – an organisation which, in any event, was active mostly outside Iran –, he had never even seen a party card and could not state whether other members had such a card or not, and he was unaware of the meaning of the slogans he had allegedly written on walls; on these grounds it was held unlikely that he had been a member of that organisation. Moreover, the slogans were allegedly intelligible only for a select group, and the applicant had never been arrested in connection with his activities. That H. might betray the applicant was no more than a supposition and had not been substantiated. In so far as the applicant’s fears were based on his participation in the demonstration in Qazwin, it was noted that the applicant had not been able to substantiate his allegation that the authorities were aware of it, and he had moreover not found it necessary to flee until 2 October 1994. He had, moreover, been able to remain at his own home all that time. The objection, the appeal and the application for an interim measure were therefore all dismissed. | 0 |
dev | 001-113335 | ENG | SVK | CHAMBER | 2,012 | CASE OF TRADE UNION OF THE POLICE IN THE SLOVAK REPUBLIC AND OTHERS v. SLOVAKIA | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 10 - (Art. 10) Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 5. The Trade Union of the Police in the Slovak Republic (the first applicant) is registered as a trade union of members of the Police Corps of the Slovak Republic. It is a legal person with its registered office in Bratislava. The application on its behalf was lodged by Mr M. Litva, the trade union’s president. Mr Štefan Dvorský (the second applicant) is a Slovak national who was born in 1960 and lives in Malacky. At the relevant time he was vice-president of the first applicant association. Mr Marián Magdoško (the third applicant) is a Slovak national who was born in 1962 and lives in Prešov. He is the first applicant’s vice-president. Mr Karol Michalčík (the fourth applicant) is a Slovak national who was born in 1953 and lives in Bratislava. He is a member of the first applicant association. 6. On 25 October 2005 the first applicant, of which nearly 9,000 policemen were members at that time, organised a public meeting in one of the main squares in Bratislava. Its aim was to protest against envisaged legislative amendments concerning the social security of policemen and their low remuneration. In its course the participants spontaneously shouted, inter alia, that the Government should step down. One of the banners displayed by the participants read “If the State doesn’t pay a policeman, the mafia will do so with pleasure”. 7. Subsequently the Minister of the Interior criticised the meeting and its organisers. He considered it to be an attempt to involve policemen in politics, in particular because of the slogan calling for the Government’s resignation, which he considered incompatible with the ethical code of the police. 8. Apart from the public statements described below, the Minister of the Interior, on 26 October 2005, removed Mr Litva, the president of the first applicant, from the post of director in the police force and assigned him to a different post as an ordinary policeman. At an extra-ordinary general meeting of the police joint health insurance company held on 3 November 2005, the third applicant was removed, upon a proposal by the Minister of the Interior, from the company’s supervisory board. The policeman who had carried the above-mentioned banner was summoned by the inspection service of the Ministry of the Interior and was asked to explain its content. 9. The applicants refer to the following public statements by the Minister of the Interior in particular. 10. In an article published on 28 October 2005 in the daily newspaper Sme the Minister of the Interior was quoted as saying that if anyone acted contrary to the ethical code of the police again they “would be dismissed”. 11. In an interview published in the same newspaper on 29 October 2005 the Minister stated that he did not challenge the policemen’s right to elect their trade union representatives. He expressed the view that, nevertheless, he was not obliged to negotiate with those representatives as they had lost credibility. 12. In a TV debate broadcast on 30 October 2005 the Minister of the Interior stated, among other things: “Mr Litva was demoted because he misled ... the public, those policemen whom he had lured out to the square ... Mr Litva was not demoted because of his opinion, but for having lied. He lied in that he called into question [the fact] that the Government had money at their disposal for increasing policemen’s salaries ... The Police Corps of the Slovak Republic is an armed security force. As such it must remain strictly apolitical. This means in practice, as article 3 of the ethical code of the police indicates, that when expressing his or her views in public a policeman must act in an impartial and reserved manner, so that there can be no doubt about his or her impartiality. Thus slogans calling for the Government’s resignation are in complete contradiction to that code ... I am telling you, it will not be possible for excesses like the ones at that meeting to reoccur in the future. This is what I guarantee to you. If a policeman behaves in such a way in the future, he or she will no longer be a policeman. I still proceeded in a particularly moderate manner in this case, where the sanction applied concerned Mr Litva exclusively.” 13. On 1 December 2005 the applicants lodged a complaint with the Constitutional Court. They alleged a breach of Articles 10 and 11 of the Convention and their constitutional equivalents. The applicants specifically referred to the above-mentioned statements of the Minister of the Interior which had been published in Sme on 28 and 29 October 2005 and to the statements he had made in context of the TV broadcast of 30 October 2005. 14. In particular, the applicants maintained that the Minister’s statements, when considered in the light of his powers in respect of the police, gave rise to a fear that members of the police force would be sanctioned for availing themselves of their freedoms of expression, assembly and association. There had been no breach of the Ethical Code of the police in the context of the public meeting organised by the first applicant. The Minister’s statements had been repressive, as he had indicated that he was not obliged to negotiate with the representatives of the first applicant. Those statements, accompanied by the transfer of the president of the first applicant to a different position, deterred the police from defending their rights through their trade union. 15. On 18 October 2007 the Constitutional Court found that the statements in question had not breached the applicants’ rights. 16. The judgment stated that the freedom of assembly and association under Article 11 of the Convention and the ILO Convention No. 98 extended exclusively to natural persons. The Minister’s statements complained of could not, therefore, amount to a breach of that freedom in respect of the first applicant. 17. The Constitutional Court considered that, in the context of the meeting held on 25 October 2005, the applicants had exercised their right to freedom of expression. At the same time the second, third and fourth applicants had exercised their right to freedom of association with others. They had done so freely and independently of the will of the Minister of the Interior. The Minister’s statements published in the media were to be understood as part of a dialogue between both parties, who had thus been given the opportunity to express their opinions and standpoints. 18. Admittedly, the Minister’s statements could be characterised as “bold and, from a certain point of view, capable of creating an atmosphere of fear”. However, their nature and intensity were not such as to amount to a breach of the freedoms in issue. 19. The Constitutional Court further held that the Minister of the Interior had been entitled to express his opinion on the situation within the ministry for which he was politically responsible. His statements represented an immediate reaction to ideas and views expressed at the meeting. Those statements had not interfered with the applicants’ rights in issue. They merely described a situation which might occur under specific circumstances. However, the Constitutional Court was exclusively entitled to examine complaints of breaches of rights which were based on facts that had actually occurred. 20. In a separate opinion to the decision on admissibility one of the constitutional judges expressed the view that the applicants’ complaint should have been rejected for their failure to use the other remedies available, namely, to seek redress by means of an action under the State Liability Act 2003. 21. Article 26 § 1 guarantees to everyone freedom of expression and the right to information. They can be restricted by law where it is necessary in a democratic society for the protection of rights and freedoms of others, the security of the State, public order or protection of health and morals (paragraph 3 of Article 26). 22. Article 37 § 1 provides that everybody has the right to free association with others for the protection of his or her economic and social interests. Paragraph 3 of Article 37 allows for restriction by law of the activities of trade unions and other associations where such measure is indispensable in a democratic society for the protection of State security, public order or the rights and freedoms of other persons. 23. Article 108 provides that the Government is the supreme body of the executive branch of power. Under Article 116 § 1, a member of the Government is responsible for the exercise of his or her function to the National Council of the Slovak Republic. 24. Section 11 provides that the Ministry of the Interior is the central State administration authority in charge of, inter alia, protection of the constitutional institutions, public order, security of persons and property and of the Police Corps. 25. Pursuant to section 1(1), the Police Corps fulfils duties in matters related to internal order, security and the fight against crime as well as duties resulting from the international obligations of the Slovak Republic. Its activity is controlled by the National Council of the Slovak Republic and the Government (section 1(2)). 26. Section 6(1) provides that the Police Corps is subordinated to the Minister of the Interior. 27. Law no. 73/1998 governs, inter alia, service in the Police Corps of the Slovak Republic. Section 35(2) entitles the Minister of the Interior to transfer a policeman from the position of a superior to a different position where it is in the significant interest of the service. The reasons for such a transfer need not be indicated. 28. Pursuant to section 225(1), trade unions ensure the protection of the rights and justified interests of policemen in accordance with the law. 29. Section 227(1) prohibits the dismissal of a policeman on account of his or her acting as an elected trade union representative. 30. Section 228 provides for co-operation between high-ranking police officers and trade unions. It includes providing information on the use of salary mass, respect for just remuneration, information on staff-related measures and provision of material and technical equipment free of charge to trade unions. 31. Section 229 provides for collective bargaining and collective agreements between the trade union bodies and police authorities concerned with a view to protecting the justified interests and needs of the members of the police corps. 32. Article 3 of the Ethical Code of Members of the Police Corps states that, when expressing their views in public, policemen should act in an impartial and reserved manner so that they do not give rise to doubts about their impartiality. 33. The relevant provisions of the ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and in force in respect of Slovakia since 1 January 1993) provide as follows: 3.(1) Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 3.(2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. 9.(1) The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.” 34. The ILO Convention No. 98 Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively has been in force in respect of Slovakia since 1 January 1993. The relevant provisions read as follows: 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to- (...) (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours. (...) 1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.” (...) 35. Resolution 690 (1979) of the Parliamentary Assembly of the Council of Europe includes the Declaration on the Police. Point 8 of part B of that declaration provides that membership of a police professional organisation and playing an active part therein shall not be detrimental to any police officer. 36. Recommendation of the Committee of Ministers to member States on the European Code of Police Ethics (Rec (2001) 10) was adopted on 19 September 2001. Part D concerns the rights of police personnel. Its relevant parts read as follows: “5. Police personnel shall be subject to the same legislation as ordinary citizens, and exceptions may only be justified for reasons of the proper performance of police work in a democratic society. (...) 12. The police shall be organised with a view to earning public respect as professional upholders of the law and providers of services to the public. (...) 31. Police staff shall as a rule enjoy the same civil and political rights as other citizens. Restrictions to these rights may only be made when they are necessary for the exercise of the functions of the police in a democratic society, in accordance with the law, and in conformity with the European Convention on Human Rights. 32. Police staff shall enjoy social and economic rights, as public servants, to the fullest extent possible. In particular, staff shall have the right to organise or to participate in representative organisations, to receive an appropriate remuneration and social security, ...” | 0 |
dev | 001-69910 | ENG | POL | ADMISSIBILITY | 2,005 | WASILEWSKI v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Adam Wasilewski, is a Polish national who was born in 1974 and lives in Brwinów. He is represented before the Court by Mr Marek Wasilewski, his father and legal guardian. The respondent Government are represented by Mr Jakub Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is physically handicapped and suffers from various mental disorders which originated from prenatal damage caused by his mother's car accident. On 15 April 1998 the applicant was arrested and charged with attempted extortion of money by threats. On 16 April 1998 the Pruszków District Court dismissed his appeal, finding that the arrest was justified and that his medical records did not indicate that his detention would be incompatible with his condition. On 17 April 1998 the Pruszków District Court decided to detain the applicant on remand until 14 July 1998. On 28 April 1998 the Warsaw Regional Court instructed the administration of the detention centre to set up a medical commission to examine the applicant, to assess whether the state of his health allowed him to remain in custody. The medical examination was eventually carried out on 1 July 1998. The commission concluded that the applicant could remain in a detention centre equipped with a psychiatric and neurological unit. On an unspecified date after 2 July 1998 the applicant was transferred to the detention centre Warszawa-Mokotów, which had a psychiatric clinic. On an unspecified date the applicant filed an appeal against the detention order, which was dismissed on 9 July 1998 by the Warsaw Regional Court. The court shared the arguments of the first instance court and found that the applicant was receiving specialist medical care. On 13 July 1998 the Pruszków District Court prolonged the applicant's detention until 14 October 1998. The applicant appealed. He also contended that, should the detention order be upheld, he should remain in a regular hospital and not in a detention centre. On 4 August 1998 the Warsaw Regional Court found that the detention was necessary as, in particular, a psychiatric report had been requested to establish whether the applicant could be held criminally responsible. It decided, however, that the extension given by the District Court was excessively long and ruled that the applicant should be detained until 14 September 1998. On 27 August 1998 the prosecutor conducting the investigation decided to place the applicant under psychiatric observation. This decision was upheld by a court upon the applicant's appeal. On 8 September 1998 the Pruszków District Court prolonged the applicant's detention until 14 October 1998. The applicant appealed. The Warsaw Regional Court dismissed his appeal on 8 October 1998. On the same date, the same court examined a fresh motion by the prosecutor and again prolonged the applicant's detention, until 31 December 1998. The bill of indictment in the applicant's case was lodged with the Pruszków District Court on 21 December 1998. The trial was set to commence on 26 January 1999. On 15 April 1999 the court decided that the applicant should be again examined by a team of three psychiatrists who would establish his condition tempore criminis. Their report was submitted on 20 October 1999. At the next hearing held on 3 December 1999 the court decided to conduct the trial ab initio, the composition of the court having changed. The court also ordered, upon the applicant's request, a new medical opinion as to whether his condition prevented him from participating in the proceedings. This opinion was submitted to the court on 17 April 2000. Apparently, no further hearings were held in 2000. On 6 December 2000 the court decided that it lacked jurisdiction to deal with the applicant's case. This decision was quashed, following the applicant's appeal, on 1 February 2001. The next hearings were held on 22 June, 4 September, 1 October and 14 November 2001. On 4 September 2001 the Pruszków District Court refused to transmit the case back to the prosecuting authorities for the investigations to be completed. The applicant appealed. On 11 December 2001 the Warsaw Regional Court quashed the decision of 4 September 2001 and ordered that the request to transmit the case for further investigations be re-examined. On 14 December 2001 the Pruszków District Court again turned this request down. By a judgment of 28 June 2002 the Pruszków District Court found the applicant guilty of an attempt to extort money by threats in collusion with other persons whose identity had not been established. The court sentenced the applicant to two years' imprisonment and stayed the execution of the sentence. The applicant appealed. On 3 November 2004 the Warsaw Regional Court quashed the first-instance judgment and ordered that the case be reconsidered. The case is currently pending. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: “1. Parties Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. | 0 |
dev | 001-97230 | ENG | FIN | CHAMBER | 2,010 | CASE OF RAITA v. FINLAND | 4 | Violation of Art. 6-1 | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1960 and lives in Wittenborn. 5. The applicant and his siblings inherited real property from their father. The property is situated in Piispankylä, Vantaa. At the time, a master plan (yleiskaava, generalplan) had been drawn up for the area but it had not reached the town planning stage. 6. On 17 June 1996 they sold the property for 210,000 Finnish marks (FIM) (some 35,420 euros) (EUR). The buyer was a company which was to be set up later and it was represented by the applicant. 7. On 26 August 1996 the city decided to use its first call on the property, since it had already negotiated the purchase of the surrounding properties and the purchase price was considered advantageous. 8. On 24 September 1996 the applicant challenged the city’s decision. 9. On 2 May 1997 the Uusimaa County Administrative Court (lääninoikeus, länsrätten) rejected his appeal, finding that pursuant to the Pre-emption Act (etuostolaki, förköpslagen; Act no. 608/1977) the city had a first call on the property since the sellers and the buyer were not close relatives (sections 1 and 5). It did not uphold the applicant’s argument that the pre-emption was manifestly unfair (section 6). 10. On 26 June 1997 the applicant appealed. On both parties’ request, the consideration of the case was postponed pending negotiations with a view to reaching a friendly settlement. 11. On 10 March 1999 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) rejected the appeal. 12. On 10 September 1999 the applicant lodged an extraordinary appeal, arguing that the parties had been taken by surprise by the decision of March 1999 since they had been given to understand that the proceedings would be stayed until a settlement was reached. 13. On 18 June 2001 the Supreme Administrative Court upheld the applicant’s appeal and annulled its earlier decision. Having examined the applicant’s procedural complaint, and since the case file contained clarifications which had not been available to the County Administrative Court when it took its decision on 2 May 1997, the case was referred back to the lower court. 14. The Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen, which had replaced the County Administrative Court), received the parties’ submissions, including, inter alia, a certificate according to which the property had a taxation value of FIM 611,776 in 1994 and an appraisal document according to which the property’s market value was FIM 2.5 million. Both documents were lodged by the applicant. The city contested the appraisal document’s relevance, arguing that it started from the wrong assumptions as to, inter alia, the size of the property and the planning situation. The city maintained that the purchase price, FIM 210,000, reflected the real value at the time of the purchase. The applicant also relied on a draft preliminary agreement (drawn up in 1998) between his father’s estate and the city of Vantaa, which stated an aggregate purchase price of FIM 3.36 million concerning the property in issue and another property. However, that price had been fixed on the understanding that the area would be the subject of town planning before the conclusion of the contract. 15. On 13 February 2002 the Administrative Court revoked the city’s decision. Although there was no evidence before it showing the market value of the property, it could however be concluded on the basis of an overall assessment of the case that the purchase price was below the market value. Having regard to the purchase price and the relationship between those who had signed the deed of sale, the court held that the pre-emption was manifestly unfair. It however rejected the applicant’s complaint that the city had failed to duly inform him of its decision to pre-empt (sections 9 and 10 of the Pre-emption Act). Having noted that the buyer was not the applicant but a company to be set up later, it also rejected his complaint that the city could not pre-empt the property as the sellers and the buyer were close relatives (sections 1, 5 and 21a). The fact that the deed of sale had subsequently been altered to the effect that the applicant stated that he had taken the place of the company did not detract from this position. The alteration had been made only on 24 June 1997, that is, after the lower court had rejected the applicant’s appeal. 16. The city appealed, arguing that the taxation value of 1994 had no relevance to the case as the taxation value did not follow the fluctuations in the economic situation of the country or the demand for real property at a given time. It was to be noted that during the period from 1993 to 1997 real property prices had dipped to one third of what they had been in 1990 and 1991 and that the taxation value was confirmed periodically and did not therefore reflect the situation in 1997. The city also argued that no relevance could be given to the relationship between those who had signed the deed of sale. 17. The applicant replied to the appeal, arguing that the market value was considerably higher than the taxation value. Furthermore, there had been no intention on the part of his family to sell the property to an outsider. He also argued that, following the entry into force of the Real Property Code (maakaari, jordabalken; Act no. 540/1995), on 1 January 1997, he was to be considered the owner under Chapter 2, section 4 since no company had been established. 18. Pursuant to the practice in the Supreme Administrative Court, it invited the city’s submissions in reply. The city argued (submission dated 12 August 2003) that the property’s taxation value had dropped as follows: in 1996 to FIM 428,000; in 1997-2001 to FIM 250,000-270,000 and in 2003 to FIM 323,400. Furthermore, the fluctuations in the market value were reflected in the taxation value with a delay of several years. The drop in the relevant property’s value followed the general price development. The city maintained that in considering whether the conditions for pre-emption were met at the time of the purchase in 1996, no relevance could be given to facts occurring thereafter. It also noted that no town plan had yet been drawn up. 19. On 4 November 2004 the Supreme Administrative Court overturned the lower court’s decision. Referring to the Government Bill on the enactment of the Pre-emption Act and on subsequent amendments thereto, the court noted that the aim of the said Act was, inter alia, to slow the increase in value of real property and to reduce the number of cases in which the parties to the purchase, in order to evade tax, did not state the full price in the deed of sale. It also noted that a considerably lower price than the market value could be relevant to the assessment of whether the conditions for pre-emption were fulfilled. The purchase price had, however, to be assessed in the light of the situation on the real estate market and the planning of the area at the time of the pre-emption. The court considered that the taxation value as such did not attest the property’s market value and that the afore-mentioned appraisal document and draft preliminary agreement were in part based on wrong assumptions. It noted that no town plan had been drawn up and that the property consisted of vacant land, whose price was affected by the advantageous location as to traffic communication and the expectations as regards future lucrative use of the property. The assessment of the value, however, could not have been based on the price of the permitted building volume expected to be allocated by a town plan. 20. The Supreme Administrative Court considered that in assessing whether the pre-emption was manifestly unfair, the purchase price had to be considered in relation to the prevailing planning and real property market situation at the time of the pre-emption. The court found that no credible and undisputed evidence as to the relationship between the purchase price and the market value had been presented. It could not be concluded that the purchase price had been considerably lower than the market value simply on the basis of the location of the property and the existence of a master plan which lacked legal effect. Furthermore, manifest unfairness within the meaning of section 6 of the Pre-emption Act could not arise solely from an advantageous purchase price. Nor was a court required to make precise comparisons of purchase prices. The Supreme Administrative Court concluded that the use of the city’s first call on the property was not manifestly unfair, having regard in addition to the content of section 6 and the aim of the Pre-emption Act, as explained in the travaux préparatoires, to improve the land situation of the municipality by guaranteeing the availability of vacant land to be used for building purposes and for forwarding, to check real property speculation and to reduce the number of cases in which, in order to evade tax, the full price was not stated in the deed of sale. The court also noted that there was no evidence to the effect that the parties to the purchase had a special bond with the property in question. As to the other complaints raised by the applicant, it confirmed the lower court’s view. The decision ran to 21 pages, of which 9 pages contained reasons. 21. On 3 May 2005 the applicant lodged an extraordinary appeal with the Supreme Administrative Court claiming, inter alia, that the court had not invited his submissions in reply to the city’s second set of representations of 12 August 2003. 22. In its decision of 14 December 2006 the Supreme Administrative Court noted that the city’s above-mentioned second set of representations had not been sent to the applicant for comment. Nor had he received them for information, which was the practice in the Supreme Administrative Court. The applicant had received the second set of representations after the decision of 4 November 2004 and he had been given an opportunity to comment on them during the extraordinary proceedings. Bearing in mind that the applicant had already been able to express his views in two sets of proceedings before the Administrative Court and the Supreme Administrative Court, and that the representations had not affected its decision of 4 November 2004 in such a way that the case should be reopened, the court rejected the applicant’s extraordinary appeal. | 1 |
dev | 001-83482 | ENG | GBR | CHAMBER | 2,007 | CASE OF MCGRATH v. THE UNITED KINGDOM | 2 | Violation of Art. 2 (lack of independence of the investigating body during the initial stages of the investigation);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Josep Casadevall;Nicolas Bratza | 6. The applicant was born in 1922 and lives in Granemore, County Armagh. 7. At about 10.40 p.m., shortly after closing time, on 6 June 1976, a police officer in the Royal Ulster Constabulary (“RUC”) drove a car, stolen by RUC Reserve Constable Laurence McClure, up to the Rock Bar, a public house. The applicant was leaving the bar at that time. He was shot twice in the stomach by McClure, who then placed a 10lb gelignite bomb against the door of the pub. The detonator exploded but the bomb failed to explode. At the later trial a reserve police constable, William McCaughey, stated that shots were fired by his companions at the injured man on the ground and then he fired a number of shots through the window of the bar. Bullet strike marks were later found around the darts board inside the bar, where there had been seventeen people. No-one else was physically injured. 8. The applicant was taken to hospital in an ambulance and police attended the scene, sealing off the area while an army technical officer examined the explosive device and ensured that it was in a safe condition. A Scene of Crime Officer examined the scene, took possession of material associated with the bomb and a gun recovered from a burnt out car found approximately one mile away, which police linked to the attack. Photographs of the bar were taken and maps prepared. 9. The investigation did not close and became active again in 1978, when a Catholic priest Father Hugh Murphy was abducted by loyalist paramilitaries intending to use him as a hostage vis-à-vis the IRA. In the course of the investigation, the police arrested McCaughey, who, in the course of questioning, revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents. McCaughey made allegations incriminating himself and police officer McClure in respect of the Rock Bar attack. McClure was arrested and admitted involvement. Two further serving police officers, Ian Mitchell and David Wilson, also admitted involvement in, or prior knowledge of, the attack on the bar. McCaughey admitted firing the shot which wounded the applicant. 10. The applicant was aware that charges were pending against four police officers. He had been contacted by the police in April 1980 and summoned to appear in Belfast Crown Court on 23 April 1980. He was subsequently advised of various date changes and then that the case was postponed and that he would be contacted. In fact the hearing took place on 30 June 1980. The applicant had not been informed and learned about the outcome on the radio. 11. Three men, McCaughey, McClure and Mitchell, faced charges of attempted murder of the applicant, wounding the applicant with intent contrary to section 18 of the Offences against the Persons Act 1961, attempted murder of the persons inside the bar, causing an explosion contrary to section 2 of the Explosives Substances Act 1883, possession of explosive substances with intent to endanger life or cause serious injury and possession of firearms and ammunition with intent. The three officers pleaded not guilty to the charges of attempted murder; McClure and Mitchell pleaded not guilty to wounding the applicant. The Director of Public Prosecutions (“the DPP”) entered a nolle prosequi in respect of those charges which accordingly were not proceeded with. No reasons were given for this decision. The only person facing a charge concerning the applicant was McCaughey, who received a term of seven years for wounding him. McClure was sentenced to two years' imprisonment for causing an explosion, possession of an explosive substance with intent and possession of firearms and ammunition with intent, all sentences suspended for three years. Another RUC officer, David Wilson, was charged with withholding information contrary to section 5(1) of the Criminal Law (Northern Ireland) Act 1967, based on the fact that he had been aware of the attack beforehand and had not taken any steps to prevent it. 12. With the exception of McCaughey, the other officers received suspended prison terms. In sentencing, Lord Lowry stated inter alia: “... It does not seem realistic to believe that after all that they have endured – some with their careers in ruins, others with their careers in jeopardy- that they require much by way of deterrent or by way of reform, and no proper sentence which I pass will make an impression on terrorists while other members of the police force are no doubt already embarrassed, sufficiently embarrassed and shocked by what has happened in these cases and been seen to happen to their colleagues. ... I must remember that whatever sentence is just it would follow that it would be imposed on a different and lower scale from that appropriate to terrorists, no matter whichever side, whose aim is to achieve their political ends by violence and to attack the very fabric of society.” 13. It had been advanced by the defence and accepted by the trial judge that McCaughey had only aimed to shoot the applicant in the legs and had done so. 14. McClure had also been facing charges in relation to his involvement in the attack on Donnelly's Bar, Silverbridge, in 1975 in which three people had been killed (see application no. 32457/04, Brecknell v. the United Kingdom). These charges were later dropped. 15. In the course of the investigation in 1978, McCaughey made revelations giving rise to investigations in eleven specific cases, some of which were linked in terms of the identities of those involved, the modus operandi or by virtue of the ballistic examinations of weapons used. Nine suspects were arrested in total, including five police officers, and all were eventually charged with offences. 16. One of those implicated was a police officer John Weir who was named as having been involved in the murder of a shopkeeper called Strathearn in Ahoghill in April 1977: he was convicted for that murder in June 1980 and sentenced to life imprisonment. The Government stated that both McCaughey and Weir refused to name the two loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution. The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with Weir and McCaughey. While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries, each again refused to do so unless there was something in it for themselves. The Government stated that during the period in which Weir was detained he was interviewed on a large number of occasions. At no time did he implicate himself or others in any offence other than the Strathearn murder. 17. On 1 February 1993 John Weir was released from prison on licence. In January 1999, he made a statement to a journalist alleging RUC and Ulster Defence Regiment ("UDR") collusion with loyalist paramilitaries from the Portadown area in the mid-1970s. This statement was published in the Sunday Times newspaper in March 1999. It was obtained by the Patrick Finucane Centre, a human rights non-governmental organisation in Derry (“the Centre”). 18. John Weir's statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents. He alleged inter alia that RUC Reserve Constable Laurence McClure had told him that the murder of the Reavey family members was carried out by Robert McConnell, a member of the UDR, Laurence McClure, Johnny Mitchell, another Reserve Constable in the RUC and McClure's brother who was not a member of the security forces. The statement also made links between this incident and other attacks allegedly carried out by members of the security forces, both RUC and UDR, and loyalist paramilitaries. This group used the farmhouse in Glennane owned by James Mitchell, a RUC reservist, as a base from which to carry out attacks on Catholics and nationalists. Other attacks allegedly included the murder of Colm McCartney and Sean Farmer at a bogus vehicle checkpoint in August 1975 (see application no. 34575/04); the attack on Donnelly's Bar in which Trevor Brecknell, Michael Donnelly and Patrick Donnelly were killed (see application no. 32457/04); and the murder of Joseph, Barry and Declan O'Dowd and wounding of Barney O'Dowd (see application no. 34622/04). Weir also linked these attacks to the Dublin and Monaghan bombings in which 33 people were killed in the Republic of Ireland. 19. On or about 10 June 1999, RTE, an Irish television channel, broadcast a television programme that contained allegations of security force involvement in a number of deaths, including that of Trevor Brecknell. Weir made allegations on that programme that members of the RUC and UDR were directly involved in the attack on Donnelly's Bar. A BBC Spotlight programme produced a similar documentary dealing with these allegations. 20. These allegations attracted considerable attention on both sides of the Irish border and became the subject of police investigation in both jurisdictions. The Government stated that the police investigation in Northern Ireland was focussed on determining whether Weir's allegations should be assessed as sufficiently credible to require a full investigation. They obtained from the journalist an edited transcript of the interview with Weir. While his whereabouts were unknown to the RUC, Weir met with senior Irish police officers at the Irish Embassy on 15 April 1999. A copy of his statement was provided by the Garda to the RUC, along with a further statement made by Weir to another journalist dated 3 February 1999. The police analysed the available materials and sought to identify the personalities to be interviewed. It became apparent that some had died and that others, living abroad, could not be traced. A series of seven interviews were conducted, under cautions, between July and December 2001, of those individuals central to Weir's account who could be traced. No charges were preferred. The interviews followed the format of Weir's allegations being put to the interviewee for his or her response. The predominant response was denial of any involvement and claims that Weir had been untruthful. No admissions were made by any interviewee. Interviews were also conducted with less central personalities and with police officers involved in interviewing Weir in 1978. The latter stated that Weir had not mentioned the matters now being alleged. 21. Meetings were held regularly with RUC counterparts in the Republic of Ireland. The RUC co-operated also with the judicial inquiry established in the Republic of Ireland into the Dublin and Monaghan bombings (see the description of the inquiry in the case of Brecknell referred to above). Amongst matters about which the RUC team provided information to the inquiry was ballistics information which linked some of the weapons used to more than one incident. In February 2000 a substantial report was compiled by the RUC for the Garda dealing with Weir's allegations. It profiled Weir and dealt inter alia with a description of the 1978 investigation into McCaughey, Weir and others. It concluded that the investigation would continue but that his credibility was in doubt. According to the Government, despite inquiries being conducted, Weir's whereabouts could not be traced. This report was not disclosed as the investigation was continuing. An internal RUC report dated 27 February 2001 concluded that it would be necessary to interview Weir before any view could be finalised in respect of the credibility of his allegations: such interview was not possible as his whereabouts were not known. The report noted the absence of any previous mention of the allegations before 1999 and that much of what he said was hearsay and speculation. Enquiries made of the British Embassy in Nigeria (where he had a known address) and the criminal intelligence service and others failed to locate Weir. Contact was made with the Garda and the secretariat of the Inquiry into the Dublin and Monaghan bombings without positive result. 22. The Serious Crime Review Team (“SCRT”) was established in March 2004, with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities. 23. Unlike the other case (Brecknell, Reavey, O'Dowd and McCartney, cited above), the Rock Bar case was not referred to the SCRT. This was because it was not a murder case and there had been four convictions. Nonetheless because of connections with other cases, the case was also referred to the Historical Enquiry Team (HET). The HET director of Investigations, Detective Chief Superintendent James of the London Metropolitan Police Force, took over personal supervision of the investigation which has progressed through the first three of five stages of the HET process (collection of all relevant material; assessment of the investigations to date; review of evidence, with intelligence and open and non-police sources, together with a meeting with the families of the victims of the attack). As a number of investigative opportunities were identified and to be followed up, the case was to continue to be processed by HET, which had been put in touch with Weir by the Centre. The Government submitted that if any evidence of police involvement in the murders was found, the Office of the Police Ombudsman for Northern Ireland would then become involved. The Government have provided recent information that Weir finally agreed to meet with the HET in Dublin; he refused, however, to make a written statement or to give evidence in court. There has been contact between the police and the applicant, as well as with the Centre acting on behalf of a number of concerned families. In particular, there were meetings in September 2002 with Detective Chief Inspector Paterson, and a meeting with the Chief Constable in June and August 2004; in May 2006, Detective Chief Superintendent James met the applicant together with the person who owned the bar at the time; and there has also been extensive correspondence with the families or their representatives. See Brecknell, cited above (§§ 39-41). See Brecknell, cited above (§§ 42-49). | 1 |
dev | 001-59470 | ENG | FRA | CHAMBER | 2,001 | CASE OF BAUMANN v. FRANCE | 1 | Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine P1-1;Violation of P4-2 | Nicolas Bratza | 8. On 27 November 1993 Strasbourg police officers spotted an occupied vehicle parked in a car park. It turned out that the vehicle had been stolen the previous day in Strasbourg. The investigators proceeded to arrest O.H., who had come to take delivery of the stolen vehicle, and S.B, who had handled it. The on-the-spot investigation established that other transactions had taken place and that the two arrested men used to meet in a hotel in Brumath (Bas-Rhin). The police officers went to the hotel where they arrested O.H.'s wife and Miss C.E while the latter was about to get into a vehicle belonging to the applicant. 9. When questioned at the hotel C.E. stated that her boyfriend, the applicant, had been staying at the hotel for some time, but had been taken into hospital in Germany on 26 November 1993 because his health had given cause for alarm. 10. Their hotel room was searched. The investigators seized a German passport in the applicant's name, 7,700 German marks (DEM) and 2,150 French francs (FRF) found in C.E.'s handbag, bank documents, a vehicle registration certificate and various hand-written documents. Those items were sealed and deposited at the consignment of exhibits department at the Strasbourg tribunal de grande instance. 11. After her release from police custody no court proceedings were brought against C.E. None were brought against the applicant either. 12. On 30 November 1993 O.H. and S.B were charged by an investigating judge of the Strasbourg tribunal de grande instance. 13. The applicant's lawyer lodged an application under Article 99 of the Code of Criminal Procedure on 6 December 1993, registered at the investigating judge's office on 8 December 1993, requesting the investigating judge to return the money and other seized items, including the passport. He received no reply from the investigating judge. 14. On 5 January 1994 the applicant was arrested by the criminal police of Pirmasens (Germany) and convicted by a criminal court in Landau. Since then he has since been imprisoned in Zweibrücken Prison, where he is due to remain until 4 March 2006. 15. O.H. and S.B. were committed for trial at the Strasbourg Criminal Court where they were tried and convicted on 13 June 1994 without the applicant or his girlfriend having been informed. The applicant could not therefore lodge an application for the return of his possessions with the criminal court trying the case. 16. On 14 September 1994 the applicant's lawyer renewed his request to the investigating judge of 6 December 1993. He received no reply. 17. On 28 October 1994 the applicant's lawyer lodged an application with the public prosecutor under Article 41-1 of the Code of Criminal Procedure for the return of the DEM 7,700, the bank statements and a rechargeable mobile-telephone battery. 18. On 7 November 1994 the public prosecutor refused his application on the ground that the items had been confiscated by order of the Criminal Court in its judgment of 13 June 1994 in the proceedings against O.H. and S.B. In his reply the public prosecutor referred to the application lodged with the investigating judge on 6 December 1993 and renewed on 14 September 1994. 19. On 6 January 1995 the applicant's lawyer lodged an application with the Sixth Criminal Division of the Strasbourg tribunal de grande instance under Article 710 of the Code of Criminal Procedure for the return of the seized items. The application, which just bore the stamp of the Strasbourg public prosecutor's office, dated 6 January 1995, concerned the applicant's passport, the DEM 7,700, the bank statements and the rechargeable mobile-telephone battery. 20. On 6 February 1995 the public prosecutor replied to that application as follows: “Despite my letter of 7 November 1994 advising you that nothing could be returned to Mr Baumann on any grounds whatsoever because the court had ordered confiscation of the sealed items, you persist in wishing to obtain a hearing in connection with the sealed items in question. I regret to have to repeat myself in pointing out that the judgment dated 9 May 1994 has become res judicata and that Article 710 of the Code of Criminal Procedure does not provide for the reopening of proceedings terminated by a confiscation decision which has become final. Article 710 of the Code of Criminal Procedure is reserved for interlocutory applications relating to the execution of a decision and not disputes about the penalties imposed. The court in question did not have any power to reconsider a measure which had become res judicata. ...” 21. In a letter of 12 February 1996 C.E. requested the public prosecutor to return the seized DEM 7,700 and FRF 2,150 on the ground that the money belonged to her and that she was not in any way involved in the criminal proceedings. In a letter of 29 April 1996 she renewed her request, stating among other things: “my ex-boyfriend has put me in a difficult position which has seriously changed my life ... I have incurred debts because of him ... it is very important for me to recover my money...” 22. The relevant provisions of the Code of Criminal Procedure provide: ... “Where the nature of the crime is such that it can be proved by seizing papers, documents or other objects in the possession of persons who appear to have participated in the crime or to hold documents or objects relating to the offence, a senior police officer shall immediately go to their place of residence where he shall search the premises and draw up a search report. He alone, together with the persons listed in Article 57 and those to whom he may refer under Article 60, shall have power to examine papers or documents before seizing them. However, he must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected. An inventory shall be made immediately of all seized objects and documents which shall then be placed under seal. Where an on-the-spot inventory presents difficulties, the items shall be provisionally sealed until an inventory of them can be made and they can be definitively sealed, which shall be done in the presence of the persons present during the search in accordance with the conditions laid down in Article 57. With the agreement of the public prosecutor, the senior police officer shall retain only those objects and documents necessary for establishing the truth.” ... | 1 |
dev | 001-105612 | ENG | GBR | GRANDCHAMBER | 2,011 | CASE OF AL-JEDDA v. THE UNITED KINGDOM | 1 | Violation of Art. 5-1;Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Luis López Guerra;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen | 8. The facts of the case may be summarised as follows. 9. The applicant was born in Iraq in 1957. He played for the Iraqi basketball team until, following his refusal to join the Ba’ath Party, he left Iraq in 1978 and lived in the United Arab Emirates and Pakistan. He moved to the United Kingdom in 1992, where he made a claim for asylum and was granted indefinite leave to remain. He was granted British nationality in June 2000. 10. In September 2004 the applicant and his four eldest children travelled from London to Iraq, via Dubai. He was arrested and questioned in Dubai by United Arab Emirates intelligence officers, who released him after twelve hours, permitting him and his children to continue their journey to Iraq, where they arrived on 28 September 2004. On 10 October 2004 United States soldiers, apparently acting on information provided by the British intelligence services, arrested the applicant at his sister’s house in Baghdad. He was taken to Basra in a British military aircraft and then to the Sha’aibah Divisional Temporary Detention Facility in Basra City, a detention centre run by British forces. He was held in internment there until 30 December 2007. 11. The applicant was held on the basis that his internment was necessary for imperative reasons of security in Iraq. He was believed by the British authorities to have been personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against Coalition Forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high-tech detonation equipment into Iraq for use in attacks against Coalition Forces. No criminal charges were brought against him. 12. The applicant’s internment was initially authorised by the senior officer in the detention facility. Reviews were conducted seven days and twenty-eight days later by the Divisional Internment Review Committee (DIRC). This comprised the senior officer in the detention facility and army legal and military personnel. Owing to the sensitivity of the intelligence material upon which the applicant’s arrest and detention had been based, only two members of the DIRC were permitted to examine it. Their recommendations were passed to the Commander of the Coalition’s Multinational Division (South-East) (“the Commander”), who himself examined the intelligence file on the applicant and took the decision to continue the internment. Between January and July 2005 a monthly review was carried out by the Commander, on the basis of the recommendations of the DIRC. Between July 2005 and December 2007 the decision to intern the applicant was taken by the DIRC itself, which, during this period, included as members the Commander together with members of the legal, intelligence and other army staffs. There was no procedure for disclosure of evidence or for an oral hearing, but representations could be made by the internee in writing which were considered by the legal branch and put before the DIRC for consideration. The two Commanders who authorised the applicant’s internment in 2005 and 2006 gave evidence to the domestic courts that there was a substantial weight of intelligence material indicating that there were reasonable grounds for suspecting the applicant of the matters alleged against him. 13. When the applicant had been detained for eighteen months, the internment fell to be reviewed by the Joint Detention Committee (JDC). This body included senior representatives of the Multinational Force, the Iraqi interim government and the ambassador for the United Kingdom. It met once and thereafter delegated powers to a Joint Detention Review Committee, which comprised Iraqi representatives and officers from the Multinational Force. 14. On 14 December 2007 the Secretary of State signed an order depriving the applicant of British citizenship, on the ground that it was conducive to the public good. The Secretary of State claimed, inter alia, that the applicant had connections with violent Islamist groups, in Iraq and elsewhere, and had been responsible for recruiting terrorists outside Iraq and facilitating their travel and the smuggling of bomb parts into Iraq. 15. The applicant was released from internment on 30 December 2007 and travelled to Turkey. He appealed against the deprivation of his British citizenship. On 7 April 2009 the Special Immigration Appeals Commission dismissed his appeal, having heard both open and closed evidence, during a hearing where the applicant was represented by special advocates (see, further, A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 91-93, ECHR 2009). The Special Immigration Appeals Commission held that, for reasons set out in detail in a closed judgment, it was satisfied on the balance of probabilities that the Secretary of State had proved that the applicant had facilitated the travel to Iraq of a terrorist explosives expert and conspired with him to smuggle explosives into Iraq and to conduct improvised explosive device attacks against Coalition Forces around Fallujah and Baghdad. The applicant did not appeal against the judgment. 16. On 8 June 2005 the applicant brought a judicial review claim in the United Kingdom, challenging the lawfulness of his continued detention and also the refusal of the Secretary of State for Defence to return him to the United Kingdom. The Secretary of State accepted that the applicant’s detention within a British military facility brought him within the jurisdiction of the United Kingdom under Article 1 of the Convention. He also accepted that the detention did not fall within any of the permitted cases set out in Article 5 § 1 of the Convention. However, the Secretary of State contended that Article 5 § 1 did not apply to the applicant because his detention was authorised by United Nations Security Council Resolution 1546 (see paragraph 35 below) and that, as a matter of international law, the effect of the Resolution was to displace Article 5 § 1. He also denied that his refusal to return the applicant to the United Kingdom was unreasonable. It was argued on behalf of the applicant that Article 103 of the Charter of the United Nations (see paragraph 46 below) had no application since, inter alia, Resolution 1546 placed no obligation on the United Kingdom and/or since the Charter of the United Nations placed an obligation on member States to protect human rights. 17. Both the Divisional Court in its judgment of 12 August 2005 and the Court of Appeal in its judgment of 29 March 2006 unanimously held that United Nations Security Council Resolution 1546 explicitly authorised the Multinational Force to take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the annexed letter from the US Secretary of State. By the practice of the member States of the United Nations, a State which acted under such an authority was treated as having agreed to carry out the Resolution for the purposes of Article 25 of the Charter of the United Nations and as being bound by it for the purposes of Article 103 (see paragraph 46 below). The United Kingdom’s obligation under Resolution 1546 therefore took precedence over its obligations under the Convention. The Court of Appeal also held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995, since the applicant was detained in Iraq, the law governing his claim for damages for false imprisonment was Iraqi law (see R. (on the application of Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin); [2006] EWCA Civ 327) 18. The applicant appealed to the House of Lords (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: see R. (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) [2007] UKHL 58, 12 December 2007). The Secretary of State raised a new argument before the House of Lords, claiming that by virtue of United Nations Security Council Resolutions 1511 and 1546 the detention of the applicant was attributable to the United Nations and was thus outside the scope of the Convention. Lord Bingham introduced the attribution issue as follows: “5. It was common ground between the parties that the governing principle is that expressed by the International Law Commission in Article 5 of its Draft Articles on the Responsibility of International Organisations ...” He referred to the Court’s reasoning in Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007) (hereinafter “Behrami and Saramati”) and to the factual situation in Iraq at the relevant time and continued: “22. Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative. 23. The UN did not dispatch the Coalition Forces to Iraq. The CPA [Coalition Provisional Authority] was established by the Coalition States, notably the US, not the UN. When the Coalition States became Occupying Powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House [of Lords] as one of those considered in R. (Al-Skeini and Others) v. Secretary of State for Defence) (The Redress Trust intervening) [2007] UKHL 26, [2007] 3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR [United Nations Security Council Resolution] 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the Multinational Force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in paragraph 43 of its judgment in Behrami and Saramati) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant. 24. The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK [United Nations Interim Administration Mission in Kosovo] a subsidiary organ of the UN. The Multinational Force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so. 25. I would resolve this first issue in favour of the appellant and against the Secretary of State.” Baroness Hale observed in this connection: “124. ... I agree with [Lord Bingham] that the analogy with the situation in Kosovo breaks down at almost every point. The United Nations made submissions to the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway ... concerning the respective roles of UNMIK [United Nations Interim Administration Mission in Kosovo] and KFOR [NATO-led Kosovo Force] in clearing mines, which was the subject of the Behrami [and Saramati] case. It did not deny that these were UN operations for which the UN might be responsible. It seems to me unlikely in the extreme that the United Nations would accept that the acts of the [Multinational Force] were in any way attributable to the UN. My noble and learned friend, Lord Brown of Eaton-under-Heywood, has put his finger on the essential distinction. The UN’s own role in Iraq was completely different from its role in Kosovo. Its concern in Iraq was for the protection of human rights and the observance of humanitarian law as well [as] to protect its own humanitarian operations there. It looked to others to restore the peace and security which had broken down in the aftermath of events for which those others were responsible.” Lord Carswell similarly agreed with Lord Bingham on this issue (§ 131). Lord Brown also distinguished the situation in Kosovo from that in Iraq, as follows: “145. To my mind it follows that any material distinction between the two cases must be found ... in the very circumstances in which the [Multinational Force] came to be authorised and mandated in the first place. The delegation to KFOR [NATO-led Kosovo Force] of the UN’s function of maintaining security was, the Court observed [in Behrami and Saramati], ‘neither presumed nor implicit but rather prior and explicit in the Resolution itself’. Resolution 1244 decided (paragraph 5) ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’ – the civil presence being UNMIK [United Nations Interim Administration Mission in Kosovo], recognised by the Court in Behrami [and Saramati] (paragraph 142) as ‘a subsidiary organ of the UN’; the security presence being KFOR. KFOR was, therefore, expressly formed under UN auspices. Paragraph 7 of the Resolution ‘[a]uthorise[d] member States and relevant international organisations to establish the international security presence in Kosovo as set out in point 4 of Annex 2 ...’. Point 4 of Annex 2 stated: ‘The international security presence with substantial NATO participation must be deployed under unified command and control and authorised to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees.’ 146. Resolution 1511, by contrast, was adopted on 16 October 2003 during the USA’s and UK’s post-combat occupation of Iraq and in effect gave recognition to those occupying forces as an existing security presence. ... ... 148. Nor did the position change when Resolution 1546 was adopted on 8 June 2004, three weeks before the end of the occupation and the transfer of authority from the CPA [Coalition Provisional Authority] to the interim government of Iraq on 28 June 2004. ... Nothing either in the Resolution [1546] itself or in the letters annexed suggested for a moment that the [Multinational Force] had been under or was now being transferred to United Nations authority and control. True, the [Security Council] was acting throughout under Chapter VII of the Charter [of the United Nations]. But it does not follow that the UN is therefore to be regarded as having assumed ultimate authority or control over the Force. The precise meaning of the term ‘ultimate authority and control’ I have found somewhat elusive. But it cannot automatically vest or remain in the UN every time there is an authorisation of UN powers under Chapter VII, else much of the analysis in Behrami [and Saramati] would be mere surplusage.” 19. Lord Rodger dissented on this point. He found that the legal basis on which the members of the NATO-led Kosovo Force (KFOR) were operating in Kosovo could not be distinguished from that on which British forces in the Multinational Force were operating during the period of the applicant’s internment. He explained his views as follows: “59. There is an obvious difference between the factual position in Kosovo that lay behind the Behrami [and Saramati] case and the factual position in Iraq that lies behind the present case. The forces making up KFOR went into Kosovo, for the first time, as members of KFOR and in terms of Security Council Resolution 1244. By contrast, the Coalition Forces were in Iraq and, indeed, in occupation of Iraq, for about six months before the Security Council adopted Resolution 1511, authorising the creation of the [Multinational Force], on 16 October 2003. ... 61. It respectfully appears to me that the mere fact that Resolution 1244 was adopted before the forces making up KFOR entered Kosovo was legally irrelevant to the issue in Behrami [and Saramati]. What mattered was that Resolution 1244 had been adopted before the French members of KFOR detained Mr Saramati. So the Resolution regulated the legal position at the time of his detention. Equally, in the present case, the fact that the British and other Coalition Forces were in Iraq long before Resolution 1546 was adopted is legally irrelevant for present purposes. What matters is that Resolution 1546 was adopted before the British forces detained the appellant and so it regulated the legal position at that time. As renewed, the provisions of that Resolution have continued to do so ever since. ... 87. If one compares the terms of Resolution 1244 and Resolution 1511, for present purposes there appears to be no relevant legal difference between the two Forces. Of course, in the case of Kosovo, there was no civil administration and there were no bodies of troops already assembled in Kosovo whom the Security Council could authorise to assume the necessary responsibilities. In paragraph 5 of Resolution 1244 the Security Council accordingly decided ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’. Because there were no suitable troops on the ground, in paragraph 7 of Resolution 1244 the Council had actually to authorise the establishing of the international security presence and then to authorise it to carry out various responsibilities. 88. By contrast, in October 2003, in Iraq there were already forces in place, especially American and British forces, whom the Security Council could authorise to assume the necessary responsibilities. So it did not need to authorise the establishment of the [Multinational Force]. In paragraph 13 the Council simply authorised ‘a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq’ – thereby proceeding on the basis that there would indeed be a Multinational Force under unified command. In paragraph 14 the Council urged member States to contribute forces to the [Multinational Force]. Absolutely crucially, however, in paragraph 13 it spelled out the mandate which it was giving to the [Multinational Force]. By ‘authorising’ the [Multinational Force] to take the measures required to fulfil its ‘mandate’, the Council was asserting and exercising control over the [Multinational Force] and was prescribing the mission that it was to carry out. The authorisation and mandate were to apply to all members of the [Multinational Force] – the British and American, of course, but also those from member States who responded to the Council’s call to contribute forces to the [Multinational Force]. The intention must have been that all would be in the same legal position. This confirms that – as I have already held, at paragraph 61 – the fact that the British forces were in Iraq before Resolution 1511 was adopted is irrelevant to their legal position under that Resolution and, indeed, under Resolution 1546.” 20. The second issue before the House of Lords was whether the provisions of Article 5 § 1 of the Convention were qualified by the legal regime established pursuant to United Nations Security Council Resolution 1546 and subsequent resolutions. On this point, the House of Lords unanimously held that Article 103 of the Charter of the United Nations gave primacy to resolutions of the Security Council, even in relation to human rights agreements. Lord Bingham, with whom the other Law Lords agreed, explained: “30. ... while the Secretary of State contends that the Charter [of the United Nations], and UNSCRs [United Nations Security Council Resolutions] 1511 (2003), 1546 (2004), 1637 (2005) and 1723 (2006), impose an obligation on the UK to detain the appellant which prevails over the appellant’s conflicting right under Article 5 § 1 of the European Convention, the appellant insists that the UNSCRs referred to, read in the light of the Charter, at most authorise the UK to take action to detain him but do not oblige it to do so, with the result that no conflict arises and Article 103 [of the Charter] is not engaged. 31. There is an obvious attraction in the appellant’s argument since, as appears from the summaries of UNSCRs 1511 and 1546 given above in paragraphs 12 and 15, the Resolutions use the language of authorisation, not obligation, and the same usage is found in UNSCRs 1637 (2005) and 1723 (2006). In ordinary speech to authorise is to permit or allow or license, not to require or oblige. I am, however, persuaded that the appellant’s argument is not sound, for three main reasons. 32. First, it appears to me that during the period when the UK was an Occupying Power (from the cessation of hostilities on 1 May 2003 to the transfer of power to the Iraqi interim government on 28 June 2004) it was obliged, in the area which it effectively occupied, to take necessary measures to protect the safety of the public and its own safety. [Lord Bingham here referred to Article 43 of the Hague Regulations and Articles 41, 42 and 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War: for the text of these Articles, see paragraphs 42 and 43 of this judgment below.] These three Articles are designed to circumscribe the sanctions which may be applied to protected persons, and they have no direct application to the appellant, who is not a protected person. But they show plainly that there is a power to intern persons who are not protected persons, and it would seem to me that if the Occupying Power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the Occupying Power there must be an obligation to detain such a person: see the decision of the International Court of Justice in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ Reports 116, paragraph 178. This is a matter of some importance, since although the appellant was not detained during the period of the occupation, both the evidence and the language of UNSCR 1546 (2004) and the later Resolutions strongly suggest that the intention was to continue the pre-existing security regime and not to change it. There is not said to have been such an improvement in local security conditions as would have justified any relaxation. 33. There are, secondly, some situations in which the Security Council can adopt resolutions couched in mandatory terms. One example is UNSCR 820 (1993), considered by the European Court (with reference to an EC regulation giving effect to it) in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [[GC], no. 45036/98, ECHR 2005-VI] (2005) 42 EHRR 1, which decided in paragraph 24 that ‘all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories ...’. Such provisions cause no difficulty in principle, since member States can comply with them within their own borders and are bound by Article 25 of the UN Charter to comply. But language of this kind cannot be used in relation to military or security operations overseas, since the UN and the Security Council have no standing forces at their own disposal and have concluded no agreements under Article 43 of the Charter which entitle them to call on member States to provide them. Thus in practice the Security Council can do little more than give its authorisation to member States which are willing to conduct such tasks, and this is what (as I understand) it has done for some years past. Even in UNSCR 1244 (1999) relating to Kosovo, when (as I have concluded) the operations were very clearly conducted under UN auspices, the language of authorisation was used. There is, however, a strong and to my mind persuasive body of academic opinion which would treat Article 103 as applicable where conduct is authorised by the Security Council as where it is required: see, for example, Goodrich, Hambro and Simons (eds.), Charter of the United Nations: Commentary and Documents, 3rd edn. (1969), pp. 615-16; Yearbook of the International Law Commission (1979), Vol. II, Part One, paragraph 14; Sarooshi, The United Nations and the Development of Collective Security (1999), pp. 150-51. The most recent and perhaps clearest opinion on the subject is that of Frowein and Krisch in Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edn. (2002), p. 729: ‘Such authorisations, however, create difficulties with respect to Article 103. According to the latter provision, the Charter – and thus also SC [Security Council] Resolutions – override existing international law only in so far as they create “obligations” (cf. Bernhardt on Article 103 MN 27 et seq.). One could conclude that in case a State is not obliged but merely authorised to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with State practice at least as regards authorisations of military action. These authorisations have not been opposed on the ground of conflicting treaty obligations, and if they could be opposed on this basis, the very idea of authorisations as a necessary substitute for direct action by the SC would be compromised. Thus, the interpretation of Article 103 should be reconciled with that of Article 42, and the prevalence over treaty obligations should be recognised for the authorisation of military action as well (see Frowein/Krisch on Article 42 MN 28). The same conclusion seems warranted with respect to authorisations of economic measures under Article 41. Otherwise, the Charter would not reach its goal of allowing the SC to take the action it deems most appropriate to deal with threats to the peace – it would force the SC to act either by way of binding measures or by way of recommendations, but would not permit intermediate forms of action. This would deprive the SC of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of Article 103 to all action under Articles 41 and 42 and not only to mandatory measures.’ This approach seems to me to give a purposive interpretation to Article 103 of the Charter, in the context of its other provisions, and to reflect the practice of the UN and member States as it has developed over the past sixty years. 34. I am further of the opinion, thirdly, that in a situation such as the present ‘obligations’ in Article 103 should not in any event be given a narrow, contract-based, meaning. The importance of maintaining peace and security in the world can scarcely be exaggerated, and that (as evident from the Articles of the Charter quoted above) is the mission of the UN. Its involvement in Iraq was directed to that end, following repeated determinations that the situation in Iraq continued to constitute a threat to international peace and security. As is well known, a large majority of States chose not to contribute to the Multinational Force, but those which did (including the UK) became bound by Articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives. It is of course true that the UK did not become specifically bound to detain the appellant in particular. But it was, I think, bound to exercise its power of detention where this was necessary for imperative reasons of security. It could not be said to be giving effect to the decisions of the Security Council if, in such a situation, it neglected to take steps which were open to it. 35. Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in Article 103 to ‘any other international agreement’ leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decision of the International Court of Justice (Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) [1992] ICJ Reports 3, paragraph 39, and Application of the Convention on the Prevention and Punishment of the Crime of Genocide [1993] ICJ Reports 325, 43940, paragraphs 99-100 per Judge ad hoc Lauterpacht) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments (The Charter of the United Nations: A Commentary, 2nd edn., ed Simma, [2002,] pp. 1299300).” Lord Bingham concluded on this issue: “39. Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR [United Nations Security Council Resolution] 1546 and successive resolutions, but must ensure that the detainee’s rights under Article 5 are not infringed to any greater extent than is inherent in such detention. I would resolve the second issue in this sense.” 21. Baroness Hale commenced by observing: “122. ... There is no doubt that prolonged detention in the hands of the military is not permitted by the laws of the United Kingdom. Nor could it be permitted without derogation from our obligations under the European Convention on Human Rights. Article 5 § 1 of the Convention provides that deprivation of liberty is only lawful in defined circumstances which do not include these. The drafters of the Convention had a choice between a general prohibition of ‘arbitrary’ detention, as provided in Article 9 of the Universal Declaration of Human Rights, and a list of permitted grounds for detention. They deliberately chose the latter. They were well aware of Churchill’s view that the internment even of enemy aliens in war time was ‘in the highest degree odious’. They would not have contemplated the indefinite detention without trial of British citizens in peacetime. I do not accept that this is less of a problem if people are suspected of very grave crimes. The graver the crime of which a person is suspected, the more difficult it will be for him to secure his release on the grounds that he is not a risk. The longer therefore he is likely to be incarcerated and the less substantial the evidence which will be relied upon to prove suspicion. These are the people most in need of the protection of the rule of law, rather than the small fry in whom the authorities will soon lose interest.” Baroness Hale agreed with Lord Bingham that the Convention rights could be qualified by “competing commitments under the United Nations Charter”, but continued: “126. That is, however, as far as I would go. The right is qualified but not displaced. This is an important distinction, insufficiently explored in the all or nothing arguments with which we were presented. We can go no further than the UN has implicitly required us to go in restoring peace and security to a troubled land. The right is qualified only to the extent required or authorised by the Resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences. 127. It is not clear to me how far UNSC [United Nations Security Council] Resolution 1546 went when it authorised the [Multinational Force] to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks’ (paragraph 10). The ‘broad range of tasks’ were listed by Secretary of State Powell as including ‘combat operations against members of these groups [seeking to influence Iraq’s political future through violence], internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security’. At the same time, the Secretary of State made clear the commitment of the forces which made up the MNF [Multinational Force] to ‘act consistently with their obligations under the law of armed conflict, including the Geneva Conventions’. 128. On what basis is it said that the detention of this particular appellant is consistent with our obligations under the law of armed conflict? He is not a ‘protected person’ under the Fourth Geneva Convention because he is one of our own citizens. Nor is the UK any longer in belligerent occupation of any part of Iraq. So resort must be had to some sort of post-conflict, post-occupation, analogous power to intern anyone where this is thought ‘necessary for imperative reasons of security’. Even if the UNSC Resolution can be read in this way, it is not immediately obvious why the prolonged detention of this person in Iraq is necessary, given that any problem he presents in Iraq could be solved by repatriating him to this country and dealing with him here. If we stand back a little from the particular circumstances of this case, this is the response which is so often urged when British people are in trouble with the law in foreign countries, and in this case it is within the power of the British authorities to achieve it. 129. But that is not the way in which the argument has been conducted before us. Why else could Lord Bingham and Lord Brown speak of ‘displacing or qualifying’ in one breath when clearly they mean very different things? We have been concerned at a more abstract level with attribution to or authorisation by the United Nations. We have devoted little attention to the precise scope of the authorisation. There must still be room for argument about what precisely is covered by the Resolution and whether it applies on the facts of this case. Quite how that is to be done remains for decision in the other proceedings. With that caveat, therefore, but otherwise in agreement with Lord Bingham, Lord Carswell and Lord Brown, I would dismiss this appeal.” 22. Lord Carswell started his speech by observing: “130. Internment without trial is so antithetical to the rule of law as understood in a democratic society that recourse to it requires to be carefully scrutinised by the courts of that society. There are, regrettably, circumstances in which the threat to the necessary stability of the State is so great that in order to maintain that stability the use of internment is unavoidable. The Secretary of State’s contention is that such circumstances exist now in Iraq and have existed there since the conclusion of hostilities in 2003. If the intelligence concerning the danger posed by such persons is correct, – as to which your Lordships are not in a position to make any judgment and do not do so – they pose a real danger to stability and progress in Iraq. If sufficient evidence cannot be produced in criminal proceedings – which again the House [of Lords] has not been asked to and cannot judge – such persons may have to be detained without trial. Article 42 of the Fourth Geneva Convention permits the ordering of internment of protected persons ‘only if the security of the Detaining Power makes it absolutely necessary’, and under Article 78 the Occupying Power must consider that step necessary ‘for imperative reasons of security’. Neither of these provisions applies directly to the appellant, who is not a protected person, but the degree of necessity which should exist before the Secretary of State detains persons in his position – if he has power to do so, as in my opinion he has – is substantially the same. I would only express the opinion that where a State can lawfully intern people, it is important that it adopt certain safeguards: the compilation of intelligence about such persons which is as accurate and reliable as possible, the regular review of the continuing need to detain each person and a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons, so far as is practicable and consistent with the needs of national security and the safety of other persons.” He continued: “135. It was argued on behalf of the appellant that the Resolution did not go further than authorising the measures described in it, as distinct from imposing an obligation to carry them out, with the consequence that Article 103 of the Charter [of the United Nations] did not apply to relieve the United Kingdom from observing the terms of Article 5 § 1 of the Convention. This was an attractive and persuasively presented argument, but I am satisfied that it cannot succeed. For the reasons set out in paragraphs 32 to 39 of Lord Bingham’s opinion I consider that Resolution 1546 did operate to impose an obligation upon the United Kingdom to carry out those measures. In particular, I am persuaded by State practice and the clear statements of authoritative academic opinion – recognised sources of international law – that expressions in Security Council resolutions which appear on their face to confer no more than authority or power to carry out measures may take effect as imposing obligations, because of the fact that the United Nations have no standing forces at their own disposal and have concluded no agreements under Article 43 of the Charter which would entitle them to call on member States to provide them. 136. I accordingly am of [the] opinion that the United Kingdom may lawfully, where it is necessary for imperative reasons of security, exercise the power to intern conferred by Resolution 1546. I would emphasise, however, that that power has to be exercised in such a way as to minimise the infringements of the detainee’s rights under Article 5 § 1 of the Convention, in particular by adopting and operating to the fullest practicable extent safeguards of the nature of those to which I referred in paragraph 130 above.” 23. Following the Court of Appeal’s ruling on the applicable legal regime (see paragraph 17 above), which was upheld by the House of Lords, the applicant brought a claim for damages in the English courts claiming that, from 19 May 2006 onwards, his detention without judicial review was unlawful under the terms of the Iraqi Constitution, which came into force on that date (see paragraph 38 below). 24. This claim was finally determined by the Court of Appeal in a judgment dated 8 July 2010 ([2010] EWCA Civ 758). The majority found that, in the circumstances, the review procedure under Coalition Provisional Authority Memorandum No. 3 (Revised) (see paragraph 36 below) provided sufficient guarantees of fairness and independence to comply with Iraqi law. 25. On 8 November 2002 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1441. The Resolution decided, inter alia, that Iraq had been and remained in material breach of its obligations under previous United Nations Security Council resolutions to disarm and to cooperate with United Nations and International Atomic Energy Agency weapons inspectors. Resolution 1441 decided to afford Iraq a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime. It requested the Secretary-General of the United Nations immediately to notify Iraq of the Resolution and demanded that Iraq cooperate immediately, unconditionally, and actively with the inspectors. Resolution 1441 concluded by recalling that the United Nations Security Council had “repeatedly warned Iraq that it w[ould] face serious consequences as a result of its continued violations of its obligations”. The United Nations Security Council decided to remain seised of the matter. 26. On 20 March 2003 a Coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq. By 5 April 2003 the British had captured Basra and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. Thereafter, other States sent troops to help with the reconstruction efforts in Iraq. 27. On 8 May 2003 the Permanent Representatives of the United Kingdom and the United States of America at the United Nations addressed a joint letter to the President of the United Nations Security Council, which read as follows: “The United States of America, the United Kingdom of Great Britain and Northern Ireland and Coalition partners continue to act together to ensure the complete disarmament of Iraq of weapons of mass destruction and means of delivery in accordance with United Nations Security Council Resolutions. The States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq. ... In order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by: deterring hostilities; ... maintaining civil law and order, including through encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; eliminating all terrorist infrastructure and resources within Iraq and working to ensure that terrorists and terrorist groups are denied safe haven; ... and assuming immediate control of Iraqi institutions responsible for military and security matters and providing, as appropriate, for the demilitarisation, demobilisation, control, command, reformation, disestablishment, or reorganisation of those institutions so that they no longer pose a threat to the Iraqi people or international peace and security but will be capable of defending Iraq’s sovereignty and territorial integrity. ... The United Nations has a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority. The United States, the United Kingdom and Coalition partners are ready to work closely with representatives of the United Nations and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary-General. We also welcome the support and contributions of member States, international and regional organisations, and other entities, under appropriate coordination arrangements with the Coalition Provisional Authority. We would be grateful if you could arrange for the present letter to be circulated as a document of the Security Council. (Signed) Jeremy Greenstock Permanent Representative of the United Kingdom (Signed) John D. Negroponte Permanent Representative of the United States” 28. As mentioned in the above letter, the occupying States, acting through the Commander of Coalition Forces, created the Coalition Provisional Authority (CPA) to act as a “caretaker administration” until an Iraqi government could be established. It had power, inter alia, to issue legislation. On 13 May 2003 the US Secretary of Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. In CPA Regulation No. 1, dated 16 May 2003, Ambassador Bremer provided, inter alia, that the CPA “shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration” and that: “2. The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA Administrator. 3. As the Commander of Coalition Forces, the Commander of US Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq’s territorial integrity and security; searching for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally.” The CPA administration was divided into regional areas. CPA South was placed under United Kingdom responsibility and control, with a United Kingdom Regional Coordinator. It covered the southernmost four of Iraq’s eighteen provinces, each having a governorate coordinator. United Kingdom troops were deployed in the same area. 29. United Nations Security Council Resolution 1483 referred to by Ambassador Bremer in CPA Regulation No. 1 was actually adopted six days later, on 22 May 2003. It provided as follows: “The Security Council, Recalling all its previous relevant resolutions, ... Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance, ... Welcoming also the resumption of humanitarian assistance and the continuing efforts of the Secretary-General and the specialised agencies to provide food and medicine to the people of Iraq, Welcoming the appointment by the Secretary-General of his Special Adviser on Iraq, ... Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognising the specific authorities, responsibilities, and obligations under applicable international law of these States as Occupying Powers under unified command (the ‘Authority’), Noting further that other States that are not Occupying Powers are working now or in the future may work under the Authority, Welcoming further the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Appeals to member States and concerned organisations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this Resolution; 2. Calls upon all member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organisations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq’s economic infrastructure; ... 4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future; 5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; ... 8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: (a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organisations; (b) promoting the safe, orderly, and voluntary return of refugees and displaced persons; (c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognised, representative government of Iraq; (d) facilitating the reconstruction of key infrastructure, in cooperation with other international organisations; (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organisations, as appropriate, civil society, donors, and the international financial institutions; (f) encouraging international efforts to contribute to basic civilian administration functions; (g) promoting the protection of human rights; (h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and (i) encouraging international efforts to promote legal and judicial reform; ... 24. Requests the Secretary-General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of the International Advisory and Monitoring Board and encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to inform the Council at regular intervals of their efforts under this Resolution; 25. Decides to review the implementation of this Resolution within twelve months of adoption and to consider further steps that might be necessary. 26. Calls upon member States and international and regional organisations to contribute to the implementation of this Resolution; 27. Decides to remain seised of this matter.” 30. In July 2003 the Governing Council of Iraq was established. The CPA was required to consult with it on all matters concerning the temporary governance of Iraq. 31. On 16 October 2003 the United Nations Security Council passed Resolution 1511, which provided, inter alia, as follows: “The Security Council ... Recognising that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003), ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognised and set forth in Resolution 1483 (2003), which will cease when an internationally recognised, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia, through steps envisaged in paragraphs 4 through 7 and 10 below; ... 8. Resolves that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission [for] Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government; ... 13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of Resolution 1483 (2003), and authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; 14. Urges member States to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13 above; ... 25. Requests that the United States, on behalf of the Multinational Force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this Force as appropriate and not less than every six months; 26. Decides to remain seised of the matter.” 32. Reporting to the United Nations Security Council on 16 April 2004, the United States Permanent Representative said that the Multinational Force had conducted “the full spectrum of military operations, which range from the provision of humanitarian assistance, civil affairs and relief and reconstruction activities to the detention of those who are threats to security”. In a submission made by the CPA to the United Nations Office of the High Commissioner for Human Rights on 28 May 2004 it was stated that the United States and United Kingdom military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody. 33. On 3 June 2004 the Iraqi Foreign Minister told the United Nations Security Council: “We seek a new and unambiguous draft resolution that underlines the transfer of full sovereignty to the people of Iraq and their representatives. The draft resolution must mark a clear departure from Security Council Resolutions 1483 (2003) and 1511 (2003) which legitimised the occupation of our country. ... However, we have yet to reach the stage of being able to maintain our own security and therefore the people of Iraq need and request the assistance of the Multinational Force to work closely with Iraqi forces to stabilise the situation. I stress that any premature departure of international troops would lead to chaos and the real possibility of civil war in Iraq. This would cause a humanitarian crisis and provide a foothold for terrorists to launch their evil campaign in our country and beyond our borders. The continued presence of the Multinational Force will help preserve Iraq’s unity, prevent regional intervention in our affairs and protect our borders at this critical stage of our reconstruction.” 34. On 5 June 2004, the Prime Minister of the interim government of Iraq, Dr Allawi, and the US Secretary of State, Mr Powell, wrote to the President of the Security Council, as follows: “Republic of Iraq, Prime Minister Office. Excellency: On my appointment as Prime Minister of the interim government of Iraq, I am writing to express the commitment of the people of Iraq to complete the political transition process to establish a free, and democratic Iraq and to be a partner in preventing and combating terrorism. As we enter a critical new stage, regain full sovereignty and move towards elections, we will need the assistance of the international community. The interim government of Iraq will make every effort to ensure that these elections are fully democratic, free and fair. Security and stability continue to be essential to our political transition. There continue, however, to be forces in Iraq, including foreign elements, that are opposed to our transition to peace, democracy, and security. The government is determined to overcome these forces, and to develop security forces capable of providing adequate security for the Iraqi people. Until we are able to provide security for ourselves, including the defence of Iraq’s land, sea and air space, we ask for the support of the Security Council and the international community in this endeavour. We seek a new resolution on the Multinational Force (MNF) mandate to contribute to maintaining security in Iraq, including through the tasks and arrangements set out in the letter from Secretary of State Colin Powell to the President of the United Nations Security Council. ... ... We are ready to take sovereign responsibility for governing Iraq by 30 June. We are well aware of the difficulties facing us, and of our responsibilities to the Iraqi people. The stakes are great, and we need the support of the international community to succeed. We ask the Security Council to help us by acting now to adopt a Security Council resolution giving us necessary support. I understand that the Co-sponsors intend to annex this letter to the Resolution on Iraq under consideration. In the meantime, I request that you provide copies of this letter to members of the Council as quickly as possible. (Signed) Dr Ayad Allawi” “The Secretary of State, Washington. Excellency: Recognising the request of the government of Iraq for the continued presence of the Multinational Force (MNF) in Iraq, and following consultations with Prime Minister Ayad Allawi of the Iraqi interim government, I am writing to confirm that the MNF under unified command is prepared to continue to contribute to the maintenance of security in Iraq, including by preventing and deterring terrorism and protecting the territory of Iraq. The goal of the MNF will be to help the Iraqi people to complete the political transition and will permit the United Nations and the international community to work to facilitate Iraq’s reconstruction. ... Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure Force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. ... ... In order to continue to contribute to security, the MNF must continue to function under a framework that affords the Force and its personnel the status that they need to accomplish their mission, and in which the contributing States have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes. In addition, the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions. The MNF is prepared to continue to pursue its current efforts to assist in providing a secure environment in which the broader international community is able to fulfil its important role in facilitating Iraq’s reconstruction. In meeting these responsibilities in the period ahead, we will act in full recognition of and respect for Iraqi sovereignty. We look to other member States and international and regional organisations to assist the people of Iraq and the sovereign Iraqi government in overcoming the challenges that lie ahead to build a democratic, secure and prosperous country. The co-sponsors intend to annex this letter to the Resolution on Iraq under consideration. In the meantime, I request that you provide copies of this letter to members of the Council as quickly as possible. (Signed) Colin L. Powell” 35. Provision for the new regime was made in United Nations Security Council Resolution 1546, adopted on 8 June 2004. It provided as follows, with the above letters from Dr Allawi and Mr Powell annexed: “The Security Council, Welcoming the beginning of a new phase in Iraq’s transition to a democratically elected government, and looking forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent interim government of Iraq by 30 June 2004, Recalling all of its previous relevant resolutions on Iraq, ... Recalling the establishment of the United Nations Assistance Mission for Iraq (UNAMI) on 14 August 2003, and affirming that the United Nations should play a leading role in assisting the Iraqi people and government in the formation of institutions for representative government, Recognising that international support for restoration of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003) of 22 May 2003 and Resolution 1511 (2003), Recalling the report provided by the United States to the Security Council on 16 April 2004 on the efforts and progress made by the Multinational Force, Recognising the request conveyed in the letter of 5 June 2004 from the Prime Minister of the interim government of Iraq to the President of the Council, which is annexed to this Resolution, to retain the presence of the Multinational Force, ... Welcoming the willingness of the Multinational Force to continue efforts to contribute to the maintenance of security and stability in Iraq in support of the political transition, especially for upcoming elections, and to provide security for the United Nations presence in Iraq, as described in the letter of 5 June 2004 from the United States Secretary of State to the President of the Council, which is annexed to this Resolution, Noting the commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law, and to cooperate with relevant international organisations, ... Determining that the situation in Iraq continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Endorses the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq ...; 2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty; ... 7. Decides that in implementing, as circumstances permit, their mandate to assist the Iraqi people and government, the Special Representative of the Secretary-General and the United Nations Assistance Mission for Iraq (UNAMI), as requested by the government of Iraq, shall: (a) play a leading role to: (i) assist in the convening, during the month of July 2004, of a national conference to select a Consultative Council; (ii) advise and support the Independent Electoral Commission of Iraq, as well as the interim government of Iraq and the Transitional National Assembly, on the process for holding elections; (iii) promote national dialogue and consensus-building on the drafting of a national Constitution by the people of Iraq; (b) and also: (i) advise the government of Iraq in the development of effective civil and social services; (ii) contribute to the coordination and delivery of reconstruction, development, and humanitarian assistance; (iii) promote the protection of human rights, national reconciliation, and judicial and legal reform in order to strengthen the rule of law in Iraq; and (iv) advise and assist the government of Iraq on initial planning for the eventual conduct of a comprehensive census; ... 9. Notes that the presence of the Multinational Force in Iraq is at the request of the incoming interim government of Iraq and therefore reaffirms the authorisation for the Multinational Force under unified command established under Resolution 1511 (2003), having regard to the letters annexed to this Resolution; 10. Decides that the Multinational Force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; ... 15. Requests member States and international and regional organisations to contribute assistance to the Multinational Force, including military forces, as agreed with the government of Iraq, to help meet the needs of the Iraqi people for security and stability, humanitarian and reconstruction assistance, and to support the efforts of UNAMI; ... 30. Requests the Secretary-General to report to the Council within three months from the date of this Resolution on UNAMI operations in Iraq, and on a quarterly basis thereafter on the progress made towards national elections and fulfilment of all UNAMI’s responsibilities; 31. Requests that the United States, on behalf of the Multinational Force, report to the Council within three months from the date of this Resolution on the efforts and progress of this Force, and on a quarterly basis thereafter; 32. Decides to remain actively seised of the matter.” 36. On 18 June 2003 the CPA had issued Memorandum No. 3, which set out provisions on criminal detention and security internment by the Coalition Forces. A revised version of Memorandum No. 3 was issued on 27 June 2004. It provided as follows: Section 6: MNF Security Internee Process “(1) Any person who is detained by a national contingent of the MNF [Multinational Force] for imperative reasons of security in accordance with the mandate set out in UNSCR [United Nations Security Council Resolution] 1546 (hereinafter ‘security internee’) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him. (2) The review must take place with the least possible delay and in any case must be held no later than seven days after the date of induction into an internment facility. (3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility. (4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with section IV of the Fourth Geneva Convention. (5) Security internees who are placed in internment after 30 June 2004 must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the Iraqi criminal jurisdiction no later than eighteen months from the date of induction into an MNF internment facility. Any person under the age of 18 interned at any time shall in all cases be released not later than twelve months after the initial date of internment. (6) Where it is considered that, for continuing imperative reasons of security, a security internee placed in internment after 30 June 2004 who is over the age of 18 should be retained in internment for longer than eighteen months, an application shall be made to the Joint Detention Committee (JDC) for approval to continue internment for an additional period. In dealing with the application, the members of the JDC will present recommendations to the co-chairs who must jointly agree that the internment may continue and shall specify the additional period of internment. While the application is being processed the security internee may continue to be held in internment but in any case the application must be finalised not later than two months from the expiration of the initial eighteen-month internment period. (7) Access to internees shall be granted to the Ombudsman. Access will only be denied the Ombudsman for reasons of imperative military necessity as an exceptional and temporary measure. The Ombudsman shall be permitted to inspect health, sanitation and living conditions and to interview all internees in private and to record information regarding an internee. (8) Access to internees shall be granted to official delegates of the ICRC [International Committee of the Red Cross]. Access will only be denied the delegates for reasons of imperative military necessity as an exceptional and temporary measure. The ICRC delegates shall be permitted to inspect health, sanitation and living conditions and to interview all internees in private. They shall also be permitted to record information regarding an internee and may pass messages to and from the family of an internee subject to reasonable censorship by the facility authorities. ...” 37. On 28 June 2004 full authority was transferred from the CPA to the Iraqi interim government, and the CPA ceased to exist. Subsequently, the Multinational Force, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi government and authorisations from the United Nations Security Council. 38. On 19 May 2006 the new Iraqi Constitution was adopted. It provided that any law which contradicted its provisions was deemed to be void. Article 15 of the Constitution required, inter alia, that any deprivation of liberty must be based on a decision issued by a competent judicial authority and Article 37 provided that no one should be kept in custody except according to a judicial decision. 39. The authorisation for the presence of the Multinational Force in Iraq under United Nations Security Council Resolution 1546 was extended by Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006 until 31 December 2006 and 31 December 2007 respectively. These Resolutions also annexed an exchange of letters between the Prime Minister of Iraq and the US Secretary of State, Condoleezza Rice, referring back to the original exchange of letters annexed to Resolution 1546. 40. On 7 June 2005, as required by Resolution 1546, the Secretary-General of the United Nations reported to the Security Council on the situation in Iraq (S/2005/373). Under the heading “Human rights activities” he stated, inter alia: “70. The volume of reports on human rights violations in Iraq justifies serious concern. Accounts of human rights violations continue to appear in the press, in private security reports and in reports by local human rights groups. Individual accounts provided to UNAMI [United Nations Assistance Mission for Iraq] and admissions by the authorities concerned provide additional indications about this situation. In many cases, the information about violations has been widely publicised. Effective monitoring of the human rights situation remains a challenge, particularly because the current security situation makes it difficult to obtain evidence and further investigate allegations. In most instances, however, the consistency of accounts points to clear patterns. ... 72. ... One of the major human rights challenges remains the detention of thousands of persons without due process. According to the Ministry of Justice, there were approximately 10,000 detainees at the beginning of April, 6,000 of whom were in the custody of the Multinational Force. Despite the release of some detainees, their number continues to grow. Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency.” Similar concerns were repeated in his reports of September and December 2005 (S/2005/585, § 52; S/2005/766, § 47) and March, June, September and December 2006 (S/2006/137, § 54; S/2006/360, § 47; S/2006/706, § 36; S/2006/945, § 45). By the end of 2006, he reported that there were 13,571 detainees in Multinational Force detention centres. In his report of March 2006 he observed: “At the same time, the internment of thousands of Iraqis by the Multinational Force and the Iraqi authorities constitutes de facto arbitrary detention. The extent of such practices is not consistent with the provisions of international law governing internment for imperative reasons of security.” In June 2007 he described the increase in the number of detainees and security internees as a pressing human rights concern (S/2007/330, § 31). 41. Similar observations were contained in the reports of the United Nations Assistance Mission for Iraq (UNAMI), which paragraph 7 of Resolution 1546 mandated to promote the protection of human rights in Iraq. In its report on the period July to August 2005, UNAMI expressed concern about the high number of persons detained, observing that “[i]nternees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”. In its next report (September to October 2005), UNAMI repeated this expression of concern and advised that “[t]here is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight”. In July-August 2006 UNAMI reported that of the 13,571 detainees in Multinational Force custody, 85 individuals were under United Kingdom custody while the rest were under United States authority. In the report for September to October 2006, UNAMI expressed concern that there had been no reduction in the number of security internees detained by the Multinational Force. In its report for January to March 2007, UNAMI commented: “71. The practice of indefinite internment of detainees in the custody of the MNF [Multinational Force] remains an issue of concern to UNAMI. Of the total of 16,931 persons held at the end of February, an unknown number are classified as security internees, held for prolonged periods effectively without charge or trial. ... The current legal arrangements at the detention facilities do not fulfil the requirement to grant detainees due process. ...” UNAMI returned to this subject in its report for April to June 2007, stating, inter alia: “72. In UNAMI’s view, the administrative review process followed by the MNF through the Combined Review and Release Board (CRRB) requires improvement to meet basic due process requirements. Over time, the procedures in force have resulted in prolonged detention without trial, with many security internees held for several years with minimal access to the evidence against them and without their defence counsel having access to such evidence. While the current review process is based on procedures contained in the Fourth Geneva Convention, UNAMI notes that, irrespective of the legal qualification of the conflict, both in situations of international and internal armed conflict the Geneva Conventions are not of exclusive application to persons deprived of their liberty in connection with the conflict. Alongside common Article 3 to the four Geneva Conventions and customary international law, international human rights law also applies. Accordingly, detainees during an internal armed conflict must be treated in accordance with international human rights law. As such, persons who are deprived of their liberty are entitled to be informed of the reasons for their arrest; to be brought promptly before a judge if held on a criminal charge, and to challenge the lawfulness of their detention.” The report also referred to an exchange of correspondence between the US authorities and UNAMI, on the question whether the International Covenant for the Protection of Civil and Political Rights applied in relation to the Multinational Force’s security internment regime. While the US authorities maintained that it did not, UNAMI concluded: “77. There is no separation between human rights and international humanitarian law in Security Council resolutions adopted under Chapter VII [of the Charter of the United Nations]. In fact, the leading Resolutions on Iraq, such as Resolution 1546 of June 2004, cite in the preamble: ‘Affirming the importance of the rule of law, national reconciliation, respect for human rights including the rights of women, fundamental freedoms, and democracy.’ This arguably applies to all forces operating in Iraq. The letter from the government of Iraq attached to SC res. [Security Council Resolution] 1723 also states that ‘The forces that make up MNF will remain committed to acting consistently with their obligations and rights under international law, including the law of armed conflict’. International law includes human rights law.” 42. Articles 42 and 43 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907) (“the Hague Regulations”) provide as follows: Article 42 “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Article 43 “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” 43. The Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949) (“the Fourth Geneva Convention”) defines “protected persons” as follows: Article 4 “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...” It contains the following provisions in relation to security measures and internment: Article 27 “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” Article 41 “Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43. In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, section IV of this Convention.” Article 42 “The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.” Article 43 “Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.” Article 64 “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Article 78 “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.” The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, provides in Article 75 § 3: “Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.” 44. The Preamble to the Charter of the United Nations states, inter alia: “We, the peoples of the United Nations, Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, ...” Article 1 sets out the purposes of the United Nations, as follows: “1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; ... 3. To achieve international cooperation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; ...” Article 24 provides, inter alia: “1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII and XII.” Article 25 of the Charter provides: “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” 45. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace and acts of aggression”. Article 39 provides: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” 46. Articles 41 and 42 read as follows: Article 41 “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Article 42 “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of members of the United Nations.” Articles 43 to 45 provide for the conclusion of agreements between member States and the Security Council for the former to contribute to the latter the land and air forces necessary for the purpose of maintaining international peace and security. No such agreements have been concluded. Chapter VII continues: Article 48 “1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members.” Article 49 “The members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.” Article 103 of the Charter reads as follows: “In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 47. Article 30 is entitled “Application of successive treaties relating to the same subject matter” and its first paragraph reads as follows: “1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. ...” 48. The International Court of Justice has held Article 103 of the Charter of the United Nations to mean that the Charter obligations of United Nations member States prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the Charter of the United Nations or was only a regional arrangement (see Nicaragua v. United States of America, ICJ Reports 1984, p. 392, at § 107). The International Court of Justice has also held that Article 25 of the Charter means that United Nations member States’ obligations under a Security Council resolution prevail over obligations arising under any other international agreement (see Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America and Libyan Arab Jamahiriya v. United Kingdom, ICJ Reports 1992, vol. 1, p. 16, at § 42, and p. 113 at § 39 (hereinafter “Lockerbie”). 49. In its Advisory Opinion Legal Consequences for States of the Continued Presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970), the International Court of Justice observed, in connection with the interpretation of United Nations Security Council resolutions: “114. It has also been contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect legally any right of any State. The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.” 50. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment). The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued: “178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. 179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.” 51. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (Joined Cases C-402/05 P and C-415/05 P) (hereinafter “Kadi”) concerned a complaint about the freezing of assets under European Community regulations adopted to reflect United Nations Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which dictated, inter alia, that all States were to take measures to freeze the funds and other financial assets of individuals and entities associated with Osama bin Laden, the al-Qaeda network and the Taliban. Those individuals, including the applicants, were identified by the Sanctions Committee of the United Nations Security Council. The applicants argued that the regulations were ultra vires because the assets freezing procedure violated their fundamental rights to a fair trial and to respect for their property, as protected by the Treaty establishing the European Community. 52. The Court of First Instance rejected the applicant’s claims and upheld the regulations, essentially finding that the effect of Article 103 of the Charter of the United Nations was to give United Nations Security Council resolutions precedence over other international obligations (save jus cogens), which included the Treaty establishing the European Community. Thus, the Court of First Instance concluded that it had no authority to review, even indirectly, United Nations Security Council resolutions in order to assess their conformity with fundamental rights. 53. Mr Kadi appealed to the European Court of Justice where his case was considered together with another appeal by the Grand Chamber, which gave judgment on 3 September 2008. The European Court of Justice held that European Community law formed a distinct, internal legal order and that it was competent to review the lawfulness of a Community regulation within that internal legal order, despite the fact that the regulation had been enacted in response to a United Nations Security Council resolution. It followed that, while it was not for the “Community judicature” to review the lawfulness of United Nations Security Council resolutions, they could review the act of a member State or Community organ that gave effect to that resolution; doing so “would not entail any challenge to the primacy of the resolution in international law”. The European Court of Justice recalled that the European Community was based on the rule of law, that fundamental rights formed an integral part of the general principles of law and that respect for human rights was a condition of the lawfulness of Community acts. The obligations imposed by an international agreement could not have the effect of prejudicing the “constitutional principles of the European Community Treaty”, which included the principle that all Community acts had to respect fundamental rights. The regulations in question, which provided for no right to challenge a freezing order, failed to respect fundamental rights and should be annulled. 54. In Munaf v. Geren (2008) 128 SCt 2207, the United States Supreme Court examined claims for habeas corpus relief from two American citizens who voluntarily travelled to Iraq and allegedly committed crimes there. They were each arrested in October 2004 by American forces operating as part of the Multinational Force, given hearings before Multinational Force Tribunals composed of American officers, who concluded that they posed a threat to Iraq’s security, and placed in the custody of the United States military operating as part of the Multinational Force. It was subsequently decided to transfer the detainees to the custody of the Iraqi authorities to stand trial on criminal charges before the Iraqi courts, and the detainees sought orders from the Federal Courts prohibiting this, on the ground that they risked torture if transferred to Iraqi custody. It was argued on behalf of the US government that the Federal Courts lacked jurisdiction over the detainees’ petitions because the American forces holding them operated as part of a Multinational Force. The Supreme Court observed that: “The United States acknowledges that Omar and Munaf are American citizens held overseas in the immediate ‘physical custody’ of American soldiers who answer only to an American chain of command. The MNF-I itself operates subject to a unified American command. ‘[A]s a practical matter’, the Government concedes, it is ‘the President and the Pentagon, the Secretary of Defence, and the American commanders that control what ... American soldiers do’, ... including the soldiers holding Munaf and Omar. In light of these admissions, it is unsurprising that the United States has never argued that it lacks the authority to release Munaf or Omar, or that it requires the consent of other countries to do so.” The Supreme Court concluded that it considered “these concessions the end of the jurisdictional inquiry”. It held that American citizens held overseas by American soldiers subject to a US chain of command were not precluded from filing habeas corpus petitions in the Federal Courts. However, it further decided that Federal District Courts could not exercise their habeas corpus jurisdiction to enjoin the United States of America from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign State to that sovereign State for criminal prosecution. The petitioners’ allegations that their transfer to Iraqi custody was likely to result in torture were a matter of serious concern but those allegations generally had to be addressed by the political branches, not the judiciary. 55. The International Law Commission was established by the United Nations General Assembly in 1948 for the “promotion of the progressive development of international law and its codification”. It consists of thirty-four experts on international law, elected to the Commission by the United Nations General Assembly from a list of candidates nominated by governments of member States. 56. In Article 5 of its Draft Articles on the Responsibility of International Organisations (adopted in May 2004), the International Law Commission stated as follows: “Conduct of organs or agents placed at the disposal of an international organisation by a State or another international organisation The conduct of an organ of a State or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct.” The International Law Commission further stated, in paragraphs 1 and 6 to 7 of its commentary on this Article: “1. When an organ of a State is placed at the disposal of an international organisation, the organ may be fully seconded to that organisation. In this case the organ’s conduct would clearly be attributable only to the receiving organisation ... Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending State or as organ or agent of the lending organisation. This occurs for instance in the case of military contingents that a State placed at the disposal of the United Nations for a peacekeeping operation, since the State retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organisation or to the lending State or organisation. ... 6. Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing State retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct. ... Attribution of conduct to the contributing State is clearly linked with the retention of some powers by that State over its national contingent and thus on the control that the State possesses in the relevant respect. 7. As has been held by several scholars, when an organ or agent is placed at the disposal of an international organisation, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question. ...” 57. The report of the Study Group of the International Law Commission entitled “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law” (April 2006) stated, in respect of Article 103 of the Charter of the United Nations (footnotes omitted): “(a) What are the prevailing obligations? 331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine. The question has sometimes been raised whether also [Security] Council resolutions adopted ultra vires prevail by virtue of Article 103. Since obligations for member States of the United Nations can only derive out of such resolutions that are taken within the limits of its powers, decisions ultra vires do not give rise to any obligations to begin with. Hence no conflict exists. The issue is similar with regard to non-binding resolutions adopted by United Nations organs, including the Security Council. These are not covered by Article 103. ... (b) What does it mean for an obligation to prevail over another? 333. What happens to the obligation over which Article 103 establishes precedence? Most commentators agree that the question here is not of validity but of priority. The lower-ranking rule is merely set aside to the extent that it conflicts with the obligation under Article 103. This was how Waldock saw the matter during the ILC [International Law Commission] debates on Article 30 [of the Vienna Convention on the Law of Treaties]: ‘[T]he very language of Article 103 makes it clear that it presumes the priority of the Charter, not the invalidity of treaties conflicting with it.’ 334. A small number of authors have received a more extensive view of the effects of Article 103 – namely the invalidity of the conflicting treaty or obligation – on the basis of the view of the Charter as a ‘constitution’. A clear-cut answer to this question (priority or invalidity?) cannot be received from the text of Article 103. Yet the word ‘prevail’ does not grammatically imply that the lower-ranking provision would become automatically null and void, or even suspended. The State is merely prohibited from fulfilling an obligation arising under that other norm. Article 103 says literally that in case of a conflict, the State in question should fulfil its obligation under the Charter and perform its duties under other agreements in as far as compatible with obligations under the Charter. This also accords with the drafting materials of the Charter, which state that: ‘it would be enough that the conflict should arise from the carrying out of an obligation under the Charter. It is immaterial whether the conflict arises because of intrinsic inconsistency between the two categories of obligations or as the result of the application of the provisions of the Charter under given circumstances.’” 58. In 2007 the Danish government initiated the Copenhagen Process on the Handling of Detainees in International Military Operations. The Process is aimed at developing a multilateral approach to the treatment of detainees in military situations and it has attracted the involvement of at least twenty-eight States and a number of international organisations, including the United Nations, the European Union, NATO, the African Union and the International Committee of the Red Cross. The “non-paper”, prepared for the first Copenhagen Conference on 11 to 12 October 2007, stated by way of introduction: “The past decade has seen a significant change in the character of international military operations. They have developed from traditional peacekeeping operations under Chapter VI/VI ½ of the UN Charter, through peacemaking operations under Chapter VII, to a new type of operation in which military forces are acting in support of governments that need assistance to stabilise their countries or in support of the international administration of territory. In such operations, military forces may have to perform tasks which would normally be performed by national authorities, including detaining people in the context of both military operations and law enforcement. At the same time, the countries which are to be assisted frequently have difficulties fulfilling their human rights and humanitarian law obligations due to the internal problems. Normal modus operandi, including the transfer of detainees to local authorities, may therefore often not be possible as it may contradict the legal and political commitment of the troop-contributing countries. The handling of detainees thereby becomes a challenge in itself. If a sustainable solution to these challenges is not reached, it may have an impact on the ability of the military forces of other States to engage in certain types of operations. States therefore cannot disregard these challenges when contributing to ongoing or future operations of this nature. The main challenge is a basic one: how do troop-contributing States ensure that they act in accordance with their international obligations when handling detainees, including when transferring detainees to local authorities or to other troop-contributing countries? Solving this challenge is not simple, as it involves addressing a number of complicated and contested legal issues as well as complicated practical and political aspects. ...” The “non-paper” continued, under the heading “The legal basis [of detention]”: “The legal basis for military forces to detain persons typically derives from the mandate of a given operation. The types of operations relevant for this non-paper are typically based on a Chapter VII resolution of the United Nations Security Council [UNSC]. A UNSC resolution may contain or refer to text on detention, and supplementary regulation may be found, for example, in standard operating procedures, rules of engagement and status-of-forces agreements, although the latter would also represent an agreement with the territorial State. The wording in these instruments on detention, however, is not always clear, if the issue is addressed at all. In these circumstances, the mandate to detain is often based on the traditional wording of UNSC resolutions giving a military force the mandate to ‘take all necessary measures’ in order to fulfil the given task. When a UN resolution is unclear or contains no text on the mandate to detain, the right to self-defence may contain an inherent yet limited right to detain. However, this may leave the question open as to the scope of the mandate, e.g., what type of detention is possible in self-defence and whether it is possible only to detain persons for reasons of security or also to detain e.g. common criminals. There is therefore a need for the Security Council to address this issue and clearly establish the legal basis for the right of the force to detain in a given operation. A clear mandate on detention will improve the possibilities for soldiers on the ground to take the right decisions on detention matters and to avoid different interpretations on the understanding of an ambiguous SC resolution. This need is further underlined by the fact that the right to detain might subsequently be challenged in court, and that officials/soldiers of troop-contributing States may be subject to prosecution for unlawful confinement under the grave breaches regime of Geneva Convention (IV).” | 1 |
dev | 001-109565 | ENG | UKR | CHAMBER | 2,012 | CASE OF SOLOMAKHIN v. UKRAINE | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | 5. The applicant was born in 1964 and lived in Donetsk. He died on 13 September 2010. 6. On 23 November 1998 the applicant sought medical assistance from the Donetsk City Hospital No. 16 (Центральна міська клінічна лікарня № 16 м. Донецька – “the Hospital”), where he was diagnosed as having an acute respiratory disease. He was prescribed out-patient treatment. 7. On his next visit to the Hospital on 27 November 1998 the applicant was tested for his reaction to a vaccination against diphtheria. The test showed no susceptibility to diphtheria antigens. 8. On 28 November 1998 the applicant was vaccinated against diphtheria. According to the applicant, the vaccination was contraindicated for him. 9. On 30 November 1998 the applicant was examined by a doctor, who indicated that the applicant’s state of health had improved and that the treatment had given positive results. He was diagnosed with tracheobronchitis, which was confirmed during his further visits to the doctor on 3, 4 and 7 December 1998. 10. From 28 December 1998 the applicant spent more than half a year at different medical institutions receiving treatment for a number of chronic diseases (for instance, pancreatitis, cholecystitis, hepatitis, colitis). 11. On 4 February 1999 the Chief Doctor of the Hospital reprimanded doctor Ya. and nurse Sh. for vaccinating the applicant although he had consistently objected to the vaccination and while he was being treated for an acute respiratory infection. He considered that they had violated the rules concerning vaccinations and ordered them to pass a test on those rules. 12. On 26 April 1999 the applicant instituted proceedings in the Budyonnovskiy District Court in Donetsk against the local department of public health (Донецький міський відділ охорони здоров’я) and the Hospital, seeking compensation for damage to his health. He alleged that the vaccination on 28 November 1998 had been conducted whilst he was ill and had resulted in him suffering from a number of chronic diseases. He also complained that the vaccine had been of poor quality as it had been uncertified, had expired and had been stored in inappropriate conditions. He complained that the doctors had tried to falsify the relevant medical records and to conceal the negative effects of the vaccination. 13. Between 30 May and 30 June 2000, 17 July 2000 and 29 January 2001, 2 and 30 January 2002 and 4 March 2002 and 17 February 2003 medical expert examinations were conducted into the applicant’s allegations. 14. On 2 June 2003 the court found against the applicant. With reference to the conclusions of the medical expert examiners, the court established that the applicant’s diseases had no causal link to his vaccination. It noted that the applicant had not had an allergic reaction or showed other signs that would normally have appeared within several days following the vaccination. The only disease that could be associated with the vaccination was urticaria (commonly known as hives), which the applicant had suffered from more than eight months after the vaccination and which could not therefore have had any causal link to it. The court also established that the applicant had not had any acute symptoms of any disease upon vaccination and therefore that his vaccination had not violated any medical rules. Furthermore, the epidemic situation in the Donetsk region had called for his vaccination against diphtheria. The court noted that no physical force had been applied to the applicant and that, being an adult of sound mind, he could have refused to have the vaccination, as he had done before on several occasions. The court noted that although the vaccination had not been performed in the vaccination room as required by the regulations, it had been conducted by a qualified nurse in a doctor’s office, in a doctor’s presence, with prior verification of the applicant’s reaction to such a vaccination, and it had not caused the applicant to have any negative side-effects. The court also noted that the applicant’s allegations about the quality of vaccine had been speculative and had not been confirmed by any evidence. The court observed that none of the applicant’s diseases had had a causal link to the vaccination and that the applicant had spent so much time in hospital because he had been attempting to obtain disabled status. The court also examined the applicant’s allegations about the alleged falsification of medical records and rejected them as unsubstantiated. 15. On 19 March 2008 and 22 August 2008 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the above judgment. 16. On 13 September 2010 the applicant died of a heart attack. By letter of 26 September 2011 the applicant’s mother informed the Court of her wish to pursue the application. 17. The relevant section of the Act reads as follows: “Preventive vaccinations against tuberculosis, polio, diphtheria, whooping cough, tetanus and measles are compulsory in Ukraine. ... Groups of the population and categories of employees subject to preventive vaccination, including those which are compulsory, and the procedure for and scheduling of their implementation shall be specified by the Ministry of Health of Ukraine ...” 18. These guidelines, approved by the Ministry of Public Health of Ukraine on 25 January 1996, provide for the organisation of vaccinations, set out a list of contraindications and side-effects and the procedure for informing the appropriate parties of any negative side-effects after vaccination. 19. On 19 March 1997 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1317 (1997) on vaccination in Europe. The relevant part of this recommendation states: “... 3. The recent diphtheria epidemic in some of the newly independent states is an example of the risks confronting us. Tens of thousands of cases have been reported since the outbreak of the epidemic in 1990, and thousands have died of a disease generally believed to have been wiped out. Other pockets of infection may attain epidemic proportions at any time: poliomyelitis, tuberculosis, tuberculous meningitis, pertussis, etc. 4. The diphtheria epidemic very clearly demonstrated that health risks could not be contained locally. With millions of people now free to travel from one country to another, it has not been possible to halt such epidemics. The eruption of ethnic conflicts producing mass movements of refugees has created new problems in this respect, and the austerity imposed by economic reforms has worsened the situation. ... 6. The Assembly therefore recommends that the Committee of Ministers invite member states: i. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases, and to arrange for efficient epidemiological surveillance; ii. to grant increased assistance as a matter of urgency, internationally co-ordinated through the World Health Organization (who) and Unicef in particular, to countries suffering from the diphtheria epidemic, in order to supply adequate quantities of vaccines and medicines and train a medical staff qualified to handle and administer the vaccine with the following aims: a. to achieve a high immunisation level among the population; ... 7. The Assembly furthermore invites the Committee of Ministers: i. to define a concerted pan-European policy on population immunisation, in association with all partners concerned, for example who, Unicef and the European Union, aimed at the formulation and observance of common quality standards for vaccines, and to ensure an adequate supply of vaccines at a reasonable cost ...” | 1 |
dev | 001-112108 | ENG | ESP | CHAMBER | 2,012 | CASE OF DEL RÍO PRADA v. SPAIN | 3 | Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 5. The applicant was born in 1958. She is serving a prison sentence in the region of Murcia (Spain). 6. In eight sets of criminal proceedings before the Audiencia Nacional, the applicant was sentenced as follows: - In judgment 77/1988 of 18 December 1988: for being a member of a terrorist organisation, to eight years’ imprisonment; for illegal possession of weapons, to seven years’ imprisonment; for possession of explosives, to eight years’ imprisonment; for forgery, to four years’ imprisonment; for using forged identity documents, to six months’ imprisonment. - In judgment 8/1989 of 27 January 1989: for damage to property, in conjunction with six counts of grievous bodily harm, one of causing bodily harm and nine of causing minor injuries, to sixteen years’ imprisonment. - In judgment 43/1989 of 22 April 1989: as a key accomplice in a fatal attack and for murder, to twenty-nine years’ imprisonment. - In judgment 54/1989 of 7 November 1989, as a key accomplice in a fatal attack, to thirty years’ imprisonment; for eleven murders, to twenty-nine years for each murder; for seventy-eight attempted murders, to twenty-four years on each count; for damage to property, to eleven years’ imprisonment. The court ordered that in application of Article 70 § 2 of the Criminal Code of 1973 the maximum duration of the sentence to be served (condena) should be thirty years. - In judgment 58/1989 of 25 November 1989: as a key accomplice in a fatal attack and in two murders, to twenty-nine years’ imprisonment in respect of each charge. In keeping with Article 70 § 2 of the Criminal Code of 1973, the court ordered that the maximum duration of the sentence to be served (condena) should be thirty years. - In judgment 75/1990 of 10 December 1990: for a fatal attack, to thirty years’ imprisonment; for four murders, to thirty years’ imprisonment on each count; for eleven attempted murders, to twenty years’ imprisonment on each count; on the charge of terrorism, to eight years’ imprisonment. The judgment indicated that in respect of the custodial sentences the maximum sentence provided for in Article 70 § 2 of the Criminal Code of 1973 should be taken into account. - In judgment 29/1995 of 18 April 1995: for a fatal attack, to twenty-nine years’ imprisonment; for murder, to twenty-nine years’ imprisonment. The court again referred to the maximum term of imprisonment provided for in Article 70 of the Criminal Code. - In judgment 24/2000 of 8 May 2000: for an attack combined with attempted murder, to thirty years’ imprisonment; for murder, to twenty-nine years’ imprisonment; for seventeen attempted murders, to twenty-four years’ imprisonment on each count; and for damage to property, to eleven years’ imprisonment. The judgment noted that the sentence served should not exceed the maximum term provided for in Article 70 § 2 of the Criminal Code of 1973. In order to determine which criminal law was applicable (the Criminal Code of 1973, which was applicable at the material time, or the later Criminal Code of 1995), the Audiencia Nacional considered that the more lenient law was the 1973 Criminal Code, because of the maximum term of sentence provided for in its Article 70 § 2, in conjunction with its Article 100 (reduction of sentence for work done). 7. In all, the terms of imprisonment to which the applicant was sentenced amounted to over 3,000 years. 8. The applicant was held in preventive detention from 6 July 1987 to 13 February 1989. On 14 February 1989 she began to serve her sentence after conviction. 9. By a decision of 30 November 2000 the Audiencia Nacional notified the applicant that the legal and chronological links between the crimes of which she had been convicted made it possible to group them together as provided for in Article 988 of the Code of Criminal Procedure in conjunction with Article 70 § 2 of the 1973 Criminal Code, which had been in force when the offences were committed. The Audiencia Nacional combined all the applicant’s prison sentences together and fixed the total term of imprisonment to be served at 30 years. 10. By a decision of 15 February 2001, the Audiencia Nacional fixed the date on which the applicant would have fully discharged her sentence (liquidación de condena) at 27 June 2017. 11. On 24 April 2008 the authorities at the prison where the applicant was serving her sentence decided that, taking into account the 3282 days’ remission to which she was entitled for the work she had done since 1987, she should be released on 2 July 2008. 12. On 19 May 2008 the Audiencia Nacional asked the prison authorities to review the date of the applicant’s release in the light of new precedent set by the Supreme Court in its judgment 197/06 of 28 February 2006, of which the Audiencia Nacional cited the relevant parts (see Relevant domestic law and practice, below), which stated, inter alia: “Thus, the execution of the total sentence to be served [condena] shall proceed as follows: it shall begin with the heaviest sentences pronounced. The relevant benefits and remissions shall be applied to each of the sentences being served. When the first sentence has been served, the second sentence shall begin and so on, until the limits provided for in Article 70 § 2 of the Criminal Code of 1973 have been reached. At such time, all of the sentences comprised in the total sentence to be served [condena] shall have been extinguished.” 13. The Audiencia Nacional explained that this new case-law applied only to those people convicted under the Criminal Code of 1973 to whom Article 70 § 2 had been applied. As that was the applicant’s case, the date of her release would be changed accordingly. 14. The applicant lodged an appeal (súplica). She argued, inter alia, that the application of the Supreme Court’s judgment was in breach of the principle of non-retroactivity of criminal law provisions less favourable to the accused. In her case the reduction of sentence for work done would now be calculated for each individual sentence and not for the total sentence to be served – and up to the maximum limit of 30 years. This new method of calculation would in effect increase the term of imprisonment actually served by the applicant by almost nine years. 15. By an order of 23 June 2008 the Audiencia Nacional set the date for the applicant’s release at 27 June 2017. 16. The applicant appealed against that decision. 17. By a decision of 10 July 2008 the Audiencia Nacional rejected the appeal and noted that it was not a matter of limits on prison sentences, but rather of how to apply reductions of sentence in order to determine the date of the prisoner’s release. Such reductions were to be calculated in relation to each sentence individually. Concerning the principle of non-retroactivity, the Audiencia Nacional considered that it had not been breached because the criminal law applied in this case had been in force at the time of its application. 18. Relying on Articles 14 (prohibition of discrimination), 17 (right to liberty), 24 (right to effective legal protection) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had not demonstrated the constitutional relevance of her complaints. 19. The relevant provisions of the Constitution read as follows: “All Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” “1. Every person has the right to liberty and security. No one may be deprived of his or her freedom except in accordance with the provisions of this Article and in the cases and in the manner prescribed by law. ...” “1. All persons have the right to obtain the effective protection of the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent. ...” “1. No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a criminal offence, misdemeanour or administrative offence under the law in force at that time. ...” 20. The relevant provisions of the Criminal Code of 1973, as in force at the material time, read as follows: “When all or some of the sentences imposed ... cannot be served simultaneously by a convict, the following rules shall apply: 1. In imposing the term to be served, the order followed shall be that of the severity of the respective sentences, which the convict shall serve consecutively if possible, going on to the next sentence when the previous one has been served or extinguished by pardon ... 2. Notwithstanding the previous rule, the maximum term to be served (condena) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred, the others being declared extinguished once those already imposed cover that maximum, which may not exceed thirty years. The above limitation shall be applied even where the penalties have been imposed in different proceedings, if the facts, because they are connected, could have been tried as a single case.” “Once his judgment or conviction has become final, any person serving a custodial or prison sentence may be granted a remission of sentence in exchange for work done. In serving the sentence imposed ... the detainee is entitled to one day’s remission for every two days worked, and the time thus deducted is taken into account when granting release on licence. The following persons shall not be entitled to remission for work done: 1. Detainees who escape or attempt to escape, even if they do not succeed. 2. Detainees who repeatedly misbehave while serving their sentence. 21. The relevant provision of the Code of Criminal Procedure in force at the material time reads a follows: “... When a person found guilty of several criminal offences is convicted, in different sets of proceedings, of offences that could have been tried in a single case, in accordance with Article 17 of the Code, the judge or court which pronounced the last judgment of conviction shall, of its own motion or at the request of the public prosecutor or the convicted person, fix the maximum term to be served in respect of the sentences pronounced, in keeping with Article 70 § 2 of the Criminal Code ...” 22. The relevant section of the 1981 Prison Rules (no. 1201/1981) explained as follows how to calculate the term of imprisonment (three quarters of the sentence pronounced) to be served in order for the detainee to be eligible for release on licence: “In calculating three quarters of the sentence, the following rules shall apply: (a) The part of the sentence to be served (condena) which is subject to pardon for the purposes of release on licence shall be deducted from the total penalty pronounced, as if that penalty has been replaced by a lesser one. (b) The same rule shall apply to prison benefits entailing a reduction of the sentence to be served (condena). (c) When a person is sentenced to two or more custodial sentences, the sum of those sentences, for the purposes of release on licence, shall be considered as a single sentence to be served (condena). ...” 23. The new Criminal Code of 1995 did away with the reduction of sentences in consideration of the work done in prison. However, those prisoners whose conviction was pronounced on the basis of the Criminal Code of 1973 – even after the entry into force of the new Code – continued to be eligible for reductions of sentence for work done. As to the maximum length of prison sentences and the application of reductions to the time served, the Criminal Code of 1995 was amended by institutional law 7/2003 on measures for the full and effective execution of sentences. The relevant parts of the Criminal Code thus amended read as follows: “When some or all of the penalties for the different offences cannot be served concurrently, they shall be served consecutively, in descending order of severity, as far as possible.” “1. Notwithstanding what is set forth in the preceding Article, the maximum duration of the sentence to be served (condena) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred, the others being declared extinguished once those already imposed cover that maximum, which may not exceed twenty years. Exceptionally, the maximum limit shall be: (a) Twenty-five years when an individual has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence of up to twenty years; (b) Thirty years when a convict has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence exceeding twenty years; (c) Forty years when a convict has been found guilty of two or more crimes and at least two of them are punishable by law with a prison sentence exceeding twenty years; (d) Forty years when a convict has been found guilty of two or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding twenty years. 2. The above limitation shall be applied even where the penalties have been imposed in different proceedings, if the facts, because they are connected or because of when they were committed, could have been tried as a single case.” “1. If, as a result of the limitations established in section 1 of Article 76, the sentence to be served is less than half the aggregate of all the sentences imposed, the sentencing judge or court may order that prison benefits, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence be determined with reference to all of the sentences pronounced. 2. Such a decision shall be mandatory in the cases referred to in paragraphs (a), (b), (c) and (d) of section 1 of Article 76 of this Code, provided that the sentence to be served is less than half the aggregate of all the sentences imposed. ...” 24. In an order of 25 May 1990, the Supreme Court considered that the combining of sentences in application of Article 70 § 2 of the Criminal Code of 1973 and Article 988 of the Code of Criminal Procedure concerned not the “execution” but the fixing of the sentence, and that its application was accordingly a matter for the convicting judge, not the judge responsible for the execution of sentences (Juzgados de Vigilancia Penitenciaria). 25. In a judgment of 8 March 1994 (529/1994) the Supreme Court affirmed that the maximum term of imprisonment (thirty years) provided for in Article 70 § 2 of the Criminal Code of 1973 was just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law, such as release on licence and remission of sentence, applied” (point 5 of the reasoning). The Supreme Court referred to Article 59 of the Prison Rules of 1981, according to which the combining of two custodial sentences into one was considered as a new sentence for the purposes of the application of release on licence. 26. That approach continued to be adopted after the entry into force of the Criminal Code of 1995 as regards the legal maximum term to be served under Article 76 thereof (see paragraph 23 above). In its judgment 1003/2005, of 15 September 2005, the Supreme Court affirmed that “this limit is just like a new sentence – resulting from but independent of the others – to which prison benefits provided by law, such as release on licence, day release and pre-release classification apply” (point 6 of the reasoning). A similar approach was followed in the judgment of 14 October 2005 (1223/2005), in which the Supreme Court, in the same terms, reiterated that the maximum term of imprisonment to be served “is just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law, such as release on licence must be applied, subject to the exceptions provided for in Article 78 of the Criminal Code of 1995” (point 1 of the reasoning). 27. The Supreme Court departed from this case-law, however, in judgment 197/2006, of 28 February 2006, in which it established what is known as the “Parot doctrine”. The Supreme Court held that reductions of prisoners’ sentences should be applied to each sentence individually, not to the maximum sentence of thirty years’ imprisonment provided for in Article 70 § 2 of the Criminal Code of 1973. The relevant parts of the Supreme Court’s reasoning read as follows: “... a joint interpretation of rules one and two of Article 70 of the Criminal Code of 1973 leads us to consider that the thirty-year maximum term does not become a new sentence, distinct from those successively imposed on the convict, or another sentence resulting from all the previous ones, but is the maximum term of imprisonment a prisoner should serve. The reasons that lead us to this interpretation are: (a) first, from a purely literal point of view, the Criminal Code by no means considers the maximum term of thirty years as a new sentence to which any reductions to which the prisoner is entitled should apply, quite simply because it says no such thing; (b) on the contrary, the penalty (pena) and the resulting term of imprisonment to be served (condena) are two different things; the wording used in the Criminal Code refers to the resulting limit as the “maximum term to be served” (condena), establishing the different lengths of that “maximum term to be served” (condena) in relation to each of the respective “sentences” imposed, and calculated in two different ways, by taking the different sentences in order of gravity, in accordance with the first rule, until one of the two maximum limits provided for is attained (three times the length of the heaviest sentence pronounced or, in any event, no more than thirty years); (c) this interpretation is also suggested by the wording of the Code, since after completing the successive sentences as mentioned, the prisoner will stop ‘discharging [that is, serving] the remaining ones [in the prescribed order] as soon as the sentences already served reach the requisite maximum length, which may on no account exceed thirty years’ ... (e) and from a teleological point of view, it would not be logical, simply because of the aggregation of sentences, for a copious criminal record to be reduced to a single new sentence of thirty years, with the effect that an individual who has committed a single offence is treated, without justification, in the same way as someone convicted of multiple offences, as is the case here. Indeed, there is no logic in applying this rule in such a way that committing one murder is punished in the same way as committing two hundred murders; (f) were application for a pardon to be made, it could not apply to the resulting total term to be served (condena), but rather to one, several or all of the different sentences imposed; in such a case it is for the court that pronounced the sentence to decide, and not the judicial body responsible for applying the limit (the last one), which shows that the sentences are different; and in any event, the first rule of Article 70 of the Criminal Code of 1973 states how, in such a case, to verify the successive completion of the sentences “when the previous ones have been extinguished by pardon”; (g) and to conclude this reasoning, from a procedural point of view Article 988 of the Code of Criminal Procedure clearly states that it is a matter of fixing the maximum limit of the sentences pronounced (in the plural, in keeping with the wording of the law), “in order to determine the maximum length of these sentences” (the wording is very clear). Which is why the term “aggregate of the sentences to be served [condenas]” is very misleading and inappropriate. The sentences are not merged into one, but the serving of multiple sentences is limited by law to a certain maximum term. Consequently, the prisoner serves the different sentences, with their respective specificities and with all the benefits to which he is entitled. That being so, for the extinction of the sentences successively served, the reduction of sentences for work done may be applied in conformity with Article 100 of the Criminal Code of 1973. Thus, the method for the discharge of the total term to be served [condena] is as follows: it begins with the heaviest sentences imposed. The relevant benefits and remissions are applied to each of the sentences the prisoner is serving. When the first [sentence] has been served, the prisoner begins to serve the next one and so on, until the limits provided for in Article 70 § 2 of the Criminal Code of 1973 have been reached. At this stage, all of the sentences comprised in the total term to be served [condena] will have been extinguished. For example, in the case of an individual given three prison sentences, 30 years, 15 years and 10 years. The second rule of Article 70 of the Criminal Code of 1973 ... limits the actual term to be served to three times the most serious sentence or a maximum of 30 years’ imprisonment. In this case, it would be the maximum term of thirty years. The successive serving of the sentences (the total term to be served) begins with the first sentence, which is the longest one (30 years in this case). If [the prisoner] were granted a ten-year remission for whatever reason, he would have served that sentence after 20 years’ imprisonment, and the sentence would be extinguished; next, [the prisoner] would start to serve the next longest sentence (15 years), and with a remission of 5 years that sentence will have been served after 10 years. 20 + 10 = 30. [The prisoner] would not have to serve any other sentence, any remaining sentences being extinguished, as provided for in the applicable Criminal Code, once those already imposed cover that maximum, which may not exceed thirty years.” 28. In that judgment the Supreme Court considered that there was no well-established case-law on the specific question of the interpretation of Article 100 of the Criminal Code of 1973 in relation to Article 70 § 2. It referred to a single precedent, its judgment of 8 March 1994 in which it considered that the maximum duration provided for in Article 70 § 2 of the Criminal Code of 1973 was “just like a new, independent sentence” (see paragraph 25 above). However, the Supreme Court departed from that interpretation, pointing out that that decision, which it considered an isolated one, could not be relied on as a precedent in so far as it had never been applied in a constant manner as required under Article 1 § 6 of the Civil Code. Even assuming that that decision could have been considered as a precedent, the court reiterated that the principle of equality before the law (Article 14 of the Constitution) did not preclude departures from the case-law, provided that sufficient reasons were given. Furthermore, the principle that the law should not be applied retroactively (Article 25 § 1 of the Constitution) was not meant to apply to case-law. 29. A dissenting opinion was appended to judgment 197/2006 by three judges. They considered that the sentences imposed successively were transformed or combined into another sentence of the same kind, but different in so far as it combined the various sentences into one. They called it “the sentence to be served”, that is to say the one resulting from the application of the limit fixed in Article 70 § 2 of the Criminal Code of 1973, which effectively extinguished the sentences that went beyond that limit. This new “unit of punishment” was the term the prisoner had to serve, to which remission for work done should be applied. Remissions should therefore be applied to the sentences imposed, but only once they had been processed in conformity with the rules on the consecutive serving of sentences. The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of the Criminal Code of 1995, all Spanish courts, including the Supreme Court (agreements adopted at the Plenary sessions on 18 July 1996 and 12 February 1999), had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of Article 70 § 2 of the Criminal Code of 1973 (the thirty-year limit). In application of that criterion no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done although they had each been given prison sentences of over a hundred years. 30. The dissenting judges considered that the method applied by the majority was not provided for in the Criminal Code of 1973 and therefore amounted to retroactive implicit application of the new Article 78 of the Criminal Code of 1995, as modified by institutional law 7/2003 on measures for the full and effective execution of sentences (see paragraph 23 above). This new interpretation was also contra reo, constituted a policy of full execution of sentences alien to the Criminal Code of 1973, could be a source of inequalities and was contrary to the case-law of the Supreme Court (judgments of 8 March 1994, 15 September 2005 and 14 October 2005, see paragraphs 25-26 above). Lastly, the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality, even in the case of an unrepentant terrorist murderer. 31. In a series of judgments of 29 March 2012 the Constitutional Court ruled on several amparo appeals lodged by convicts to whom the “Parot doctrine” had been applied. In two cases (4893-2006, 4793-2009) it allowed the appeals for violation of the right to effective judicial protection (Article 24 § 1 of the Constitution) and the right to liberty (Article 17 § 1 of the Constitution). The Constitutional Court considered that the new method of calculating remission following the Supreme Court’s departure in 2006 from its earlier case-law was in contradiction with the earlier final judicial decisions in the appellants’ cases. In those earlier firm and final decisions, in order to determine which was the most lenient criminal law applicable (the Criminal Code of 1973 or that of 1995), the courts had based themselves on the principle that the reductions of sentence for work done provided for in the Criminal Code of 1973 should be applied to the thirty-year maximum sentence, not to each sentence individually. In so doing they had reached the conclusion that the regime of the Criminal Code of 1973, with its reductions of sentence for work done, was more favourable to the appellants than the new Criminal Code of 1995. In a third case (appeal no. 10651-2009), the Constitutional Court found in the appellant’s favour for violation of the right to effective judicial protection (Article 24 of the Constitution), considering that the Audiencia Nacional had changed the date of the prisoner’s final release, thereby disregarding its own firm and final judicial decision given a few days earlier. In these three cases the Constitutional Court pointed out that the right to effective judicial protection included the right not to have final judicial decisions overruled (the “intangibility” of final judicial decisions). 32. In twenty-five other cases the Constitutional Court dismissed the amparo appeals on the merits, finding that the decisions by which the ordinary courts had set the appellants’ final dates of release in application of the departure from precedent in 2006 had not contravened any final judicial decision concerning them. 33. Both in the judgments in the appellants’ favour (paragraph 31) and in those against them (paragraph 32) the Constitutional Court dismissed the complaints under Article 25 of the Constitution (principle of legality), considering that the question of the calculation of remission for work done concerned the execution of the sentence and on no account the application of a harsher sentence than that provided for in the applicable criminal law, or a sentence exceeding the limit allowed by law. It cited the case-law of the European Court of Human Rights according to which a distinction was to be made, for the purposes of Article 7 of the Convention, between measures constituting a “penalty” and measures relating to the “execution” of a penalty (Grava v. Italy, no. 43522/98, § 51, 10 July 2003, and Gurguchiani v. Spain, no. 16012/06, § 31, 15 December 2009). 34. Several judges appended separate concurring or dissenting opinions to the judgments of the Constitutional Court. | 1 |
dev | 001-107307 | ENG | HUN | CHAMBER | 2,011 | CASE OF FRATANOLO v. HUNGARY | 3 | Violation of Art. 10;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque | 5. The applicant was born in 1952 and lives in Pécs. 6. On 6 March 2008 the applicant, at the material time a member of the Hungarian Workers’ Party 2006 (Munkáspárt 2006), a registered left-wing political party, was convicted by the Pécs District Court under section 269/B (1) of the Criminal Code of the offence of having displayed a totalitarian symbol in public. The court observed that the applicant had publicly worn a five-pointed red star while participating in a demonstration on 1 May 2004 celebrating Hungary’s accession to the European Union and, at the same time, the International Workers’ Day. As a sanction, the court issued a reprimand. 7. On appeal, on 23 September 2008 the Baranya County Regional Court reversed this judgment and acquitted the applicant. In holding that his act had represented in fact no danger to society, the Regional Court made reference inter alia to a judgment of the European Court of Human Rights, adopted on 8 July 2008, which had been introduced by another individual on account of a conviction similar in nature (Vajnai v. Hungary, no. 33629/06). In that judgment the European Court of Human Rights held that prosecution for having worn a red star amounted to a violation of that applicant’s freedom of expression enshrined in Article 10 of the Convention. 8. In pursuit of the prosecution’s further appeal, on 5 March 2010 the Pécs Court of Appeal reversed the second-instance judgment and upheld the applicant’s conviction. It confirmed the reprimand and ordered the applicant to pay 7,500 Hungarian forints in criminal costs. The Court of Appeal held that positive Hungarian law did not permit the domestic courts to apply the holding of Vajnai as such. It pointed out that the conditions of social dangerousness – which had been found by the Supreme Court to be absent in some, otherwise similar, cases – were indeed present in the instant circumstances. The court argued as follows: “The common feature of those cases can be summarised as the absence of identification with the totalitarian symbol, in the first case more emphatically, and in the latter one by virtue of the perpetrator’s indifference towards the symbol connected to the incriminated conduct. The situation in the present case, however, was quite the contrary. János Fratanoló used the five-pointed red star in a political context and as a sign of solidarity felt for his fellow party member, that is, because he identified himself with the symbol, with its meaning known and communicated to the outer world. In this context, the defendant’s concrete political credo is irrelevant: the statutory provision prohibits everyone, irrespective of one’s conviction, from the use of totalitarian symbols, including the five-pointed red star associated with Communist dictatorship. This statement remains true even if the symbol in question has dual meaning referring both to the totalitarian system mentioned above and to the international workers’ movement promoting the ascendance of large groups of society. ... The entirety of the elements of this offence is defined as the legal hypothesis of a socalled “conduct” (immaterial) crime. This means that the offence will be committed merely by performing the sanctioned conduct (dissemination, use in public or public display) and no further condition or result, let alone actual fear or anxiety caused to those perceiving, is required.” The court concluded that the applicant’s act was indeed dangerous to society. 9. Act no. IV of 1978 on the Criminal Code provides: “(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment. (2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.” “(1) Any person who (a) disseminates, (b) uses in public or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle-and-hammer or a five-pointed red star, or a symbol depicting any of them, commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine. (2) The conduct prescribed under paragraph (1) is not punishable if it is done for the purposes of education, science, art or in order to provide information about history or contemporary events. (3) Paragraphs (1) and (2) do not apply to the insignia of States which are in force.” | 1 |
dev | 001-96023 | ENG | POL | CHAMBER | 2,009 | CASE OF PUCZYNSKI v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 4. The applicant, Mr Antoni Puczyński, is a Polish national who was born in 1940 and lives in Kraków. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 15 October 2000 the applicant lodged with the Mayor of Kraków (Urząd Miasta) an application to transform his right of perpetual use (prawo użytkowania wieczystego) of a piece of real property into a right of ownership. He relied on the provisions of the 4 September 1997 Law on Transforming Perpetual Use Vested in Individuals into Ownership (ustawa o przekształceniu prawa użytkowania wieczystego przysługującego osobom fizycznym w prawo własności) (“the 1997 Act”). 7. On 3 November 2000 the Mayor informed the applicant that, due to a judgment of the Constitutional Court (Trybunał Konstytucyjny) which found some provisions of the 1997 Act to be incompatible with the Constitution, he could not give a decision in the case within the statutory time-limit of one month, and set a new time-limit of 31 July 2001. 8. On 27 November 2001 the Mayor informed the applicant that, due to some changes to the 1997 Act, a valuation report concerning the property (operat szacunkowy) had to be drawn up and a new time-limit set, 31 March 2002. 9. On 6 August 2002 the applicant complained to the Kraków SelfGovernment Board of Appeal (Samorządowe Kolegium Odwoławcze) about inactivity on the part of the administrative authority. 10. On 17 January 2003 the Kraków Self-Government Board of Appeal found the applicant's complaint well-founded and ordered the Mayor to give a decision on the merits within one month of the delivery of its decision. 11. The Mayor did not give the decision within the prescribed timelimit. Instead, on 6 March 2003, the Mayor issued a procedural decision (postanowienie) setting another time-limit, 31 December 2003, and informing the applicant that the decision could not be appealed against and that it could be challenged only when a decision on the merits had been given. 12. On 20 August 2004 the applicant again asked the Mayor to give a decision in his case. 13. On 7 September 2004 the Mayor informed the applicant that, due to further changes to the 1997 Act, by a decision of 5 August 2004 the proceedings for transforming his right had been discontinued and that proceedings for ex lege acquisition of the property in question had been instituted. 14. On 23 December 2004 the Mayor again informed the applicant that the matter could not be resolved within the statutory time-limit and set a new time-limit of 31 December 2005. 15. On 22 June 2005 the applicant again complained to the Kraków SelfGovernment Board of Appeal about the inactivity of the administrative authority. 16. On 5 August 2005 the Kraków Self-Government Board of Appeal found the complaint justified and ordered the Mayor to give a decision in that connection within one month of the delivery of its decision. 17. On 15 September 2005 the Mayor gave a decision on the merits and refused to acknowledge an ex lege acquisition of the property by the applicant. 18. On 27 September 2005 the applicant appealed. 19. On 30 December 2005 the Kraków Self-Government Board of Appeal quashed the challenged decision and remitted the case. 20. On 11 April 2006 the Mayor gave a further decision and again refused to acknowledge an ex lege acquisition of the property. 21. On an unspecified date the applicant appealed. 22. On 19 June 2006 the Kraków Self-Government Board of Appeal again quashed the challenged decision and remitted the case. 23. On 3 November 2006 the Mayor gave a decision, again a refusal. 24. The applicant did not appeal against that decision. 25. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the Court's judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006. | 1 |
dev | 001-60991 | ENG | ITA | CHAMBER | 2,003 | CASE OF L.M. v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant was born in 1940 and lives in Matera. 9. The applicant is the owner of an apartment in Milan, which she had let to D.D'A.M. 10. In a registered letter of 3 October 1984, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1985 and asked her to vacate the premises by that date. 11. On 23 October 1985, she served a notice to quit on the tenant and summoned her to appear before the Milan Magistrate. 12. By a decision of 16 October 1986, which was made enforceable on 19 November 1986, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988. 13. On 30 June 1988 and on 2 May 1989, the applicant served notice on the tenant requiring her to vacate the premises. 14. On 1 June 1989, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 27 June 1989. 15. Between 27 June 1989 and 25 November 1997, the bailiff made thirty-one attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 16. On 27 December 1997, the applicant recovered possession of the apartment, because the tenant spontaneously vacated the premises. 17. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 1 |
dev | 001-60996 | ENG | POL | CHAMBER | 2,003 | CASE OF KLAMECKI v. POLAND (No. 2) | 3 | Violation of Art. 5-3 with regard to the right to be brought promptly before a judge or other officer;Violation of Art. 5-3 with regard to the length of pre-trial detention;Violation of Art. 5-4;Violation of Art. 8 with regard to correspondence;Violation of Art. 8 with regard to family life;No separate issue under Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 7. On 22 November 1995 the Wrocław-Stare Miasto District Prosecutor (Prokurator Rejonowy) charged the applicant with fraud committed together with several accomplices and detained him on remand for three months in view of the reasonable suspicion that he had committed the offence in question and the risk that he might obstruct the proper course of the proceedings. 8. On an unknown later date the applicant appealed to the Wrocław-Śródmieście District Court (Sąd Rejonowy) against the order for his detention. On 27 November 1995 he lodged a pleading supplementing his appeal. In that pleading, he submitted that his detention had been imposed by a prosecutor, a party to the proceedings, whereas under the Convention detention had to be ordered either by a judge or by another officer exercising judicial power. 9. On 5 December 1995 a single judge, sitting as the Wrocław-Śródmieście District Court, dismissed the appeal, finding that the applicant's detention had an adequate legal basis. The applicant did not participate in the court session, whereas the Wrocław-Stare Miasto District Prosecutor did. 10. On 28 November and 14 December 1995 the applicant asked the Wrocław-Śródmieście District Court to appoint a defence lawyer for him. That application was granted on 19 January 1996. 11. On 11 December 1995 the applicant asked the Wrocław-Stare Miasto District Prosecutor to release him. The application was dismissed on 12 December 1995 by the prosecutor at first instance and on 30 December 1995 on appeal. The authorities held that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged. They also considered that holding him in detention was necessary to secure the proper conduct of the proceedings. 12. On 21 December 1995 the applicant made a further application for release. He complained about the prison conditions and maintained that his continued detention had severely affected his health. The prosecution asked medical experts to examine the applicant. The doctors made their report on 22 December 1995. They concluded that the applicant could receive adequate medical treatment in prison. Basing themselves on that report, the authorities refused to release the applicant. The relevant decisions were made on 2 January 1996 by the prosecutor at first instance and on 24 January 1996 on appeal. The prosecutors, referring to the experts' report, held that the applicant's health did not militate decisively against his being kept in detention. 13. In the meantime, the Wrocław Regional Prosecutor (Prokurator Wojewódzki) took over the investigation from the Wrocław-Stare Miasto District Prosecutor. 14. On 5 February 1996 the applicant asked the Regional Prosecutor to release him in view of his bad health. He stressed that he was suffering from diabetes, high blood pressure and arteriosclerosis. He maintained that he did not receive proper medical treatment and diet in prison. The application was dismissed on 7 February 1996 by the prosecutor at first instance and on 21 February 1997 on appeal. The main ground on which the authorities relied was that, according to a medical report obtained on 6 February 1996, the applicant's general condition was not an obstacle to keeping him in detention. 15. On 15 February 1996, on an application made by the Wrocław Regional Prosecutor, the Wrocław-Śródmieście District Court prolonged the applicant's detention until 30 June 1996. The applicant appealed on 26 February 1996. He argued that he had never been brought before a judge at any stage of the proceedings relating to the lawfulness of his detention. On 1 March 1996 the Wrocław Regional Court (Sąd Wojewódzki) upheld the first-instance decision. The Wrocław Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did. 16. On 18 March 1996 the applicant asked the Wrocław-Śródmieście District Court to release him under police supervision. The matter was referred to the Wrocław Regional Prosecutor because at the investigation stage only a prosecutor could deal with an application for release (see also paragraph 82). That application was rejected on 3 June 1996 at first instance and on 28 June 1996 on appeal. The prosecution considered that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged. They also pointed out that there were no particular circumstances militating in favour of his release, as defined in Article 218 of the Code of Criminal Procedure. 17. On 6 May and 3 June 1996 the applicant again asked the Wrocław-Śródmieście District Court to release him under police supervision. Those applications, after having been referred to the Wrocław Regional Prosecutor, were dismissed by that prosecutor on 28 June 1996 and, on appeal, on 14 July 1996. The authorities considered that the original grounds given for the applicant's detention were still valid. 18. On 25 June 1996, on an application by the Wrocław Regional Prosecutor, the Wrocław-Śródmieście District Court prolonged the applicant's detention until 30 September 1996. 19. On 25 July and 5 August 1996 the applicant made further applications for release under police supervision to the Wrocław Regional Court, claiming a breach of Article 5 § 3 of the Convention in that he was neither tried within a reasonable time nor released pending trial. 20. On 30 August 1996 the court held a session and, after having heard the submissions of the Wrocław Regional Prosecutor, dismissed the applications in view of the reasonable suspicion that the applicant had committed the offence with which he had been charged and the need to ensure the proper conduct of the proceedings. 21. The applicant appealed on 5 September 1996. He submitted that the proceedings concerning his applications for release were not adversarial because he could not take part in any court session at which those applications were examined, whereas the prosecution could put forward any arguments they wished in his absence. On 16 September 1996 the Wrocław Court of Appeal (Sąd Apelacyjny), after having heard the prosecutor's submissions, upheld the first-instance decision and the reasons given therefor. 22. Meanwhile, on 9 August 1996, the Wrocław-Śródmieście District Court had considered the applicant's request for release, in which he had alleged a breach of Article 5 § 3 of the Convention in that after having been arrested he had not been brought before a judge. The court dismissed the request and held, inter alia, that the fact that the detention had been imposed by the prosecutor, i.e. a party to the proceedings, was not a factor that would justify releasing him. On 31 October 1996, on an appeal filed by the applicant, the Wrocław Regional Court quashed the decision of 9 August 1996 and held that, in accordance with the Law of 4 August 1996 on Amendments to the Code of Criminal Procedure (see also “Relevant domestic law and practice” below), only a regional court was competent to deal with the applicant's application for release. The Regional Court further examined that application and rejected it on the ground of the reasonable suspicion that the applicant had committed the offence with which he had been charged. It also considered that the need to ensure the proper course of the proceedings and the likelihood of a severe sentence to be imposed on the applicant justified his being held in custody. The Wrocław Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did. 23. The applicant appealed. On 22 November 1996 the Wrocław Court of Appeal held a session and, after having heard the prosecutor's opinion, upheld the first-instance decision and the reasons given therefor. 24. In the meantime, on 30 September 1996, the Wrocław Regional Prosecutor had lodged a bill of indictment with the Wrocław-Śródmieście District Court. The applicant was indicted together with 10 other persons on charges of aggravated fraud, appropriation of public property, receiving stolen goods, making a false declaration, and forgery. The case-file comprised 19 volumes. 25. The trial was listed for 18 and 19 December 1996. Meanwhile, on 21 November 1996 the court appointed a new lawyer for the applicant. 26. On 1 December 1996 the applicant asked the District Court to release him. He maintained that his detention had lasted an excessively long time and, what was more, he had previously been detained in other criminal proceedings for some two years. He had accordingly spent in custody in all more than three years. That, he stressed, had in reality amounted to serving a prison sentence. He relied on Article 5 § 3 of the Convention. 27. On 4 December 1996 his application was dismissed at first instance and on 31 December 1996 on appeal. The courts considered that the applicant should still be kept in custody in view of the severity of the sentence which might be imposed and the need to ensure the proper conduct of the proceedings. 28. On 18 December 1996 the court postponed the trial to 29 January 1997 because one of the applicant's co-defendants was ill. 29. On 19 December 1996 and, subsequently, on 13, 15 and 29 January 1997 the applicant made complaints about the conduct of his officially-appointed counsel and asked the trial court to appoint a new lawyer for him. 30. On 31 December 1996 the applicant again asked the court to release him under police supervision. On 7 January 1997 the application was dismissed in view of the need to ensure the proper conduct of the trial and the severity of the sentence that might be imposed on him. 31. On 15 January 1997 the applicant appealed, submitting that neither he nor his lawyer had been informed of, or summoned to, the court's session at which his application for release had been examined and that the relevant procedure did not comply with the requirements of Article 5 § 4 of the Convention. On the same day he asked the Regional Court to allow him to attend the session at which that court would deal with his appeal so that he could put forward his arguments. 32. On 17 January 1997 the Wrocław-Śródmieście District Court refused to proceed with the appeal since, under the recently amended provisions of the Code of Criminal Procedure, no appeal lay in law against a court decision on an application for release. 33. On 29 January 1997 the court postponed the trial to 20 February 1997 because a certain J.F., one of the applicant's co-defendants had failed to appear. The court severed the charges against J.F. 34. On 10 February and on 3, 10, 17 and 25 March, and on 1, 8 and 17 April 1997 the applicant made further unsuccessful applications for release under police supervision to the Wrocław-Śródmieście District Court. The applications were dismissed on 12 February and on 10, 12, 20 and 28 March, and on 4, 11 and 22 April 1997 respectively. The court considered that the applicant should still be kept in custody in view of the need to secure the proper conduct of the trial and the severity of the sentence which might be imposed, a sentence that ranged from 1 to 10 years' imprisonment. 35. On 20 February 1997 the trial was to start but the applicant made yet another complaint about the conduct of his officially-appointed counsel and the court adjourned the hearing, finding it necessary to appoint a new defence lawyer for him. 36. On 5 March 1997 the court adjourned the next hearing since E.Cz., one of the applicant's co-defendants, had failed to appear. The court ordered that E.Cz. would be brought by the police to the next hearing, which was listed for 19 March 1997. Yet on the latter date the trial was postponed because the presiding judge was ill. 37. The trial began on 10 April 1997. On 10 and 21 April 1997 the court heard evidence from the applicant. 38. At the hearing of 10 April 1997 the applicant again asked the court to release him under police supervision. The court rejected his application. It found that keeping him in custody was necessary to secure the proper conduct of the trial. The court also stressed that the severity of the sentence that might be imposed on the applicant was an important factor that argued against releasing him. 39. Subsequently and throughout the trial, the applicant made numerous – but likewise unsuccessful – applications for release. Between 14 May and 4 December 1997 he made 26 such applications and appealed against each refusal. The courts reiterated the grounds they had previously given for his continued detention. 40. The applicant also repeatedly challenged the impartiality of the trial judges and complained about the conduct of the registry clerk who was responsible for the record of the trial. From 12 May to 1 December 1997 he made 16 applications for the judges to be disqualified from dealing with his case. 41. After the hearing that was held 10 April 1997 (see paragraph 37 above), the next one was listed for 21 May 1997. On that day, the court heard evidence from the applicant's wife. 42. Subsequently, the court made an application under Article 222 § 3 of the Code of Criminal Procedure (see paragraphs 90-91 below) to the Supreme Court (Sąd Najwyższy), asking it to prolong the applicant's and Cz.S.'s detention for 6 further months. 43. In the meantime, hearings set for 18 June and 3 July 1997, had been cancelled; the former because J.S., one of the applicant's co-defendants, had failed to appear, the latter because the District Prosecutor and another co-defendant, E.Cz. had not been present. 44. On 12 and 13 July 1997 a massive flood-wave inundated the South-West of Poland, severely affecting Wrocław. A considerable part of the city was washed away or destroyed. 45. On 14 July 1997 the applicant complained to the Wrocław-Śródmieście District Court that his health was deteriorating very rapidly and that he was seriously affected by the harsh prison conditions resulting from the flood in Wrocław. He asked for release. 46. On the same day the applicant made a petition to the President of the Wrocław Regional Court, the President of Wrocław-Śródmieście District Court and the Wrocław-Śródmieście District Court. He complained that on 12 and 13 July 1997 a flood-wave had inundated the prison building up to the third floor. The light, electricity and sewage systems had been destroyed. There had been no drinking water, food or washing facilities. He and his fellow inmates were, in his words, kept like animals in unventilated, overcrowded and stinking cells. He asserted that an official tolerance for that situation amounted to inhuman and degrading treatment. 47. Subsequent hearings, which were to be held on 6 and 27 August 1997, did not take place because, on the first date, the defence counsel for J.S. and Cz.S had not been present and, on the second, J.S.'s counsel had not appeared and the police had not brought E.Cz. from prison. 48. The next hearing, scheduled for 9 September 1997, was postponed to 13 October 1997 because E.Cz. failed to appear. 49. On 13 October 1997 the hearing was nevertheless adjourned since E.Cz. and one of the judges sitting in the trial chamber were absent. The presiding judge ordered, however, that E.Cz., on account of his repeated failure to comply with the court order, be searched for by a “wanted” notice and detained pending trial. 50. On the same day the court made the second application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking it to prolong the applicant's and Cz.S.'s detention for a further period of six months. In the reasoning, the court reiterated the grounds previously given for the applicant's detention. It further referred to the risk that he might induce witnesses to give false testimonies or to obstruct the trial by other unlawful means, and the likelihood of a heavy penalty being imposed on him. In that connection, the court stated that the applicant, when giving evidence, had refused to reveal names of certain clients of his company and stated that he would not do so unless he had considered it to be pertinent. The court next pointed out that the applicant's detention should continue because there were no special circumstances justifying his release, as defined in Article 218 of the Code of Criminal Procedure. It also stressed that it still needed to obtain voluminous evidence. In its opinion, all those above-mentioned obstacles made it impossible for it to give judgment within the terms referred to in Article 222 § 3 of the Code of Criminal Procedure. 51. On 27 October 1997 the applicant applied to the President of the Criminal Chamber of the Supreme Court, asking that he be brought to the session concerning the prolongation of his detention beyond the statutory time-limit, so that he could present his arguments. He relied on Article 6 § 3 (c) of the Convention and a number of constitutional provisions, notably those stipulating that self-executing provisions of an international treaty took priority over domestic law. He also complained that the District Court had not served a copy of the application of 13 October 1997 on him and that, in consequence, he could not contest effectively the grounds for the prolongation his detention given by that court. 52. On 3 November 1997 the applicant received a copy of that application. On 4 November 1997 he prepared a statement addressed to the President of the Criminal Chamber of the Supreme Court and once again asked that he be brought from prison to the session concerning the prolongation of his detention. He also complained about the conduct of the presiding judge. He stressed that the judge was not fair in considering that he should be held in custody inasmuch as the trial had to be postponed only because of his released co-defendants' repeated failure to appear before the court. In that context, the applicant pointed out that the court would have avoided the delays caused by the conduct of those co-defendants if it had severed promptly the charges against them. 53. On 6 November 1997 the District Court cancelled a hearing as the Supreme Court had not yet examined the application of 13 October 1997 and had not returned the case-file. 54. On 13 November 1997 the Supreme Court held a session at which it dealt with that application. It prolonged the applicant's detention until 30 March 1998. At the beginning of the session the Supreme Court considered the applicant's motion in which he asked it to be brought before it and allowed to present his arguments. The State Prosecutor (Prokurator Krajowy) was summoned to, and took part in, the session. The applicant's representative was not summoned. After having heard the Prosecutor's arguments (who opposed the motion), the Supreme Court rejected the applicant's request. Referring to the grounds for the extension of the applicant's detention beyond the statutory time-limit, the Supreme Court held that the circumstances adduced by the District Court showed that it was likely that he would induce the witnesses to give false testimonies or otherwise obstruct the trial. It further found that, given the fact that the case was of a particular complexity and that the trial court had to obtain various evidence, the applicant should still be held in custody in order to secure the proper conduct of the trial. Lastly, the Supreme Court pointed out that despite the factors that had to date contributed to the prolongation of the trial, the District Court should nevertheless accelerate the proceedings. 55. The trial was to restart on 15 December 1997 but it was postponed to 12 January 1998 because the police had not brought E.Cz. from prison and J.S.'s counsel had not appeared before the court. 56. On 5 January 1998 the District Court dismissed the applicant's application for his detention to be lifted and replaced by another preventive measure. The court considered that the applicant should be held in custody because a severe penalty might be imposed on him. It stressed that the applicable sentence ranged from 1 to 10 years' imprisonment. It further considered that the fact that the applicant had refused to reveal the identity of some of his company's clients showed that, had he been released, he would have induced witnesses to give false testimonies or otherwise obstructed the proper course of the trial. 57. On 12 January 1998 the court cancelled a hearing because the police had not brought the applicant and E.Cz. from prison. On the same day the applicant made an application for release, asking the court to vary the preventive measure imposed on him. He maintained that his prolonged detention was putting a severe strain on himself and on his family. 58. The applicant made a further, similar application on 19 January 1998, stating that he “would be very grateful if [he] could obtain an explanation as to what for and for whom [he] was needed to be prison”. He submitted two further applications in January and two in February 1998. The court dismissed those applications on 20, 28 and 30 January, and on 6 and 18 February 1998, respectively. The reasons for those decisions were in essence identical to those given for the decision of 5 January 1998 (see paragraph 56 above). 59. On 5 February 1998 the court cancelled a hearing. On 23 February 1998 it decided to conduct the trial again from the beginning and to rehear all evidence that had so far been obtained. The presiding judge read out the records of the evidence heard from the applicant on 10 and 21 April 1997. 60. On 9 March 1998 the applicant was released pending trial. 61. On 16 December 1999 the Wrocław-Śródmiescie District Court gave judgment. It convicted the applicant as charged and sentenced him to 3 years' imprisonment and a fine. 62. During his detention, the applicant received many letters, including those from his lawyers, without envelopes. From 6 December 1995 to 21 July 1997 the applicant sent 61 letters to the Commission, of which 46 were opened and stamped “censored” (ocenzurowano) by the Polish authorities before being sent on. 63. On 9 February 1996 the Secretariat of the Commission sent to the applicant a letter together with an application form and the relevant enclosures. The official stamps made by the authorities indicated that the letter was delivered to Wrocław Prison on 4 March 1996, sent to the Wrocław Regional Prosecutor on 5 March 1996, and opened and censored by that prosecutor on 6 March 1996. 64. On 18 March 1996 the applicant sent a letter to the Wrocław Regional Bar Council (Okręgowa Rada Adwokacka). On 20 March 1996 the authorities opened the letter and stamped it “censored”. 65. In his letter of 15 April 1996 the applicant complained to the Commission that he would not be able to submit the application form within the period of six weeks referred to in the Commission's letter of 9 February 1996 because the authorities had opened and censored that letter and its delivery had been delayed. He also complained that the authorities of Wrocław prison had refused him any assistance in preparing copies of the relevant documents and that, for that reason, he could not submit the application within the prescribed time-limit. However, he filed the form on 15 March 1996. It was posted, with enclosures, on 15 May 1996. It was received at the Commission's secretariat on 24 May 1996. 66. On 14 August 1996 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment sent a letter to the applicant. On 28 August 1996 the authorities opened the letter. The envelope bears the stamp “censored”. 67. On 29 November and 2 December 1996 the applicant sent two letters to the Wrocław Court of Appeal. The envelopes were cut open. They bear the stamp “censored”. 68. On 16 January 1997 the applicant sent a letter to his wife. The authorities opened that letter and put the stamp censored on it. 69. On 27 October and 4 and 12 November 1997 the applicant submitted to the prison authorities two letters addressed to the President of the Criminal Chamber of the Supreme Court. In the letter of 27 October 1997 he asked the Supreme Court to order that he be brought to the session concerning the examination of the application for his detention to be prolonged (see paragraph 51 above). All the envelopes bear the stamp “censored”. The post-mark reveals that the letter of 27 October 1997 was sent out on 4 November 1997 and the two other letters on 25 November 1997. 70. On 27 November 1997 and on 5 January 1998 Mr Cichoń's law firm received letters from the applicant. The postmark on the envelope of the first letter is unreadable. The second letter was posted on 21 December 1997. On both envelopes there were hand-written notes made with a red marker. Those notes read: “censored”. 71. On 1 December 1997 and 16 January 1998 the applicant handed in two further letters to the President of the Criminal Chamber of the Supreme Court to the prison authorities. On both envelopes there was a hand-written note that read: “censored”. The post-marks show that the letters were sent out on 8 December 1997 and on 23 January 1998, respectively. 72. On 10 August 1996 the Wrocław-Śródmieście District Court ordered that the applicant should not be allowed to have any personal contact with his wife in view of the fact that in the meantime she had been charged with fraud in which the applicant had also been involved. That restriction included a prohibition of supervised family visits and of communication by a prison internal phone. Before that date their personal contact had not been restricted. 73. On 30 January 1997 the applicant requested the Wrocław District Court to grant his wife a permit to visit him in prison as they had had no personal contact since 10 August 1996. The application was dismissed on 7 February 1997 without any reasons being given. 74. On 7 February 1997 the applicant complained to the President of the Wrocław Regional Court that not only had all his letters to his wife been censored but some of them also intercepted or delayed and that he had not even been allowed to make phone calls to his wife. He submitted that these facts taken together with the absolute prohibition on any personal contact with her had amounted to inhuman treatment. 75. On 10 February 1997 the applicant unsuccessfully requested the Wrocław-Śródmieście District Court to stop the censorship of his letters to his wife. 76. On 24 March 1997 the applicant, likewise unsuccessfully, asked the court to allow his wife to visit him in prison. 77. On 11 April 1997 he made a similar application, submitting that at the hearing of 10 April 1997 the court had heard evidence from him and he had explained all the circumstances relating to his the charges laid against his wife. The court dismissed the application on 18 April 1997. No reasons for that decision were given. 78. Subsequently, on 22 and 28 April and 8, 20 and 28 May 1997 the Wrocław-Śródmieście District Court, without giving any reasons for its decisions, dismissed five further applications in which the applicant asked to be allowed to see his wife. He argued that the prolonged and drastic restrictions on their contact were cruel and inhuman and had severely affected his family life. In his application of 22 May 1997, the applicant stressed that since the court had heard evidence from his wife on 21 May 1997 (see also paragraph 41 above), there was no further justification to continue the harsh measures imposed on their personal contact. He relied on Articles 3 and 8 of the Convention. 79. On 16 June 1997 the Wrocław-Śródmieście District Court dismissed two further, similar applications made by the applicant on 5 and 12 June 1997, holding that the prohibition on any personal contact between him and his wife was justified by the risk that they might induce one another to give false testimonies before the court or obstruct the proper course of the proceedings. 80. The applicant's wife was allowed to visit him in prison on 9 August 1997. That visit took place in the presence of the prison guard. 81. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (“the Code”) (Kodeks postępowania karnego) – entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. 82. Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes (“the 29 June 1995 Law”) entered into force) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor. Article 210 §§ 1 and 2 of the Code (in the version applicable at the material time) stated: “1. Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor. 2. A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect. Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect.” 83. A detainee could, under Article 212 § 2, appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the court dealing with his appeal. 84. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision. Article 209 set out the general grounds justifying imposition of the preventive measures. That provision read: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 85. Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society. ...” On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read: “(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) [as it stood before 1 January 1996].” Paragraph 2 of Article 217 provided: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years' imprisonment, or if a court of first instance has sentenced him to at least three years' imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” 86. The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.” 87. The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. 88. Finally, Article 218 stipulated: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1) it may seriously jeopardise the life or health of the accused; or (2) it would entail excessively burdensome effects for the accused or his family.” 89. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 entered into force, the law did not set any time-limits on detention on remand in the court proceedings. Originally, the provisions setting out time-limits for detention were to enter into force on 1 January 1996; however, their entry into force was eventually postponed until 4 August 1996. 90. Article 222 of the Code of Criminal Procedure in the version applicable after 4 August 1996 provided, in so far as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years' imprisonment] this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs. 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” 91. On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also: “... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...” 92. No appeal laid in law against the Supreme Court's decision on an application made under Article 222 § 4. In cases where the Supreme Court dismissed such an application, a detainee had to be released. As long as it had not reached a decision, an application of the relevant court – which had a form of a decision (“postanowienie”) – was as a basis for the continued detention. 93. At the material time the relations between the authorities of the Polish State were set out in interim legislation, the Constitutional Act of 17 October 1992 (Mała Konstytucja). Article 1 of the Act affirmed the principle of the separation of powers in the following terms: “The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts.” 94. The Law of 20 June 1985 (as amended) on the Structure of Courts of Law (Ustawa o ustroju sądów powszechnych) in the version applicable at the material time provided, in section 1: “1. Courts of law shall dispense justice in the Republic of Poland. 2. Courts of law shall be courts of appeal, regional courts and district courts.” 95. The Law of 20 June 1985 (as amended) on Prosecution Authorities (Ustawa o Prokuraturze) set out general principles concerning the structure, functions and organisation of prosecution authorities. Section 1 of the Law, in the version applicable at the material time, stipulated: “1. The prosecution authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General. 2. The Prosecutor General shall be the highest prosecution authority; his functions shall be carried out by the Minister of Justice.” 96. Chapter III of the Code entitled: “Parties to proceedings, defence counsel, representatives of the victims and representatives of society” described a prosecutor as a party to criminal proceedings. Under all the relevant provisions of the Code taken together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. As regards the general position of the prosecution, at the material time they were not independent from the executive since the Minister of Justice carried out the duties of the Prosecutor General. 97. At the material time there were three different legal avenues enabling a detainee to challenge the lawfulness of his detention: appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage and proceedings set in motion by a detainee's application for release. As regards the last of these, Article 214 of the Code (in the version applicable at the material time) stated that an accused could at any time apply to have a preventive measure quashed or lifted. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days. 98. Under Article 88 of the Code of Criminal Procedure the presence of the parties at judicial sessions other than hearings was a matter for discretion of the court. Sessions concerning an application for release, a prosecutor's application for prolongation of detention or an appeal against a decision on detention on remand were held in camera. If the defendant asked for release at a hearing, the court made a decision either during the same hearing or at a subsequent session in camera. 99. At the material time the law did not give the detainee the right to participate in any court session concerning his detention on remand. In practice, only the prosecutor was informed of and could participate in such sessions. If he was present, he was entitled to adduce arguments before the court. The prosecutor's submissions were put on the record of the session (cf. Włoch v. Poland, no. 27785/95, judgment of 19 October 2000, §§ 6973). 100. Articles 82-90 of the Code of Execution of Criminal Sentences of 1969 (the Code is no longer in force; it was repealed and replaced by the “new” Code of Execution of Criminal Sentences of 5 August 1997, which entered into force on 1 September 1998) concerned the execution of detention on remand. Under Article 89 § 2 of the Code, a detainee might receive visitors in prison or might contact his family by prison internal phone provided that he had obtained permission in writing from the investigating prosecutor (at the investigation stage) or from the trial court (once the trial commenced). The authorities could order that a visit should take place in the presence of a prison guard. 101. Pursuant to the same provision, all correspondence of a detainee was, as a rule, censored, unless a prosecutor or a court decided otherwise. There was no legal means whereby a detainee could appeal against or, in any other way, contest censoring of his correspondence or the scope of that measure (cf. Niedbała v. Poland, no. 27915/95, judgment of 4 July 2000, §§ 33-36). | 1 |
dev | 001-79269 | ENG | TUR | CHAMBER | 2,007 | CASE OF ASLAN AND ÖZSOY v. TURKEY | 4 | Violation of P1-1 | null | 4. The applicants were born in 1965 and 1936 respectively and live in Hatay. 5. On various dates, the applicants bought plots of land (nos. 1879 and 1878 respectively) near the coast in Hatay. The first applicant opened a wedding hall on the premises. The second applicant ran a cafeteria and a boarding house. 6. In 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance to determine whether the applicants’ plots of land were located within the coastline. A group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants’ land and concluded that they were located within the coastline. 7. Following the conclusions of the experts’ report, the Treasury filed two separate actions before the Samandağ Court of First Instance, requesting the annulment of the applicants’ title deeds to the lands on the ground that they were located within the coastline. 8. On 30 December 1999 and 24 December 1999 respectively, the Samandağ Court of First Instance, after having obtained additional experts’ reports, upheld the request of the Treasury and decided to annul the title deeds of the applicants to the plots of land. In its decisions, the court held that, pursuant to domestic law, coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides and on the fact that they had constructed buildings on the site. The Court of Cassation dismissed the applicants’ appeals on 10 July 2001 and 3 October 2000 respectively. 9. On various dates the applicants requested the Court of Cassation to rectify its decision submitting, inter alia, that the right to property was protected under international conventions, the constitution and the domestic law, and that the domestic courts had deprived them of their property rights without proper examination. The Court of Cassation dismissed the applicants’ requests on 17 January 2002 and 19 April 2001 respectively. These decisions were served on the applicants on 18 February 2002 and 24 May 2001 respectively. 10. The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006). | 0 |
dev | 001-22203 | ENG | POL | ADMISSIBILITY | 2,002 | TOKARCZYK v. POLAND | 4 | Inadmissible | Christos Rozakis | The applicant, Jerzy Tokarczyk, is a Polish national, who was born in 1955 and lives in Lublin. In 1995 the Lublin District Prosecutor instituted investigations in respect of a person or persons unknown on suspicion of aiding and abetting abortion. On 11 April 1995 the District Prosecutor ordered the interception of the applicant’s telephone calls as he suspected him of having committed a criminal offence of aiding and abetting abortion. On 12 May 1995 the applicant was remanded in custody. He was released on an unspecified date after approximately four months of detention. On an unspecified date the applicant appealed against the decision of 11 April 1995, submitting that the interception of his phone calls had exposed his family to harassment by the employees of the State telecommunications service. On 7 June 1995 the Lublin Regional Prosecutor upheld the contested decision, considering that it had been justified by the need to gather evidence in the proceedings. The recorded conversations had served as evidence, which enabled charges to be brought against the applicant. After the applicant was arrested, the interception of his phone calls was terminated on the same day. By virtue of a judgment of the Lublin District Court of 27 October 1997 the applicant was found guilty on fourteen counts of aiding and abetting abortion in return for payment. He was also convicted of inciting one of the women who had had an abortion, M.Z., to give false evidence. The applicant was sentenced to one and a half years’ imprisonment and a fine of 3,000 Polish zlotys (PLN) was imposed on him. The court established that from March 1993 the applicant had been regularly placing advertisements in the local newspaper: “Gynaecologist - inducing periods; call after 6 p.m. ”, and giving a phone number of a flat owned by him. Numerous women had telephoned him. He offered a service of taking them by his car to a hospital in Lviv in Ukraine, where abortion remained legal, for a fee of between PLN 700 and PLN 2,000. He had travelled to Lviv ten times, on various dates from 21 January 1995 until 27 April 1995, with fourteen women who had had abortions in the local hospital. The court relied on the testimony of thirty witnesses, including the fourteen women concerned, the staff of the newspaper in which the applicant had placed his advertisements, the persons living in his flat where he had been taking the phone calls, and other persons living in the neighbourhood. The court also relied on numerous documents in the case-file. As regards the charge of inciting M.Z. to give false evidence, the court relied on the transcripts of the applicant’s conversation with her, in which he had suggested that she tell the court that she travelled to Lviv to visit her family. The court further considered that the transcript of the two conversations was consistent with the evidence that this witness had given in the court. The applicant appealed against that judgment. He submitted, inter alia, that the court had committed an error of fact in that it had failed to order expert medical opinions to establish whether the health of the women concerned had been such as to justify abortion under the law as it had stood at the material time. It was further argued that the court had failed to establish whether the women concerned were in a “difficult personal situation” within the meaning of the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act. The court had limited its considerations in this respect to the women’s financial situation, entirely overlooking all other aspects of what could legitimately be understood as their “personal situation”. The term “personal situation” should have been interpreted as referring to a woman’s situation as a whole, including her subjective feelings. Regard should have been had to the particularly delicate situation of a woman in an unwanted pregnancy, often confronted with the hostility of her environment and having to cope with prejudices and negative opinions in respect of unmarried mothers. Only through a full assessment of all such circumstances could it be established whether the women in the instant case were in a difficult personal situation such as to render voluntary termination of pregnancy lawful under the provisions of the Act. Lastly, the applicant argued that the lower court did not have any credible evidence on which to convict him of inciting M.Z. to give false evidence. On 10 March 1998 the Lublin Regional Court upheld the contested judgment. The court considered that there was in fact evidence concerning the charge of inciting M.Z. to give false testimony, namely the transcript of the telephone conversations between her and the applicant on 5 May 1995 and 9 May 1995, numbered 10 and 15. As to the health of the women who had had abortions, the court observed that there were no indications that the applicant had been interested in their health when he had offered his services. Therefore it could not be accepted that their health could have been such as to amount to a fact justifying the abortion within the meaning of the Act then in force, or that the applicant had himself had any regard to this factor. Insofar as the applicant argued that the lower court had failed to establish whether the women were in a “difficult personal situation”, the court considered that the assessment made by the lower court was not arbitrary and that it was compatible with ordinary life experience. The applicant lodged a cassation appeal with the Supreme Court. submitting complaints similar to those advanced in the appeal against the first-instance judgment. On 8 April 1999 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. Subsequently, the applicant applied to the Penitentiary Division of the Lublin District Court to grant him a stay of execution of the sentence as his health necessitated continuous medical care. On 31 August 1998 the court granted him a stay of execution. On an unspecified date the applicant applied again for a stay of execution of the sentence and on 29 June 1999 the Lublin District Court refused, holding that there were no indications that the serving of a prison sentence would entail any deterioration of his health. Subsequently, the applicant applied to the Supreme Court to reopen the criminal proceedings in his case, submitting that the Zamość District Prosecutor had, at his request, instituted criminal proceedings against witnesses who had testified in his case as their testimony had allegedly been false. Simultaneously, he applied for a stay of execution of the sentence. On 5 August 1999 the Supreme Court refused to grant him a stay of execution. On an unspecified later date the applicant appealed against the Lublin District Court decision of 29 June 1999 and on 16 August 1999 the Lublin Regional Court granted him a stay of execution of the sentence until 30 October 1999. Apparently, the applicant submitted further applications for a stay of execution and they all were refused. On an unspecified date the applicant requested the Supreme Court to set a date for the in respect of his application to reopen the proceedings in his case. On 11 July 2000 he was informed in reply that the hearing could not be held until the final decision was given in the criminal proceedings against witnesses, as the decision was of significant importance for the decision on the reopening of the proceedings. On an unspecified date the Zamość District Prosecutor discontinued the proceedings against the witnesses, finding that they had no case to answer. The applicant appealed against that decision and the Zamość District Prosecutor ordered his appeal to be considered by the Lublin District Court. Article 198 of the 1969 Code of Criminal Procedure, applicable at the material time, provided that the prosecutor or the court was empowered to order that telephone communications, which could be of potential relevance to criminal investigations, be intercepted. The service of such a decision on the accused could be postponed for a specific period, considered necessary in the interest of the investigations. Under the Minister of Justice’s Order of 10 May 1983 on the interception of phone calls, recordings of telephone conversations were to be made on the basis of the prosecutor’s or court’s order, within the time-frame and scope specified in that order. A woman’s right to seek an abortion was introduced in Poland in 1956. From 1956 until 1993 voluntary termination of pregnancy on social grounds was in practice allowed. The Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act was subsequently adopted by Parliament on 7 January 1993. It seriously limited the grounds on which abortion could be sought. On 4 January 1997 an amended text of the Act entered into force. The law as amended provided that pregnancy could be terminated only in the following cases: where pregnancy endangered the mother’s life or health; whre pre-natal tests or other medical findings indicated a high risk that the foetus could be severely and irreversibly damaged, or be suffering from an incurable life-threatening disease; where there were strong grounds for arguing that the pregnancy was a result of criminal activity (rape or incest); or where the mother was in a difficult personal situation. On 27 May 1997 the Constitutional Court ruled that Article 1 § 2 of the Act, making human life in its pre-natal stage dependent on the decision of the legislative, did not comply with Article 1 of the 1952 Constitution. That provision stated that Poland was a democratic state ruled by law and implementing the principles of social justice. The Constitutional Court held that Article 2 of the Act was incompatible with Article 79 of the Constitution, which proclaimed the principle that marriage, motherhood and the family were to be placed under the protection and care of the Republic. The Court held that the provision in issue infringed the constitutional guarantees for the protection of human life at each stage of its development. As a result, further amendments were made in December 1997 to the text of the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act of 1993. In particular, the right to terminate pregnancy where the pregnant woman was in a difficult was abolished. A pregnancy that risks a woman’s life or health, or where the child suffers from a genetic malformation, may only be terminated by a physician in a public health-service institution. A physician other than the one who is to perform the operation must issue the certificate confirming the risk to a woman’s health. If the pregnancy resulted from criminal activity, it may only be terminated by the end of its twelfth week and the prosecutor is required to issue a certificate stating that it is probable that the pregnancy is the result of a crime. Termination of pregnancy in situations other than those stipulated in the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act is now a criminal offence punishable by imprisonment for up to two years. The person performing the abortion is held criminally responsible, whereas the woman herself is not. | 0 |
dev | 001-101179 | ENG | RUS | CHAMBER | 2,010 | CASE OF SALIYEV v. RUSSIA | 2 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1957 and lives in Magadan. 7. The applicant was the president of a non-governmental organisation known as Investory Kolymy (Investors of Kolyma). In 2001 he wrote an article entitled “Shares for the Moor of Moscow” (“Акции для московского мавра”). The article was about the acquisition of shares in Kolymaenergo Plc (a local energyproducing company which was at the time a part of the State holding Edinye Energeticheskiye Systemy Rossii) by a group of Moscow-based firms. In the article the applicant described the purchase as a crooked deal and alleged that a high-level official from Moscow, one of the leaders of the progovernment political party, was behind the transaction. The article reads as follows: “Shares for the Moor of Moscow Where are the 1,300,000,000 roubles [obtained from] the placement of shares in Kolymaenergo Plc? We meant well ... Everything started with an advertisement in [the official daily] Rossiyskaya Gazeta of 1 July 2000, in which Kolymaenergo Plc informed us about the next step in its exploration of market in the country – namely, about the official registration of the issue of 3,231,000,000 simple non-documentary nominal shares. [In that advertisement Kolymaenergo] described in great detail the conditions and procedure for the issue of the shares, including the distribution of the shares amongst prospective buyers in the first priority group and the second priority group, explained how to formulate a request for acquisition of shares, and, naturally, indicated the bank account into which payments for the shares should be made. The payments were supposed to go through a commercial bank situated in Krasnodar [a city in southern Russia]. In other words, a reputable firm got involved, and, as a consequence, the business was put on a solid footing. At least, that was the appearance that the sponsors of the project wanted to create for those who they hoped would “swallow the bait” and, under the influence of the very promising advert – published, by the way, in all the mass media of the Magadan Region – would be prepared to play for high stakes. At the local level the preparations had started long before the publication of the advert. First of all, the issuer (the corporation issuing the securities) took care to develop convincing arguments which would help to get support for their project from public officials. On 29 April 1999 a consultation meeting took place in the office of the head of the Yagodninskiy District [of Magadan Region], where the question of payment of the local taxes due by Kolymaenergo Plc was discussed. It was no accident that that question was on the agenda of the meeting: by that time the outstanding fiscal debt of the energy industry [vis-a-vis the local authorities], including the carryovers from previous years, amounted to 228,700,000 roubles – a very significant amount for the District [budget]. As a result of the discussion an agreement was reached which provided, in particular, that (direct quote) “the administration of the Yagodninskiy District discharges Kolymaenergo Plc from the payment of 228,700,000 roubles in local taxes. In return, Kolymaenergo Plc transfers [to the administration] its shares worth 228,700,000 roubles, at the market rate applicable at the moment of the transfer”. Both parties signed the minutes of the meeting containing that clause. Naturally, among the signatures were those of Mr F.I.T., the head of the local administration, and Mr G.I.S., the managing director of Kolymaenergo. Some time later Mr. G.I.S. made a similar proposal – “shares in exchange for taxes” – to the financial department of the administration of the Magadan Region and to the mayor's office of Magadan. The plot thickens. At the beginning of November 1999 the Duma of the Magadan Region adopted the Law on investment in the construction of the Ust-Srednekanskaya HydroElectric Power Plant (HEPP). Almost certainly, everyone has heard about the problems with the financing of that “never-ending construction project”, so the desire of the lawmakers to use every opportunity to get the extra funding is quite understandable. As a result, in the new law, driven by the best aspirations, they stipulated that “... in order to complete the construction of the Ust-Srednekanskaya HEPP plant, which is one of the most important elements in the fuel and energy system of the Magadan Region ... Kolymaenergo Plc may dispose of the fees as a registered member of the special economic zone, due for the period until 31 December 2002, which were earmarked for the special-purpose extra-budgetary fund for social development in the Magadan Region. Those fees should be considered as a capital investment in the main capital of Kolymaenergo Plc, in particular to pay for the construction costs of the UstSrednekanskaya HEPP, on condition that a corresponding part of the shares is registered as the property of the Magadan Administration” (end of quote). That law was enacted on 3 November 1999. ... But it ended up the same as always As the saying goes, “everything looked smooth on paper, but they forgot that in reality it was full of cracks”. The fourth additional issue of shares was registered on 16 June 2000, and distribution was supposed to start in two weeks. On different dates, all within the period of open distribution of the shares, a number of potential investors concluded standard acquisition agreements with Kolymaenergo Plc. Edinye Energeticheskiye Systemy Rossii [the biggest State-controlled energy company at that time], for good reason, bought shares for almost 1,680,000,000 roubles, thus investing in the construction of the Ust-Srednekanskaya HEPP. However, the situation has since changed, for the worse as regards most of the investors. One of the local companies, Regiondragmet Ltd, expressed an interest in purchasing shares for 1,200,000,000 roubles. When the director of Kolymaenergo Plc. Mr G.I.S., learned about that offer, he requested that all previous offers and the book where they were registered be destroyed, and decided that henceforth he would take care of the distribution of the shares. Very soon, instead of the bank account in Krasnodar indicated in the original issue plan, a new bank account was opened, this time with the Korvet bank (Moscow), and, following that, the implementation of the whole scheme, as designed from the very beginning, started. In a very short time, three commercial firms were incorporated in Moscow: Bakkar Ltd, Promstroy TEK Ltd and ONEKS-Consulting Ltd. Bakkar transferred 140,000,000 roubles to Kolymaenergo's account with the Korvet bank; with that money the recipient [Kolymaenergo] paid for the promissory notes issued by ONEKS-Consulting. For those not familiar with of all the subtle details, I should explain that promissory notes, unlike shares, do not need to be secured by any property or financial resources of the company that issued them. That is why any limited company with a charter capital of eight or ten thousand roubles and nothing besides, not a bean, can issue promissory notes for one billion roubles, provided that a buyer comes forward. In our case the buyer was Kolymaenergo, which at that time had an outstanding debt of more than a billion roubles owed to its employees, the pension fund and the State budget at different levels. The value of the promissory notes was no less than 1,300,000,000 roubles; it's no coincidence that the head of Bakkar earlier transferred 140,000,000 roubles to the account with the Korvet bank (see above). And then that amount was passed ten times through the corresponding bank accounts, with the use of the same photocopied bank payment order. As a result, Bakkar purchased, almost for free, a huge number of shares which amount to 15 per cent of the overall charter capital of Kolymaenergo. It is easy to guess what the reaction of the would-be investors, who suffered both pecuniary and non-pecuniary damage, was. Numerous legal suits, petitions and complaints were addressed to the Magadan Town Court, the Commercial Court of the Magadan Region, Edinye Energeticheskiye Systemy Rossii and other senior authorities. On 14 May 2001 an NGO called Investory Kolymy was created by a group of persons, and it immediately joined in the process of uncovering the truth. The main goal of that NGO consisted in promoting the interests of the investors, shareholders and other interested persons, and protecting their investment in the energy industry of the Magadan Region before the courts, social policy institutions or any organisations competent to address their concerns in whatever manner. But they received silence in reply [to their petitions]. In particular, the board of directors of Kolymaenergo kept ignoring them, although it had been Mr V.A.P., the head of the board, who had approved the [share] issue plan. As we can read in a letter from one of the shareholders of Kolymaenergo to the head of the management board of Kolymaenergo, Mr A.S. (with a copy to the head of the management board of Edinye Energeticheskiye Systemy Rossii, Mr A.B.Ch.): “In the internal audit report, under the heading of “Profits and losses” there is no information about any money received from the shares sold. 1,300,000,000 roubles were supposed to be transferred to the bank account of Kolymaenergo Plc. That money was sufficient to pay the outstanding debts of the company, to relaunch normal operations through the bank account of the company and not through [non-monetary] “clearances” in which the company was losing half of what was due to it. “Furthermore, it became known that some of the shareholders, namely Bakkar and Probstroy TEK, had paid only one tenth of the price [of the shares they had purchased], whereas according to the audit report on the issue of the shares Bakkar had paid [Kolymaenergo] the full price. Why has this been done?” [end of quote] The arguments of the claimant were considered unpersuasive That letter was sent as early as May 2001; in June a meeting of shareholders took place, but the author of the letter did not get a reply until now. The question formulated at the end of the quote is, most likely, a rhetorical one, because we are all grown-ups and we all understand why it has been done. We also understand that after that scam with the shares came to an end, all our hopes inspired by the promises of the sponsors of the [share issue] plan, the hope of getting salary arrears paid, of getting tax paid, of investing in the construction of the Ust-Srednekanskaya HEPP, etc., all those hopes have vanished. A striking example is provided by the situation with the company Metalloeksportnaya, which brought proceedings before the Commercial Court of the Magadan Region, seeking damages from Kolymaenergo Plc for false advertising. That company [Metalloeksportnaya] was prepared to buy 400,000 shares. Last year, on 25 December, it made the first payment, but on the next day the money was returned [to Metalloeksportnaya] since the account indicated in the agreement did not exist and the recipient of the money was not [amongst the clients of the bank] (now we know why – the account with the Krasnodar bank was never opened). The Metalloeksportnaya company immediately sent Kolymaenergo all signed documents and asked them to provide new banking details for the bank transfer. However, there was no reply. A new request in similar terms was made on 2 February 2001, but, again, to no avail. As a result, on 21 May 2001 a tort claim was introduced before the Commercial Court of the Magadan Region, for an amount of 90,000 roubles. The claimant's arguments were very convincing. Let us take the manipulation with the bank accounts described above. Whereas most of the potential buyers of the shares of the fourth additional issue tried (in vain) to use the account indicated in the issue plan, i.e.. the account that in reality did not exist, those investors for whom Kolymaenergo created a most-favoured regime were able to pay for the shares through a secret account in the Moscow-based Korvet bank. The decision of the court mentioned that fact; however, it was interpreted in a peculiar way. Indeed, as the decision established, “... owing to the absence of the bank account and of a recipient in the bank the money in the amount of 2,000 roubles was returned”. To all appearances, that fact is established. However, on the same page, a few paragraphs below, one can read one of the arguments which the defendant put forward: “... in breach of the agreement on the acquisition of shares the claimant had made the payment before the conclusion of the agreement.” On the next page we see the court's conclusion, which was the central reason for dismissing the tort action: “... at the moment of conclusion of the agreement the claimant had been required to transfer to the defendant no less than 200,000 roubles. The defendant, in accordance with section 3.3 of the agreement, was to forward to the claimant the documents confirming the payment together with a signed copy of the agreement. However, in breach of the agreement, the claimant only transferred 2,000 roubles for the shares”. Too many inconsistencies, are there not? In fact, contrary to what the court established, the payment had been made on 25 December, i.e., after the conclusion of the agreement, which had been signed on 9 December. What does this mean? First of all, it means that the materials in the case file were not duly studied by the court. Furthermore, what difference would it make if the claimant transferred 200,000 roubles and not 2,000? Would the correct bank account appear in the issue plan? Would it allow the company to become the lawful owner of the shares? Unfortunately, miracles are impossible, especially when nobody wants to produce a miracle. And please pay attention to the phrases which are underlined [in the quote above]. It is hard to reconcile the argument of the defendant (that the payment should have been made after conclusion of the agreement) and the argument of the court (that the buyer was under an obligation to send a signed copy of the agreement together with a document confirming payment). I will further note that the acquisition agreement required [the buyer] to pay 50 per cent of the overall sum of the transaction, but did not specify whether such payment had to be made in instalments or in one go. And that is not the end. In the section “Distribution of the shares amongst buyers in the second priority group” of the issue plan one can read: “Offers from prospective buyers in the second priority group will be accepted [by Kolymaenergo Plc] in chronological order of their receipt”. That means that the dates of receipt of every offer should be registered in a special logbook. However, the requests by the claimant and by the court to produce such a logbook were to no avail. It was only possible to see the record of existing shareholders, in which, under no. 1, we can see the name of the very same Moscow-based firm which obtained, for unclear reasons, preference in buying the shares. Still, it was impossible to get a clear answer to the question whether an offer from Metalloeksportnaya to buy shares was registered, and, if so, on what date. Ready or not, here I (don't) come? Very shortly [I will tell] you about those who stood to gain in this whole obscure story. When the prosecution officials involved in the inquiry into the situation with the shares came to Moscow, they were unable to find Bakkar Ltd, Promstroy TEK Ltd or ONEKS-Consulting at the official addresses given, or those people who were mentioned in the documents of Kolymaenergo Plc. The Moor has done his work, and the Moor has left, without leaving an address or even saying “Goodbye”. This is the true situation; however, criminal investigation no. 14158 into the abuse of official position by the managers of Kolymaenergo Plc was finally closed for lack of the constitutive elements of a crime. The decision of the Commercial Court of the Magadan Region was appealed against by the NGO Investory Kolymy; in its grounds of appeal all the breaches of the law in the sphere of the advertisement, selling and buying of shares were described in detail. However, the Court of Appeal again just ignored the arguments of the claimant. None of the facts mentioned above, which clearly spoke against the defendant, were taken into account. As a result, the claimant, together with Investory Kolymy, lodged an appeal on points of law with the Court of Cassation in Khabarovsk. As to the discontinuation of the criminal investigation, we will challenge the decision of the prosecution in this respect by all legitimate and civilised means. When that dispute started, we informed Mr A.B.Ch., the head of the management board of Edinye Energeticheskiye Systemy Rossii, and the Federal Commission on Securities, of the situation. However, a principle of esprit de corps came into play, and they decided not to wash their own dirty linen in public. As it appears, they want to cover up the affair at all levels. If we do not succeed, we will still continue fighting. On 15 August 2001 our organisation sent to the Magadan Town Court a statement of claim against Kolymaenergo and the Federal Commission of Securities and the then head of the Board of Directors of Kolymaenergo, the leader of the “United Russia” fraction in the State Duma, Mr P., the General Director of Kolymaenergo Mr. S., and the chief accountant Ms K. What is our organisation asking for before the court? First of all, that it declare the advertisement of the fourth issue of shares abusive, and the issue itself invalid. We think that Kolymaenergo Plc breached the provisions of the federal legislation, in particular, the Standards for the Issue of Shares, the Act on Defence of the Rights of Investors and the Public Limited Companies Act. The legal provisions on which we base our claims are indicated in the statement of claim. So far the date of the hearing in this case has not been set; it will take place in October or November, after the judge returns from her leave. By the way, the judge took annual leave twenty days after the case had been assigned to her. A similar handling of cases concerning machinations with shares has become almost systemic. All this squabbling cannot but be detrimental to the investment climate in the region, because Kolymaenergo is a public limited company and its shares can be purchased by foreign investors as well. And now, when Russia is seeking recognition as a country with a market economy, events of this kind will not help it to acquire weight. In the current situation the NGO Investory Kolymy will insist on an objective examination of its civil claims and of the criminal case, in order to protect the rights of investors. A. Saliyev, Head of the Advisory Board of the NGO Investory Kolymy” 8. On 10 October 2001 the applicant submitted the article to a municipally owned newspaper, Vecherniy Magadan, for publication. He produced documents in support of the facts described in the article. Mr Svistunov, the editor-in-chief of the newspaper, agreed to publish the article. It was included in issue no. 44 of 2 November 2001. That issue, with the applicant's article in it, had a print run of 5,184 copies. 9. On the morning of 2 November 2001, 2,394 copies of the issue containing the applicant's article were sent to subscribers and to State libraries. Two thousand copies were given to the distributing company Rospechat to be sold at street distribution points, kiosks and newsstands. However, shortly afterwards those copies were withdrawn from the newsstands and they were later destroyed. According to the Government, the withdrawal was requested by Mr Svistunov (the editor-in-chief). They submitted a letter from the editor-in-chief to the head of Rospechat asking the latter to withdraw the copies. The letter is dated 2 November 2001; however, according to the applicant it was backdated. Only the copies that had been sent to libraries and subscribers remained. The Government submitted that a part of the print run had already been sold, with the result that only 120 copies had been withdrawn and destroyed. 10. On 5 November 2001 the editor-in-chief wrote a letter to the mayor of Magadan asking the latter to release him from the position of editorinchief because he “was unable to perform his duties in a fully professional manner”. 11. On 10 November 2001 the head of the trade union at the Kolymaenergo hydroelectric power plant wrote a letter to the editor-in-chief of Vecherniy Magadan asking him to explain why issue no. 44 had been withdrawn from the newsstands. 12. On 11 November 2001 the editor-in-chief replied to that letter explaining that he had not given the relevant order. He claimed that the decision had been taken by the head of the distributing company Rospechat. He, the editor-in-chief, had had to sign a backdated order for withdrawal of the copies, and from a private conversation he had understood that the copies had been withdrawn because of the applicant's article, which had mentioned the names of certain politicians whom the editor-in-chief described as “untouchable”. After that incident he “[had taken] the difficult decision to resign from the position of editor-in-chief of Vecherniy Magadan”, because, in his words, “the newspaper was unable to enjoy freedom of speech and of the press,” and he “did not want to deceive readers”. It appears that soon afterwards the editor-in-chief left Vecherniy Magadan and started working as a journalist on a private newspaper. 13. In the following months the applicant tried to publish the article in several regional and central newspapers, but to no avail. 14. On an unspecified date in 2002 the applicant lodged a formal complaint with the regional prosecutor's office concerning the withdrawal of the copies. In his submission, the withdrawal amounted to unlawful interference with freedom of the press, a criminal offence under Article 144 of the Criminal Code. 15. On 22 January 2003 that complaint was transmitted to the Magadan town prosecutor's office. The case was assigned to an investigator, who questioned the head of Rospechat and the former editor-in-chief. 16. On 30 January 2003 the head of Rospechat testified before the investigator that the decision to withdraw the copies had been taken by the former editor-in-chief. On the following day the investigator questioned Mr Svistunov, the former editor-in-chief of the newspaper. Mr Svistunov confirmed that he had asked Rospechat to withdraw the copies of the newspaper. He explained that he had agreed to publish the article because it concerned an interesting subject and because the applicant had shown him documents which supported the facts described in the article. The editorinchief had thought that the article would arouse public interest and had decided to publish it. However, after fresh consideration, when the newspaper had already been printed and sent out for distribution, he had decided to withdraw it. He had realised that the editorial staff “would have problems” if the article was published. As to his letter of 11 November 2001, it had not been accurate, because at the time he had been upset over his own decision to resign from the post. 17. On 31 January 2003, after a preliminary inquiry, the investigator decided not to open a criminal investigation. The investigator found that the decision to withdraw the copies had been taken by the editor-in-chief himself without any coercion. The investigator noted, however, that the decision of the editor-in-chief to withdraw the copies had been motivated by the need to avoid lawsuits and litigation which might have followed the publication of the article, and to protect the editorial staff. The investigator concluded that no interference with freedom of the press had occurred. 18. The applicant challenged that decision before the court. On 7 April 2003 the Magadan Town Court examined the materials in the case file and heard evidence from the applicant and the former editor-in-chief; the latter testified that he had signed the order to withdraw the copies after they had already been withdrawn from sale. After examining the applicant's complaint, the Town Court decided to quash the decision of 31 January 2003. The court noted that by law the withdrawal of a print run could be ordered only by the judicial authorities. The Town Court also ordered certain additional investigative measures to be carried out by the investigating authorities. 19. On 23 April 2003 the Magadan town prosecutor ordered an additional inquiry. The case was assigned to another investigator, who questioned the applicant, the former editor-in-chief, the head of Rospechat and a staff member of Rospechat. The applicant testified that when he had learned about the withdrawal of the copies he had called the editor-in-chief, who explained that they had been withdrawn by a decision of Rospechat, and that the head of Rospechat had persuaded him to sign a backdated order for withdrawal. 20. The head of Rospechat testified that the copies had been withdrawn by order of the then editor-in-chief. He also denied putting any pressure on the editor-in-chief. 21. The former editor-in-chief confirmed his previous testimony given to the investigator of the town prosecutor's office. As to his testimony before the Town Court, it was his view that the copies had been withdrawn before the order had been signed. Indeed, he had discovered at one of the street kiosks that all copies of issue no. 44 had disappeared. However, he had no proof that they had disappeared because they had been withdrawn. 22. Finally, the staff member of Rospechat confirmed that on an unspecified date she had helped the then editor-in-chief of Vecherniy Magadan to withdraw the copies from the street kiosks. Altogether, they had managed to withdraw between 100 and 200 copies. 23. On 3 May 2003 the investigator concluded that there was no case to investigate. His reasoning was similar to the reasoning of the previous investigator of 31 January 2003. 24. The applicant challenged that decision before the courts. On 20 May 2003 the Magadan Town Court upheld the decision of 3 May 2003. The court concluded that the prosecution inquiry had been carried out with due diligence and that the findings of the inquiry had been properly reasoned. The applicant appealed, but on 25 June 2003 the Magadan Regional Court upheld the judgment of 20 May 2003. 25. The applicant brought court proceedings seeking to have 2,000 copies of issue no. 44 containing his article reprinted and sold at street kiosks. 26. On 1 July 2003 the Magadan Town Court dismissed his action. The court stated that the newspaper, as the owner of the copies, could dispose of them of its own free will. The court also found that there had been no contract between the applicant and the newspaper obliging the latter to distribute the issue containing the article. 27. The applicant appealed. On 5 August 2003 the Magadan Regional Court upheld the lower court's decision, repeating the latter's reasoning. 28. According to the charter of the newspaper, Vecherniy Magadan was founded by the municipal property committee of the municipality of Magadan (“the municipality”) in the form of a “municipal institution” (муниципальное учреждение), with a view to informing the population of Magadan about social, political and cultural life in the town. The municipality retains the ownership rights in respect of the assets of the newspaper, while the newspaper exercises a right of “operational management” (право оперативного управления) in respect of those assets. The municipality approves the budget of the newspaper and payroll expenses. The newspaper receives its funding from the municipal budget; it can also receive income from other sources such as advertising, subscription fees, and so on. In 2007, according to the Government, all the newspaper's expenses (6,980,000 roubles) had been paid from the municipal budget. 29. The municipality can “define targets” for the development of the newspaper. The newspaper has an “editorial council” (редакционный совет), a “coordinating and advisory body” composed of the editor-in-chief and several representatives of the municipality. 30. The editorial policy of the newspaper is defined by the “editorial board” (редакционная коллегия), composed of the editor-in-chief, his deputy, the secretary, and the heads of departments. The editorial board can propose materials for publication or recommend not publishing “controversial material”. 31. The editor-in-chief of the newspaper is appointed by the municipality. The editor-in-chief appoints the other staff members of the newspaper and acts on behalf of the newspaper vis-à-vis third parties. The municipality cannot compel the newspaper to publish material if it has been rejected by the editorial board, unless the law provides otherwise or the material is of an official nature. The charter of the newspaper does not stipulate, however, who can decide to withdraw or destroy copies of the newspaper or the grounds for doing so. 32. The Media Act of 27 December 1991, with further amendments, prohibits censorship: State bodies and officials cannot require a communication medium (for instance a newspaper) to obtain prior authorisation for the publication of material. The Act also prohibits banning the distribution of certain material (section 3 of the Act). 33. Under section 2(10) of the Act the editor-in-chief heads the editorial board and “takes final decisions as to the production and distribution of the medium”. 34. A communication medium may be established by a State body. The owner (founder) of the medium may interfere with editorial policy only to the extent defined in the charter of that medium (sections 18 and 19 of the Act). 35. Under section 25 of the Act, non-subscription sales of a newspaper (for example, sales from newsstands on the streets) may be limited only to the extent defined by the Act. 36. Under section 28 of the Act confiscation or destruction of a print run (тираж) or part of it is possible only pursuant to a court decision [to this end] which has entered into legal force. 37. Under section 42 of the Act, unless otherwise provided by the law, nobody can compel the editorial board to publish material which has been rejected by that board. 38. Founders, editors, publishers, journalists and authors may be held liable for breaches of Russian legislation on the mass media (section 56). | 1 |
dev | 001-91422 | ENG | RUS | CHAMBER | 2,009 | CASE OF VAGAPOVA AND ZUBIRAYEV v. RUSSIA | 4 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life) | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicants live in the village of Chechen-Aul, in the Groznenskiy District of the Chechen Republic. 7. The applicants are married. At the material time they lived together with their children at 8 Lenin Street, the village of Chechen-Aul. One of their sons, Mr Alis Adnanovich Zubirayev, was born in 1986. 8. At about 5.15 a.m. on 21 December 2004 someone knocked at the entrance door of the applicants’ house. Alis Zubirayev opened the door. Three armed men wearing military uniforms burst inside and beat Alis Zubirayev with machine-gun butts. The men wore no masks. They did not identify themselves but the first applicant inferred that they belonged to the Russian military. At some point three other servicemen entered the house. 9. The first applicant called her husband; when he entered the room, one of the servicemen ordered him to produce identity papers. When the second applicant did so, he saw a serviceman pointing a machine gun at Alis Zubirayev. 10. The servicemen asked Alis’s family name, examined his identity papers and said that it was “him”. Two of the servicemen twisted the young man’s arms behind his back and dragged him to the entrance door. The applicants asked them where they intended to take their son. The servicemen replied that the applicants had no reasons to worry. One of them told the first applicant to give him Alis’s jacket and shoes but did not allow Alis to dress. 11. The six servicemen left the house and took Alis to the street. The applicants followed them and saw an all-terrain UAZ vehicle without a registration number parked next to their gates. The servicemen put Alis on the floor of that vehicle and then got in it. The UAZ vehicle drove off. The applicants noticed an armoured personnel carrier (“APC”) parked behind UAZ. The APC’s registration number was illegible. 12. The UAZ and APC drove down Lenin Street and eventually turned to Partizanskaya Street. 13. After a while the applicants heard a noise and realised that an APC was ramming the gates of a neighbouring house. Later the applicants found out that servicemen had taken away their neighbour, Mr A.K. 14. The applicants have had no news of Alis Zubirayev since 21 December 2004. 15. The Government did not submit their account of the circumstances of Alis Zubirayev’s kidnapping. 16. At about 9 a.m. on 21 December 2004 the second applicant and relatives of A.K. came to the Groznenskiy District Department of the Interior (“ROVD”). Mr A., the head of the ROVD, told them that four policemen in an all-terrain UAZ vehicle had gone to Chechen-Aul to arrest Aslan Khatatayev and Mr M. and that they had been assisted by Russian military servicemen in APCs. Mr A. further said that the police had had no intention of arresting Alis Zubirayev and that he was unaware of the latter’s whereabouts. He suggested that Russian servicemen could have taken Alis to the village of Starye Atagi and confirmed that A.K. was detained in the ROVD. 17. In the afternoon of 21 December 2004 the applicants learned that some villagers had seen two APCs and an UAZ vehicle driving in the direction of Grozny. 18. Two days later A.K. was released from the ROVD and told the applicants the following. On his apprehension he had been first placed in an APC; at some point the servicemen had put a bag on his head and placed him in the UAZ vehicle. He could not tell whether Alis Zubirayev was in that vehicle. The servicemen had taken him to the ROVD. In the evening of 21 December 2004 they had taken the bag off his head and questioned him. 19. According to the applicants, a Russian military unit had its headquarters in a mill in the village of Starye Atagi. The applicants visited the head of Starye Atagi’s local administration and asked him to help them to find their son; he went to the mill, met the military servicemen and informed the applicants that Alis had not been kept there. 20. Later Mr A. told the applicants that he had talked to servicemen of the Federal Security Service (“FSB”) in Starye Atagi and that they had assured him that Alis Zubirayev had not been detained at the mill. 21. The applicants and their relatives repeatedly complained about Alis’s disappearance to various State agencies and officials. In particular, they applied to the Russian and Chechen Presidents, the Prosecutor General, the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit, the Russian Ombudsman, the Chechen Ministry of the Interior, the State Council of the Chechen Republic, the Committee for Protection of Constitutional Rights of Citizens of the Chechen Republic and the head of the local administration of the Groznenskiy District. Most of the complaints were forwarded to the prosecutors’ offices’ at different levels. 22. On 28 December 2004 the first applicant requested the prosecutor’s office of the Chechen Republic to help her to find her son. On 30 December 2004 her complaint was forwarded to the prosecutor’s office of the Groznenskiy District (“the district prosecutor’s office”). 23. On 6 January 2005 the district prosecutor’s office instituted an investigation into Alis Zubirayev’s disappearance under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”) and informed the applicants of the decision. The case file was assigned the number 44004. 24. On 31 January 2004 the district prosecutor’s office granted the second applicant the status of victim of a crime in case no. 44004. 25. On 15 February 2005 the district prosecutor’s office informed the first applicant that investigative measures were being taken to solve her son’s kidnapping. 26. On 21 February 2005 the first applicant requested the district prosecutor’s office to question eyewitnesses to her son’s abduction and Mr A. 27. On 6 March 2005 the first applicant requested the prosecutor’s office of the Chechen Republic to search for her son more actively. 28. On 6 April 2005 the district prosecutor’s office informed the first applicant that the term of preliminary investigation in case no. 44004 had been extended to four months. 29. On 11 April 2005 the first applicant requested the military commander of the Chechen Republic to help her to establish her son’s whereabouts. 30. On 19 and 28 April 2005 the military commander of the Chechen Republic ordered the military commander of the Groznenskiy District together with the heads of the ROVD and the FSB department, to carry out an inquiry into the facts complained of by the first applicant. 31. On 27 April 2005 the prosecutor’s office of the Chechen Republic informed the first applicant that the preliminary investigation in case no. 44004 was pending. 32. On 29 April and 15 May 2005 the military commander of the Groznenskiy District informed the military commander of the Chechen Republic that the criminal investigation into Alis Zubirayev’s kidnapping by unidentified armed men had been instituted and was under way. He also noted that various law-enforcement agencies had not arrested Alis Zubirayev and had no information on his whereabouts. 33. On 23 May and 2 June 2005 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaints to the district prosecutor’s office. 34. On 19 July 2005 the military prosecutor’s office of military unit no. 20102 informed the first applicant that the investigation in case no. 44004 pending before the district prosecutor’s office had been suspended and that military involvement in the crime had not been proven. 35. On 1 September 2005 the Prosecutor General’s Office informed the first applicant that the investigation in case no. 44004 had been suspended on 9 August 2005 for failure to identify those responsible and then resumed on 19 August 2005. It was ongoing under their supervision. 36. On 5 October 2005 the district prosecutor’s office informed the second applicant that the investigation in case no. 44004 suspended on 18 September 2005 had been resumed. 37. On 26 June 2007 the district prosecutor’s office informed the second applicant that the investigation had been resumed for ten days. 38. On 4 July 2007 the district prosecutor’s office granted the first applicant victim status. 39. On 16 July 2007 the first applicant requested the district prosecutor’s office to resume the investigation into her son’s kidnapping and to allow her access to the investigation file. 40. In the autumn of 2007 case no. 44004 was transferred to the Investigative Committee of the Department of the Russian Prosecutor’s Office for the Chechen Republic. The applicants were not officially notified of it. 41. On 8 May 2008 the Investigative Committee of the Department of the Russian Prosecutor’s Office for the Chechen Republic informed the applicants’ representative that no access to the file in case no. 44004 could be granted, as the investigation had not been completed, and that it had been suspended on 1 May 2008. 42. In a written statement addressed to the Court the first applicant noted that on an unspecified date she had participated in a confrontation with A.K. organised by the district prosecutor’s office. In the course of the confrontation A.K. had been afraid to admit that he had seen another person in the UAZ on the night of his arrest. The first applicant had reproached him for cowardice and then A.K. had told the investigator that there had been a second detained person in the UAZ but he had not seen his face. A.K. had signed an interview record containing his statement which was kept in the investigation file. 43. On 27 December 2004 the district prosecutor’s office received the second applicant’s complaint concerning his son’s abduction. 44. On 6 January 2005 the district prosecutor’s office instituted an investigation of Alis Zubirayev’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned the number 44004. 45. On unspecified dates the applicants were granted victim status in case no. 44004. 46. On an unspecified date the house at 8 Lenin Street was inspected as a crime scene. The investigators established that there was no mess inside the house and did not seize anything. 47. On an unspecified date the second applicant was questioned. He stated that at about 5.30 a.m. on 21 December 2004 six unknown armed men had entered his courtyard and started knocking at the entrance door of the house. Three of the armed men had gone to Mamed Zubirayev’s house located in the same courtyard. Alis Zubirayev had opened the door and three armed men had burst in. They had hit Alis Zubirayev with a machine gun butt and demanded the family members to produce identity papers. Having checked Alis Zubirayev’s papers they had taken the young man outside, put him in an UAZ vehicle without registration numbers and driven away. The UAZ was accompanied by an APC with its registration numbers covered with mud. At the time of his son’s abduction two other APCs had blocked a road leading out of the village. A.K. had also been abducted by unknown men and taken away in the APC. Two or three days later A.K. had returned home and said that at some point he had been out in the UAZ vehicle in which another detainee had been kept. On the day of his son’s abduction the second applicant contacted Mr A., the ROVD head, who had told him that he had sent a UAZ vehicle to the village of Chechen-Aul to arrest Mr S.-M.K and Mr M.A. and that ROVD servicemen had not arrested Alis Zubirayev. 48. The first applicant and several other witnesses made identical statements. During her second interview the first applicant added that the armed men had taken away her son’s identity papers and warm clothing that she had given them for Alis Zubirayev. 49. On an unspecified date the head of the local administration was questioned. He stated that on 22 December 2004 he had learned of Alis Zubirayev’s abduction from a local policeman. Prior to that date he had not been acquainted with the Zubirayevs. The local administration had not received any complaints about Alis Zubirayev’s behaviour before his kidnapping. 50. On an unspecified date A.K. was questioned. He stated that at about 5.30 a.m. on 21 December 2004 police officers had entered his house and asked him to go with them to the ROVD. At first he had been put in an APC and then in an UAZ vehicle in which he had travelled with the policemen. Upon arrival to the ROVD he had been questioned and then released. Having returned home he had learned of Alis Zubirayev’s kidnapping. He had been transferred to the ROVD on his own and had not seen Alis Zubirayev on its premises. 51. The investigators questioned several other villagers of Chechen-Aul who made no significant statements. 52. On an unspecified date Mr A., the ROVD head, was questioned. He stated that he was not acquainted with the Zubirayevs. On 21 December 2004 ROVD policemen and servicemen of the military commander’s office of the Groznenskiy District had carried out a special operation to arrest S.-M.K. who had escaped. The servicemen had then questioned his brother, A.K., and released him after a check. Alis Zubirayev had not been arrested in the course of the special operation. The ROVD had sent an UAZ vehicle to carry out the special operation while the military commander’s office had provided an APC. 53. A number of the ROVD servicemen made similar statements. One of them added that the applicants had contacted him in December 2004 in relation to Alis Zubirayev’s kidnapping. The Government did not disclose the servicemen’s identities. 54. The investigators sent a number of queries concerning Alis Zubirayev to various State agencies and detention facilities. In reply they were informed that the young man had not been arrested or prosecuted. 55. The investigation in case no. 44004 was pending. The applicants had been duly informed of all decisions taken during the investigation. 56. Despite specific requests by the Court the Government did not disclose any documents of the investigation file in case no. 44004. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. 57. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007. | 1 |
dev | 001-104532 | ENG | BIH | ADMISSIBILITY | 2,011 | ALIBASIC v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | The applicant, Mr Jusuf Alibašić, is a citizen of Bosnia and Herzegovina who was born in 1971 and lives in Goražde. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. This is the applicant’s second case before the Court. The facts relevant to this case, as submitted by the parties, may be summarised as follows. Given his history of mental illness, the applicant was deprived of legal capacity and placed under the guardianship of his half sister in 1998. From 21 June 1999 until 16 June 2006 he was detained in Zenica Prison Forensic Psychiatric Annex pursuant to the criminal and mental health legislation. In the applicant’s first case, the Court held that from 1 September 2003 until 16 June 2006 the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court (see Tokić and Others v. Bosnia and Herzegovina, nos. 12455/04, 14140/05, 12906/06 and 26028/06, 8 July 2008). He was awarded 15,000 euros for non-pecuniary damage. On 16 June 2006 the Goražde Social Work Centre placed the applicant in Drin Social Care Home and on 20 January 2010 in Duje Social Care Home in accordance with the social care legislation. On 14 September 2010 the Constitutional Court of Bosnia and Herzegovina held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It found also that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. On 24 November 2010 the competent civil court finally examined the applicant’s case. It ruled that the applicant could not be held in Duje Social Care Home. The applicant was released on 31 January 2011. | 0 |
dev | 001-59220 | ENG | AUT | CHAMBER | 2,001 | CASE OF JERUSALEM v. AUSTRIA | 1 | Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The applicant is an Austrian citizen, residing in Vienna. At the relevant time she was a member of the Vienna Municipal Council (Gemeinderat), which also acts as the Regional Parliament (Landtag). 10. On 11 June 1992, in the course of a session of the Vienna Municipal Council, the applicant, in her function as member of the Municipal Council, gave a speech. The debate related to the granting of subsidies by the municipality to an association which assists parents whose children had become involved in sects. In this context the applicant made the following statement: “Like everyone else, I know that today a sect no longer means a small group that breaks away from a big church ..., but a psycho-sect. These psycho-sects also exist in Vienna. They have common features. One aspect they have in common is their totalitarian character. Moreover, in their ideology, they show fascist tendencies and often have hierarchical structures. In general, a person who gets involved with such a sect loses his identity and submits to the group ...” After having commented on the activities of an association she considered a sect, the applicant continued as follows: “...the sect IPM [Institut zur Förderung der Psychologischen Menschenkenntnis – Institute for a Better Understanding of Human Psychology], which has not long been in existence in Austria but which has existed for several years in Switzerland, where it is called the VPM [Verein zur Förderung der Psychologischen Menschenkenntnis – Association for a Better Understanding of Human Psychology] has had a certain influence on the drugs policy of the Austrian People’s Party.” 11. The applicant then stated that the Austrian People’s Party had issued a publication on drugs policy in cooperation with the IPM, and had organised information activities involving public discussions together with the IPM. The applicant then requested a resolution by the Municipal Council that, before granting subsidies to an association, the question whether that association was a sect should be examined. 12. The debate in the Municipal Council then turned to the drugs policy and the applicant, in a further speech, criticised the cooperation between the Austrian People’s Party and the IPM, and made further statements on the nature and activities of the IPM. 13. On 27 October 1992 the IPM, an association established under Austrian law, and the VPM, an association established under Swiss law, filed a civil-law action under Article 1330 of the Austrian Civil Code against the applicant with the Vienna Regional Court for Civil Matters (Landesgericht für Zivilrechtssachen). The associations requested the court to issue an injunction against the applicant prohibiting her from repeating the statement that the IPM was a sect, ordering her to retract this statement and directing the publication of the applicant’s retraction in several Austrian newspapers. 14. On 2 February 1993 the applicant commented on the action. She submitted that the term “sect” used by her was a value judgment and not a statement of fact. It had been used in the context of a political debate. If the court, however, was of the opinion that the term “sect” was a statement of fact, she was willing to prove that this statement was true, and proposed documentary evidence and the hearing of witnesses to confirm that the plaintiffs were sects. As documentary evidence, the applicant proposed a decision by a German court and seven articles from newspapers and periodicals on the internal structure and activities of the plaintiffs. She proposed that four witnesses be heard. She also requested that the court obtain an expert report. 15. On 16 February 1993 the IPM and the VPM altered their injunction claim to include the following statement made by the applicant on 11 June 1992: “One aspect they have in common is their totalitarian character. Moreover, in their ideology, they show fascist tendencies and often have hierarchical structures. In general, a person who gets involved with such a sect loses his identity and submits to the group ...” 16. On 18 February 1993 the applicant confirmed that she had received the plaintiffs’ amended claim. She submitted a transcript of the session of the Vienna Municipal Council of 11 June 1992, and argued that the modification of the action merely referred to a general explanation of the term “psycho-sect” and had no direct relation to the plaintiffs. She further referred to her previous statements and the evidence proposed therein. 17. On 22 February 1993 a hearing took place before the Regional Court. The court accepted several documents submitted by the parties, closed the taking of evidence and rejected all requests for the taking of other evidence as irrelevant because the documents submitted had clarified the issues sufficiently. 18. On 8 April 1993 the Regional Court granted the injunction. It ordered the applicant not to repeat her statements that the IPM and the VPM were sects of a totalitarian character. Furthermore, the court ordered the applicant to retract these statements, the retraction to be published in several newspapers. The Regional Court found that, contrary to the applicant’s opinion, her statements were not value judgments, but statements of fact. Having regard to the statutes of the associations and other evidence before it, the Regional Court considered that the applicant’s statements had proved to be untrue. The applicant had disseminated unfounded assumptions as proven fact and had therefore acted negligently. As the damage to the plaintiff associations’ earnings and livelihood was manifest, the Court granted the requested injunction under Article 1330 § 2 of the Civil Code. 19. On 12 July 1993 the applicant appealed. She submitted that the Regional Court had failed to take the evidence requested by her. She contended in particular that the real activities of the plaintiffs and their (totalitarian) methods could not be seen from their statutes. In particular, the internal organisational structure (hierarchical structure), their conduct against critics (exhibiting a totalitarian character and an ideology with fascist features) and the effect on the personality of the persons concerned (loss of identity and submission to the group) should have been examined. Only a report by an expert using sociological and psychological methods, or interviews with the persons affected, could have clarified these issues. In any event, the applicant’s statements were value judgments made in the context of a political debate and not statements of fact. The injunction therefore violated her right to freedom of expression under Article 10 of the Convention. 20. On 16 November 1993 the Vienna Court of Appeal (Oberlandesgericht) upheld the Regional Court’s decision in so far as it concerned the prohibition on repetition, but quashed the order for a retraction and its publication. 21. It confirmed the Regional Court’s view that the applicant’s allegations were statements of fact. Contrary to the opinion of the Regional Court, the Court of Appeal considered that the applicant’s allegations amounted to an insult and fell not only within the scope of the second but also within the scope of the first paragraph of Article 1330 of the Civil Code. In that case, the applicant had to prove the truth of her allegations. 22. With regard to the applicant’s complaint that the Regional Court had refused to take the evidence she had proposed in order to prove that the plaintiffs were sects, the Court of Appeal found that such evidence was irrelevant to the proceedings. According to the Court of Appeal’s legal point of view, the applicant’s statements had to be seen as a whole. Thus, the use of the term “sect” was not decisive, but the allegation of fascist tendencies was of primary importance. This latter statement amounted to an insult going beyond justified criticism. Since the applicant had not offered any evidence with regard to this definition of a psycho-sect, but only with regard to the question whether the plaintiffs were sects, she had failed to prove its truth, as required by Article 1330 § 1 of the Civil Code. The Court of Appeal also found that the request for a retraction of the statement and its publication in several newspapers had to be dismissed because the plaintiffs had failed to specify the addressees of the retraction, even though the applicant’s statements had been reported in the newspapers. 23. On 18 August 1994 the Supreme Court (Oberster Gerichtshof) rejected as inadmissible the applicant’s further appeal on points of law (Revision). It confirmed, however, that the statements such as “fascist tendencies” or “totalitarian character” were statements of fact which the applicant had failed to prove. Referring to its previous case-law, it stated that disparagement by means of untrue statements, even though it was made in the course of a political debate, went beyond acceptable political criticism and could not be justified by a weighing of interests or by the right to freedom of expression. 24. Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “(1) Everyone who has suffered material damage or loss of profit because of an insult may claim compensation. (2) The same applies if anyone disseminates statements of fact which jeopardise another person’s credit, income or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the public retraction of the statement may also be requested ...” 25. Members of the Vienna Municipal Council enjoy a limited parliamentary immunity. They are exempt from legal proceedings for anything said by them in the course of debates in the Municipal Council in so far as the Municipal Council sits as the Parliament of a Land (Articles 57, 58 and 96 of the Federal Constitution). However, this privilege does not extend to sessions of the Municipal Council sitting as the local council. The reason is that Vienna, under the Austrian Constitution, has a dual function, being at the same time a Land and a local council (Article 108 of the Federal Constitution). | 1 |
dev | 001-79446 | ENG | RUS | CHAMBER | 2,007 | CASE OF RAYLYAN v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Loukis Loucaides | 5. The applicant was born in 1964 and lives in Maykop, the Republic of Adygeya. 6. The applicant is a businessman. In 1996 he purchased a saw-mill with the intention of operating it as a going concern. 7. In March 1998 the local authority ordered him to shut the saw-mill down because it was situated in the vicinity of sewage disposal installations and threatened the town's sanitation. 8. The applicant brought proceedings against the Maykop municipal maintenance company (муниципальное жилищно-коммунальное хозяйство города Майкопа) and the Maykop municipal water supply company (муниципальное унитарное предприятие «Водоканал», hereinafter “the water supply company”), in which he sought an order requiring them to lift the ban on the operation of the saw-mill and damages. 9. On 17 December 1999 the Maykop Town Court of the Republic of Adygeya ordered the water supply company not to prevent the applicant from carrying on his activity. The judgment was not appealed against and became final. 10. However, it was not enforced. Instead, the water supply company blocked the road leading to the saw-mill and switched off the electricity supply. 11. The applicant was not issued with a warrant of execution until 28 April 2002 pending a decision in another case in which a third party was trying to challenge his title to the saw-mill. 12. On 14 May 2002 the enforcement proceedings were set in motion. 13. Three months later the bailiff suspended the enforcement proceedings and applied for clarification of the judgment of 17 December 1999. 14. On 29 October 2002 the Maykop Town Court held that the judgment of 17 December 1999 had to be enforced exactly as it was worded. 15. On 8 January 2003 the bailiff brought the enforcement proceedings to an end. However, the access road remained blocked and the electricity supply was not restored. 16. The applicant appealed against the decision to discontinue the enforcement proceedings. 17. On 21 February 2003 the Maykop Town Court quashed that decision. 18. On 25 March 2003 the Supreme Court of the Republic of Adygeya upheld the above judgment on appeal. 19. On 13 January 2006 the enforcement proceedings were resumed. 20. On 18 January 2006 the director of the water supply company issued access passes to the applicant and his nominees. 21. On 19 January 2006 free access to the saw-mill was restored, and the obstacles preventing the applicant from using it were removed. He was invited to collect the passes, but failed to do so. When the bailiffs went to the applicant's home to serve him with papers concerning the enforcement, they were unable to find him, but were met instead by his father, who refused to look at the papers and explained that the applicant had moved to another city. 22. On 26 January 2006 the enforcement proceedings were discontinued. The applicant did not appeal against that decision. | 1 |
dev | 001-99883 | ENG | MLT | CHAMBER | 2,010 | CASE OF DADOUCH v. MALTA | 2 | Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant is a Maltese national who was born in Damascus, Syria, in 1967, and lives in Sliema, Malta. 6. In 1993 the applicant acquired Maltese citizenship by registration in consequence of his marriage to a Maltese national. Subsequently, on 22 March 2002 the marriage was annulled by court order as it had been found to be a marriage of convenience. However, the applicant retained Maltese nationality according to the law in force at the time. 7. On 30 July 2003 the applicant married a Russian national in Moscow. 8. In the days following 30 June 2004 the applicant applied to the Public Registry Office to have his marriage registered in Malta. 9. On several occasions, notwithstanding the presentation of his Maltese identity card and a Maltese passport, the Public Registry required “as a matter of policy” that the applicant submit a letter from the Department of Citizenship declaring that he was a citizen of Malta. 10. According to the Government the authorities also noted that the requisite translation of the Russian marriage certificate presented by the applicant had not been apostilled by the Ministry of Foreign Affairs of Moscow. 11. Despite his contention that the request for a letter from the Department of Citizenship did not have a legal basis in domestic law, the applicant requested the Department to issue the letter. The Head of Department refused to issue such a letter, allegedly replying that he was not bound to issue it then, if at all. 12. Following the applicant's request, by a decision of the Court of Revision of Notarial Acts dated 31 May 2005, the Director of the Public Registry was directed to register the marriage, upon the applicant submitting his original act of marriage in Russian together with an English translation authenticated by his lawyer. 13. The applicant's request remained unsatisfied notwithstanding this decision. 14. On 5 April 2006 the decision of 31 May 2005 was revoked by the Court of Appeal. The latter, while expressing doubts as to whether the applicant could apply to the Court of Revision of Notarial Acts, held that a Maltese passport was not conclusive evidence of citizenship. Furthermore, the Director was vested with discretion to demand documents which he considered reasonable to prove the authenticity of what was submitted to him. The court therefore agreed that the Russian certificate of marriage produced by the applicant was not sufficiently authenticated evidence satisfying the Director of the Public Registry, having regard to Article 244 (1) of the Civil Code (see relevant domestic law, below). 15. On 20 June 2005 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. He complained that the refusal to register his marriage was in violation of his Article 8 rights alone and in conjunction with Article 14. 16. It appeared from the evidence given by an official employed at the Marriage Registry that there were two reasons for the refusal to register the marriage. Firstly, the documents presented by the applicant had not been authenticated by the Ministry of Foreign Affairs of Moscow, which is the competent authority to attach apostilles to such public documents, and, secondly, that every person who applied for registration was asked to produce a letter of citizenship. 17. According to the evidence of the relevant Minister, the request for such a certificate did not result from a law or legal notice but from an internal regulation. While in the course of the present proceedings a circular, applicable to all Government departments, was issued stating that Maltese passports could be accepted as proof of citizenship, the Minister stated that a letter of citizenship was the best evidence to prove citizenship at any precise moment. 18. On 2 May 2006, during these proceedings, the Head of the Nationality Department also confirmed that the applicant was a Maltese citizen. 19. On 13 June 2006 the applicant withdrew his complaint in relation to Article 14 taken in conjunction with Article 8. 20. On 10 October 2006, the court rejected the application, with legal costs to be paid by the applicant. It held that Article 8 had not been breached, since the Director of the Public Registry had not categorically refused to register the marriage, but had merely requested appropriate documentation. Moreover, Article 8 did not extend to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouse for settlement in that country. 21. On 11 October 2006, the applicant appealed to the Constitutional Court. 22. On 6 November 2006 the court invited the Director of the Public Registry to indicate the law on which the Registry based its insistence on the “letter of nationality”. The Director stated that it was a matter of policy. The case was then adjourned to 13 November 2006 for the Head of the Nationality department to testify. 23. Meanwhile, on 9 November 2006, the applicant was called upon by the Registry to register the marriage. He was asked to submit the original or an authenticated copy of his marriage certificate. No further documents were requested. 24. On 13 November 2006 the marriage was registered on the basis of the documents originally submitted by the applicant. 25. On the same day, before the Constitutional Court, the appeal was maintained as the Director of the Public Registry did not accept that the first judgment should be revoked and the costs refunded to the applicant. 26. On 9 March 2007, the Constitutional Court found that there had not been a violation of Article 8 of the Convention. It held that the request for a “letter of citizenship” was in accordance with law, namely Article 244(1) of the Civil Code according to which the Director of the Public Registry had to be satisfied that at least one of the parties to the marriage was a Maltese citizen. Although an identity card and a passport were prima facie evidence of nationality they were not conclusive, especially when citizenship had been obtained through registration (as in the case of the applicant) or naturalisation, both being subject to revocation according to section 14 of the Maltese Citizenship Act (see relevant domestic law). The Minister's deposition in respect of the recently issued circular was irrelevant, since responsibility for ascertaining the compliance with the requirements of Article 244(1) was for the Director of the Public Registry. Thus, the requirement of a letter of nationality was in accordance with the law, pursued a legitimate aim and was proportionate. However, the Constitutional Court noted that from the witness testimony at the hearing of 2 May 2006, it was clear that the applicant was a Maltese citizen; however, interdepartmental lethargy had meant that the Director of the Public Registry only called upon the applicant to register the marriage on 9 November 2006. Thus, the Court revoked the first-instance judgment in part by ordering the costs to be shared between the parties. It further noted that the applicant had withdrawn his Article 14 complaint and consequently no appeal lay against it. 27. Regarding marriages in foreign countries, Article 244 of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows: (1) Any act of birth, marriage or death of a citizen of Malta drawn up or registered in a foreign country by a competent authority in that country, ... may, at the request of any person interested and upon the Director of the Public Registry being satisfied of the authenticity of such act, be registered in these Islands in the same manner as if it were an act drawn up by any of the persons mentioned in this Title. (2) The person making the request shall, for the purposes of registration, deliver to the Director the act in respect of which such request is made. 28. In this respect, Article 242 of the Civil Code reads as follows: (1) The Director shall not accept any act which is not written in clear and legible characters, or which contains abbreviations, or which may appear to him to be otherwise defective or irregular. (2) In any such case, the act shall be presented by the Director to one of the Visitors of notarial acts, who, after hearing, if necessary, the person by whom the act has been made, shall determine the manner in which, according to law, the act is to be drawn up. (3) The Director may not refuse to accept any act which is countersigned by one of the said Visitors. 29. In respect of registration and the validity of marriages, sections 12 and 18 of the Marriage Act, Chapter 255 of the Laws of Malta, provide as follows: Section 12 (1) Registration is not essential to the validity of marriage. (2) Registration shall not operate to validate a marriage which, independently of such registration, is null. (3) A marriage shall not have effect for any purpose of law unless and until the appropriate act of marriage is completed and delivered for registration in accordance with the provisions of articles 293 and 294 of the Civil Code. Section 18 A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if - (a) as regards the formalities thereof, the formalities required for its validity by the law of the country where the marriage is celebrated are observed; and (b) as regards the capacity of the parties, each of the persons to be married is, by the law of the country of his or her respective domicile, capable of contracting marriage. 30. Article 627 of the Code of Organisation and Civil Procedure (“COCP”) provides a list of documents requiring no proof of authenticity other than that which they bear on the face of them. Sub-article (f) refers to the certificates issued from the Public Registry Office. 31. According to a notice published on the Government website by the Department for Citizenship and Expatriate affairs, dated February 2007, regarding registration of foreign certificates concerning citizens of Malta at the Public Registry, the documents required for registration of a marriage abroad by a citizen of Malta are as follows: 1) marriage certificate, 2) birth certificate 3) father's birth certificate 4) parents' marriage certificate 5) Maltese passport. 32. According to section 14 of the Maltese Citizenship Act, Chapter 188 of the Laws of Malta, as in force since 1975, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact or on any other of an exhaustive list of grounds. 33. According to The Hague Convention, apostilles may only be issued by a Competent Authority designated by the State on whose territory the public document has been executed. Its Article 6 lists the competent authorities, which in so far as relevant in respect of Russia, reads as follows: The Ministry of Justice of the Russian Federation; The General Prosecutor's Office of the Russian Federation; The Ministry of the Interior of the Russian Federation; The Register Offices of the executive bodies in subjects of the Russian Federation; The Federal Archives Agency and the authorised bodies for archives of the executive power in subjects of the Russian Federation; The Federal Supervision Service for Education and Science; The Ministry of Defence of the Russian Federation on official archive documents on military service (employment) in the Armed Forces of the Russian Federation, the Armed Forces of the USSR and the Joint Armed Forces of the Commonwealth of Independent States (CIS), issued in the Russian Federation. | 1 |
dev | 001-78441 | ENG | TUR | CHAMBER | 2,006 | CASE OF SELEK v. TURKEY | 4 | Preliminary objection dismissed (exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | null | 5. The applicant was born in 1953 and lives in Istanbul. 6. The applicant was a civil servant at the Istanbul Municipality. 7. On 22 December 1994 he was arrested by police officers from the Istanbul Security Directorate on suspicion of forgery. He admitted to the charges before the police. 8. On 26 December 1994 the applicant was brought before the investigating judge at the Istanbul Magistrate’s Court, who ordered his detention on remand. 9. On 2 January 1995 the public prosecutor filed an indictment with the Istanbul 7th Criminal Court against the applicant and three co-accused (O.I., M.T. and N.S.), requesting that they be punished for committing forgery under Articles 503 § 1 and 522 of the Criminal Code. The public prosecutor further decided that the Law on the Prosecution of Civil Servants (Memurin Muhakemeti Kanunu) did not apply to this case as the offence was ordinary. 10. On 24 January 1995 the 7th Criminal Court commenced the proceedings. On 3 February 1995 it heard statements from the applicant and two other co-defendants. The applicant denied the charges against him, alleging that his statement in the police station had been extracted from him under duress. At the following hearing on 24 February 1995, the court released the applicant and two co-accused from detention on remand. It further decided to prolong, in absentia, the arrest warrant issued in respect of O.I. as he had absconded. 11. On 10 March 1995 the Istanbul public prosecutor launched an investigation concerning the applicant’s alleged abuse of office in relation to the forgery. During the course of the investigation, the public prosecutor decided that he had no jurisdiction over the case as the applicant was a civil servant. Accordingly, he sent the file to the Istanbul Provincial Administrative Council (İstanbul İl İdare Kurulu), pursuant to the provisions of the Law on the Prosecution of Civil Servants, in order to seek authorisation to prosecute the applicant. 12. On 7 December 1995 the Provincial Administrative Council decided not to authorise the applicant’s prosecution. 13. On 20 January 1998 the Supreme Administrative Court put aside this decision and ordered that the applicant be tried. Subsequently, on 25 March 1998 the public prosecutor filed another indictment with the Istanbul 11th Criminal Court accusing the applicant of abuse of office. 14. On 10 December 1998 the 11th Criminal Court decided to join the case pending before it to the proceedings before the 7th Criminal Court, and sent the case file to the latter. 15. In the course of the proceedings, during the ten hearings held between 5 March 1996 and 3 November 1998, the applicant’s lawyer explicitly asked the court to separate his client’s case from the others and to conclude it. The court each time rejected these requests given the search for O.I., and decided to postpone the hearings, awaiting the outcome of the arrest warrant. In particular, at one of these hearings on 25 November 1997, the applicant’s lawyer informed the court that he had heard that O.I. had escaped abroad. He further stated that his client had been victimised as a result of the prolongation of the proceedings. 16. On 20 May 1999 the court decided that the criminal proceedings concerning O.I. should proceed separately as he could not be found. The same day the court convicted the applicant and sentenced him to ten months’ imprisonment and a fine. The imprisonment was then commuted to a fine and its execution was suspended in accordance with Section 6 of Law no. 647 (the Law on the execution of sentences). 17. Both the applicant and the public prosecutor appealed against the decision, the applicant alleging that there was no concrete evidence on which he could be convicted. 18. On 27 May 2002 the Court of Cassation rejected the reasons for appeal but quashed the judgment on account of a miscalculation of the amount of the fine imposed on the applicant. The Court of Cassation did not order a retrial, but corrected the amount by reducing the fine and upheld the judgment with this amendment. | 1 |
dev | 001-57742 | ENG | BEL | CHAMBER | 1,992 | CASE OF KOLOMPAR v. BELGIUM | 3 | Preliminary objection rejected (non-exhaustion);No violation of Art. 5-1;No violation of Art. 5-4 | null | 6. Having been extradited from Belgium to Italy, Mr Djula Kolompar was released from prison on 27 December 1990; he currently resides in Amsterdam. 7. On 13 June 1980 the Florence Assize Court sentenced him in absentia to eighteen years’ imprisonment, having convicted him of, inter alia, attempted rape and attempted murder committed on 24 December 1977. 8. By a judgment of 8 May 1981, which became final a month later, the Florence Assize Court of Appeal, also giving judgment in absentia, reduced the prison sentence to ten years; the accused had been declared untraceable (irreperibile) and then to be evading arrest (latitante). Pursuant to a Presidential Decree of 1978, the Florence Assize Court of Appeal and the Court of Appeal itself granted the applicant, on 23 November 1981 and 8 March 1982, remission of sentence amounting to a total of a little over two and a half years. 9. In 1982 Italy requested the Netherlands authorities to extradite the applicant. This request was refused following an unfavourable opinion from the Rotterdam District Court (Arrondissementsrechtbank) of 14 October 1982; the Rotterdam court took the view that the applicant’s right to defend himself had not been respected. 10. In May 1983 Italy made a similar request to Belgium, where Mr Kolompar was then staying. 11. On 7 March 1984 the judgment of 8 May 1981 and the warrant for his arrest as a convicted person (ordine di carcerazione di condannato) issued by the principal public prosecutor at the Florence Court of Appeal on 13 March 1982, together with an official Dutch translation of those documents, were served on the applicant by a bailiff in accordance with the Belgian Extradition Act of 15 March 1874 ("the 1874 Act") and the Belgian-Italian extradition treaty of 15 January 1875. The bailiff’s writ stated that the applicant would be detained with a view to his extradition. 12. On 22 January 1984 Mr Kolompar had been arrested in Belgium on suspicion of aggravated theft and attempted theft committed in that country; the following day an Antwerp investigating judge had remanded him in custody in respect of these charges. The investigating judge revoked his detention order on 11 April 1984, but the applicant remained in custody in connection with the extradition proceedings (see paragraph 11 above). 13. On 4 January 1985 the Antwerp Criminal Court sentenced him to one year’s imprisonment for the offences committed in Belgium. This judgment was upheld by the Antwerp Court of Appeal, whose judgment of 25 April 1985 became final a month later. By a letter of 4 June 1985 the Minister of Justice informed the applicant that, on account of the period that he had spent in detention since 22 January 1984 (see paragraph 12 above), the prison term was to be deemed to have been completed on 20 January 1985. 14. Following a favourable opinion from the indictments chamber (Kamer van Inbeschuldigingstelling) of the Antwerp Court of Appeal on 24 April 1984, on 2 May the Belgium Minister of Justice authorised Mr Kolompar’s extradition to Italy. 15. On 29 October 1984 the applicant asked the Minister to reconsider his decision and to stay the execution of the extradition order in the meantime. He invoked the opinion of the Rotterdam District Court of 14 October 1982 (see paragraph 9 above). On 13 December 1984 he requested the Minister to confirm in writing that he had stated during a meeting with the applicant’s lawyer on 7 December 1984 that he was prepared to grant an application for a stay of execution of the extradition order. 16. On 17 December 1984 the Minister replied to him that the extradition was a matter for the Italian authorities, who might possibly withdraw their request. He advised the applicant to apply to those authorities without delay in that connection, adding that, if the applicant so requested, he could stay the execution of the extradition order; the duration of such a measure could not however exceed a reasonable time. 17. By letter of 2 January 1985 Mr Kolompar again asked the Minister of Justice to stay the execution of the extradition decision. In support of his request he provided statements from various witnesses, according to which he had been in Denmark on 24 December 1977, the date of the offences for which he had been convicted in Italy. 18. The Minister contacted the Italian authorities. He drew their attention to the applicant’s version of events and asked them to state whether they wished to maintain their extradition request. 19. On 28 March 1985 the Director of the Rome extraditions department replied to the above query in the affirmative. He stressed that if there was any new evidence it could serve as the basis for an application for retrial of the case (Article 553 of the Italian Code of Criminal Procedure). On 4 April 1985 the Minister sent to the applicant a copy of this letter, notifying him that the extradition procedure would be continued as soon as it was no longer necessary to keep him at the disposal of the Belgian authorities for the offences committed in Belgium (see paragraph 13 above). 20. On 21 June 1985 Mr Kolompar wrote to the Minister of Justice to ask him to obtain from Interpol’s Copenhagen office information which he had himself unsuccessfully sought from the Danish consulate general in Rotterdam. As a result the Minister instructed the Antwerp public prosecutor’s office to determine the accuracy of the applicant’s claims concerning his one-time presence in Denmark (see paragraph 17 above). A message from Interpol-Copenhagen to Interpol-Brussels of 14 August 1985 indicated that the Danish police had questioned the applicant on 12 April 1978 when he had been in custody in Gentofte in connection with alleged forgery, attempted theft and receiving stolen goods. He had stated that he had entered Denmark on 10 April 1978 and that it was the first time that he had visited the country. In June 1978 his wife had affirmed that she had herself arrived in the country on 23 May 1978 and that her family had lived for a long time near Rome. However, another Yugoslavian national, probably residing in the Netherlands, had maintained in May 1978 that the couple were living in Italy at the time and that the applicant had visited him on several occasions. A Danish police- officer claimed to remember Mr Kolompar but could not certify that he had seen him on 24 December 1977. The text of the message was transmitted to the Antwerp criminal police on 16 August 1985; on 17 September 1985 the principal public prosecutor’s office of that town sent to the Minister of Justice a report on the information obtained from Interpol-Copenhagen. 21. In the meantime Mr Kolompar, having been advised orally that his extradition could take place on 25 June 1985, submitted an application for his release to the committals chamber (Raadkamer) of the Antwerp First-Instance Court on 15 June, founded essentially on the alleged unlawfulness of such a measure. 22. By an order of 21 June the committals chamber declared the application inadmissible; the applicant appealed immediately, relying on Articles 3, 5 and 6 para. 1 (art. 3, art. 5, art. 6-1) of the Convention. In addition, he requested the Minister of Justice, again on 21 June, to stay the execution of the extradition order pending a final decision on his application of 15 June. On 24 June the Minister sent by telex instructions to this effect to the principal public prosecutor’s office in Antwerp. The applicant’s lawyer was notified of this by telephone. On 5 July 1985 the indictments chamber of the Antwerp Court of Appeal confirmed the order of 21 June 1985 on the ground, inter alia, that it was not empowered to order the applicant’s release. It noted that the fourth subsection of section 5 of the 1874 Act, which provided for the possibility of applying to the investigating authorities for release, ceased to apply once the detainee had been placed at the disposal of the Government with a view to extradition. It added that the provisions of the Convention cited by Mr Kolompar did not in themselves confer on it jurisdiction to rule on the matter. 23. On 8 October 1985 the Court of Cassation dismissed the applicant’s appeal filed on 8 July. It found that no grounds had been validly and usefully submitted and took the view that the indictments chamber had complied with the essential procedural requirements or the formalities whose disregard entailed nullity and that its decision was lawful. 24. On 17 September 1985 the applicant filed an urgent application with the President of the Brussels First-Instance Court seeking an order prohibiting his extradition, which, he contended, would be contrary to Articles 6 para. 1, 3 and 14 (art. 6-1, art. 3, art. 14) of the Convention on account, inter alia, of the incompatibility of the proceedings conducted against him in Italy with the Convention; he requested further his immediate release on the ground that his detention was also unlawful for the reasons which his lawyer had given before the indictments chamber of the Antwerp Court of Appeal on 5 July 1985 (see paragraph 22 above). By a letter of 4 November 1985 the Minister of Justice drew the attention of the Antwerp principal public prosecutor’s office to the desirability of staying the execution of the extradition order until a final decision had been given on Mr Kolompar’s application. The Belgian State filed its submissions on 24 December 1985; Mr Kolompar submitted his at a hearing held on 19 March 1986. On 21 March the President of the Brussels First-Instance Court found that it was not necessary to make an urgent ruling. He noted that under the first paragraph of Article 584 of the Judicial Code he was empowered to give "a provisional ruling where he [recognised] that there was urgency, in all matters except those which are excluded by law from the competence of the courts" and that, according to academic writers and the case-law, this jurisdiction extended to cases of unlawful acts by the authorities (onrechtmatige overheidsdaad). In the present case, however, the contested detention did not represent such an act because it had been lawfully and properly ordered in the context of extradition proceedings in accordance with the Act of 15 March 1874 and the Belgian-Italian extradition treaty of 15 January 1875. As far as the extradition was concerned, the President considered that it was not for him to determine whether the applicant’s conviction by the Florence Assize Court had infringed the Convention. He added that the applicant could, as the Director of the Rome extraditions department had pointed out (see paragraph 19 above), file an application for a retrial if the conditions set out in Article 553 of the Italian Code of Criminal Procedure were satisfied. 25. After the Belgian State had served this order on Mr Kolompar, the latter filed an appeal against it by a document lodged with the registry of the Brussels Court of Appeal on 12 June 1986. By a letter registered on 19 June he requested that the case be heard at a later date. The Belgian State filed its submissions on 19 November 1986, but the proceedings remained pending. The Belgian lawyer appointed to represent the applicant had withdrawn his services pending payment of an advance. His client claimed that he was not in a position to pay, but he had not informed the authorities of this and had not requested legal aid. 26. By a letter from his lawyer, dated 13 September 1987, the applicant informed the Minister of Justice that he no longer opposed his extradition in view of the length of the proceedings instituted both at national and international level, and that he waived his right to rely on the undertaking not to hand him over to Italy pending the outcome of the appeals lodged in Belgium. Twelve days later Mr Kolompar was extradited to Italy. He was released from prison there on 27 December 1990 under an amnesty. | 0 |
dev | 001-93750 | ENG | GEO | CHAMBER | 2,009 | CASE OF KVITSIANI v. GEORGIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1946 and currently lives in Tbilisi. 5. In the course of a police operation conducted on 15 September 1997 in the village of Becho, Mestia District, the applicant’s house, which happened to be close to the scene, was accidentally burned down together with the adjacent farm buildings. The house had been the applicant’s place of residence prior to the incident. 6. On 15 July 1999 the applicant sued the Ministry of the Interior and the Ministry of Finance for the damage done and, in a judgment of 27 December 2000, the Krtsanisi-Mtatsminda District Court in Tbilisi ordered the respondent authorities to pay him 60,000 Georgian laris (GEL) (26,646 euros (EUR)) in compensation for the destruction of his property (“the judgment debt”). The operative part of the judgment indicated that the payment should be made from the State Budget for 2001. 7. The judgment of 27 December 2000 was upheld in full by the Tbilisi Regional Court and the Supreme Court of Georgia on 21 March and 2 October 2002, respectively, and became binding on the latter date. 8. On 19 November 2002 the Krtsanisi-Mtatsminda District Court issued the respondent authorities with a writ of execution which reiterated the obligation to discharge the judgment debt from the 2001 State Budget. The authorities remained inactive. 9. Subsequent to the applicant’s complaint, on 8 January 2003 the Enforcement Department of the Ministry of Justice (“the Enforcement Department”) invited the respondent authorities to discharge the judgment debt of their own accord within the following three months, on pain of forcible enforcement measures. The allotted time expired without the judgment debt having been paid, but no measures followed. 10. On 11 October 2005 the Enforcement Department issued the National Bank of Georgia with an order to pay the judgment debt. However, as that order indicated the wrong amount, the National Bank sent it back on 25 November 2005 unenforced. 11. On 1 December 2006 the applicant asked the Ministry of Finance for news of progress in the enforcement proceedings. 12. On 13 December 2006 the Ministry of Finance replied that it was unable to discharge the judgment debt, as the Ministry of the Interior had failed to do so of its own accord. 13. In a decision of 19 December 2006, at the applicant’s request, the Tbilisi City Court removed from the judgment of 27 December 2000, as an objectively unenforceable condition, the indication that the debt should be paid from the 2001 State Budget. That decision became binding on 28 May 2007, and on 4 September 2007 the City Court issued a writ for its enforcement. 14. On 2 April 2008, on the basis of the previous enforcement writ of 19 November 2002, the Enforcement Department requested the National Bank of Georgia to disburse the judgment debt. The latter authority did so on 4 April 2008, and three days later the applicant retrieved the debt in full. 15. The relevant legal provisions concerning the conduct of enforcement proceedings against a public agency funded from the State Budget were cited in the case of Amat-G Ltd and Mebaghishvili v. Georgia (no. 2507/03, §§ 25-27, ECHR 2005VIII). | 1 |
dev | 001-23062 | ENG | GRC | ADMISSIBILITY | 2,003 | KARABOUYIOUKLOU v. GREECE | 4 | Inadmissible | Françoise Tulkens | The applicant, Mr Retzep Karabouyiouklou, is a Greek national, who was born in 1959 and lives in Xanthi. The Government are represented by Mr V. Kyriazopoulos and Mr D. Kalogiros of the Legal Council of the State, Acting Agents. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were not different from those of other civil servants. On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which would be delivered to the directors of the schools between 2 and 5 February 1993. A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi. On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace. On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduates of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott. On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish, not to go to the presentation of the books on 1 February 1993. On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993. On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights. On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993. On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him. On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties. On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following: – Firstly, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attending the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in the strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become an agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code). – Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code). – Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries, and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code). The Board was fully satisfied that the applicant “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant. On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers. On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Council of State. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty. On 22 June 1995 the Council of State rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The Council considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The Council also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Council of State remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The Council considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in the strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The Council found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The Council referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The Council considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace. Finally, the Council considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3597/1995). On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3597/1995 of the Council of State, ordered the applicant’s dismissal as from the same date. On 4 April 1996 the Council of State struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect (decision no. 1717/1996). On 4 December 1997 the Prefect ordered for the third time the applicant’s dismissal. On 16 March 1998 the applicant appealed against the Prefect’s decision of 4 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1. On 13 June 2000 the Administrative Court of Appeal rejected the appeal (decision no. 174/2000). The court held that, by definition, the Prefect had a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated the religious freedom. Moreover, the court held that the Prefect’s decision aimed at complying with the relevant decisions of the Council of State; therefore, the previous hearing of the applicant was not required. The applicant did not appeal against this decision to the Council of State. The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred. On 2 September 1997 the applicant instituted proceedings also before the First Instance Administrative Court of Komotini. On 28 December 2001 the court noted that the applicant had perceived his salaries for a certain period after his dismissal. It declared his recourse inadmissible on the ground that the applicant was not duly represented by a lawyer (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings. | 0 |
dev | 001-94401 | ENG | HUN | CHAMBER | 2,009 | CASE OF SANDOR LAJOS KISS v. HUNGARY | 3 | Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicant was born in 1976 and lives in Vác. 6. In January 2002 the Pest Central District Court found the applicant, a recidivist offender, guilty of attempted blackmail and plunder and sentenced him to eight years’ imprisonment. On appeal, the Budapest Regional Court, on 15 May 2003, re-characterised his actions as offences of “taking the law into one’s own hands”, attempted aggravated assault and a violation of personal liberty, but reduced his sentence to five years’ imprisonment. 7. In February 2003 the applicant was charged with aggravated assault. In the ensuing proceedings the applicant was assisted by court-appointed defence counsel. 8. After holding three hearings, the Pest Central District Court found the applicant guilty as charged on 26 February 2004. The District Court took account of the protraction of the proceedings as a mitigating factor and sentenced him to four years’ imprisonment. The District Court relied on documentary evidence, the opinion of a forensic medical expert and the testimony of several witnesses as well as the applicant. 9. The applicant appealed, seeking acquittal on the ground that the judgment was ill-founded. The Budapest Regional Court notified the applicant’s lawyer that it would determine the appeal at deliberations in camera. In reply, the lawyer put forward his arguments in detail and requested the court to hold a public hearing. He asserted that the court should hear further witnesses in order to establish the facts fully. 10. On 1 February 2005 the Regional Court held deliberations in camera and upheld the applicant’s conviction. The applicant, his lawyer and the prosecution were not present. The Regional Court reviewed the entirety of the proceedings and upheld their lawfulness. Furthermore, it considered that the findings of fact by the first-instance court were not ill-founded within the meaning of section 351(2) of the New Code of Criminal Procedure, and were thus suitable for appellate review without taking further evidence. This consideration enabled the court to hold deliberations in camera, pursuant to section 360(1) of the Code of Criminal Procedure, without the attendance of either the defence or the prosecution. 11. Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides, in so far as relevant, as follows: “... (3) An appeal may concern questions of fact or law.” “(1) The second-instance court shall base its decision on the facts as established by the first-instance court unless the first-instance judgment is ill-founded.... (2) The first-instance judgment is ill-founded if: a) the facts have not been explored; b) the first-instance court has failed to establish the facts or the findings of fact are deficient; c) the findings of fact are in contradiction with the contents of the documents; d) the first-instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact.” “... (2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.” “(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations in camera (tanácsülés), a public session (nyilvános ülés) or a hearing (tárgyalás). ...” “(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence. (2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...” “(1) The second-instance court shall notify the public prosecutor and – if they are not summoned – ... the defendant and his lawyer of the public session. ...” “(2) In order to take evidence, a hearing (tárgyalás) ... shall be scheduled.” “(1) The court’s final decision on the merits is susceptible to a [Supreme Court] review (felülvizsgálat) if ... c) the decision has been adopted amidst procedural irregularities within the meaning of section 373(1) subparagraphs II to IV.” | 1 |
dev | 001-107688 | ENG | HUN | COMMITTEE | 2,011 | CASE OF CSORBA v. HUNGARY | 4 | Violation of Art. 6-1 | András Sajó;Paulo Pinto De Albuquerque | 4. The applicant was born in 1946 and lives in Kecskemét. 5. In February 1992 the applicant brought an action against a limited liability company before the Bács-Kiskun County Regional Court, requesting the court to order the respondent to pay him fee for using his real estate. 6. The Regional Court suspended the proceedings on three occasions for several years, pending the outcome of separate legal disputes related to the ownership of the real estate. The applicant’s requests to have the proceedings resumed were dismissed. 7. On 22 June 2006 the Regional Court delivered judgment, finding partly for the applicant. In the absence of appeals, the judgment became final on 17 July 2006. | 1 |
dev | 001-22636 | ENG | ITA | ADMISSIBILITY | 2,002 | SALVETTI v. ITALY | 3 | Inadmissible | Christos Rozakis | The applicant, Mrs Ilaria Salvetti, is an Italian national, who was born in 1969 and lives in Caprino Veronese, Italy. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1971 the applicant was struck down by paralysis, blindness and dysarthria as a result of the compulsory polio inoculation provided by Law no. 51 of 4 February 1966. Section 2 of Law no. 210 of 25 February 1992 provided that people struck down by permanent illnesses as a result of compulsory inoculations were entitled to an allowance from the first day of the month following the claim and to a lump-sum payment. In fact, by a judgment of 22 June 1990 the Constitutional Court had declared Law no. 51 of 4 February 1966 unconstitutional because it did not provide for any fair compensation for illnesses as a result of compulsory polio inoculation. On 13 January 1993 the applicant requested the compensation she was entitled to. On 26 April 1995 the Ministry of Health established, on the basis of the applicant’s claim, that she was entitled to an allowance of 14,107,590 Italian lire (ITL) per annum from 1 February 1993. On 18 May 1995 ITL 32,917,655 were paid in arrears for the period from 1 February 1993 to 31 May 1995. By a judgment of 18 April 1996 the Constitutional Court declared section 2 of Law no. 210 of 25 February 1992 unconstitutional because it did not provide for any compensation for the period between the date on which the cause of action arose and the award of the allowance. In 1996, after the Constitutional Court’s judgment, several decree-laws were issued and re-issued in order to resolve the matter of the retrospective compensation. The last decree-law no. 548 of 23 October 1996 converted into Law no. 641 of 23 October 1996 and later Law no. 238 of 25 July 1997 amended section 2 of Law no. 210 of 25 February 1992. According to the new section 2, in addition to the principal allowance and lump-sum payment already awarded, people injured by compulsory inoculations were entitled to a further compensation for the period between the date on which the cause of action arose and the award of the allowance, calculated for every year at 30% of that allowance, without statutory interest and monetary revaluation. Moreover, section 2 provided that people injured by multiple illnesses as a result of compulsory inoculations were entitled to additional compensation, to be determined by a decree of the Ministry of Health, of not more than 50% of the principal award. On 20 July 1997 the applicant lodged an application with the County Court (Pretura) alleging that the decree-law’s provisions were unconstitutional on the grounds of the arbitrary reduction of the retrospective compensation and requesting a declaration of her right to obtain it without any reduction. The applicant also alleged that the provision in relation to the additional award was unconstitutional, because it was determined in a different way from the sum awarded to disabled workers and ex-servicemen. In any case, the applicant requested a provisional order against the Ministry of Health to pay the retrospective compensation as determined by Law no. 210 of 25 February 1992 (that is, 30% of the principal award) and statutory interest from 1 February 1993 to 31 May 1995 on the principal allowance arrears. The Ministry of Health asked for the applicant’s requests to be dismissed. The County Court provisionally ordered that Ministry of Health pay ITL 89,386,881 in retrospective compensation as determined by Law no. 210 of 25 February 1992. By judgment of 30 January 1997 the County Court found the applicants’ arguments concerning constitutionality to be manifestly ill-founded and ordered the Ministry of Health to pay ITL 88,877,817 in retrospective compensation as determined by Law no. 210 of 25 February 1992 and ITL 4,368,881 in statutory interest from 1 February 1993 to 31 May 1995 in principal allowance arrears. The Court also declared that the applicant was eligible for the additional compensation because of the multiple illnesses following the compulsory inoculation but did not fix the amount because the Ministry of Health’s decree had not yet been issued. The Ministry of Health lodged an appeal against the County Court’s judgment. The applicant asked for the appeal to be dismissed and her previous requests confirmed. By judgment of 24 September 1998 the Labour Court upheld the County Court’s judgment and ordered the Ministry of Health to pay additional compensation of 50% of the principal award. By judgment no. 307 of 22 June 1990 the Constitutional Court declared as follows: Law no. 51 of 4 February (polio compulsory inoculation) is unconstitutional insofar as it does not provide, outside section 2043 of the civil code, for any fair compensation to be charged to the State for damage as a result of infection or other serious illness following compulsory polio inoculation which have struck down inoculated children or people who have personally and directly taken care of them. This unconstitutional declaration (...) introduces a compensation for damage as direct result of compulsory medical treatment within the limits of a fair settlement which considers all the aspects of damage. This compensation is justified (...) by a balanced consideration of the principles of section 32 of the Constitution in relation to the solidarity between individuals and the collectivity, which justifies the imposition of medical treatment. According to Section 1 of Law n. 210 of 25 February 1992: Everyone struck down by illnesses or infirmities as a result of compulsory inoculations (...) is entitled to a compensation to be charged to the State on the conditions and in the ways established by the present law. Section 2 of Law no. 210 of 25 February 1992 provided as follows: The compensation (...) starts from the first day of the month following the claim. By judgment no.118 of 18 April 1996 the Constitutional Court declared as follows: Section 2, par. 2 and 3, par. 7 of Law no. 210 of 25 February 1992 is unconstitutional insofar as it denies the right of people struck down by illnesses as a result of polio compulsory inoculation or of people who have personally and directly taken care of them to a compensation to be charged to the State -outside the provision of section 2043 of the civil code- for the period between the date on which the cause of the action arose and the award of the allowance determined according to the law above. (...) The individual cannot be expected to sacrifice his own health for the benefit of the whole community. The coexistence between the individual and the collective aspect of constitutional discipline of health as well as the duty of solidarity, established by section 2 of the Constitution, which ties the individual to the collectivity, but also the collectivity to the individual, imposes a proper supporting measure of fair compensation for damage to be arranged for people who have suffered damage as a result of compulsory medical treatment. The compensation must be paid independently of the one claimed by the part concerned, if the conditions of section 2043 of the civil code are satisfied. Whereas the defence against tort provided by the section above necessarily and fully pays also for health damages -(...)- the compensation at issue is not concerned with guilt but with the unbreakable duty of solidarity overhanging in this case on the collectivity and, in its place, on the State. Though this compensation could not be derisory and -(...)- must consider all the aspects of damage, it has equitable nature. (...) This is a special duty. The issue for the collectivity is not only the duty to help people in trouble for any cause, but also the duty to compensate the sacrifice that someone can suffer for a benefit to the collectivity. It would be against principles of justice, such as results from section 32 of Constitution, in the light of the duty of solidarity of section 2 of Constitution, that people struck down were left to their own destiny and resources or that the damage at issue was considered an unforeseen event to be compensated with general instruments of public assistance, or that satisfaction for compensation requests of damaged people was subordinated to the existence of others’ negligent behaviour which could be missing. Section 2 of Law no. 210 of 25 February 1992, revised by Law no. 641 of 23 October 1996 and later by law no. 238 of 25 July 1997, provides as follows: 2. The allowance of par. 1 is integrated by a lump-sum payment corresponding to the special additional compensation of Law no. 324 of 27 May 1959 (...) and starts from the first day of the month following the claim (...) By claim and even if the allowance has been already given, a compensation is paid to people indicated in Section 1, par. 1 for the period between the date on which the cause of action arose and the award of the allowance, calculated for every year at 30% of the allowance, without statutory interest and monetary revaluation. 3.4.5.6 (...). 7. People injured by multiple illnesses with distinct disabling effects are entitled to an additional compensation, to be determined by a decree of the Ministry of Health, of not more than 50% of the allowance of par. 1 and 2. | 0 |
dev | 001-22825 | ENG | POL | ADMISSIBILITY | 2,002 | OLCZAK v. POLAND | 1 | Inadmissible | Georg Ress;Mark Villiger | 1. The applicant, a Polish citizen residing in Stoczek Łukowski, is an engineer. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 24 November 1990 the President of the National Bank of Poland issued a decision under the provisions of the 1989 Banking Act authorising the establishment of the Lublin First Commercial Bank (Pierwszy Komercyjny Bank S.A. w Lublinie), a public company with foreign capital. 4. In January 1991 the company was registered in the public companies register at the Lublin District Court. The share capital of the company was 56 billion Polish zlotys (PLZ - “old”, equivalent to 5,600,000 new Polish zlotys as from 1 January 1995). 97,5 % of the shares were owned by one D.B. 5. On 8 April 1992 the applicant bought shares in the Lublin First Commercial Bank from D.B. The parties fixed the price for the shares at PLZ 40,000,000,000, to be paid in three instalments. The applicant thus acquired 40 % of the bank’s equity capital. 6. On 17 June 1992 the applicant and D.B. agreed to rescind this contract. On 22 June 1992 the bank, having regard to D.B.’s failure to pay it the sums he owed, took over a number of his shares in order to cover his unpaid obligations. Later on, the applicant deposited with the bank 307 shares which he had purchased from D.B. The bank sought the consent of the President of the National Bank of Poland to a re-transfer of ownership from the applicant to D.B. 7. By a letter of 17 July 1992 the President refused. She stated in her letter that the bank was an institution of public trust, using the assets of private persons. Under the provisions of the 1989 Banking Act, and in particular its Article 100, the activities of banks were supervised by the National Bank of Poland in order to protect savings and investments entrusted to them. D.B., who had meanwhile been arrested and extradited to the United States, where he had been convicted of financial fraud, did not give any guarantee that the interests of the bank’s customers would be properly protected if he remained a majority shareholder in the bank. It was also noted that a conflict of interest arose, as, in addition to being the bank’s majority shareholder, D.B. had been the sole or joint owner of a number of companies which had defaulted on loans from the bank, thus undermining its financial standing. 8. By a letter of 7 August 1992 the President of the National Bank drew the attention of the bank’s board to the necessity of preparing a recovery and restructuring programme in order to improve the bank’s financial standing. 9. The bank’s losses for 1992 totalled PLZ 1,063,043,000,000, its capital resources being PLZ 888,336,000,000. 10. On 4 February 1993 T. company, owned by the applicant, took out a loan of PLZ 4,000,000,000 from the bank, repayable within a year. 11. By a decision no. 2/93 of 6 February 1993 the President of the National Bank of Poland appointed a Board of Receivers (Zarząd Komisaryczny) which was to replace the existing governing and supervisory bodies of the company for a period of six months. In so doing, she had regard to the continuing deterioration of the bank’s financial situation and to the danger of its becoming insolvent. The measure was intended to improve the bank’s financial standing and to preserve the assets deposited with it. Regard was also had to the fact that the bank’s board had failed to submit the recovery programme requested by the National Bank. It was further pointed out that the composition of the bank’s board had been changed many times, which made it difficult for any coherent management policy to be adopted, and that the new board, elected in December 1992, had also failed to devise a recovery programme and to show that it would be able to prepare and implement it. True, it had undertaken to do so within three months, but in the bank’s dramatic situation that was far too long and late. It was further noted that the bank could only be saved by external financing, but no institutions prepared to fund a rescue operation had been found. 12. In the external auditors’ report for 1992, subsequently prepared at the request of the Board of Receivers, it was stated, inter alia, that before 10 August 1992 the bank’s governing bodies and its principal shareholder, D.B., had acted in an unprofessional manner which brought about considerable losses. The losses had been caused, in particular, by transactions between the bank and companies owned by the principal shareholder, D.B. A number of ill-advised loans had been made, in particular to companies and private individuals linked to D.B. It was necessary to re-assess the bank’s strategy, in particular by finding an external investor willing to improve the bank’s financial standing by increasing its share capital. However, the chances of finding an investor willing to invest approximately USD 60,000,000 were practically non-existent. Another option was to seek institutional support from the National Bank of Poland, the World Bank or a different source. Any new investor would have to take control of the bank in order to manage it until its financial standing improved. Accordingly, the existing shareholders would lose their dominant position. 13. According to an extract from the bank’s books, on 31 May 1993 the applicant’s company, T., owed the bank PLZ 1,524,757,500. On 1 June 1993 the bank instituted enforcement proceedings against that company. 14. On 3 August 1993 the mandate of the Board of Receivers was prolonged until 7 November 1993. It was subsequently renewed again. 15. On 23 October 1993 the Board of Receivers adopted a resolution by virtue of which the bank’s memorandum of association was amended. The nominal value of its share capital was first reduced from PLZ 50,000,000,000 to PLZ 1,098,000,000 by cancelling 31,350 Class A shares worth PLZ 1,000,000 each. The value of 27,450 remaining Class A shares A was reduced from PLZ 1,000,000 to PLZ 40,000. The sum of PLZ 57,702,000,000 thus generated was to be used in its entirety to cover the bank’s losses. Next the bank’s share capital was increased by PLZ 250,000,000,000 through the issue of 6,250,000 new Class B non-transferable shares of PLZ 40,000 each, with extra voting rights. Class B shares were to be paid up entirely by funds provided by the National Bank of Poland in order to improve the standing of the bank, which was on the verge of bankruptcy; they were consequently allotted to the National Bank of Poland, to be owned by it. The existing shareholders, in order to protect the bank’s interests, were prevented from acquiring new shares. 16. As a result of these operations, the applicant’s shareholding decreased from approximately 45 % to 0,4 %. 17. On the same day the Board of Receivers adopted another resolution by deleting the provision in the bank’s memorandum of association which prohibited the cancellation of shares, and introduced a provision to the effect that the shares could be cancelled by reducing the share capital. 18. On 25 November 1993 the applicant lodged a civil action with the Lublin Regional Court seeking an order setting aside the resolution of 23 October 1993. He submitted that the resolution had arbitrarily decreased the value of his shares and deprived him of the right to acquire new shares; consequently, he had sustained a heavy financial loss. He also argued that the resolution contravened applicable laws, in particular banking laws and the Commercial Code. 19. On 10 December 1993 the Lublin Regional Court ordered that the pleadings be returned to the applicant on the ground that he had not complied with the relevant procedural requirements under the Code of Civil Procedure, as he had failed to indicate the value of the claim. It considered that that claim was clearly of a pecuniary character, its value being equivalent to the loss he had sustained as a result of the resolution of 23 October 1993. 20. On 23 December 1993 the applicant appealed against that order, submitting that pursuant to the regulation on court fees, only a fixed fee was to be paid to commence an action for an order quashing corporate resolutions. Thus, it was unnecessary for him to indicate the amount in dispute. 21. On 27 January 1994 the Lublin Regional Court, acting as an appellate court, dismissed the applicant’s appeal, considering that the lower court had been right to find that his claim was of a pecuniary character, since his aim was to obtain compensation for his alleged loss resulting from the resolution. 22. On 16 February 1994 the applicant again lodged a civil action with the Lublin Regional Court, seeking an order quashing the resolution of 23 October 1993. He submitted that the amount in dispute was PLZ 30,690. On 25 October 1994 the Lublin Regional Court requested the applicant to pay court fees of PLZ 1,000,000,000. 23. On 1 November 1994 the applicant requested an exemption in respect of the court fees. He submitted that his property had been seized by a bailiff in the context of enforcement proceedings which had been instituted against him by the Lublin First Commercial Bank on 31 May 1993. 24. On 28 December 1994 the Lublin Regional Court refused to grant the applicant an exemption, considering that he had failed to submit to the court detailed information regarding his financial situation. The applicant lodged an interlocutory appeal against that decision. 25. On 11 January 1995 the Lublin Court of Appeal dismissed the appeal. It examined the documents submitted in support of the appeal and considered that, as the applicant had significant assets, including two companies and real property, he did not qualify for an exemption. 26. On 30 December 1993 the Lublin District Court (Commercial Division) ordered that entries be made in the Companies Register, reflecting the results of the Board of Receivers’ resolution of 23 October 1993. 27. On 20 January 1994 the applicant lodged an appeal against that decision. 28. On 10 June 1994 the Lublin Regional Court referred a question on points of law to the Supreme Court (Sąd Najwyższy). The Supreme Court was requested to rule on the correct interpretation of the scope of the Board of Receivers’ power to adopt resolutions on matters reserved to the company’s shareholders’ general meeting, in particular as regards reducing the share capital. 29. On 22 July 1994 the Supreme Court, by resolution no. III CZP 92/94, stated that the Board of Receivers appointed under the provisions of the Banking Act was empowered to adopt resolutions on all matters reserved by statute or by the company’s memorandum of association to the company’s shareholders in general meeting. It held that, with regard to banks, the provisions of the Banking Act, which was a lex specialis, took precedence over the provisions of the Commercial Code governing public companies which contained certain limitations on the powers of the Board of Receivers. 30. On 23 September 1994 the Lublin Regional Court dismissed the applicant’s appeal. 31. On 7 October 1994 the Lublin Regional Court dismissed an action brought by the Lublin Forestry Enterprise LAS (Lubelskie Przedsiębiorstwo Produkcji Leśnej LAS) against the Lublin First Commercial Bank. The plaintiff company, which had been a shareholder of the bank, sought an order quashing the resolution of 23 October 1993. It argued that the resolution should be quashed in pursuance of Article 414 of the Commercial Code which allowed shareholders to seek an order setting aside resolutions of the shareholders’ general meeting if taken deliberately to their detriment. 32. On 9 November 1994 the applicant requested the Lublin Regional Court’s permission to join these proceedings as a co-plaintiff. On the same date he lodged an appeal against the judgment of 7 October 1994. The applicant contended in his appeal that the impugned judgment was in breach of substantive law in that the court had wrongly held that the provisions of the Banking Act took precedence over the provisions of the Commercial Code concerning shareholders’ power to challenge before the courts certain resolutions of a shareholders’ general meeting. The applicant further submitted that the court had failed to draw reasonable conclusions from the evidence, in particular in that it had not concluded that the impugned resolution had been taken deliberately to the shareholders’ detriment. 33. On 23 June 1995 the Lublin Court of Appeal dismissed the applicant’s appeal. It found that the National Bank of Poland had appointed the Board of Receivers in view of the heavy losses which the First Commercial Bank had sustained in 1992, mostly as a result of bad debts. It was not in dispute that the bank had sustained such losses. The purpose of the resolution of 23 October 1993 had been to improve the bank’s financial standing in the interest of its customers and in order to prevent it from becoming insolvent. The court further referred to the resolution of the Supreme Court of 22 July 1994. It considered that, in the light of that resolution, the judgmentLublin First Commercial Bank. 34. On 7 August 1995 the judgment was served on the applicant. He requested the Minister of Justice to lodge an extraordinary appeal on his behalf. By a letter of 20 December 1995 the Minister of Justice declined to do so, considering that the impugned judgment was in conformity with the law. 35. Pursuant to Article 104 of the Banking Act 1989 as in force at the material time, if a bank suffers or is in danger of suffering losses or of becoming insolvent, its board must promptly inform the President of the National Bank of Poland and take appropriate recovery measures. A recovery programme must be submitted to the President of the National Bank for approval within thirty days. 36. If the board fails to do so, or if such programme does not appear to guarantee an improvement in the bank’s standing, the President of the National Bank may place the bank under compulsory receivership. 37. The board of receivers has powers to make decisions in all matters concerning the bank. Its primary task is to prepare a recovery programme for approval by the National Bank of Poland and to ensure its implementation. 38. On 28 May 1996 the Constitutional Tribunal gave a decision under which Article 105 of 1989 Banking Act was to be construed as meaning that the board of receivers had the power of taking any decisions that the suspended statutory organs of the bank were empowered to take (W 9/95 OTK 1996/3/24). 39. Under Article 418 of the Civil Code, as worded at the material time, if damage was caused by a public servant as a result of him/her giving a decision or accomplishing another official act, the State Treasury was to be held liable only if that decision or act amounted to a breach punishable under criminal law or under any disciplinary regulations, and if the fault of the public servant had been confirmed by a judgment of a criminal court or of a competent disciplinary authority, or was otherwise established by a superior authority. 40. Article 76 of the Code of Civil Procedure provides that any person who has a legal interest in the outcome of a case may join proceedings as a co-plaintiff or co-defendant at any stage prior to the end of the hearings before the court of second instance. | 0 |
dev | 001-111529 | ENG | AUT | ADMISSIBILITY | 2,012 | DUBOC v. AUSTRIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos | 1. The applicant, Mr Claude Louis Duboc, is a national of the United States of America and France, who was born in 1942. He is currently detained in a prison in the United States of America. He is represented before the Court by Dr. J. Hock, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The Government of France were given notice of the application, and they informed the Court on 11 June 2008 that they would not exercise their right to intervene in the present case. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In November 1988 the applicant opened a bank account with an Austrian bank, bank G. The account was registered under his name and all movements on the account were able to be followed. By 1998 the applicant’s account had a positive balance of approximately 17 million euros (EUR). 4. In 1994 the applicant was indicted in the United States on various drug and money laundering charges relating to drug trafficking on a particularly large scale, which he was involved in from 1982 until his arrest in 1994. The applicant entered into a Plea and Cooperation Agreement with the prosecution on 17 May 1994. Under that agreement, the applicant voluntarily forfeited to the United States approximately 50 million United States dollars (USD) in assets. He was also obliged to identify all his assets. However, the applicant did not disclose his account with bank G. 5. While in prison the applicant was induced by one of the other fellow inmates, who was cooperating with the FBI, to bribe a judge. The inmate also arranged a meeting between the applicant and W., an undercover lawenforcement officer, who presented himself as being able to assist the applicant. Subsequently, W. arranged several money transfers for the applicant from bank G. in Austria. 6. Thereupon, on 7 May 1998, the United States Department of Justice requested the Austrian authorities under letters rogatory to freeze the applicant’s assets as a preliminary step to forfeiture under US law, subject to the operation of Austrian law. It stated that the applicant’s funds deposited with bank G. were the proceeds of money laundering and drug offences to which the applicant had pleaded guilty in 1994. It further held that these funds had also been used in additional money laundering offences for which the applicant would be indicted later. 7. This request was based on the treaty regulating judicial assistance between Austria and the United States, namely the Treaty of Mutual Legal Assistance (“the MLAT”), which entered into force on 1 August 1998. 8. On 23 September 1999 the District Court for the Northern District of Florida issued a Final Order of Forfeiture including the applicant’s assets at bank G. (“the first forfeiture order”). Apparently, the applicant’s appeal against this decision was to no avail. 9. In a second set of criminal proceedings in the United States, the applicant was indicted for conspiracy to bribe a federal judge, conspiracy to tamper with a witness, conspiracy to money laundering and for money laundering. 10. On 1 February 2000 the District Court for the Northern District of Florida acquitted the applicant of bribery, but convicted him of all other charges. The court also ordered the forfeiture of his assets (“the second forfeiture order”). 11. On 26 August 2004 the United States Court of Appeals for the Eleventh Circuit partly granted the applicant’s appeal against the decision of 1 February 2000 and acquitted him with respect to money laundering. His conviction for conspiracy to tamper with a witness was affirmed. The court also reversed the second forfeiture order. 12. Based on the United States’ letters rogatory of 7 May 1998, the Vienna Regional Criminal Court (Landesgericht für Strafsachen) issued an interim measure on 23 June 1998 enjoining the applicant from disposing of all assets deposited with bank G. It also held that the interim measure would be suspended on deposit of USD 325,000. The applicant did not pay that deposit and did not appeal against the court’s decision. This interim measure was twice altered to reflect the increased value of the assets subject to it. 13. Additional criminal proceedings were instituted against the applicant on suspicion of money laundering on 19 June 1998. 14. On 23 April 1999 the Austrian Federal Ministry of the Interior (Bundesministerium für Inneres) issued a report listing all credits and debits on the applicant’s account that had been carried out via bank transfer or by means of crossed cheques (Verrechnungsschecks). 15. On 14 April 2000 the Regional Criminal Court dismissed the applicant’s request for the suspension of the criminal proceedings and for the lifting of the interim measure. It held that only the Public Prosecutor’s Office could suspend the proceedings at this stage and that the interim measure was still justified. 16. On 17 August 2000 the Vienna Court of Appeal (Oberlandesgericht) rejected the applicant’s request that it hold a hearing and dismissed his complaint against the Regional Criminal Court’s decision of 14 April 2000. It held that according to the findings of the United States authorities the applicant could reasonably be suspected of having committed the crime of receiving stolen property (Hehlerei) and, after the entry into force of the relevant amendment to the Austrian Criminal Code, the crime of money laundering. 17. Subsequently, the applicant applied to have the interim measure lifted three additional times between 27 June 2001 and 18 August 2003. All of his requests were to no avail. 18. Following the judgment of the United States Court of Appeals for the Eleventh Circuit of 26 August 2004 and the applicant’s acquittal of the charges of money laundering, the applicant applied again to have the interim measure lifted. 19. On 22 March 2005 the Vienna Regional Criminal Court dismissed this request and upheld the interim measure. It held that a distinction had to be made between the two different proceedings in the United States. The first forfeiture order was still in force and consequently the interim measure in Austria could not be quashed. Even if the second forfeiture order had been lifted, the corresponding judgment of the United States Court of Appeals for the Eleventh Circuit had stated that at least some of the money in the applicant’s account with bank G. had “doubtlessly derived from drug related money”. The interim measure was therefore still justified. 20. This decision was upheld by the Court of Appeal on 22 September 2005 and served on the applicant’s counsel on 10 October 2005. 21. On 18 May 2005 the Vienna Public Prosecutor’s Office asked the Regional Criminal Court to enforce the first forfeiture order. Furthermore, it discontinued the criminal proceedings against the applicant on the same date. It renewed the request on 26 February 2006. 22. Upon the request of the Vienna Regional Court of 16 March 2006, the U.S. Department of Justice submitted a certified written version of the judgment issued against the applicant. However, it did not do so until 6 March 2007. 23. On 25 April 2006 the Vienna Regional Court dismissed the Public Prosecutor’s request for the execution of the first forfeiture order for formal reasons. 24. On 19 June 2007 the Vienna Court of Appeal allowed the Public Prosecutor’s appeal and remitted the case back to the Regional Court. 25. On 1 February 2008 the Vienna Regional Court asked the U.S. authorities to inform the applicant of the request of the U.S. Department of Justice for enforcement of the first forfeiture order and to give him the opportunity to comment on it. 26. On 23 April 2008 the applicant and his former wife, both represented by counsel, requested in their comments that the first forfeiture order not be executed in Austria. 27. On 4 June 2008 the Vienna Regional Criminal Court, without holding a hearing, decided to take over the enforcement of the first forfeiture order and ordered the forfeiture of the applicant’s Austrian assets. The applicant appealed against this decision on 24 June 2008. 28. On 30 December 2008 the Vienna Court of Appeal dismissed the applicant’s subsequent appeal. That decision was served on the applicant’s counsel on 27 January 2009. Section 1 of the Extradition and Legal Assistance Act (Federal Law Gazette no. 529/1979) stipulates that the Act applies where international or bilateral agreements do not provide otherwise. Section 3 carries the heading “reciprocity” and, so far as relevant, provides as follows: “(1) Foreign requests may be granted only if it is ensured that the requesting State would also grant an equivalent Austrian request. ... (3) If there are doubts regarding compliance with reciprocity, information shall be obtained from the Federal Minister of Justice.” “(1) Enforcement or further enforcement of a decision by a foreign court which was pronounced with final and legal effect, in the form of a money fine or prison sentence, a preventive measure or a pecuniary measure (vermögensrechtliche Anordnung), is admissible at the request of another State if: 1. the decision of the foreign court was taken in the course of proceedings in compliance with the principles of Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (the Convention) (Federal Law Gazette No. 210/1958); 2. the decision was taken for an act that is sanctioned by a court sentence under Austrian law; 3. the decision was not taken for one of the offences listed in § 14 and § 15; 4. no time lapse has occurred under Austrian law regarding enforceability; 5. the person concerned by the decision of the foreign court – regarding this offence – is not prosecuted in Austria, was finally and effectively convicted or adjudicated in this matter or otherwise released from prosecution. ... (4) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under Austrian law for a money fine, a withdrawal of enrichment or forfeiture apply, and that no corresponding Austrian measure has yet been taken. ... (7) Fines, forfeited assets or enrichment withdrawn shall fall to the Republic of Austria.” 29. The Treaty was signed on 23 February 1995 and, following ratification, entered into force on 1 August 1998 (Federal Law Gazette Part III, no. 107/1998). “(1) The Contracting Parties shall provide mutual assistance, in accordance with the provisions of this Treaty, in connection with the investigation and prosecution of offences, the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of the Requesting State, and in related forfeiture proceedings. (2) Assistance shall include: ... (h) assisting in proceedings related to forfeiture and restitution; ...” “(1) If the Central Authority of one Contracting Party becomes aware of fruits or instrumentalities of offences which are located in the territory of the other Party and may be forfeitable of otherwise subject to seizure under the laws of that Party, it may so inform the Central Authority of the other Party. If the other Party has jurisdiction in this regard, it may present this information to its authorities for a determination as to whether any action is appropriate. These authorities shall issue their decision and shall, through their Central Authority, report to the other Party on the action taken. (2) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. (3) A Requested State in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law. To the extent permitted by its laws and upon such terms as it deems appropriate, either Party may transfer forfeited assets or the proceeds of their sale to the other Party.” “(3) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of this Treaty.” | 0 |
dev | 001-81356 | ENG | NOR | GRANDCHAMBER | 2,007 | CASE OF FOLGERØ AND OTHERS v. NORWAY | 1 | Violation of Article 2 of Protocol No. 1 - Right to education-{general};Non-pecuniary damage - finding of violation sufficient | Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Ineta Ziemele;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky | 7. The present application was lodged by parents, who are members of the Norwegian Humanist Association (Human-Etisk Forbund), and their children, who were primary-school pupils at the time of the events complained of in the present case: Mrs Ingebjørg Folgerø (born in 1960), Mr Geir Tyberø (born in 1956) and their son, Gaute A. Tyberø (born in 1987); Mrs Gro Larsen (born in 1966), Mr Arne Nytræ (born in 1963) and their two sons, Adrian Nytræ (born in 1987) and Colin Nytræ (born in 1990); Mrs Carolyn Midsem (born in 1953) and her son, Eivind T. Fosse (born in 1987). Initially the Association had also joined the application, but it subsequently withdrew. 8. On 26 October 2004 the Court struck the application out in so far as it concerned the Association and declared the application inadmissible on grounds of non-exhaustion in respect of the applicant children (for which reason, the term “applicants” used elsewhere in the present judgment refers to the applicant parents). The Court moreover observed that, while the applicant parents had complained under the Convention in particular about the absence of a right to full exemption from the KRL subject (see paragraph 16 below), they had also challenged before the Court the limited possibilities and the modalities for obtaining partial exemption. However, as can be seen from the Supreme Court’s judgment, the applicant parents’ lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. The Supreme Court found no ground for determining whether the teaching of the appellants’ children had occurred in a manner which violated the relevant human rights treaties. In the light of the foregoing, the Court found that the applicant parents had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of their complaint about the possibilities and modalities for obtaining partial exemption from the KRL subject and declared this part of the parents’ application inadmissible. In its subsequent decision on admissibility of 14 February 2006, the Court held that, in its examination of the issue regarding full exemption, the above limitations on the scope of the case that followed from the decision of 26 October 2004 did not prevent it from considering the general aspects of the partial-exemption arrangement, notably in the context of the parents’ complaint under Article 14 of the Convention. 9. Norway has a State religion and a State Church, of which 86% of the population are members. Article 2 of the Constitution provides: “Everyone residing in the Kingdom shall enjoy freedom of religion. The Evangelical Lutheran Religion remains the State’s official religion. Residents who subscribe to it are obliged to educate their children likewise.” 10. Instruction in the Christian faith has been part of the Norwegian school curriculum since 1739. From 1889 onwards members of religious communities other than the Church of Norway were entitled to be exempted in whole or in part from the teaching of the Christian faith. 11. In connection with the enactment of the former Compulsory School Act 1969 (lov om grunnskolen, 13 June 1969, no. 24, hereafter referred to as “the 1969 Act”), Parliament decided that teaching of the Christian faith should be dissociated from the baptismal instruction of the Church and aimed at teaching the main content of the history of the Bible, the principal events in Church history and basic knowledge of the Evangelical Lutheran Faith for children (section 7(4) of the Act). 12. Under the “Christian object clause” (den kristne formålsparagraf) in section 1 of the Act: “Primary school shall, with the understanding and cooperation of the home, assist in giving pupils a Christian and moral education and in developing their abilities, spiritual as well as physical, and giving them good general knowledge so that they can become useful and independent human beings at home and in society. School shall promote spiritual freedom and tolerance, and place emphasis on creating good conditions for cooperation between teachers and pupils and between the school and the home.” 13. Teachers were required to teach in accordance with the Evangelical Lutheran faith (section 18(3), added in 1971). 14. In accordance with section 12(6) of the 1969 Act, children of parents who were not members of the Church of Norway were entitled, upon the parents’ request, to be exempted in whole or in part from lessons on the Christian faith. Pupils who had been exempted could be offered alternative lessons in philosophy. 15. Between 1993 and 1997 a process of reform of compulsory primary and secondary school took place. In the spring of 1993 Parliament decided to bring the school starting age forward from the age of seven to six and the next spring it extended compulsory school attendance from nine to ten years. A new curriculum was presented to Parliament. The majority of the Parliamentary Committee for Church Affairs, Education and Research proposed that Christianity, other religions and philosophy be taught together. It emphasised the importance of ensuring an open and inclusive school environment, irrespective of the pupils’ social background, religious creed, nationality, sex, ethnic group or functional ability. School should be a meeting place for all views. Pupils having different religious and philosophical convictions should meet others and gain knowledge about each other’s thoughts and traditions. School should not be an arena for preaching or missionary activities. It was noted that since 1969 teaching of the Christian faith had been dissociated from the State Church’s baptismal instruction. The subject should give knowledge and insight but should not be a tool for religious preaching. The Committee’s majority further considered that guidelines for exemptions should be worked out in order to achieve a uniform practice and that minority groups should be consulted. Exemptions should be limited to parts of the subject, especially material of a confessional character and participation in rituals. 16. Subsequently, a white paper (St.meld. nr. 14 for 1995-96) on Christianity, religion and philosophy (kristendomskunnskap med religions- og livssynsorientering, hereafter referred to as “the KRL subject”) was presented, in which the Ministry of Church Affairs, Education and Research (Kirke-, utdannings- og forskningsdepartementet; as from 1 January 2002 the Ministry of Education and Research (Utdannings- og forskningsdepartementet) – hereafter “the Ministry”) indicated the following guidelines for making exemptions: “No pupil should feel that being exempted is unpleasant or a stigma; No pupil should be pressurised to stand out as a representative of a specific philosophy of life and the school should therefore display great caution in class or at the school in its handling of a request for exemption; It should not be automatic for certain pupils to be exempted from certain parts of the syllabus; If the circumstances lend themselves to it and the parents/pupil so wish, the background and reasons for an exemption can be taken up in the lessons. An exemption does not mean a freedom to be ignorant ...” 17. The majority of the above-mentioned parliamentary committee endorsed the curriculum in the main and pointed out that Christianity should form the central part of the KRL subject (Innst.s.nr 103 for 1995-96). It further stated: “The majority would also underline that the teaching should not be value-neutral. The aim that the teaching should not be preaching should never be interpreted to mean that it should occur in a religious/ethical vacuum. All teaching and education in our primary schools shall take the school’s object clause as a starting point and, within this subject, Christianity, other religions and philosophy shall be presented according to their own special features. The subject should place emphasis on the teaching of Christianity.” 18. A minority of one proposed that, for all primary-school pupils, there should be a right to full exemption from the KRL subject and to alternative teaching. 19. In the course of preparing the amendments to the law, the Ministry commissioned Mr E. Møse, then a High Court Judge, to make an assessment of compulsory education in the KRL subject from the angle of Norway’s obligations under public international law. In his report of 22 January 1997, he concluded: “The object clause of the Primary School Act, whether taken alone or together with Article 2 of the Constitution and other special rules on the Church and schools, does not provide a basis for establishing that the teaching of Christianity under the new syllabus will of legal necessity become preaching, educative or influential in favour of the Evangelical Lutheran Religion. The legislature may choose to make provision for education in the form of preaching to pupils who are of this creed, but not to others. That would be inconsistent with our international obligations and Article 110c of the Constitution on the protection of human rights. What emerges, from a legal point of view, from the somewhat unclear concept of ‘confessional basis’, is that a natural consequence of the State Church system is that the legislator lets instruction in religion or philosophy include the Evangelical Lutheran thoughts, not other forms of Christianity. The law on the new subject, which includes a part on Christianity, has opted for this. ... The solution has been opted for because the majority of the population in Norway is affiliated to this creed. It is evidently motivated by objective reasons. It cannot be ruled out by human rights treaties, provided that the teaching is otherwise pluralistic, neutral and objective.” 20. As regards the issue of exemption from the KRL subject, Mr Møse stated: “In the situation as it emerges I find that a general right of exemption would be the safest option. This would mean that international review bodies would not undertake a closer examination of thorny questions that compulsory education raises. However, I cannot say that a partial exemption would violate the conventions, provided that the operation of the system falls within the framework of the relevant treaty obligations. A lot would depend on the further legislative process and the manner of implementation of the subject.” 21. Sections 7 and 13 of the 1969 Act were amended by an Act of 19 June 1997 (no. 83), which came into effect on 1 July 1997. The new provisions, plus an object clause similar to section 1 of the former 1969 Act, were subsequently included in sections 2-4 and 1-2 respectively of the Education Act 1998 (Lov om grunnskolen og den videregående opplæring av 17. juli 1998 nr. 61 – “the Education Act 1998”), which came into force on 1 August 1999. 22. Section 1-2(1) provided: “The object of primary and lower secondary education shall be, in agreement and cooperation with the home, to help give pupils a Christian and moral upbringing, to develop their mental and physical abilities, and to give them good general knowledge so that they may become useful and independent human beings at home and in society.” 23. Section 2-4 read: “Instruction in Christianity, religion and philosophy shall (i) transmit thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith; (ii) transmit knowledge of other Christian communities; (iii) transmit knowledge of other world religions and philosophies, and ethical and philosophical subjects; (iv) promote understanding and respect for Christian and humanist values; and (v) promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions. Instruction in Christianity, religion and philosophy is an ordinary school subject, which should normally bring together all pupils. The subject shall not be taught in a preaching manner. A person who teaches Christianity, religion and philosophy shall take as a starting point the object clause in section 1-2 and should present Christianity, the different religions and philosophy from the standpoint of their particular characteristics. The same pedagogical principles shall apply to the teaching of the different topics. A pupil shall, on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practice of another religion or adherence to another philosophy of life. This may concern, inter alia, religious activities within or outside the classroom. In the event of a parental note requesting exemption, the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum.” 24. From the travaux préparatoires it can be seen that the expression “religious activities” was meant to cover, for example, prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature. 25. In accordance with a circular by the Ministry of 10 July 1997 (F9097), a parental note to the school requesting exemption should contain reasons setting out what they considered amounted to practice of another religion or adherence to another philosophy of life. The pupil should be granted an exemption after the parents had specified the reasons. If the request was rejected, the parents had a right of appeal to the State Education Office in the county concerned. The appeal was sent via the school, which then had an opportunity to alter its decision. 26. The requirement of giving reasons was further specified in a ministerial circular of 12 January 1998 (F-03-98), according to which no reasons were required for making an exemption from clearly religious activities. Beyond that, with regard to matters falling outside the main rule for making exemptions, stricter requirements applied in respect of reasons. 27. In connection with the preparation of the KRL subject, associations representing minority convictions expressed strong objections, notably that the subject was dominated by Evangelical Lutheran Christianity and contained elements of preaching. The Norwegian Humanist Association commented, inter alia, that the subject had a confessional basis (konfesjonsforankring) and that the possibility foreseen for obtaining exemption from only parts of the subject was inadequate. At its national congress in May 1997 the Association decided to invite Parliament to reject the government’s proposal to limit the right of exemption. 28. From autumn 1997 the KRL subject was gradually introduced into the primary-school curriculum, replacing the subject of Christianity and philosophy of life. During the school year 1999/2000, the subject was introduced at all levels. 29. On 18 October 2000 the Ministry issued a press release about the completion of two evaluation reports on the KRL subject, one entitled “Parents’, pupils’ and teachers’ experiences with the KRL subject” (Foreldres, elevers og læreres erfaringer med KRL-faget), provided by Norsk Lærerakademi, the other entitled “A subject for every taste? An evaluation of the KRL subject” (Et fag for enhever smak? En evaluering av KRL-faget) by the Høgskulen i Volda and Diaforsk. Parliament had requested that a survey of the implementation of the exemption rules be prepared after a three-year period. Both reports concluded that the partial-exemption arrangement was not working as intended and should therefore be thoroughly reviewed. The second report listed the following “Main conclusions”: “In this part of our report we have discussed whether there is concordance between KRL’s intentions, principles and exemption schemes on the one hand and its practical implementation in schools nationwide on the other, and whether parental rights can be said to be ensured when the teaching and exemption scheme are organised the way they are. The perspective of parental rights, which is central to the project’s mandate, has made it necessary to focus especially on the experiences various groups of parents have had with the subject and with the exemption scheme. All things considered it should be said that the great majority of the parents we have been in contact with, who belong to the Church of Norway, are satisfied with the subject or have no strong opinions about it. However we have found powerful resistance to important aspects of the subject among other groups of parents. The lasting antipathy to the subject from parents belonging to religious/faith minorities means that KRL can hardly be said to integrate and include as intended. The principal and empirical surveys provide grounds for the following main conclusions: 1. There is broad agreement among parents that it is important to have some common teaching in the subject concerning different religions and beliefs, but there is no agreement about • what the contents and objectives of the common teaching should be; • in which year the pupils should be taught about religions other than their own. 2. In practice some of the subject’s intentions are ensured at all surveyed schools, but at none of them are all the fundamental intentions ensured. Deficient implementation of the central intentions underlying the subject can be explained by • tensions in the subject description itself and between the various intentions underlying the subject, making it difficult to implement; • lack of resources and problems with implementation presuppose changes at schools. 3. The current exemption scheme does not work so that parental rights are ensured in practice. This is due to the following reasons among others: • the information schools give about the exemption scheme is in many ways not suited to safeguarding the possibility of exemption; • the information given about KRL classes is of too general a nature for parents to be able to notify their intention regarding an exemption. For example, information about working methods is hardly ever given. Besides, the lesson plans generally come too late for parents to have a practical opportunity of asking for an exemption; • schools interpret the exemption regulations too strictly compared with the clarifications given both by Parliament and the Ministry. For instance, an exemption is often granted only in respect of those activities which are ‘clearly religious activities’. Furthermore several schools report attitudes which give the impression that it is practically impossible to be granted an exemption; • schools offer very little differentiated teaching to pupils who are to be exempted from parts of the subject, and pupils with an exemption mostly sit passively in the classroom; • in addition, a number of parents from minority-language backgrounds do not have the language competence necessary to exercise their rights even though they would like an exemption. In many cases this causes distrust in school/home relations. A considerable number of parents from minority backgrounds say they want full exemption but will not apply because they are afraid of a conflict with the school that may harm their children; • the integration of themes and subjects helps KRL become invisible in the timetable so that in practice it is very difficult to ask for an exemption. 4. Changes should be made which still ensure some teaching for the whole class, while ensuring parental rights in practice. This only seems possible under certain conditions. • Arrangements should be made in order to facilitate teaching about the different religions and beliefs and promote dialogue and mutual respect in some tuition for the whole class. Efforts should probably be made to have flexible models that can be adjusted to the special conditions prevailing for lower primary, upper primary and lower secondary levels respectively in different parts of the country and for different groups of pupils; • Considering the problems we can now see at several schools, it should be possible to provide for full exemption. This would be the safest solution in respect of international conventions and probably also the one that in the long run would be best suited to ensuring support and legitimacy for a subject that is focused on religion and belief. We have established that the variations we have found in teaching in different parts of the country, at some schools and in different classes, give us reason to ask if KRL is one or more than one new subject.” 30. In the meantime, on 14 March 1998 the Norwegian Humanist Association, together with eight sets of parents who were members of the Association and whose children went to primary school, brought proceedings before Oslo City Court (byrett) on account of administrative refusals of the parents’ applications for full exemption from the teaching of the KRL subject. They claimed that the refusal of full exemption violated the parents’ and the children’s rights under Article 9 of the Convention and Article 2 of Protocol No. 1, taken on their own or in conjunction with Article 14. They also relied on, amongst other provisions, Articles 18 and 26 of the 1966 United Nations International Covenant on Civil and Political Rights and Article 13 § 3 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights. 31. By a judgment of 16 April 1999, the City Court rejected the State’s objection that the Association lacked a legal interest and hence did not have legal standing. However, on the substantive issues the City Court found for the State and rejected the claim. 32. The Association and the parents appealed to the Borgarting High Court (lagmannsrett), which by a judgment of 6 October 2000 upheld the City Court’s judgment. 33. On a further appeal by the applicants, the Supreme Court (Høyesterett), by a judgment of 22 August 2001, unanimously dismissed the appeal in so far as it concerned the Association on the ground that it lacked a legal interest sufficient to have standing in the case. In so far as it concerned the other appellants, it unanimously dismissed their appeal and upheld the High Court’s judgment. 34. In his reasoning, approved in the main by the other four Justices sitting in the case, the first voting judge, Mr Justice Stang Lund, stated from the outset that “[the] case concerns the validity of the administrative decisions rejecting the parents’ applications for full exemption for their children from the primary and secondary school (KRL) subject”. He defined the issue to be determined as being “whether instruction in the [KRL] subject with a limited right to exemption [was] contrary to Norway’s international legal obligations to protect, inter alia, freedom of religion and belief”. 35. Thereafter, Mr Justice Stang Lund undertook an extensive analysis of the legislative history and the position under international human rights law, notably the relevant provisions and case-law of the European Convention and the 1966 International Covenant on Civil and Political Rights (“the ICCPR”). Dealing in turn with each of the relevant provisions of the Education Act 1998, Mr Justice Stang Lund made the following observations about the Christian object clause in section 1-2(1). “The object clause applies to all teaching in primary and lower secondary schools. The provision is a general one, and its scope may be difficult to determine. It may raise questions relating to the conventions’ provisions regarding freedom of religion and parental rights; see Judge Møse, pages 35 et seq. of Proposition No. 38 (1996-97) to the Odelsting [the larger division of Parliament]. As far as the KRL subject is concerned, the provision must be viewed in conjunction with section 2-4(2), which establishes that this subject is an ordinary school subject for all pupils, and that instruction in the subject shall not involve preaching. The object clause must be interpreted and applied in such a way that it does not conflict with the conventions that have been incorporated pursuant to section 2 (see also section 3) of the Human Rights Act. As a result of changes and amendments in subject syllabuses and national standard curricula over time, the expression ‘Christian and moral upbringing’ must be interpreted as meaning that Christian and humanist values are to be viewed in conjunction with each other. Both the Christian and the humanist traditions underscore the importance of truth, human dignity, charity, democracy and human rights. These are values common to almost everyone in Norway, regardless of religion or philosophy of life. The conventions do not require that teaching in schools must be value neutral; see the judgment of the European Court of Human Rights in the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark (7 December 1976, § 53, Series A no. 23). The object clause establishes that all school education shall take place in cooperation and agreement with the home. Any effort by primary and lower secondary school teachers to help give pupils a Christian upbringing can only be made with the parents’ consent and in cooperation with the home. Interpreted in this way, the provision is not incompatible with Article 9 of the European Convention and Article 18 §§ 1 to 3 of the ICCPR regarding freedom of thought, conscience and religion or with Article 2 of Protocol No. 1 to the European Convention and Article 18 § 4 of the ICCPR regarding parents. The reference to the object clause in section 24(3) which prescribes that teachers of the KRL subject shall take the Christian object clause of the primary and lower secondary school as their point of departure thus has no independent significance for the issue of whether there is a violation of the conventions.” 36. As regards section 2-4(1) to (3) of the Education Act 1998, Mr Justice Stang Lund stated as follows. “The appellants have emphasised that the Act requires the teaching to give pupils a thorough knowledge of the Bible and of Christianity in the form of cultural heritage and the Evangelical Lutheran Faith, while it merely requires knowledge of other world religions, beliefs and ethical and philosophical topics. I refer to the fact that it may be inferred from the practice of the European Court of Human Rights that the States Parties themselves decide the scope and content of teaching; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996VI. Thus, Article 9 of the ECHR and Article 2 of Protocol No. 1 do not preclude compulsory instruction in the content of various religions and beliefs and in the history of religions and ethics, provided that such instruction is given in an objective, critical and pluralistic manner. In this respect, I refer to my earlier review and summary of the decisions and comments of the convention bodies. The compulsory instruction must cover different religions and beliefs. The greater emphasis placed in section 2-4(1) on knowledge of Christianity than on knowledge of other religions and beliefs is, in my opinion, within the limit of the discretion accorded by the conventions to the States Parties. The requirement that compulsory instruction must be objective, critical and pluralistic cannot be interpreted as meaning that there must be a specific, proportional division of instruction between different religions and different philosophies of life. In the light of the history, culture and traditions of the individual State Party, it must be acceptable for certain religions or beliefs to be more dominant than others. Indoctrination or other preaching of a specific religion or a specific philosophy of life will be contrary to the European Convention and the ICCPR; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis, cited above, § 28, and point 6 of the comment of the UN Human Rights Committee of 20 July 1993. Accordingly, section 2-4(2) of the Education Act prescribes that instruction in the KRL subject shall not involve preaching. The appellants, supported, inter alia, by Judge Møse’s report (page 29 of Proposition no. 38 (1996-97) to the Odelsting), have argued that instruction that communicates a specific religious view in a way that is liable to influence pupils to adopt a specific faith is also a violation of the convention provisions regarding freedom of religion and parental rights. I agree that such communication might involve a violation. However, the expression ‘liable to’ may be interpreted in such a way as to give it greater scope than that which it derives from the decisions of the European Court of Human Rights. I shall therefore keep to the criteria that have been developed in the Court’s practice. In connection with the introduction of the KRL subject, the travaux préparatoires show that the Ministry and the majority of Parliament were extremely concerned to emphasise that the subject was to be an ordinary school subject for all pupils. This has been expressly stated in the wording of the Act; see section 2-4(2), first sentence. The legislator has also stated that the KRL subject shall be a subject designed to provide knowledge; see, for instance, page 6, second column, and page 10 of Proposition no. 38 (1996-97) to the Odelsting. Section 2-4(3) provides that Christianity, other religions and philosophies of life shall be presented on the basis of their distinctive characteristics. On the other hand, the Parliament’s Standing Committee on Education, Research and Church Affairs stated that instruction shall not be value neutral; see page 4 of Recommendation no. 103 (1995-96) to Parliament. This in itself cannot be contrary to the conventions since, as I have established earlier, neither the ECHR nor the ICCPR is interpreted as meaning that instruction shall be neutral as regards values.” 37. As to section 2-4(4) of the Education Act 1998, Mr Justice Stang Lund held that, if interpreted against the background of the relevant provisions of the Convention and the ICCPR and section 3 of the Human Rights Act, it must be understood to the effect that pupils had a right to be exempted and that their parents had no obligation to let their children follow lessons on religion and philosophy regarded as preaching or indoctrinating in the sense of those treaties. The children could therefore be absent from such classes. The question as to how large a part of the syllabus would be affected in this way would have to be decided in each concrete case depending on how the teaching was planned and implemented. In the view of Mr Justice Stang Lund, the provision on exemption was not contrary to any requirements pertaining to religious freedom and parental rights. The Convention requirement that the teaching should be objective, critical and pluralistic did not preclude compulsory education in the content of the different religions and philosophies of life or giving a particular religion or philosophy, in view of the Contracting State’s history, culture and traditions, a more prominent place than others. As already mentioned, the Education Act 1998 provided that the subject should be an ordinary school subject. According to the preparatory documents, it was to be a knowledge-based subject. The Act required that the teaching be neutral and not preaching. Therefore it did not appear that the provisions in section 2-4 regarding the contents of the teaching were contrary to the Convention. 38. Mr Justice Stang Lund further considered the parts of the school curriculum (the Ten-Year Compulsory Schooling Curriculum, issued by the Ministry in 1999, referred to below as “the Curriculum”) that, in the appellants’ submission, gave preference to the Christian faith and influenced pupils to opt for Christianity. In relation to Norway’s international obligations, the Curriculum, which had its legal basis in sections 2-6 and 28 of the Education Act 1998 and the relevant regulation of 28 June 1999, had the same legal status as other regulations. However, he observed, what mattered was that pupils gained understanding of the plurality of convictions and thoughts, and that the teaching did not present one faith as being superior to others. It ought to be acceptable, in the light of a Contracting State’s history, culture and traditions, that one or more religions or philosophies of life be given a more prominent place than others. 39. As to the appellants’ objections to influencing pupils through the use of pictures, songs, drama, music and stories from the Bible and religious texts, Mr Justice Stang Lund found that it ought to be possible to impart neutrally to pupils the traditions and “means of transmitting knowledge” (måte å formidle på) of the various religions without running counter to international human rights law. The Curriculum placed emphasis on openness, insight, respect and dialogue and on the promotion of understanding and tolerance in discussion of religious and moral issues and forbade preaching. Within the framework of the Curriculum, the teaching of the KRL subject could be carried out without any conflict with the relevant provisions of international human rights law. 40. As to the appellants’ argument that the school manuals, notably volumes 2, 3, 5 and 6 of Bridges, amounted to preaching and were capable of influencing the pupils, Mr Justice Stang Lund observed that, while several definitions of problems and formulations used in Bridges could be understood as if the Christian faith provided the answer to ethical and moral questions, no further information had been submitted to the Supreme Court as to how the teaching in relation to this material had been planned and implemented. 41. In this context Mr Justice Stang Lund noted that the appellants’ lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. The arguments and evidence adduced in relation to each decision to refuse full exemption had been aimed at highlighting how the subject functioned in general. The appellants had not gone deeply into the validity of the individual decision. Because of the way the case had been presented, there was no ground for determining whether the teaching of the appellants’ children had occurred in a manner which violated the relevant human rights treaties. The case concerned the validity of the decisions refusing full exemption from the KRL subject. The appellants had not shown it to be probable that the teaching had been planned and carried out in a manner that, in accordance with these conventions, warranted exemption from all teaching of the subject in question. 42. Finally, Mr Justice Stang Lund went on to review the argument of discrimination. “Pursuant to section 2-4 of the Education Act, parents must send written notification in order for their child to be exempted from parts of the instruction at the individual school. Even if applications for exemption are most likely to concern parts of the KRL subject, a limited right to exemption applies to all subjects and activities. The Act does not stipulate that grounds must be given for the application. Practice as regards requiring grounds has varied to date. The State has argued that instruction in primary and lower secondary schools is to a considerable extent divided up into topics that cut across subject boundaries. In so far as parts of the KRL subject are integrated with other subjects, full exemption from instruction in the KRL subject will not be sufficient. It is also the view of the State that the KRL subject covers many topics which do not give grounds for exemption, pursuant either to the conventions or to section 2-4(4). The exemption system is designed and practised in such a way that the content of the instruction is the decisive factor. In the State’s view, therefore, the prohibition against discrimination imposed by conventions cannot apply to requirements regarding the provision of grounds for applications for exemption. The Ministry has explained the requirement as regards grounds and the guidelines for exemption in two circulars. In Circular F-90-97 dated 10 July 1997, page 5, the Ministry stated: ‘When parents request an exemption, written notification to this effect shall be sent to the school. The notification must contain grounds supporting what they perceive to be the practice of another religion or adherence to another philosophy of life in the instruction. If the parents apply for an exemption from parts of the instruction which they perceive to be the practice of another religion or adherence to another philosophy of life, the pupils shall be granted exemption after the parents have explained what it is they consider to have such an effect in the instruction. Parents whose notification to the school regarding exemption is not upheld are entitled to appeal against the municipal administrative decision to the National Education Office in the county concerned. The appeal shall be sent through the school, which is thereby given the opportunity to reverse its administrative decision.’ The Ministry enlarged on the requirement of grounds in Circular F-03-98 dated 12 January 1998, page 3: ‘The Ministry’s basic rule is that when parents apply for an exemption from activities that are clearly religious, exemption (partial exemption) shall be granted. In such cases, the parents are not required to give any grounds. In the case of applications for exemption from activities that are not clearly religious, more must be required as regards the parents’ grounds. Such cases are not covered by the main rule as to what exemptions may be applied for. Moreover, the travaux préparatoires make provision for an assessment of whether there are reasonable grounds on which to request an exemption. Reference is made to Recommendation no. 95 (1996-97) to the Lagting [smaller division of Parliament] in which it is stated: “The majority is of the opinion that pupils shall be exempted from such parts of the instruction at the individual school as, on the basis of their own religion or own philosophy of life, it is reasonable to perceive as the practice of another religion or adherence to another philosophy of life.” However, account must be taken of the fact that many parents consider issues relating to faith and philosophies of life to lie within the realm of private life. The right to private life is also protected by international conventions.’ The Ministry then reviews examples of areas from which pupils may be exempted and states on page 4: ‘The religious and philosophical convictions of parents shall be respected in the entire Curriculum provided by the school. This means that the rules for exemption apply to all compulsory education. In general, the issue that must be assessed by the school is whether the Curriculum in practice is liable to influence pupils to adopt a specific faith or philosophy of life, or may otherwise be perceived as participation in religious activity or adherence to a philosophy of life. In specific terms, this may, for instance, have significance with regard to dance classes organised as part of Physical Education; dancing with a partner is incompatible with the faith of some persons, while movement to music is acceptable. In the Arts and Handicraft subject, it will be necessary to exercise caution as regards illustrations of God and the prophets; see the discussion of “Illustrations – ban on images” in the Guide to the KRL subject (p. 22).’ I will add that in connection with the evaluation of the KRL subject, the Ministry emphasised the importance of changing the content, methodology and organisation of the subject to ensure that as many children and young people as possible could participate in the whole subject. The reason the Ministry nevertheless decided to maintain the limited right of exemption was to be certain that the rights of parents and freedom of religion were safeguarded satisfactorily, and that they were exercised in a way that found understanding; see page 51, first column, of Report no. 32 (2000-01) to Parliament. I note that the right to exemption from all or parts of the compulsory Curriculum in the KRL subject in primary and lower secondary schools will result in a difference between parents in relation to the school system. Parents and pupils who wish to apply for an exemption must follow the Curriculum closely and apply for an exemption when they consider exemption to be necessary in order to safeguard the rights of the child and their own rights. The school initially decides whether to grant an exemption. The question is whether this difference in treatment is in pursuit of a legitimate aim and whether the aim is proportionate to the means employed. According to the practice of the European Court of Human Rights, as mentioned earlier, Article 2, second sentence, of Protocol No. 1 has been interpreted as meaning that the convictions must attain a certain level of cogency, seriousness, cohesion and importance (see the Court’s judgments in Campbell and Cosans v. the United Kingdom (25 February 1982, § 36, Series A no. 48) and Valsamis [(cited above], § 25)). The statements in these judgments support the requirement by the States Parties that parents provide somewhat more detailed grounds when the activity from which they are applying for an exemption does not immediately appear to be practice of a specific religion or adherence to a different philosophy of life. If an applicant must give detailed information about his or her own religion or philosophy of life, however, this may be a violation of Article 8 of the Convention and Article 17 of the ICCPR regarding the right to respect for private life and possibly also Article 9 of the Convention and Article 18 § 1 of the ICCPR regarding freedom of religion. I underscore that differential treatment on the ground of religion and political or other opinions is the core of the prohibition against discrimination. As I have explained, the basic reason for introducing compulsory lessons in the KRL subject was that the government and a majority of Parliament considered it to be significant for the communication of a common foundation of knowledge, values and culture in primary and lower secondary school. The importance of an open, inclusive school environment was emphasised. Implementation of compulsory primary and lower secondary education must include a right to notify a desire to exercise the right to exemption, and in any event the application must state in general terms the parts of the Curriculum from which exemption is desired. It is clear to me that the common curriculum in the KRL subject and the requirement of a written application to exercise the right to an exemption are means of pursuing legitimate aims, and that it is not a disproportionate measure to require that parents who wish to apply for an exemption from parts of the subject must follow the Curriculum and give notification when they desire an exemption. I will add that this is contingent on the school authorities taking the necessary steps to enable parents to follow the Curriculum. The common, compulsory Curriculum requires that parents be kept well informed about the KRL subject and the programme and methods of the Curriculum at all times, and if appropriate be informed of other activities with a religious content. The parties have not gone into detail concerning the specific requirements regarding grounds and the grounds that are given in the various applications for exemption from the KRL subject. I shall therefore confine myself to declaring that there is no ground for assuming that a possible violation of the prohibition against discrimination in this case may have the consequence of invalidating the administrative decisions to deny full exemption from lessons in the KRL subject.” 43. On 15 February 2002 the applicant parents and children lodged their application under the Convention with the Court. 44. Subsequently, on 25 March 2002, four other sets of parents who had also been parties to the above-mentioned domestic proceedings lodged together with their respective children a communication (no. 1155/2003) with the United Nations Human Rights Committee under the Protocol to the 1966 International Covenant on Civil and Political Rights. 45. On 3 November 2004 the Committee rejected the respondent State’s objection that, as three other sets of parents had lodged a similar complaint before the Court, “the same matter” was already being examined by the latter. The Committee declared the communication admissible in so far as it concerned issues raised under Articles 17, 18 and 26 of the Covenant. As to the merits, the Committee expressed the view that the present framework of the KRL subject, including the regime of exemptions, as it had been implemented in respect of the complainants (“authors”), constituted a violation of Article 18 § 4 of the Covenant. The Committee reasoned as follows. “14.2. The main issue before the Committee is whether the compulsory instruction of the CKREE[] subject in Norwegian schools, with only limited possibility of exemption, violates the authors’ right to freedom of thought, conscience and religion under Article 18 and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions, pursuant to Article 18, paragraph 4. The scope of Article 18 covers not only protection of traditional religions, but also philosophies of life, such as those held by the authors. Instruction in religion and ethics may in the Committee’s view be in compliance with Article 18, if carried out under the terms expressed in the Committee’s General Comment No. 22 on Article 18: ‘[A]rticle 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way’, and ‘public education that includes instruction in a particular religion or belief is inconsistent with Article 18, paragraph 4, unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians’. The Committee also recalls its Views in Hartikainen et al. v. Finland, where it concluded that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion. It is within this legal context that the Committee will examine the claim. 14.3. Firstly, the Committee will examine the question of whether or not the instruction of the CKREE subject is imparted in a neutral and objective way. On this issue, the Education Act, section 2-4, stipulates that: ‘Teaching on the subject shall not involve preaching. Teachers of Christian Knowledge and Religious and Ethical Education shall take as their point of departure the object clause of the primary and lower secondary school laid down in section 1-2, and present Christianity, other religions and philosophies of life on the basis of their distinctive characteristics. Teaching of the different topics shall be founded on the same educational principles.’ In the object clause in question it is prescribed that the object of primary and lower secondary education shall be ‘in agreement and cooperation with the home, to help to give pupils a Christian and moral upbringing’. Some of the travaux préparatoires of the Act referred to above make it clear that the subject gives priority to tenets of Christianity over other religions and philosophies of life. In that context, the Standing Committee on Education concluded, in its majority, that: the tuition was not neutral in value, and that the main emphasis of the subject was instruction on Christianity. The State Party acknowledges that the subject has elements that may be perceived as being of a religious nature, these being the activities exemption from which is granted without the parents having to give reasons. Indeed, at least some of the activities in question involve, on their face, not just education in religious knowledge, but the actual practice of a particular religion (see para. 9.18). It also transpires from the research results invoked by the authors, and from their personal experience, that the subject has elements that are not perceived by them as being imparted in a neutral and objective way. The Committee concludes that the teaching of CKREE cannot be said to meet the requirement of being delivered in a neutral and objective way, unless the system of exemption in fact leads to a situation where the teaching provided to those children and families opting for such exemption will be neutral and objective. 14.4. The second question to be examined thus is whether the partial-exemption arrangements and other avenues provide ‘for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians’. The Committee notes the authors’ contention that the partial-exemption arrangements do not satisfy their needs, since teaching of the CKREE subject leans too heavily towards religious instruction, and that partial exemption is impossible to implement in practice. Furthermore, the Committee notes that the Norwegian Education Act provides that ‘on the basis of written notification from parents, pupils shall be exempted from attending those parts of the teaching at the individual school that they, on the basis of their own religion or philosophy of life, perceive as being the practice of another religion or adherence to another philosophy of life’. 14.5. The Committee notes that the existing normative framework related to the teaching of the CKREE subject contains internal tensions or even contradictions. On the one hand, the Constitution and the object clause in the Education Act contain a clear preference for Christianity as compared to the role of other religions and worldviews in the educational system. On the other hand, the specific clause on exemptions in section 2-4 of the Education Act is formulated in a way that in theory appears to give a full right of exemption from any part of the CKREE subject that individual pupils or parents perceive as being the practice of another religion or adherence to another philosophy of life. If this clause could be implemented in a way that addresses the preference reflected in the Constitution and the object clause of the Education Act, this could arguably be considered as complying with Article 18 of the Covenant. 14.6. The Committee considers, however, that even in the abstract, the present system of partial exemption imposes a considerable burden on persons in the position of the authors, in so far as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature, as well as with other aspects, with a view to determining which of the other aspects they may feel a need to seek – and justify – exemption from. Nor would it be implausible to expect that such persons would be deterred from exercising that right, in so far as a regime of partial exemption could create problems for children which are different from those that may be present in a total exemption scheme. Indeed as the experience of the authors demonstrates, the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions. In this respect, the Committee notes that the CKREE subject combines education on religious knowledge with practising a particular religious belief, e.g. learning by heart of prayers, singing religious hymns or attendance at religious services (para. 9.18). While it is true that in these cases parents may claim exemption from these activities by ticking a box on a form, the CKREE scheme does not ensure that education of religious knowledge and religious practice are separated in a way that makes the exemption scheme practicable. 14.7. In the Committee’s view, the difficulties encountered by the authors, in particular the fact that Maria Jansen and Pia Suzanne Orning had to recite religious texts in the context of a Christmas celebration although they were enrolled in the exemption scheme, as well as the loyalty conflicts experienced by the children, amply illustrate these difficulties. Furthermore, the requirement to give reasons for exempting children from lessons focusing on imparting religious knowledge and the absence of clear indications as to what kind of reasons would be accepted creates a further obstacle for parents who seek to ensure that their children are not exposed to certain religious ideas. In the Committee’s view, the present framework of CKREE, including the current regime of exemptions, as it has been implemented in respect of the authors, constitutes a violation of Article 18, paragraph 4, of the Covenant in their respect.” In view of this finding, the Committee was of the opinion that no additional issue arose under other parts of Article 18 or Articles 17 and 26 of the Covenant. It gave the respondent State ninety days within which to provide “information about the measures taken to give effect to the Committee’s Views”. 46. In the light of the United Nations Human Rights Committee’s “Views”, the Norwegian government decided to take measures to modify the KRL subject, and notably to propose changes to the Education Act 1998 and the Curriculum. According to Circular F-02-05, this included the following elements. (i) Deleting in section 2-4(3) the reference to the Christian object clause in section 1-2. (ii) Giving the various religions and philosophies of life the same qualitative description in the aims of the subject, while maintaining the current proportions of various religions and philosophies of life in the central teaching material. (iii) Making the provision on partial exemption in current section 2-4(4) the subject of a separate provision, ensuring that the exemption arrangement take sufficient account of the parents’ rights and the need to protect minorities; simplifying the provisions on applications for exemption; specifying in the Act the obligation of schools to provide information and circulating information to schools about the practice of the exemption arrangement. (iv) Drawing up a new curriculum making a clear division between those elements that could be viewed as the practice of religions and those elements that could not, while maintaining the distribution between the different parts of the subject. (v) Emphasising the choice of working methods in the introduction to the Curriculum and in the guidelines for the subject, in order to limit the possibility that parts of the teaching could be experienced as the practice of a religion. Varied and engaging working methods should contribute to the dissemination of all aspects of the subject. It was emphasised that working methods that could be perceived as being close to the practice of a religion required special care on the part of teachers, including the provision of adapted teaching. (vi) The proposed changes would be implemented from the school year 2005/06. The introduction of the measures from autumn 2005 generated the need for strengthening the skills and competence of the teachers. The government would commence the work of developing skills and competence as soon as a new curriculum had been finalised. (vii) A high degree of flexibility should be displayed in relation to parents’ wishes for adapted teaching for their child/children. If necessary, the option of full exemption on a temporary basis should be available for those parents who so wished pending implementation of the proposed permanent arrangements. On the basis of the government’s decision, the Ministry started reviewing the necessary changes. Following proposals by the Ministry on 29 April 2005, endorsed by the government on the same date (Ot.prp.nr.91 (200405)), on 17 June 2005 Parliament adopted certain amendments and additions to the Education Act 1998 which came into force with immediate effect. As a result, a few adjustments were made to section 2-4(1) (notably, the word “faith” was replaced by “understanding of Christianity”; the requirement of thoroughness was extended to knowledge of other Christian communities) and the reference in section 2-4(3) to the object clause in section 1-2 was deleted (see paragraph 23 above). Moreover, the provisions on partial exemption in section 2-4(4) were moved to a new and separate section 2-3A, with some clarifying additions and changes. This included, inter alia, replacing the expression “religious activities” (in former section 2-4(4)) with the word “activities” and extending the ground for partial exemption to cover also activities that the parents, from the point of view of their own religion or philosophy of life, perceived as being offensive or insulting (in addition to those that they perceived as amounting to the practice of another religion or adherence to another philosophy of life). 47. The relevant provisions of the Education Act 1998 are cited above. 48. The requirement for parents to give reasons for an application for a partial exemption is described in the citations from Circulars F-90-97 and F03-98, reproduced in the Supreme Court’s judgment in paragraph 42 above. The latter circular also contained the following passages, which are of relevance for the present case. “4. Solution: differentiated teaching and local adjustment of the Curriculum 4.1. Adjusted teaching and local work on the Curriculum as an underlying principle Section 13(10) of the Compulsory School Act provides that a school that receives notification concerning an exemption shall as far as possible, and especially at the primary-school level, seek solutions by providing for ‘differentiated teaching within the Curriculum’. The differentiated teaching mentioned in the Act is closely related to the adaptation of teaching principle that is generally emphasised in the School Curriculum [Læreplanverket, L97] and embodied in section 7 of the Compulsory School Act. In the principles and guidelines, importance is attached to the principles of community and adjustment within the unified school system framework. Formulations there include the following: Individual adjustment is necessary to ensure that equivalent provision is made for all pupils. For this purpose, all aspects of the school course – syllabus, working methods, organisation and teaching aids – must be adjusted in accordance with the pupils’ capabilities. It is further stated that this opens up opportunities for different treatment and depth of study of the syllabus, and for variations in kinds of material, difficulty, quantity, speed and progression (see L97/L97S). ... 4.2. Differentiation within the KRL syllabus – differentiation of activities, not of knowledge According to the statute, a school that receives notification concerning an exemption shall seek solutions in which provision is made for differentiated teaching within the Curriculum. The municipal obligation to provide differentiated teaching applies as extensively as possible and particularly at the primary-school stage. The reasons for the statute state that the differentiated teaching shall be provided according to the same curriculum, and is not to be differentiation of knowledge but differentiation of activities. Since there is no exemption from knowledge of the subject, pupils with an exemption shall receive instruction within the framework of the curriculum. In cases to which partial exemption applies, the alternative is not another subject or another curriculum, but other activities and other ways of working with the KRL syllabus. The school must convey the knowledge in question to the pupils by means of a different methodological approach. Exemption can nevertheless be granted from certain main topics which entail specific activities. An example is the main topic in which pupils are required to learn the Ten Commandments by heart (Christian faith and ethics, sixth grade). One cannot, however, be exempted from knowing about the Ten Commandments. The differentiated course of instruction must have regard for the pupils’ religious or philosophical background, and help as far as possible to ensure that all pupils have worked with the same areas of knowledge in the grade in question, but using adjusted working methods. How great the need for differentiation is depends locally on – which religious or philosophical groups the parents belong to, and – what kinds of activity they request exemption from. ... 6. Differentiation in encounters with specific activities The Guide to the KRL subject contains an introduction to ways of working with the subject, and also deals with the questions discussed below. Some of the questions are dealt with more exhaustively here however. See also the concrete examples for each school year given in the guide. We give examples below of how to work with various activities, and take up other questions that may arise: 6.1. Prayers, creed, and other important religious texts Some activities – such as learning by heart and reciting creeds, commandments and prayers (LS97, pp. 96 and 101, and L97S, pp. 101-09) may be perceived by some parents and guardians as the exercise of and/or adherence to a particular religion. When notification is given concerning an exemption from such activities, the school will offer differentiated instruction to enable the pupil to work with that kind of material in a different way. If the parents find this satisfactory, they can choose to allow their children to be present when prayers or creeds from other religions are recited, provided the children are helped to maintain the necessary distance from the material and from what is taking place (see in this connection the section above on the roles of participant and spectator). Such activities can also be scheduled for individual working periods and for work in groups in which different approaches to the material are adopted. 6.2. Hymn singing While arrangements are made for pupils who belong to the Christian tradition to sing hymns and to gain insight through that activity into an important feature of their religious and cultural tradition, necessary regard must be had for pupils who do not belong to that tradition. Hymn singing can also take place outside the Christian knowledge and religious and ethical education periods, for instance in music periods. Hymns can be incorporated into song periods, when they are placed in their musical context and seen as an important part of our sung cultural heritage. Pupils who have been granted an exemption for hymn singing must be given other ways of working with hymns, as the case may be in separate groups. They can for instance listen to a hymn and be given such assignments as what is the hymn text about? Can you relate the content of the hymn to a particular festival, and if so, why? Why is this hymn important within the Christian tradition? Another possibility would be to use hymns and songs as a theme for project work, involving looking more closely at songs, hymns and music and their functions in the different religions. See also the Guide to the KRL subject, p. 23. 6.3. Attendance at rituals/visits to churches or other religious assembly buildings Some parents may wish to have their children exempted from entering a church or other centre of divine worship whatever the connection. Others will distinguish between attending a divine service or the like, and being in a church or other religious assembly building on an excursion in a teaching situation. Whatever position the parents may take, cooperation between schools and homes is of major importance whenever such visits are scheduled. Excursions In the fourth grade, pupils are to be made acquainted with the lay-out, fixtures and furnishing of churches and with certain important Christian symbols (programme item: Christian festivals, religious symbols, the life of the local Christian congregation). Most pupils will acquire this knowledge by means of pedagogically arranged excursions to the local church. The focus is on the informative and objective aims. Information may for instance be conveyed relating to the church building, church decoration, symbols, and the functions of various objects. Some parents/guardians may request exemption for their children from participation in such excursions because a visit to a church is regarded as participation in a religious activity. For pupils who cannot visit a church, for instance, arrangements must be made for other activities and assignments at school. These should relate to the same area, so that the pupils are given access to parts of the same knowledge as they would have acquired on a church visit. Assignments can, for instance, be given relating to information booklets, if any, publications concerned with local history, or drawings, or pictures and posters showing or concerning the church in question. See the example on p. 44 of the Guide to the KRL subject. School services The description of the aims of the primary-school stage (L97, p. 94, and L97S, p. 100) states that pupils should visit a church in the local community and attend a divine service. It is emphasised that such attendance is part of the school’s teaching (not an element of the church’s baptismal preparation). Some pupils who belong to traditions other than the Christian tradition may seek exemption from participation, for instance in a school service and the related activities. Such pupils must be offered differentiated teaching. If the pupils are present at the service, this can be arranged by, for instance, assigning them to observe the functions of the various stages of the liturgy in relation to the whole, to note how the hymns relate to the main theme of the service, or to see whether/how images, colours, texts and music all help to shed light on the theme of the service. Other parents may notify complete exemption from any attendance at a divine service. Those pupils must be made acquainted with the Christian service by means other than attendance, for instance through classroom teaching with a focus on pictures, music and texts. What has been said here about church visits can also apply to visits to mosques, synagogues, temples or other houses of religious assembly. Illustration and the prohibition of images See the more detailed discussion on p. 22 of the Guide to the KRL subject. Especially challenging stories, parallel figures See the more detailed discussion on pp. 30, 32, 50 and 52 of the Guide to the KRL subject. 6.4. Other areas The Ministry has received questions concerning other aspects of the course in Christian knowledge and religious and ethical education, including: Dramatisations Plays, mime and dramatisations can contribute to sympathetic insight into the teaching material and to unity among pupils. Such approaches can at the same time involve the kinds of activity from which some parents/guardians wish to have their children exempted. This could for instance apply to dramatisations which include holy persons, such as Nativity plays. Some may argue that it is the ‘acting part of the work’ from which exemption is being sought. That problem can be solved by giving the pupils concerned other important tasks connected with the dramatisation. Sets have to be constructed; lighting and sound need to be planned, set up and tested; programmes need to be prepared. An announcer and narrators are needed. Journalists are needed to interview the active participants in the programme, to describe the activities, and to edit the class newspaper for publication after the performance. These are some of the important assignments that can be carried out by pupils who are not going to have tasks relating directly to the dramatisation. These are also means whereby they can be naturally integrated into the class community, while at the same time having the opportunity to adopt a spectator’s stance with regard to the material being presented and its mode of presentation. Other parents may say that their children are not to be included either in the dramatisation or in work connected with it. This must be respected, and other assignments must be prepared for those pupils. ... 7. Cooperation between schools and homes – openness and objectivity If parents are to feel confident that teaching in the subject does not conflict with their own convictions, close cooperation between schools and homes is necessary. On the basis of knowledge of the religious and philosophical backgrounds of parents, teachers can endeavour to plan their teaching so as to reduce the need for exemption to a minimum. A teaching plan for the subject should be drawn up as early as possible. In the plan the school should describe the offers of differentiation that are generally made in connection with different religious and philosophical backgrounds. When the plan is presented to the parents, it gives them the opportunity to consider the need, if any, for exemption from particular activities. To request partial exemption, parents must send written notification to the school. They must state which activities in the school’s teaching they perceive as the exercise of another religion or adherence to another philosophy of life. Parents should then decide whether to opt for the general offer of differentiation, if the school has made such an offer, or, in addition, if appropriate, ask for a more individually adapted offer of differentiation. By means of the dialogue established in this connection between homes and schools, the specific teaching provisions for the pupils can be determined. If parents notify the school that they want an exemption from the distinctly religious activities, described in the reasons for the legislation as ‘reciting creeds or prayers, learning religious texts by heart, taking part in hymn singing, and attending rituals or divine services in different congregations’ such notification will apply in general to that type of activity. A new notification for each individual religious activity is thus not necessary. In the cooperation between schools and homes, school staff must show respect for the fact that pupils have different religious backgrounds. Special attention must be paid to this in contacts with linguistic and cultural minorities. 8. Administrative procedures Municipal decisions concerning notifications of exemption are individual decisions under the Public Administration Act, and can accordingly be appealed to National Education Offices in accordance with section 34(3) of the Compulsory School Act. A municipality can delegate its decision-making authority to the school principal. Matters must be considered in sufficient depth before decisions are taken; see section 17 of the Public Administration Act. ... 10. Textbooks as one of several teaching aids in the subject The Ministry wishes to emphasise that it is the Curriculum that is binding on the teaching, not the textbooks. The textbooks on the subject are only one of several teaching aids that can be used to achieve the aims of the subject. The textbooks used in compulsory school must be approved. Even if a textbook has been approved, there is a risk that it contains errors. When teachers have their attention called to possible errors in textbooks, they must look into the matter more closely so that the teaching given is correct. Although the regulatory special review of books on the subject has been revoked (section 4 of the former textbook regulation), the Ministry notes that the arrangement for the review of textbooks will be continued. The textbooks will be considered by religious and philosophical communities, among others, to ensure that the religions and philosophies of life are presented in accordance with their distinguishing characteristics.” 49. Norway’s Ten-Year Compulsory Schooling Curriculum, issued by the Ministry in 1999 (referred to as “the Curriculum”) stated: “The study of the subject is intended to give pupils a thorough insight into Christianity and what the Christian view of life implies, as well as sound knowledge of other world religions and philosophies. Important items in the Curriculum are accordingly the classical Bible stories and other biblical material, the main lines of development and major personalities in the history of Christianity, and the fundamentals of the Christian faith and Christian ethics. The subject also comprises the principal features of other living religions and philosophies of life and some of the major questions raised in philosophy and general ethics concerning the nature of man. The same pedagogical principles should be applied in the teaching of Christianity and in that of the other religions and orientations. The subject must be approached openly and contribute to insight, respect and dialogue across the boundaries between faiths and philosophies, and promote understanding and tolerance in religious and moral questions. The classroom is no place for the preaching of any particular faith. The subject gives knowledge about a faith, not instruction in it. It must also sustain the individual pupil’s sense of identity and cultural attachment, while at the same time furthering dialogue within a shared culture. In order to meet different faiths and views of life with understanding, one needs to be able to place them in a context that is already familiar. The subject thus has various functions in compulsory school: to transmit a tradition, to maintain a sense of identity, and to build bridges which give insight and promote dialogue. ... The structure of the subject Because the subject is new and intended for all pupils, it is essential that parents and pupils of different persuasions are well acquainted with the syllabus and its contents. To reassure parents with regard to the contents of the syllabus, importance has been attached to formulating the syllabus so that parents will find it easy to see what subject matter pupils will be encountering at the various stages.” 50. The Curriculum set out the general aims of the subject and listed the objectives and main subject elements for grades 1 to 4, 5 to 7 and 8 to 10. The general aims of the subject were described as: “• to make pupils thoroughly acquainted with the Bible and with Christianity as cultural heritage and as a living source of faith, morality, and a view of life; • to make pupils familiar with the Christian and humanist values on which school education is based; • to acquaint pupils with other world religions and orientations as living sources of faith, morality, and views of life; • to promote understanding, respect and the capacity for dialogue between people with different views on questions of faith and ethical orientation of life; and • to stimulate pupils’ personal growth and development.” After setting out the objectives for grades 1 to 4, the Curriculum listed the main subject elements for these grades, each of which comprised the following titles: “Biblical narrative”; “Narrative material from Church history”; “Christian festivals, religious symbols, and the life of the local Christian community”; “Development of moral awareness: Me and others”. As to “Other religious and ethical orientations” it included “Judaism”, “Islam”, “Hinduism”, “Buddhism”, “Humanism” and “Greek mythology”. The Curriculum further set out the subject-related objectives for grades 5 to 7, which included this passage: “Christian faith and ethics Pupils should learn the fundamentals of the Christian faith and Christian ethics in the light of the positions taken in Luther’s Small Catechism. Other religions Pupils should study the main features of and important narratives from Islam, Judaism, Hinduism, and Buddhism. Secular orientations Pupils should know about secular orientations, the development of the humanist tradition, and the modern humanist view of life.” The main subject elements for grades 5 to 7 encompassed: “Bible History”, “Early history of Christianity” (“the Middle Ages” for grade 6, and “the Reformation period” for grade 7), “Christian faith and ethics”. As to “Other religions”, the subject included “Islam” for grade 5, “Judaism” for grade 6, and “Hinduism” and “Buddhism” for grade 7. In addition, grades 5 to 7 contained elements for “Development of moral awareness: Values and choices” and “Secular orientations”. For grade 6 it was stated, inter alia: “Christian faith and ethics Pupils should have the opportunity to – learn the Ten Commandments by heart and be acquainted with the ethical ideals underlying the Sermon on the Mount; – learn something of how these fundamental ethical texts have been used in the history of Christianity and how they are applied today.” There was no equivalent in the list of items to “become acquainted with” in regard to “Other religions, Judaism”. After indicating the subject-related objectives for grades 8 to 10, the Curriculum listed the main subject elements, namely, “The history of the Bible, literary genres in the Bible”; “The modern history of Christianity”; “Various contemporary interpretations of Christianity”; “Religious expressions in our time”; and “Philosophical interpretations of man, values and norms”. | 1 |
dev | 001-76323 | ENG | RUS | CHAMBER | 2,006 | CASE OF TEREKHOVA v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Peer Lorenzen | 4. The applicant was born in 1910 and lived in Novovoronezh. 5. On 31 August 2000 the Novovoronezhskiy Town Court of the Voronezh Region granted the applicant’s claim against the Novovoronezh Social Security Service and awarded her 10,300.86 Russian roubles (RUR) for pension arrears. 6. The judgment was not appealed against and entered into force. On 18 October 2000 a writ of execution was issued. 7. The judgment was executed on 2 March 2005. | 1 |
dev | 001-112194 | ENG | AUT | CHAMBER | 2,012 | CASE OF WALLISHAUSER v. AUSTRIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant was born in 1941 and lives in Vienna. 6. The applicant had been an employee of the embassy of the United States of America in Vienna since March 1978. From January 1981 onwards she had a contract of indefinite duration and worked as a photographer at the embassy. Following an accident in 1983 the competent authority issued a decision stating that she qualified for protection under the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz). Following a further accident, classified as work-related, the embassy dismissed her in September 1987. 7. Her dismissal was declared void by the Vienna Labour and Social Court (Arbeits- und Sozialgericht) on the ground that it required the prior agreement of the competent authority under the Disabled Persons (Employment) Act. The court dismissed the argument submitted by the United States that it lacked jurisdiction on account of the United States’ immunity. It found that, while foreign States enjoyed immunity with regard to acta iure imperii, they came within the jurisdiction of the domestic courts with regard to acta iure gestionis. The conclusion and performance of an employment contract fell within the latter category. The Supreme Court (Oberster Gerichthof) upheld that judgment on 21 November 1990, noting that the United States had not maintained the objection of State immunity in the further course of the proceedings. 8. As a result of the above proceedings, the applicant continued to have a valid employment contract with the United States embassy in Vienna. However, the latter refused to make use of her services. Instead, on 31 January 1991, they applied to the Vienna Committee for Disabled Persons requesting retroactive approval of the applicant’s dismissal or, alternatively, agreement to a future dismissal. The Committee refused to grant retroactive approval for the applicant’s dismissal of September 1987 but gave its approval for a future dismissal. The competent Federal Ministry upheld that decision. On 13 September 1994 the Administrative Court, ruling on a complaint by the applicant, set aside the decision to grant approval for the applicant’s future dismissal, finding that the authorities had failed to establish relevant facts and had not duly weighed the parties’ interests. The case was referred back to the Committee. On 16 January 1996 the United States withdrew its application, stating that it had always maintained that the application of the Disabled Persons (Employment) Act to employees of the embassy interfered with the country’s sovereignty. 9. Meanwhile, the applicant brought proceedings against the United States requesting payment of her salary. In a first set of proceedings, concerning salary payments up to June 1995, the United States unsuccessfully raised an objection of jurisdictional immunity. Subsequently, the United States paid the applicant salary arrears of 3.7 million Austrian schillings (approximately 269,000 euros (EUR)). On the occasion of the payment, the lawyer who had represented the United States in the proceedings informed the applicant by a letter dated 16 October 1996 that the payment did not imply any acceptance of the Austrian courts’ judgments and that the United States considered her employment contract to be terminated and would, if she raised any further claims, “make use of its diplomatic rights and immunities”. 10. Further proceedings relating to the payment of salary from July 1995 to August 1996 led to a final default judgment by the Vienna Labour and Social Court. However, the United States did not pay the amount awarded to the applicant. 11. The applicant also unsuccessfully brought proceedings against the United States claiming reimbursement of the social security contributions which she had been ordered to pay by the Austrian authorities and a part of which the employer was, under her employment contract, obliged to refund. In those proceedings the United States authorities refused to serve the summons to attend the hearing. The Austrian courts dismissed the applicant’s request for a judgment in default. Their position was upheld by the Supreme Court’s judgment of 11 June 2001 (see below, paragraph 28). 12. On 29 December 1998 the applicant brought an action against the United States of America before the Vienna Labour and Social Court, claiming salary payments from September 1996 onwards. The court scheduled a first hearing for 20 October 1999. 13. An attempt to serve the applicant’s action and the summons to the hearing on the United States through the Austrian Ministry of Foreign Affairs, under section 11(2) of the Service Act (Zustellgesetz), failed. According to the file a staff member of the Austrian embassy in Washington handed these documents over to a staff member of the United States Department of State. However, by letter of 25 January 2000 the Ministry of Foreign Affairs informed the Ministry of Justice, which in turn informed the Vienna Labour and Social Court, that the United States authorities had refused to serve the summons and had returned the documents at issue to the Austrian embassy in Washington. The letter was accompanied by a note from the United States Department of State informing the Austrian Ministry of Foreign Affairs that the United States wished to assert its immunity in any case brought by the applicant. In a letter of 4 February 2000 the Ministry of Foreign Affairs also informed the applicant accordingly. 14. On 18 February 2000 the Vienna Labour and Social Court dismissed the applicant’s request for a judgment in default, noting that it had been impossible to summon the defendant. An appeal by the applicant to the Vienna Court of Appeal (Oberlandesgericht) was unsuccessful. 15. The Supreme Court dismissed her appeal on points of law on 5 September 2001. Referring to its judgment of 11 June 2001 in a parallel case brought by the applicant (see paragraph 28 below), it noted that the summons had not been duly served on the defendant, namely the United States Department of Justice. Consequently, the conditions for giving a judgment in default were not fulfilled. 16. By a decision of 29 October 2001 the Vienna Labour and Social Court held that the applicant’s action and the summons to the hearing had not been served on account of the manifest refusal of the United States to comply with the request for service. It followed that further attempts to summon the defendant did not have any prospects of success. 17. Subsequently, the applicant requested that the summons be served by means of publication under Article 121 § 2 of the Code of Civil Procedure (Zivilprozeßordnung) or, alternatively, that it be served on a court-appointed representative (Curator) under Article 116 of the Code. 18. By decision of 25 April 2002 the Vienna Labour and Social Court appointed a lawyer, Dr G., to represent the United States of America. It noted that the foreign authorities had refused to serve the summonses in any of the proceedings brought by the applicant. In the court’s view the United States had wrongly relied on its alleged immunity. 19. On 18 November 2002 the Vienna Court of Appeal, following an appeal by Dr. G., quashed that decision. The relevant part of its decision reads as follows: “In acting on a request for service, the State to which the request is made is exercising sovereign powers. This applies even if the court documents in question are addressed to that State and the authority responsible for acting on the request for assistance (in this instance the Department of State) refuses to forward them to the authority empowered to represent the State in private-law proceedings (in this instance the Department of Justice). This is not a case of refusal to accept service (§ 20 of the Service Act) but rather a case of refusal to comply with a request for legal assistance. Such refusal is a sovereign right of the foreign State, against which a remedy can be sought only through diplomatic channels ... The Supreme Court endorsed this legal stance (8ObA 201/00t), stressing that, as international law currently stands, compliance or refusal to comply with a request for legal assistance is to be regarded as a sovereign act, irrespective of the subject-matter of the claim. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of so-called acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature. Although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States. In a commentary on this decision, which had been published in JBl 2002, 57, Hintersteininger observed, inter alia, that, while the restrictive theory of service of process applied by the Supreme Court might be appropriate for the purposes of avoiding disagreements between States, it was not a requirement under international law. The author concluded that section 11 of the Service Act – at least as currently applied to judicial proceedings instituted in Austria against foreign States – amounted to a “self-imposed shackle” as a result of which the standard of protection of individuals’ legal interests was subordinated to international-law considerations. Unless and until the Austrian courts saw fit to apply a different interpretation of the provision in question – the fact that the Supreme Court, in its 2001 ruling, continued to apply its case-law from 1963 indicated that this was unlikely – there was an urgent need for the legislature to enact amending legislation in order to provide a practical solution to the problem of service of process. Referring to Hintersteiniger’s international-law argument, the appellant raises the possibility of transmitting the action and an explanation of the legal circumstances, together with a translation into the country’s official language, to the US Department of State through diplomatic channels. In this case the defendant State would have no justification for returning the copy of the action at will; in the event of a refusal to accept service, it should be deemed to have received the request. This would make effective service possible and would remove the need to appoint a representative. The objection to this line of argument is that such a procedure – which from a general international-law perspective is possible – is incompatible with the applicable legal provisions in Austria. As clarified in 8 ObA 201/00t, the action has to be served on a competent body within the Department of Justice, which is the authority representing the United States in the present employment-related proceedings. It is not sufficient for the document to have somehow reached another authority which appears to be responsible for forwarding the request for service. Accordingly, it is incorrect to speak of a refusal to accept service if the document was never transmitted to the competent authority. In this connection the Supreme Court stressed that, conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office as the competent authority representing the State in such matters. The first-instance court already acknowledged that a further request for service would have little prospect of success in view of the earlier comments of the US authorities. Nevertheless, the (definitive) refusal of the US Department of State to forward court documents concerning the appellant to the Department of Justice does not justify the appointment of a representative for the defendant in accordance with Article 116 of the Code of Civil Procedure. As the appellate court explained in detail in its decision 8 Ra 23/00t, cited above, service of process on a foreign State is (also) based on section 11(2) of the Service Act. Hence, for the purpose of performing it, recourse is to be had in any event to the Federal Ministry of Foreign Affairs. On the basis of this provision, which takes precedence, service via any means other than the diplomatic channels to which it refers – for instance, on a court-appointed representative – is ruled out. In view of the principle whereby a remedy against a refusal to comply with a request for legal assistance, which flows from the sovereign power of the foreign State, can be sought only through diplomatic channels (see SZ 36/26, EvBl 1963/210; for a critical perspective, see Schreuer, Die Durchsetzung zivilrechtlicher Ansprüche gegen ausländische Staaten, ÖJZ 1991, 41 et seq. [49]), the impugned decision lacks any legal basis.” 20. On 7 May 2003 the Supreme Court dismissed an appeal on points of law by the applicant. It started by referring to its decision of 11 June 2001 (see paragraph 28 below) in a previous case brought by the applicant against the United States. It followed from that decision that the action brought by the applicant had to be served through diplomatic channels. It held that Article 121 § 2 of the Code of Civil Procedure, although it concerned the service of summonses abroad, was not applicable in a case like the present one in which the person or legal entity to be summoned relied on their immunity. The applicant’s interpretation of the provision in question would undermine the concept of immunity. 21. Only section 11(2) of the Service Act was applicable. The applicant did not contest the fact that foreign States came within the scope of that provision as they enjoyed “privileges and immunities” under international law. In that context the Supreme Court went on to state as follows: “No agreement exists between Austria and the defendant concerning service of process from the perspective of State immunity from jurisdiction. In the absence of such agreement the generally recognised rules of international law (Article 9 of the Federal Constitution), together with section IX of the Introductory Act to the Austrian Jurisdictional Statute (EGJN) and the principles developed in this connection by the case-law and by legal commentators, must apply. On that basis it is unanimously agreed that foreign States enjoy immunity in the exercise of their sovereign powers and are to that extent exempt from the jurisdiction of the domestic courts (see, among other authorities, SZ 23/143; Herndl, JBl 1962, 15; JBl 1962, 43; Heß, JBl 1989, 285; ZfRV 1990, 300 [Seidl-Hohenveldern]; Schreuer, ÖJZ 1991, 41; Fischer, NZ 1991, 154; DRdA 1991/53 [Simotta]; Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts Bd 1³ para. 834, 837; Seidl-Hohenveldern, Völkerrecht 9 paras. 1462 et seq.; Matscher, loc. cit, Art IX EGJN para. 2, 115 et seq., 196 et seq.; Mayr in Rechberger, ZPO² Art IX EGJN para. 3 et seq.). The service of process abroad, as a sovereign act, amounts – in the absence of an agreement between the States concerned governing the relevant procedure – to interference with the sovereign rights of the foreign State in question. For that reason it is a requirement in such cases to have recourse to the Federal Ministry of Foreign Affairs, which maintains close contact with the milieu concerned and is competent to take account of the relevant international-law considerations (RV 162 BlgNR XV.GP 10), as the appellant correctly points out. However, contrary to her assertion, exclusive recourse to the Federal Ministry of Foreign Affairs is not merely recommended, but is required by statute (the mandatory “shall” in section 32(3) of the Jurisdictional Statute and section 11(2) of the Service Act). The service of documents by any other means would be in breach of the law (Walter/Mayer, op. cit., section 11 Service Act, footnote 15). Although Hintersteininger, in her commentary on 8 ObA 201/00t (JBl 2002, 57) concludes that the “restrictive theory of service of process” is appropriate for the purpose of avoiding international disagreements, she nevertheless calls on the legislature to amend section 11 of the Service Act, as she sees evidence of a “self-imposed shackling” at least in the way in which that provision is applied. The legislature has not taken any action to date. It should further be observed that the strict approach to diplomatic immunity can be traced back to the Jurisdictional Statute, according to which the violation of immunity renders the proceedings in question null and void, in a manner which cannot be remedied even by the parties (except by a waiver of immunity) (§ 42 JN; Ballon, op. cit., § 42 JN para. 3, 14 et seq.; Mayr, op. cit., § 42 JN para. 2, 7). Contrary to the appellant’s assertion, her request for the action to be served on the defendant by publication or by the appointment of a representative does not fall in the present case within the “classic scenario” under Article 121(2) of the Code of Civil Procedure, but is governed by the exception thereto and undermines the defendant’s claim to diplomatic immunity. Accordingly it is not possible, precisely in this case, to proceed on the basis of that provision. On the contrary – in so far as the proceedings against the defendant in Austria are concerned – exclusive recourse must be had to diplomatic channels, as reasoned by the Supreme Court in case 8 ObA 201/00t.” 22. The Supreme Court’s decision was served on the applicant’s counsel on 3 July 2003. 23. In April 2002 the applicant reached pensionable age. She gave the United States embassy in Vienna notice of her intention to terminate her employment contract and applied to the competent Pensions Insurance Office for an old-age pension from 1 May 2002. 24. Subsequently, the applicant extended her claim in the above-mentioned proceedings to salary payments from September 1996 to April 2002. She requested again that the defendant be summoned to a hearing. In that context she referred to the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (see paragraphs 30 to 34 below), and argued that, according to Article 22, transmission of the documents to the United States Department of State through diplomatic channels would be sufficient to effect service. The summons was handed over to a staff member of the United States Department of State but was again returned to the Austrian embassy in Washington with the remark that the United States wished to assert its immunity in any case brought by the applicant. 25. On 17 July 2006 the Vienna Court of Appeal upheld the first-instance court’s decision refusing to give a default judgment. Referring to the Supreme Court’s case-law, it held that the refusal to serve a summons was an act of sovereign power. It noted, inter alia, that the Convention relied on by the applicant did not apply to proceedings which had been initiated before its entry into force and added that there were no rules of customary international law to indicate that States could not rely on immunity in the context of the service of a summons. No further appeal on points of law lay against this decision. 26. Section 11 of the Service Act (Zustellgesetz) deals with the service of official documents abroad and the service of official documents on foreign nationals and foreign States or international organisations enjoying privileges and immunities under international law. It provides as follows: “1. Service of process abroad shall be effected in accordance with existing international agreements or as provided for by the laws or other legal provisions of the State in which service is to be effected or by international custom, if necessary with the cooperation of the Austrian diplomatic authorities. 2. Service of process on foreign nationals or international organisations which enjoy international privileges and immunities shall be effected through the intermediary of the Federal Ministry of Foreign Affairs, irrespective of where their place of residence or headquarters is located.” 27. The relevant provisions of the Code of Civil Procedure (Zivilprozeßordnung) read as follows: “In the case of persons on whom process can only be served by publication because their address is unknown, the court shall appoint a representative (Article 9), on application or of its own motion, if the persons concerned would have to perform a step in the proceedings as a result of being served with the documents, and in particular if the documents to be served contain a summons.” “1. In the case of service on persons outside the country who do not fall into the categories of recipients referred to in section 11(2) and (3) of the Service Act, the Federal Minister of Justice, in agreement with the Federal Chancellor, may order service to be effected by post, using the system of advice of receipt customarily used for international postal deliveries, to countries in which service in accordance with section 11(1) of the Service Act is not possible or gives rise to difficulties. 2. If no confirmation is received within a reasonable time that process has been served on an individual outside the country, the applicant party may request, depending on the circumstances, that service be effected by publication (section 25 of the Service Act) or by the appointment of a representative under Article 116. This shall also apply in cases where an unsuccessful attempt has been made to serve process abroad or where the request for service has no prospect of success owing to a manifest refusal by the authorities of the foreign State to comply with the request for legal assistance.” 28. In a judgment of 11 June 2001 (8ObA 201/00) in a related case concerning claims for reimbursement of social security contributions brought by the applicant against the United States (see paragraph 11 above), the Supreme Court held as follows: “The appellate court was correct in taking the view that, as international law currently stands, the decision to comply with or refuse a request for legal assistance is a sovereign act, irrespective of the subject-matter of the request. The nature of the act is the defining factor. It is beyond doubt that the service of documents in court proceedings falls within the scope of acta iure imperii and not acta iure gesionis, as a private individual cannot perform an act of this nature (Seidl-Hohenfeldern, Völkerrecht 317 et seq., esp. paras. 1472-79; Neuhold/Hummer/Schreuer, Österreichisches Handbuch des Völkerrechts3, para. 837). The criticism of the current legal situation raised by the appellant, relying on Schreuer (ÖJZ 1991, 41 et seq. [esp. 48 et seq.], does not alter the fact that, although negotiations have been in progress for some time on an international agreement concerning service of process on foreign States (which might make it sufficient for the action to be served on the country’s foreign ministry), no such agreement has to date been concluded, with the result that the issue remains unregulated by any treaty between Austria and the United States. It is not disputed that, under American Federal law, the United States is represented by the Department of Justice in matters which are to be regarded as acta iure gestionis (compare 9 ObA 244/90 = SZ 63/206 with further references concerning the employment contract between the claimant and the defendant). The action must therefore be served – as correctly requested by the appellant herself – on a body within that authority. It is not sufficient – as the appellant has claimed in the appeal proceedings – for the document to have somehow reached another authority which is meant to be responsible for forwarding the request for service (the Department of State (Foreign Ministry)). Conversely, it would not be sufficient, in order to institute legal proceedings, for an action against the Republic of Austria to be received by the Foreign Ministry if, for whatever reason, it was not forwarded to the Attorney-General’s Office, which is the competent authority in such matters.” 29. The 1972 European Convention on State Immunity (“the Basle Convention”) entered into force on 11 June 1976 after its ratification by three States. It has been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kindgom) and signed by one State (Portugal). On 11 June 1976 it entered into force in respect of Austria, which had ratified it on 10 July 1974. The relevant provisions read as follows: “1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum. 2. Paragraph 1 shall not apply where: a) the individual is a national of the employing State at the time when the proceedings are brought; b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter. ... ” “1. In proceedings against a Contracting State in a court of another Contracting State, the following rules shall apply. 2. The competent authorities of the State of the forum shall transmit the original or a copy of the document by which the proceedings are instituted; a copy of any judgment given by default against a State which was defendant in the proceedings, through the diplomatic channel to the Ministry of Foreign Affairs of the defendant State, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant State. 3. Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs. ...” 30. State immunity from jurisdiction is governed by customary international law, the codification of which is enshrined in the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004 (“the 2004 Convention”). The principle is based on the distinction between acts of sovereignty or authority (acta jure imperii) and acts of commerce and administration (acta jure gestionis) (see Sabeh El Leil v. France [GC], no. 34869/05, §§ 18-23, 29 June 2011; see also Cudak v. Lithuania [GC], no. 15869/02, §§ 25-33, ECHR 2010). 31. The Convention was opened for signature on 17 January 2005 and has not yet entered into force. Austria signed the Convention on 17 January 2005 and ratified it on 14 September 2006. The United States has not ratified the 2004 Convention, but did not vote against it when it was adopted in the General Assembly of the United Nations. 32. The draft text of the Convention was prepared by the United Nations International Law Commission (ILC) which, in 1979, was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property. It produced a number of drafts that were submitted to States for comment. The Draft Articles that were used as the basis for the text adopted in 2004 dated back to 1991. They were subsequently further revised by the Sixth Committee of the United Nations General Assembly. States were again given an opportunity to comment. 33. Article 11 (contracts of employment) of the 2004 Convention reads as follows: “1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: (a) the employee has been recruited to perform particular functions in the exercise of governmental authority; (b) the employee is: (i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961; (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963; (iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or (iv) any other person enjoying diplomatic immunity; (c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State; (e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or (f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.” 34. Article 22 (Service of process) of the 2004 Convention reads as follows: “1. Service of process or writ or other document instituting a proceeding against a State shall be effected: (a) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or (b) in accordance with any special arrangement for service between the claimant and the State concerned, if not precluded by the law of the State of forum; or (c) in the absence of such a convention or special arrangement: (i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or (ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum. 2. Service of process referred to in paragraph (1) (c) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. 3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned. 4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.” 35. In the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session, Article 11 read as follows: “1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if: (a) the employee has been recruited to perform functions closely related to the exercise of governmental authority; (b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) the employee is a national of the employer State at the time when the proceeding is instituted; or (e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.” 36. In the commentary on the International Law Commission’s Draft Articles of 1991, it was stated that the rules formulated in Article 11 appeared to be consistent with the trend in legislative and treaty practice in a growing number of States (ILC Yearbook, 1991, Vol. II, Part 2, p. 44, § 14). 37. In the Draft Articles of 1991, Article 20 (service of process) read as follows: “1. Service of process or writ or other document instituting a proceeding against a State shall be effected: (a) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or (b) in the absence of such a convention: (i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or (ii) by any other means accepted by the State concerned, if not precluded by the law of the State of forum. 2. Service of process referred to in paragraph 1 (b) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs. 3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned. 4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.” 38. The International Law Commission’s commentary on that Article (ILC Yearbook, 1991, Vol. II, Part 2, p. 60, §§ 1-3), in so far as relevant in the present context, stated as follows: “(1) Article 20 relates to a large extent to the domestic rules of civil procedure of States. It takes into account the difficulties involved if States are called upon to modify their domestic rules on civil procedure. At the same time, it does not provide too liberal or generous a regime of service of process, which could result in an excessive number of judgments in default of appearance by the defendant State. The article therefore proposes a middle ground so as to protect the interests of the defendant State and those of the individual plaintiff. Paragraph 1 (2) Paragraph 1 is designed to indicate the normal ways in which service of process can be effected when a proceeding is instituted against a State. Three categories of means by which service of process is effected are provided: first, if an applicable international convention binding upon the State of the forum and the State concerned exists, service of process shall be effected in accordance with the procedures provided for in the convention. Then, in the absence of such a convention, service of process shall be effected either (a) by transmission through diplomatic channels or (b) by any other means accepted by the State concerned. Thus, among the three categories of the means of service of process provided under paragraph 1, an international convention binding both States is given priority over the other two categories. The variety of means available ensures the widest possible flexibility, while protecting the interests of the parties concerned. Paragraphs 2 and 3 (3) Since the time of service of process is decisive for practical purposes, it is further provided in paragraph 2 that, in the case of transmission through diplomatic channels or by registered mail, service of process is deemed to have been effected on the day of receipt of the documents by the Ministry of Foreign Affairs. Paragraph 3 further requires that the documents be accompanied, if necessary, by a translation into the official language, or one of the official languages of the State concerned. ...” In respect of Article 20 § 1 the commentary also gives numerous examples of relevant provisions in national legislation. In addition it refers to Article 16 §§ 1-3 of the European Convention on State Immunity. 39. During the drafting process the United States commented on Article 20 of the 1991 Draft Articles (which became Article 22 of the 2004 Convention). It did not object to the rules enshrined in Article 22 (1) (c) (i) and Article 22 (2). | 1 |
dev | 001-92883 | ENG | POL | CHAMBER | 2,009 | CASE OF MATON v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1950 and lives in Kraków. 5. On 19 June 2000 the Katowice District Prosecutor issued a bill of indictment against the applicant on charges of drug trafficking, unlawful possession of firearms and membership of an organised criminal gang. There were 36 accused and 147 witnesses in the case. 6. On 20 February 2001 the Katowice District Court held a first hearing in the case. From that date to 30 March 2004 the court scheduled two hundred hearings in the case. During that period of time the court held one hundred thirty and two hearings. 7. On 13 February 2008 the Katowice District Court gave judgment in the case convicting the applicant. The applicant appealed. 8. The proceedings are currently pending before the Katowice Regional Court. 9. On 31 May 2005 the applicant lodged a complaint with the Katowice Court of Appeal under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He also claimed just satisfaction in the amount of PLN 10,000. 10. On 20 July 2005 the Katowice Court of Appeal dismissed the length complaint. Although the court found that the proceedings had lasted a very long time, it concluded that this had not amounted to an “excessive length” as defined by the 2004 Act. The Court of Appeal pointed out that the court had scheduled 58 hearings in 2001, 66 in 2002, 73 in 2003, 64 in 2004 and 85 in 2005. However, several hearings had had to be postponed because defence lawyers, co-accused and witnesses were absent and assessors and judges were ill. 11. On 19 October 2006 the applicant lodged another complaint with the Katowice Court of Appeal. 12. On 31 January 2007 the Katowice Court of Appeal again dismissed the length complaint. The court found that the proceedings had been handled properly and the delays had been attributable to other persons and unexpected circumstances rather than to the court. The Court of Appeal pointed out that since July 2005 the court had held over 30 hearings and over 30 hearings had had to be postponed because defence lawyers and experts had been absent, assessors, a judge and certain co-accused had been ill, renovation works had been carried out in the hearing room and there had been a shortage of police officers to convey the accused to the court. The Court of Appeal acknowledged that the proceedings were of a complex character and noted that the court had taken many appropriate steps in order to speed them up. 13. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
dev | 001-79767 | ENG | MDA | CHAMBER | 2,007 | CASE OF CASTRAVET v. MOLDOVA | 2 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial claim;Costs and expenses partial award | Nicolas Bratza | 6. The applicant was born in 1946 and lives in Chişinău. 7. On 25 May 2005 the applicant was arrested by the Centre for Fighting Economic Crime and Corruption (CFECC) on charges of embezzlement. He had completed his University studies, did not have a criminal record, was employed and had a permanent domicile. 8. On 27 May 2005 the investigating judge of the Buiucani District Court, issued a warrant for his remand in custody for 10 days. The reasons given by the court for issuing the warrant were that: “The criminal proceedings were instituted in accordance with the law in force. [The applicant] is suspected of having committed a serious offence for which the law provides imprisonment of more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law-enforcement authorities or the court; he could obstruct the finding of truth in the criminal investigation or re-offend”. 9. The applicant appealed against this decision arguing inter alia that the suspicion against him was groundless, that he did not have any intention of absconding or obstructing the investigation in any way and that he was ready to co-operate with the investigation body. 10. On 1 June 2005, the applicant's appeal was dismissed by a panel of three judges of the Chişinău Court of Appeal. 11. On 3 June 2005 the Buiucani District Court prolonged the applicant's detention on remand for a further 30 days. The court reasoned that detention was necessary because: “[the applicant] is suspected of having committed a very serious offence, there is a risk that he may put pressure on witnesses or put himself out of the reach of law-enforcement authorities; and there is a continuing need to isolate him from society”. 12. The applicant appealed against this decision and submitted the same arguments as advanced in his first appeal. 13. On 9 June 2005 the Chişinău Court of Appeal dismissed the applicant's appeal without relying on any new arguments. 14. The applicant's detention on remand was prolonged on the same grounds until 11 October 2005, when he was released from detention. 15. The applicant was detained in the remand centre of the CFECC. The room used for meetings between lawyers and detainees had a glass partition to keep them separated. 16. The relevant domestic law concerning detention on remand was set out in the Court's judgment in Sarban v. Moldova, no. 3456/05, § 52, 4 October 2005. 17. It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre, the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass joined together. Both plates have small holes pierced with a drill; however the holes do not coincide so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for passing documents between the lawyer and his client. 18. The domestic courts have ruled on complaints about lack of confidentiality in the CFECC lawyer-client meeting room in the cases of Modârcă (application no. 14437/05) and Sarban (cited above). On 2 November 2004 a judge of the Buiucani District Court ordered the CFECC authorities to remove the glass partition separating lawyers from their clients; however, the CFECC authorities refused to comply with the court order. On 3 December 2004 the same judge revoked the decision of 2 November 2004 arguing that in the meantime she had been informed by the CFECC authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary in order to ensure the security of the detainees. On 15 February 2005 Mr Sarban's lawyer complained again to the Buiucani District Court under Article 5 § 4 of the Convention that he could not confer with his client in conditions of confidentiality. On 16 February the same judge from the Buiucani District Court dismissed the complaint without examining it and referred to her previous decision of 3 December 2004. 19. Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any procedures regarding persons detained in the remand centre of the CFECC until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126). 20. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a commission which had inspected the CFECC detention centre. During the inspection they asked that the glass wall be taken down in order to check that there were no listening devices. They pointed out that it would only be necessary to remove several screws and they proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration rejected the proposal. 21. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), insofar as relevant, reads as follows: “23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ... 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.” | 1 |
dev | 001-138424 | ENG | RUS | ADMISSIBILITY | 2,013 | PETROV v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant, Mr Vitaliy Sergeyevich Petrov, is a Russian national who was born in 1948 and lives in Orsk. He is represented before the Court by Mr S. Kiryukhin, a lawyer practising in Orsk, Orenburg region. 2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 19 August 2008 the Orenburg Region Department of the Interior opened a criminal investigation of the activities of Volna LLC. Yu., the director of the said company, testified that S. Kiryukhin was de facto in charge of the company’s activities. 5. The investigator established that Mr Kiryukhin had visited a certain law office on several occasions, and asked the court to authorise a search of its premises in order to seize the company’s financial documents and stamps. 6. On 27 August 2004 the Orsk Leninskiy District Court granted the investigator’s request. The court order referred to a search of a law office located in a block of flats. Neither the applicant’s name nor specific flats owned by him were indicated. The applicant’s flats were searched the same day on the basis of the court order. 7. On 7 September 2004 the applicant complained to the court. He sought to have the search declared unlawful. 8. On 4 November 2004 the District Court dismissed the applicant’s complaint. The court found that the search had been carried out in accordance with the applicable provisions of the rules of criminal procedure. The applicant appealed, alleging that the court had erred in matters of law. 9. On 14 December 2004 the Orenburg Regional Court upheld the decision of 4 November 2004 on appeal. The court dismissed the applicant’s allegations as unsubstantiated and found no violation of any applicable law. The court noted that the search had been subject to prior judicial approval and had been conducted by authorised persons. 10. On 27 April 2009 the Presidium of the Orenburg Regional Court quashed, by way of supervisory review, the decisions of 4 November and 14 December 2004 and remitted the matter for fresh consideration. 11. On 14 May 2009 the District Court allowed the applicant’s claim and found the search of the applicant’s flats to be in contravention of Article 25 of the Constitution of the Russian Federation. The court established that the order of 27 August 2004 had not authorised a search of the applicant’s flats. It also accepted the applicant’s argument that police officer A., who had conducted the search of the flats, had not been authorised to do so. 12. On 23 June 2009 the Regional Court upheld the decision of 14 May 2009 on appeal. 13. The Constitution of the Russian Federation establishes that the home is inviolable. No one shall enter a dwelling against the will of those living there, unless otherwise established by a federal law or in accordance with a court order (Article 25). | 0 |
dev | 001-70530 | ENG | MDA | CHAMBER | 2,005 | CASE OF SAVITCHI v. MOLDOVA | 3 | Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant, Ms Julieta Saviţchi, is a Moldovan national who was born in 1970 and lives in Chişinău. She is a journalist. 9. On 2 October 1999 the Russian language newspaper “The New Order” published an article entitled “Traffic Police – My Star” signed by the applicant. The article stated inter alia that: “...This is quite a banal story for us regular citizens, and a normal phenomenon for the traffic inspectors. In any event, it serves as a good example of the ‘star syndrome’ suffered by the traffic inspectors. A person was driving his Moskvitch on Stefan cel Mare Street. Let us call him ‘Victor’. When he approached the Stefan cel Mare and Tighina crossroads, the traffic lights turned red and, like any normal person, Victor pressed the brakes. But people who abide by the rules are not always lucky. A luxurious speeding Opel ran into the old Moskvitch. Both cars were damaged, but the Moskvitch was damaged more. Victor stayed at the place of the accident, as any man believing in the strictness of the law would do, awaiting the arrival of the police and their wise and fair verdict. The owner of the ‘Opel’ though, aware of his guilt, hit the gas and disappeared. Before long a Sergeant of the traffic police arrived and began to take measurements and investigate, making notes in a note book. At the height of the investigation the owner of the Opel arrived, but without his car. He waited until the policeman finished his work, and then said that he would go to the Municipal Traffic Police Centre to solve the problem. At the Municipal Traffic Police Centre the two car owners and the policeman were received by a person of a venerable age with the epaulets of a Sergeant-Major (later we found out that he worked in the emergency department). The owner of the Opel addressed him in a very friendly way, calling him ‘Jora’. The Sergeant-major Jora approached the young Sergeant, who investigated the accident, and asked him in a way more like an order than a question: ‘How many years have you been working for the Traffic Police?’ – Two years... ‘But I worked for twenty years; therefore you should listen to me. Don’t write anything, let the people come to an agreement themselves and the guilty one (i.e. the owner of the Opel) pay to the second one approximately 30 Moldovan Lei (MDL). In any event his car is a flea-pit, and there is no need to make a lot of fuss.’ The owner of the ‘flea-pit’, who cannot be considered a wealthy man, almost lost the power of speech when he heard that. How was it possible to offer him such a petty sum for his severely damaged car? Since the victim would not agree, Sergeant-Major Jora and the owner of the Opel increased somewhat the amount, bargaining for each leu. Afraid that he would not get anything, Victor agreed to the sum of MDL 75. He later had his car fixed by some acquaintances, who laughed at him for being fooled like a boy. Victor spent a little bit more than MDL 200 for the repair – a sum that might seem ridiculous to some traffic inspectors. For Victor though, this is really big money. But it is not the money, that he’s worried about, but the way he was treated at the Traffic Police Centre, in particular this Sergeant-Major Jora, who treated him as a man from the lowest strata, almost as a nonentity. After a few days Victor went to Jora and asked for his driver’s licence back. The Sergeant-Major promised to return the driver’s licence, but only on condition that Victor paid a fine of MDL 18. Victor was dumbfounded. – ‘Why should I pay a fine? What did I do?’ The Sergeant-Major, answered very furiously: ‘Once I say that you should pay, then you should pay, without asking any questions.’ Victor, who was very upset about the absurdity of the situation, warned the policeman that he would complain to his superiors. The Sergeant-Major, understanding that there was no way for him to prevail, literally went ballistic. He threw the driver’s licence in Victor’s face, shouting like a madman. - ‘He would complain! Who are you? Take your documents and get out of here, and pray God not to come back to the Traffic Police, because otherwise you’ll get into big trouble.’ The man took his driver’s licence and left the Police Station, meditating on what Jora could possibly do to him if ever he came back...” 10. On an unspecified date in 1999 a policeman named G.R. lodged a civil action for defamation against the applicant and the publishing office of the newspaper with the Centru District Court. Relying on Articles 7 and 7/1 of the Civil Code, the complainant alleged that the article contained statements which were defamatory of him. 11. Between January and March 2000 several oral hearings were held and several witnesses were heard. The applicant and the newspaper stated that the facts presented in the article were a simple reproduction of the story told by Victor, the victim of the road accident. Victor gave evidence to that effect. They further stated that the information contained in the article was not of a defamatory nature and could not harm in any way the reputation of the complainant, particularly since it did not contain his full name, but only a diminutive of his first name. 12. By its judgment of 14 March 2000, the Centru District Court found that the information contained in the article was defamatory of G.R. and did not correspond to reality. It argued that in the emergency department of the Municipal Traffic Police there was only one Sergeant-Major Jora, and that he was therefore easily identifiable. In particular, the court quoted the following extracts from the article as being defamatory: “...this sergeant-major Jora, who treated him as a man from the lowest strata, almost as a nonentity.” 13. The court found that this statement conveyed the idea “that ‘Jora’ was a policeman who could not behave with other people, and who was not a very positive person”. “The sergeant-major, promised to return the driver’s licence, but only on condition that Victor paid a fine of MDL 18.” 14. The court found that this statement did not correspond to reality since Victor forgot to take his driving licence. Moreover, Victor could not prove that he was requested to pay a fine. “He threw the driver’s licence in Victor’s face, shouting like a madman.” “Take your documents and get out of here, and pray God not to come back to the Traffic Police, because otherwise you’ll get into big trouble.” 15. The court found that these statements were defamatory of G.R. since they characterised him as a brutal, menacing and vindictive person. Moreover, the applicant did not bring any evidence in support of these statements. The court did not make any note of Victor’s testimony in its judgment. 16. The court ordered the applicant and the newspaper to pay the complainant non-pecuniary damages of MDL 180 (the equivalent of 14.4 euros (EUR) at the time) and MDL 1,800 (the equivalent of EUR 147 at the time) respectively. It also ordered them to publish a denial of the above statements. 17. Only the newspaper appealed against this judgment. The applicant lodged a request submitting that she fully agreed with the appeal and that she subscribed to it. 18. On 30 May 2000 the Chişinău Regional Court dismissed the appeal on the ground that the applicant had not proved the truth of her statements. 19. The newspaper lodged an appeal in cassation against the judgment of the Regional Court. The applicant neither lodged an appeal in cassation nor subscribed to the one lodged by the newspaper. 20. On 24 October 2000 the Court of Appeal upheld the appeal in cassation and quashed the judgments of the Centru District Court and of the Chişinău Regional Court in respect of both the newspaper and the applicant. It issued a new judgment, in which it found in favour of G.R.. In its judgment the court found that only the following statements were defamatory and did not correspond to reality: “...this sergeant-major Jora, who treated him as a man from the lowest strata, almost as a nonentity.” “He threw the driver’s licence in Novac’s face, shouting like a madman.” (Бросил Новаку водительские права в лицо, крича как помешанный) 21. It ordered the newspaper to publish a denial of the above statements within fifteen days. It ordered the applicant and the newspaper to pay the complainant non-pecuniary damages of MDL 180 and MDL 1,800 respectively. It also ordered both the applicant and the newspaper to pay the court fees of MDL 90. 22. The relevant provisions of the Civil Code in force at the material time read: Article 7. Protection of honour and dignity “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality. (2) When the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same rubric, on the same page or in the same programme or series of broadcasts.” Article 7/1. Compensation for moral damage “(1) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court. (2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 minimum wages if the information has been circulated by a legal person and between 10 and 100 if the information has been circulated by a natural person.” | 1 |
dev | 001-75599 | ENG | UKR | CHAMBER | 2,006 | CASE OF FEDORENKO v. UKRAINE | 2 | Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Peer Lorenzen | 5. The applicant was born in 1937 and lives in the town of Malaya Vyska, the Kirovograd region, Ukraine. 6. On 9 April 1997 the applicant sold his house for UAH 35,000 to the Kirovograd Regional Department of Justice (hereafter “the Department”), responsible for the logistical support of the judiciary. The Department was represented in the transaction by Mr R., the President of the Malaya Vyska City Court. The contract was certified by a notary and specified that the purchase price had to be paid in two instalments: UAH 5,000 and 30,000 to be paid by 1 May 1997 and 1 September 1997 respectively. The contract also contained a clause stating the following: “In case if the exchange rate of the Hryvna depreciates the overall sum to be paid cannot be less than the Hryvna equivalent of USD 17,000.” 7. In June 1997 the applicant was paid UAH 5,000. In 1998 the Hryvna substantially weakened against US dollar. In October 1998 and August 1999 the applicant received UAH 11,000 and 20,000 respectively. 8. The applicant instituted proceedings against the Department, claiming that it had failed to fulfil its obligations under the contract, as the sum paid did not take into account the substantial depreciation of the exchange rate of the Hryvna. Thus, according to the applicant, he had lost some USD 6,553. 9. On 4 November 1999 the Kirovsky District Court of Kirovograd (hereafter “the District Court”) rejected this claim as unsubstantiated. On 8 September 2000 the Presidium of the Kirovograd Regional Court, following the protest (extraordinary appeal) of the Deputy President of this court, quashed the judgment and remitted the case. 10. On 29 November 2000, in the course of a new hearing, the Department lodged a counterclaim seeking the annulment of the contract on the ground that Mr R. had exceeded his powers in agreeing to the dollar value clause. 11. On 24 July 2001 the Kirovsky District Court of Kirovograd granted the applicant’s claim and rejected that of the Department. The court established that the clause in issue aimed at ensuring the stability of the contract and protecting the applicant against inflation. The court further found that the applicant had suffered increased financial losses due to the erosion of the Hryvna’s purchasing power during the lengthy delay in execution of the contract. It found that the amount eventually paid to him on the date of the final transaction had only been USD 10,457.50. The court awarded the applicant UAH 35,527.77 in compensation for the devaluation of the Hryvna, UAH 3,197.31 in statutory interest for the delay and UAH 502.13 in court costs. 12. The Department appealed against this judgment and, on 20 December 2001, the Kirovograd Regional Court of Appeal (hereafter “the Court of Appeal”) quashed it and rejected the applicant’s claim. The court found in favour of the Department on both of their objections. It noted that Mr R. had acted ultra vires by conceding the inclusion of the disputed provision in the contract without the prior consent from the Department. The Court of Appeal further stated that, according to Article 3 of the Governmental Decree on the Regime of Currency Regulation and Currency Control 1993 (the 1993 Decree), the Hryvna was the only currency which could be used for internal transactions. The court did not find convincing the District Court’s argument that the impugned clause protected the applicant from inflation, since Article 214 of the Civil Code 1963 provided for compensation for losses incurred due to inflation if the execution of a contract was delayed. The Court of Appeal acknowledged that the price for the apartment was paid with considerable delay and that the applicant, having made the relevant claim before the court, had the right to be awarded statutory interest at the rate of 3% per annum. Taking into account that the applicant had already received an extra thousand Hryvnas (paragraph 6 above), the Court of Appeal found it appropriate to award him further UAH 678.50. 13. On 30 May 2002 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. 14. Article 3 of the Decree provided that the currency of Ukraine (i.e. the Hryvna) was the only lawful means of payment in Ukraine. 15. According to Article 48 of the Code, a contract concluded contrary to the law should be declared invalid. If the contract is invalidated the parties should return to each other all that was received in execution of the contract. 16. Article 214 of the Code provided that a debtor who had delayed the execution of a financial undertaking was obliged, on the request of the creditor, to pay the debt taking into account the established index of inflation for the period of delay, as well as statutory interest at 3% per annum. | 0 |
dev | 001-23365 | ENG | RUS | ADMISSIBILITY | 2,003 | AO "URALMASH" v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant is a public company “The Urals Factory of Heavy Engineering” (Открытое акционерное общество «Уральский завод тяжелого машиностроения», AO “Uralmash” or “the applicant company”) located in Yekaterinburg. The applicant company is represented before the Court by Ms I. Krivykh, the head of its legal department. The facts of the case, as submitted by the applicant company, may be summarised as follows. Pursuant to decisions of the Sverdlovsk Regional Committee for Management of the State Property of 6 and 25 November 1992, the applicant company was privatised and the assets of the serial devices engineering plant (Завод серийных машин, “the Plant”) were included, among others, in the applicant company’s charter capital. On 9 December 1994 the applicant company made an offer to the Government to return the Plant into state ownership in exchange for a certain number of the applicant company’s shares. On 6 September 1995 the Government accepted the offer and the terms and conditions of the exchange were developed at a meeting on 17 October 1995. On 11 June 1996 the applicant company and the Government signed an agreement on the transfer of the Plant to the State for consideration. On the same day the applicant company transferred the Plant to the State Committee for Management of the State Property of the Russian Federation, acting on behalf of the Government. On 3 October 1997 the applicant company invited the Government to pay the stipulated consideration for the Plant. On 19 January and 2 February 1998 the Ministry of Finance of the Russian Federation and the Government acknowledged the outstanding debt and offered to pledge the respective amount in the next year’s State budget. However, on 27 November and 29 December 2000 the Ministry of Finance of the Russian Federation refused to pay the applicant company with reference to the absence of supporting documentation. On 2 February 2001 the applicant company lodged a civil action against the Government and the Ministry of Finance with the Moscow Commercial Court (Арбитражный суд г. Москвы). The applicant company sought to recover the outstanding payment for the transferred Plant. On 23 May 2001 the Moscow Commercial Court dismissed the applicant company’s action. The court held that the Plant had been unlawfully privatised and, therefore, it could not be legitimately transferred back into state ownership for consideration. On 13 June 2001 the applicant company brought an appeal (апелляционная жалоба) against the judgment of 23 May 2001. It argued, inter alia, that the privatisation had been lawful and subsequently approved by a Government resolution. On 17 August 2001 the Appeal Instance of the Moscow Commercial Court (апелляционная инстанция Арбитражного суда г. Москвы) granted the applicant company’s action and awarded it RUR 204,363,814.33 to be paid by the Ministry of Finance on behalf of the Russian Federation. On 11 and 17 September 2001 the Ministry of Finance and the Ministry for State Property brought cassation appeals (кассационные жалобы) against the judgment of 17 August 2001. On 24 October 2001 the Federal Commercial Court of the Moscow Circuit (Федеральный арбитражный суд Московского округа) granted the cassation appeals, quashed the judgment of 17 August and restored the judgment of 23 May 2001. The applicant company sent several applications for supervisory review (заявление о принесении протеста в порядке надзора). These applications were refused by letters of the deputy President of the Supreme Commercial Court of the Russian Federation of 27 April and 13 June 2002 and a letter of the President of the Supreme Commercial Court of the Russian Federation of 31 October 2002. On 9 January 2003 the applicant company lodged an application for supervisory review under the new procedure, in force as of 1 January 2003. On 31 January 2003 the application for supervisory review was dismissed. The applicant company was advised that, under the new procedure, no new applications on the same subject were permissible. On 1 September 2002 the new Code on Commercial Procedure of the Russian Federation (Арбитражный процессуальный кодекс РФ) entered into force, with the exception of Chapter 36 of the Code “Proceedings for the review of courts’ decisions by way of supervision” (“Производство по пересмотру судебных актов в порядке надзора”) which became effective as of 1 January 2003. Chapter 36 established a new procedure for the supervisory review of courts’ decisions that have already entered into legal force. According to a general rule in Article 292 § 3 of the Code on Commercial Procedure, the application for supervisory review can be filed with the Supreme Commercial Court of the Russian Federation within three months after the contested decision entered into legal force, provided that all other remedies have been exhausted. The Law on the Introduction of the Code on Commercial Procedure of the Russian Federation of 24 July 2002 (Федеральный закон «О введении в действие Арбитражного процессуального кодекса РФ» № 96-ФЗ) provided that, in respect of courts’ decisions made before 1 January 2003, the period for filing an application for supervisory review of such decisions will be calculated from 1 January 2003. | 0 |
dev | 001-95590 | ENG | POL | CHAMBER | 2,009 | CASE OF SIERPINSKI v. POLAND | 4 | Violation of P1-1;No violation of Art. 6;Just satisfaction reserved | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1933 and lives in Warszawa. 7. The applicant's family owned a plot of land situated in Warsaw. The applicant is the heir of the owners of that property. 8. By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (“the 1945 Decree”) the ownership of all private land was transferred to the City of Warsaw. 9. The applicant's predecessors requested to be granted the right of temporary ownership (własność czasowa) of the plot of land pursuant to section 7 of the 1945 Decree. On 27 December 1966 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the request on the basis that the plot of land had been designated for public use (namely, an agricultural co-operative). 10. On 27 June 1967 the Warsaw-Mokotów District National Council (Prezydium Dzielnicowej Rady Narodowej) issued a decision granting the right of perpetual use of the plot of land to T. K. 11. On 23 January 1992 the applicant's predecessor Z.S. lodged an application with the Minister of Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) for annulment of the administrative decision of 27 December 1966. On 10 February 1993 the Minister declared the decision null and void. 12. On 14 June 2000 the Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) declared that the decision of 27 June 1967 had been issued in breach of law. However, the Board refused to declare the decision null and void in view of its irreversible legal consequences – on the basis of the 1967 decision a civil contract had been concluded with the perpetual user of the land who, in 1990, had transferred the rights to the estate to his son. 13. On 3 March 2003 the Local Government Board of Appeal dismissed the applicant's claim for compensation in respect of the 1967 decision on the grounds that he had not proved “an actual loss” (see domestic law part below). 14. On 8 April 2003 the applicant lodged a compensation claim with the Warsaw Regional Court. 15. On 10 November 2004 the Regional Court delivered a judgment and awarded the applicant PLN 604,000. The court found that as a consequence of the unlawful 1967 decision the applicant had lost his property right and thus had suffered loss amounting to the value of that right. The court further considered that the State Treasury had the legal capacity to be sued for damages in this case. 16. The State Treasury, represented by the Mayor of Warsaw, appealed against the judgment, arguing that the municipality (gmina) should have been sued in this case. 17. On 14 July 2005 the Warsaw Court of Appeal allowed the appeal and dismissed the applicant's claim. The court, although it observed that the case-law had been divergent on the issue, inclined to the view expressed in a Supreme Court resolution of 16 November 2004, that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date (see domestic law part below). 18. The applicant lodged a cassation complaint. He submitted that the judgment was in breach of relevant substantive law on account of an erroneous interpretation of the Local Self-Government Act of 10 May 1990. He also invoked Articles 3984 § 1 (3) and 3989 of the Civil Procedure Code arguing that the examination of the cassation complaint was justified because there was a significant legal issue in the case and a need for an authoritative interpretation of provisions which had been interpreted differently in the courts' case-law. The applicant gave examples of divergent case-law of the Supreme Court and Courts of Appeal. He further pointed to the fact that the resolution invoked by the Warsaw Court of Appeal, amending the hitherto prevailing jurisprudence, had been delivered six days after the judgment of the Regional Court. 19. On 10 January 2006 the Supreme Court refused to entertain the cassation complaint. The decision was taken by a single judge sitting in camera and was not reasoned. 20. On 7 December 2006 a panel of seven judges of the Supreme Court adopted a resolution in other proceedings in which it concluded that the State Treasury had the legal capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. 21. On 5 February 2007 the applicant lodged a complaint with the Supreme Court seeking to have the judgment of the Court of Appeal of 14 July 2005 declared contrary to law (see the domestic law part). 22. On 15 June 2007 the Supreme Court rejected the complaint. The court concluded that the notion of the judgment “appealed from” within the meaning of Article 4241 § 3 of the Code of Civil Procedure (preventing the examination of the complaint – see the domestic law part) required that a cassation complaint against a judgment had been lodged “effectively”, meaning it had not been rejected. In the court's view a cassation complaint which the Supreme Court had refused to entertain should be understood, for the purpose of this Article, as an “effectively lodged cassation complaint”, as well as a cassation complaint which had been examined on the merits. The Supreme Court in its decision of 10 January 2006 refused to examine the applicant's cassation complaint. The Supreme Court thus concluded that the judgment of the Court of Appeal had been appealed against effectively and the complaint under Article 4241 was not available. 23. On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions concerning the cassation appeal. 24. Article 3981 of the Code of Civil Procedure provides that a party may lodge a cassation complaint against a final and valid judgment of a second-instance court. A party must be represented by an advocate or a legal adviser. 25. The relevant part of Article 3983 reads as follows: “The cassation complaint may be based on the following grounds: 1) a breach of substantive law caused by its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 26. Article 3984 specifies the requirements of a cassation complaint. It reads in its relevant part: “§ 1. A cassation complaint should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation complaint; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” 27. Article 3989 provides: 1. The Supreme Court shall entertain the cassation complaint if: 1) there is a significant legal issue in the case, 2) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case-law, 3) the proceedings are invalid at law, 4) the complaint is manifestly well-founded. 2. The Supreme Court shall decide to accept or refuse to entertain the cassation complaint during a sitting in camera; the decision shall not require written reasons. 28. According to Article 39810 a cassation is examined by a panel of three judges and in all other cases the Supreme Court takes decisions sitting in a single judge formation. As a rule, the cassation complaint is examined at a sitting in camera unless there is a significant legal issue in the case and the party lodging a complaint requested a hearing to be held, or the Supreme Court finds it appropriate to hold a hearing (Article 39811). 29. Pursuant to Article 39815 the Supreme Court, having allowed a cassation complaint, may quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court fails to find non-conformity with the law, it dismisses the cassation complaint (Article 39814). 30. An amendment of 22 December 2004 to the Code of Civil Procedure, which entered into force on 6 February 2005, introduced a new extraordinary remedy against a final judicial decision – a complaint to declare a final and binding ruling to be contrary to law (skarga o stwierdzenie niezgodności z prawem prawomocnego orzeczenia). 31. According to Article 4241, a party to the proceedings may request the Supreme Court to declare a final decision of a second-instance court to be contrary to law, provided that the party has suffered damage as a result of that decision and it has been impossible to have the decision reversed or quashed by way of remedies available to the party. 32. Pursuant to § 3 of that Article a party cannot lodge a complaint against a second-instance decision which had already been challenged by way of a cassation, or against a decision issued by the Supreme Court. 33. The new regulations have been challenged before the Constitutional Court. In a judgment of 30 May 2007 (SK 68/06) the Constitutional Court found the new Article 3989 incompatible with the Constitution, but only insofar as it allowed the Supreme Court to refrain from giving reasons for its decisions. 34. In this respect the Constitutional Court referred, inter alia, to its judgment of 16 January 2006 (SK 30/05), in which it had already examined the possibility of the Supreme Court under the Criminal Procedure Code (Article 535 § 2) to dismiss an “evidently groundless” cassation appeal in a criminal case at a sitting without the participation of the parties and without giving written reasons for the judgment. The court found in this respect that “there is the accumulation at a single trial of three factors excluding the court's obligations as regards the provision of information (i.e. the informational obligation of the court). These are: secrecy of the proceedings; the use of the ambiguous term “evidently groundless” by the legislator; and the absence of an obligation that reasons be provided.” 35. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 36. Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” 37. Article 39 of the Constitutional Court Act reads: “1. The Court shall, at a sitting in camera, discontinue the proceedings: 1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible; 2) in consequence of the withdrawal of the application, question of law or constitutional complaint; 3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal. 2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings. 3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.” 38. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which the judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court. 39. The Decree of 26 October 1945 on real property in Warsaw expropriated real property situated in Warsaw and transferred ownership to the municipality of Warsaw. 40. Pursuant to section 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury. 41. A very significant reduction in the State Treasury's land resources was brought about by legislative measures aimed at reforming the administrative structure of the State. 42. The Local Self-Government Act (introductory provisions) of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “the 1990 Act”), which came into force on 27 May 1990, and other related statutes enacted at that time, re-established local self-government and municipalities and transferred to them powers that had previously been exercised solely by the local State administration. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality. 43. Section 36 § 3 (3) of the Act provides: “The State Treasury takes over: 3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).” 44. Under Article 7 of the 1945 Decree, former owners had the right to lodge an application for temporary ownership of his plots (własność czasowa). The authorities competent to deal with such applications first had to examine whether the plots concerned had not been designated for public use. If he considered that granting temporary ownership to former owners would not be incompatible with public use, a decision could be made in favour of the former owner. 45. Article 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste). 46. The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right over land owned by the State or a local authority. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. The person entitled to the right can dispose of it. 47. Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction, or if it is without a legal basis or contrary to the applicable laws. 48. Article 160 of the Code of Administrative Procedure, as applicable at the material time, read in its relevant part: “A person who has suffered loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual loss, unless he has been responsible for the circumstances mentioned in this provision.” 49. An administrative decision in respect of the compensation claim could be appealed against in a civil court. 50. Section 36 § 3 (3) of the 1990 Act raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform. The problem was subject to divergent judicial interpretation. 51. On 16 November 2004 a panel of three judges of the Supreme Court adopted a resolution (no. III CZP 64/04), finding that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date. 52. In its resolution of 7 December 2006 (no. III CZP 99/06), adopted by a panel of seven judges, the Supreme Court concluded that the State Treasury had the capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. The resolution was adopted following a legal question referred to the Supreme Court by another Court of Appeal having a similar case before it. 53. The Supreme Court confirmed this stance in several subsequent judgments, delivered in cases similar to the present one (see below). 54. On 21 March 2001 the Opolskie Governor declared that the decision of 1983 of the Head of municipality D. had been adopted in breach of law. The plaintiff's claim for compensation against the State Treasury (Opolskie Governor) was dismissed by the first- and second-instance courts. In particular, the Court of Appeal, invoking the resolution of the Supreme Court of 16 November 2004 (ref no. Ill CZP 64/04), considered that the State Treasury did not have the legal capacity to be sued in that case since municipality D. had taken over its obligations under Article 36 § 1 of the 1990 Introductory Provisions Act. The Supreme Court quashed the appellate judgment and remitted the case, relying on the above-mentioned resolution of 7 December 2006. 55. In 1951 the Presidium of the Warsaw National Council refused to grant the right of perpetual use of land covered by the operation of the 1945 Decree. Subsequently, the State Treasury sold three flats in the building. On 22 September 1994 the Minister of Construction declared that the decision of 1951 had been adopted in breach of law. The plaintiffs lodged a civil action for compensation against the State Treasury. The Warsaw Regional Court allowed his claim in part and awarded compensation from the State Treasury. On 31 January 2006 the Warsaw Court of Appeal amended the firstinstance judgment and dismissed the claim against the State Treasury finding that it lacked legal capacity to be sued in the case. On 14 March 2007 the Supreme Court quashed the appellate judgment and remitted the case, invoking the resolution of 7 December 2006. 56. In its judgment of 27 November 2002 (no. I CKN 1215/00), the Supreme Court ruled that there was a causal link between an administrative decision, taken under the 1945 Decree, refusing to grant the previous owner of a real property (a land with a building) the right of temporary ownership (perpetual use) of that property and the sale of apartments in the building by the State Treasury. 57. On 21 March 2003 the Supreme Court adopted a resolution (no. III CZP 6/03) in which it found that financial loss resulting from a decision under the 1945 Decree refusing to grant the right of perpetual use, which had been issued in breach of law, constituted a loss within the meaning of Article 361 § 2 of the Civil Code and an actual damage within the meaning of Article 160 of CAP. | 0 |
dev | 001-59587 | ENG | FIN | GRANDCHAMBER | 2,001 | CASE OF K. AND T. v. FINLAND | 1 | Violation of Art. 8 with regard to emergency care order concerning J.;No violation of Art. 8 with regard to emergency care order concerning M.;No violation of Art. 8 with regard to normal care orders;Violation of Art. 8 with regard to failure to take steps to reunite family;No violation of Art. 8 with regard to access restrictions;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 11. At the beginning of the events relevant to the application, K. had a daughter, P., and a son, M., born in 1986 and 1988 respectively. P.’s father is X and M.’s father is V. From March to May 1989 K. was voluntarily hospitalised for about three months, having been diagnosed as suffering from schizophrenia. From August to November 1989 and from December 1989 to March 1990, she was again hospitalised for periods of about three months on account of this illness. In 1991 she was hospitalised for less than a week, diagnosed as suffering from an atypical and undefinable psychosis. It appears that social welfare and health authorities have been in contact with the family since 1989. 12. The applicants initially cohabited from the summer of 1991 to July 1993. In 1991 both P. and M. were living with them. From 1991 to 1993 K. and X were involved in a custody and access dispute concerning P. In May 1992 a residence order was made transferring custody of P. to X. 13. K. was again hospitalised from 22 April to 7 May 1992, from 13 May to 10 June 1992, and from 11 to 17 January 1993, on account of psychoses. She was in compulsory care between 15 May and 10 June 1992. According to a medical report dated 15 May 1992, K. was paranoid and psychotic. 14. On 19 March 1993, according to the social welfare authorities’ records, a discussion took place between a social worker and K.’s mother. K.’s mother said that her daughter’s health condition was really bad and that K. had destroyed a childhood picture of hers, a wedding photo of the mother, broken a glass and “pierced the eyes” of all appearing in the photos. K.’s mother had said that she was tired of the situation, as she did not get any support from the mental health authorities. She added that she was worried and afraid that “again something must happen before K. is admitted to care”. On 24 March 1993 K. was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care, having initially been diagnosed as suffering from psychosis. The conditions for compulsory care were not considered to be met but she remained in voluntary care until 5 May 1993. 15. Allegedly, X did not allow K., P. and M. to meet. On 11 May 1993, when K. was again pregnant, her access to P. was further limited by an order of the District Court of R. Basing itself on a doctor’s opinion, the court held that the child’s mental development would be endangered if the meetings between P. and K. continued without supervision as had been ordered in 1992. 16. According to the records of the social welfare authorities, M. showed signs of behavioural problems. On 30 March 1992 a psychologist reported how M. had played with two dolls saying – in very vulgar terms – that they were performing sexual acts. On 17 February 1993 K. was said to have broken a mirror in the presence of M. who had kept repeating: “mummy broke the mirror ...” Notes of the social authorities of 24 and 30 March 1993 among others state that games which M. played and pictures he drew were of a destructive nature. According to the notes taken on 30 March, he had lately, while the children were singing together at the day-care nursery, shown immense hatred, threatening “to kill everybody”. The occasions when K. fetched him were described as “unpleasant scenes”, M. shouting and hitting his mother who did not react. It was noted, however, that he no longer played doll games with sexual connotations. 17. According to the records of the social welfare authorities, a discussion between K., her mother, T. and a number of social and mental-health care officials took place on 31 March 1993, during which it was mentioned that the authorities might have to intervene in M.’s upbringing, from the child-protection point of view, in a more drastic way than had been the case so far. It appeared that in connection with K.’s recent hospitalisation T. had “forcibly” taken her from a restaurant, which had made K. furious, with the consequence that she had thrown things around; for example, the microwave oven had ended up on the floor. T. had said that K. was unable to control herself. 18. On the following day the child welfare support group, consisting of various social and health authorities, agreed that the aim should be to place M. in a children’s home for three months as an assistance measure of open care under section 14 of the 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 – “the 1983 Act”), during which period psychological examinations of the child would be carried out. 19. On 3 May 1993 a social welfare official decided on behalf of the Social Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of S. to place M. in a children’s home for a period of three months. This was to be regarded as a short-term support measure pursuant to the 1983 Act. The applicants had been consulted, together with K.’s mother and sister, on 8 April 1993, in order to find an open-care measure which would be practicable. According to the records of that meeting, no such practical measure had been proposed by any of the participants. The applicants had then been heard again on 21 April 1993 and had not objected to the placing of M. in a children’s home. 20. In an opinion of 12 May 1993, requested by the Social Welfare Board, doctors M.L. and K.R. considered that K. was not at that time able to care for M., but that her mental state would not necessarily permanently prevent her from caring for him. Doctors M.L. and K.R. worked at the hospital of H., where K. had been cared for since 1991 during the periods indicated above. 21. On 7 June 1993 it was reported by the social welfare authorities that, when K. and T. had come to the children’s home where M. was staying, the boy had undergone a total change in his behaviour, characterised by anger, hatred, swearing, etc. T. had said that he was really tired of the situation and that in his view K. was in need of hospitalisation. When a visit to the health centre had been suggested to her, she had become very angry. According to a statement of 22 June 1993 by the children’s home, K. and T. had come to the home on 17 June 1993. While T. had been playing with M., other children had come to tell the staff that K. had asked a 3-year-old girl what her name was. As the girl did not reply, K. had raised her voice and shaken the girl, not letting her go until an older girl had given the child’s name. The other children had been frightened by K.’s behaviour. 22. On 11 June 1993 the social welfare official who had decided on 3 May 1993 to place M. in a children’s home informed the University Hospital of T. and the local hospital of S. in writing that she was very worried about the health of K. and the baby she was carrying. She requested the hospitals to contact her as soon as K. arrived at the hospital and, more particularly, at the time of the baby’s delivery. She also expressed the wish that health-care professionals should pay special attention to the relationship between the mother and the new-born baby from the very beginning. 23. On 18 June 1993 K. was taken to a district hospital, where she gave birth to J. on the same day. According to the hospital records, the mother stayed calm during the delivery. After the delivery a written decision concerning an emergency care order was served on the hospital. The child was taken to the children’s ward. The mother’s behaviour in the ward was later found to be somewhat restless but not completely disorderly. The hospital records indicate that she understood the situation and wanted to leave hospital the following day. Medication to prevent the secretion of milk was prescribed. It seems that K. left the hospital on 19 June 1993, that is, the following morning, without any post-natal examination. She went to her mother’s home, where she started pushing an empty pram around the place. 24. J. was immediately placed in emergency care, pursuant to section 18 of the 1983 Act. After the birth of their child, K. and T. were informed of this decision by two social workers at the hospital of H. The Social Director, who had made the decision on behalf of the Social Welfare Board, noted that K.’s mental state had been unstable during the last stages of her pregnancy. He considered that the baby’s health would be endangered since K. had found out about the plans to place the baby in public care. Lastly, he considered that the baby’s father, T., could not guarantee its development and safety. In addition the Social Director referred to the family’s long-standing difficulties, namely, K.’s serious illness and occasionally uncontrolled emotional reactions which could be traumatic for the children, T.’s inability to care for both J. and K., K.’s reluctance to accept guidance, the impossibility of putting the whole responsibility for J.’s development on T., and the impossibility of providing open-care support measures to the necessary extent. The applicants were not heard prior to the decision. On 24 June 1993 the applicants were notified in writing of the decision to take the new-born baby into public care. The notification was also faxed to K. 25. On 21 June 1993 the Social Director also placed M. in emergency care, citing principally the same reasons as in his decision of 18 June 1993 concerning J. 26. The applicants did not appeal against the emergency care orders. 27. On 21 June 1993 the Social Welfare Board took note of the emergency care orders and prohibited all unsupervised access between K. on the one hand, and J. and M. on the other. The number of supervised visits, however, was not restricted. The Board decided to continue preparations for taking M. and J. into care. 28. A meeting was held by social workers at the family centre on 21 June 1993, before the arrival of the baby from the hospital and in the absence of the applicants. It is mentioned in the report that there was a plan to prohibit the mother’s visits for a month on the ground that her reactions could not be predicted as she had, for example, broken things at home. After this initial period she would be allowed to visit the baby without restriction, but accompanied by her personal nurse. However, this plan was not implemented. The following entry appears in the register for 24 June: “The mother may come with her personal nurse if she wants. Other visitors not allowed for the time being.” 29. K. was asked to come with T. to the social welfare office on 22 June 1993 at 11.30 a.m. in order to be informed of the decision of 21 June 1993 by the Social Director concerning M. On 24 June 1993 K. and V. (M.’s biological father) were notified in writing of the decision of 21 June 1993. The notification was also faxed to K. 30. On 22 June 1993 K. was hospitalised voluntarily at the hospital of H. on account of psychosis, having obtained a referral from a doctor at a health care centre. She was treated there until 30 June 1993. 31. On 23 June 1993 J. was placed in the family centre. T. visited her the same day. 32. At the beginning of July 1993 T. left the applicants’ home, having been told by the social welfare officials that he had to break off his relationship with K. “if he wanted to keep” J. The applicants nevertheless continued their relationship. 33. On 15 July 1993 the Social Welfare Board gave its decisions taking J. and M. into “normal” public care, giving reasons similar to those mentioned in the emergency care orders (see paragraph 24 above), and prolonged the access restriction until 15 September 1993. K. was allowed to see the children only in the company of her personal nurse. The Board essentially considered that K.’s state of health remained unstable; that she was subject to aggressive and uncontrolled emotional moods; and that public care proceedings were a severe mental ordeal for a patient. As regards J., the Board therefore believed that her personal security could be jeopardised if access were to take place without supervision. As regards M., the Board feared that K.’s visits to the children’s home “could no longer be supervised by its staff, which would not be in his interest”. Before the decisions of 15 July 1993 the applicants had been heard and had expressed their objection to the care decisions envisaged. 34. On 15 July 1993 K. visited both her children, accompanied by her personal nurse. The register indicates that it was “a difficult situation”. 35. On 19 July 1993 T. moved to the family unit of the family centre with J. 36. On 20 July 1993 K. was again hospitalised in voluntary care at the open ward of the hospital of H., suffering from psychosis. She left hospital the following day, however. On 26 July 1993 she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care. On 30 July 1993 she was committed to compulsory psychiatric care. According to the file, her relatives had earlier been worried about her and had contacted the hospital in order to get her into hospital care. They reported that K. had disappeared from her home, where she had behaved in an unsettled and aggressive manner. Her hospitalisation lasted until 27 October 1993, that is, three months. 37. During the period between 18 June and 31 August 1993 K. visited her children at their respective children’s homes. During the visits she was accompanied by her personal nurse from the hospital, who was in contact with the social welfare authorities and arranged the visits having regard to K.’s state of mental health. According to the centre’s register, she visited J. twice during this period. 38. According to a statement made by a social worker on 4 August 1993, T. had taken good care of J., first at the hospital until 23 June 1993 and later on at the family centre. It was agreed that J. would stay at the family centre and that T. would visit her every other day. J. would visit her father for the first time from 13 to 15 August 1993, during which time T. would organise her christening. The intention was that the baby could move in with her father later on. 39. After T.’s paternity had been established on 13 July 1993, T. and K. were granted joint custody of J. on 4 August 1993. 40. T.’s travel expenses to the centre were paid for by the social welfare authorities. From the centre’s records it can be deduced that T. succeeded in creating a relationship with the baby and learned to take good care of her. The home leaves were spent with T. first at his mother’s house and later in his new home. 41. On 12 August 1993 the Social Welfare Board referred both public care orders to the County Administrative Court (lääninoikeus, länsrätten) for confirmation, as the applicants had opposed them. In support of its referrals, the Board submitted a statement by a social welfare official dated 25 August 1993, according to which T. would not be able to care both for M. and the new-born J. alone, since K. was living in the same home and had been psychotic for the last four years. T. had been in contact with J. at the children’s home three to four times a week. While staying in a flat attached to a municipal children’s home, he had cared for J. for two whole weeks and had subsequently cared for her three days a week in his new home. The Board had therefore begun investigating whether it would be possible to entrust him with the responsibility for J. with the help of support measures taken by the Board. 42. On 9 September 1993 the County Administrative Court confirmed the care order concerning J., considering that K. had been mentally ill; that the applicants had had conflicts “as a result of which T. had moved away from their home at the beginning of July 1993”; that because of K.’s illness and the family’s other problems the applicants had been unable to provide J. with adequate care; that the care support provided to the family had not sufficiently improved the family’s situation and that the measures could not be expected to satisfy J.’s care needs. No hearing was held. 43. On 11 November 1993 the County Administrative Court confirmed the care order concerning M., repeating the reasons put forward in its decision of 9 September concerning J. No hearing was held. 44. In an appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the confirmation of the public care order concerning M., the applicants were represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of S. The Supreme Administrative Court dismissed the appeal on 23 September 1994. 45. On the same date the Supreme Administrative Court extended the time allowed for an appeal by K. against the confirmation of the care order made in respect of J. 46. On 18 October 1994 K. appealed against the care order in respect of J. as confirmed by the County Administrative Court on 9 September 1993. On 21 August 1995 the Supreme Administrative Court granted K. cost-free proceedings as from 1 March 1994, appointed Ms Suomela as her representative and upheld the County Administrative Court’s decision of 9 September 1993. 47. By a decision of 21 January 1994 the Social Welfare Board placed J. in a foster home in K., a town some 120 km away from the applicants’ home. M. joined her on 7 February 1994. The foster parents had no children of their own. Social welfare officials told the applicants and the foster parents that J.’s and M.’s placement would last “for years”. The applicants had proposed that the children’s public care be implemented in the homes of relatives. 48. In the meantime, on 15 August 1993, J. was christened in the presence of K., T. and M. 49. A consultation was held at the children’s home, on 18 August 1993, in the presence of T. According to the records, K.’s mental health was very unstable and her psychiatric treatment was expected to have to be continued for four to five years. T., however, had expressed his hopes that K. and he could, together, take care of J. in the future. It was agreed that J. would stay at the children’s home and would visit T. every week from Thursday until Saturday, beginning on 28 August 1993. T. would visit J. on other days, according to an arrangement to be agreed with the children’s home. 50. On 14 September 1993 the Social Welfare Board prolonged the access restriction until 15 December 1993. 51. The following notes of a social welfare official appear among those in the case records of the Social Welfare Board: “14 September 1993: … 2. ... In addition, the importance of future access between J. and T. has now been questioned, since J.’s placement in [public foster care] is under preparation. It will be difficult for T. to give up J. ...” “13 October 1993: K. ... states that she is considering moving [back with T.] when she is discharged from the hospital on 29 October. ... [Her] wish is for M. and J. to be placed in the same [foster] family. ...” “18 October 1993: ... T. agrees to J.’s placement in a [foster] family. ...” “25 October 1993: ... T. is slightly opposed to J.’s placement in a [foster] family. ... It is again explained [to him] why J. cannot live with him as long as [the applicants] continue their relationship. ...” “26 October 1993: ... The essential issue from J.’s point of view is [the applicants’] relationship; if [it] continues, J. cannot stay with T. ... The alternatives are: J. comes back home to T. or is placed in [foster care]. ... [He] can provide the basic care and upbringing alone provided he receives some support. ...” “27 October 1993: ... Access between M. and K. has been successful now that T. has been attending [the visits]. ...” “29 October 1993: ... The father has been responsible for the care of the institutionalised child. He has been active and acted on his own initiative. He has fed, clothed and bathed the child. He has also taken care of the child’s outings and of rocking the baby to sleep. The father has treated the child naturally and with consideration; he has talked a lot to the child and showed her tender emotions. He has enjoyed his time with the child on the child’s terms. The father has treated the child patiently and with warmth, taking into consideration the needs of the child. The mother has visited the child five times and stayed only for a moment each time. ... J. has had the advantage of regular interrelation with one person who takes care of her, namely her father. A safe relationship with the father has given the child a feeling of basic security, which acts as a basis for positive development of her emotional life. J. has the necessary resources to grow up and develop into a healthy and well-balanced child. In the circumstances, the foundation for the family placement is good.” 52. On 27 October 1993 K. was discharged from the hospital of H. 53. On 2 February 1994 the Social Welfare Board drew up a plan concerning the implementation of the public care. The applicants’ alternative plan was allegedly ignored. For instance, the children could not meet their maternal grandmother at her home. 54. After the adoption of the care plan on 2 February 1994, the applicants requested a relaxation of the access restriction. For example, T. had been permitted to see J. only once a month. 55. On 21 March 1994 the applicants requested, inter alia, that the Social Welfare Board should draw up a public care plan aiming at the reunification of the family. 56. On 3 May 1994 the social welfare authorities organised a meeting in order to revise the care plan of 2 February 1994. The applicants and their representative did not attend the meeting. 57. On 17 May 1994 the Social Director restricted both applicants’ access to the children to one monthly visit at the foster home, to take place under supervision and last three hours. The Social Director considered that the grounds for public care still existed. In his view, although the applicants were dissatisfied with the visits set out in the care plan, affording the children an unlimited right to see their parents would create an obstacle to their successful placement. The applicants appealed. 58. On 28 September 1994 the County Administrative Court held an oral hearing concerning the access restriction imposed on 17 May 1994. It took evidence from two psychiatrists, who had interviewed K. One of them, Dr T.I.-E., did not know K. personally but commented on a diagnosis concerning her mental state by indicating that K. had a tendency to react in a psychotic manner to conflict situations. Dr K.P. stated that K.’s state of health did not prevent her from caring for her children. Consequently, if her illness had been the reason for the access restriction, that reason no longer existed. 59. In a written expert opinion, requested by the Social Welfare Board and submitted to the County Administrative Court, Dr E.V., a child psychiatrist, expressed the opinion that the children should be permanently cared for by the foster parents and that the applicants’ visits should, for the time being, be discontinued so as to protect the children and the foster parents. According to the applicants, Dr E.V. had not met them or the children, nor had he consulted the other psychiatrists before making his proposal. 60. On 11 October 1994 the County Administrative Court upheld the access restriction issued on 17 May 1994. It noted that neither of the witnesses who had been heard orally had been willing to state any opinion as regards the children’s development. It reasoned, inter alia, as follows: “... [By allowing] access to take place once a month and [by allowing contact through correspondence] it will be ensured that the children will retain knowledge about their biological parents. If the grounds for public care later cease to exist, a reunification of the family will thus be possible. ...” 61. The County Administrative Court dismissed the applicants’ request for exemption from costs, since the relevant legislation did not cover disputes concerning access restrictions. At the court’s hearing, the applicants were nevertheless assisted by Ms Suomela. 62. On 26 May 1994 the applicants requested that the Social Welfare Board discontinue the public care of M. and J. 63. On 18 September 1994 the Social Director allegedly told the applicants that any further children born to them would also be placed in public care. According to the Government, the Social Director only told them, when expressly asked, that it was possible that any further children born would be taken into public care. 64. In an opinion of 22 September 1994 submitted at the Social Welfare Board’s request, Dr K.P., a psychiatrist, commented on the possibility of revoking the public care orders. She concluded that K.’s mental state would not prevent her from having custody of the children. According to Dr K.P., K.’s efforts to have public care discontinued and access restrictions relaxed showed that she possessed psychological resources. She noted, inter alia, that T. was K.’s closest support in the care and upbringing of the children. In addition, K.’s mother, at the time her guardian ad litem, was ready to help in caring for them. Dr K.P., however, added that she could not, as a psychiatrist for adults, take any stand as regards the interests of the children. Dr K.P.’s opinion was also based on a report submitted by Dr K.Po., a psychologist, who had come to the same conclusion as regards K.’s ability to have custody of her children. 65. The Public Legal Adviser advised against requesting revocation of the care orders. 66. K. was hospitalised from 15 to 24 February and from 11 April to 29 May 1995, apparently on account of psychosis. 67. On 14 March 1995 the Social Welfare Board rejected the applicants’ request of 26 May 1994 that the care order be revoked, stating as follows: “At the moment the health of the children’s mother, K., is better and the family situation has changed in other respects in comparison with the situation in 1993 when the decisions to take the children into care were made. ... According to Dr K.P., a psychiatrist, K. still has ‘a lot of instability’ in her emotional life as well as fragility, brought about by the last five years’ experiences and the diagnosis of mental illness for which she needs – and will need for a long time to come – therapeutic support and treatment. A regular medication is also needed in order to guarantee her continued well-being and to make it possible for her to manage in open care and to have custody of her children. Dr K.P., however, did not give her more precise opinion as to K.’s ability to take care of and bring up her children even though Dr K.P. was explicitly asked to give such an opinion. K. can have custody of her children. She cannot, however, be responsible for the needs and education of the children – not even with the support of T. and the open-care support measures. Their ability to act as educators taking care of the children’s needs is inadequate. According to the statement given by the children’s clinic of the municipality of K., the ability of K. and T. to understand the needs of the children and to respond to them is very limited. Even though T. is capable of interaction with the children, he finds it difficult to respond to the children’s emotional needs. K. is also incapable of creating an emotional relationship with the children. At an earlier stage, Dr J.H., a psychologist at the local health care centre, reached the same conclusion in her statement given during the custody proceedings concerning K.’s oldest child. In his expert statement Dr E.V., a child and youth psychiatrist, reached a similar conclusion. Already in the spring of 1992 Dr J.H. realised that K.’s problem was related to the fading of the boundaries between her and her children. She stated that K. amalgamated herself and her children into a single entity without being able to see the unique and individual nature of the children. According to J.H., K. was also unable to take into account the children’s needs in relation to their age. Dr E.V. finds that the children do not seem to be objects independent of K. but that she sees them as ‘self-objects’. She finds it difficult to realise that children are individual human beings in need of love and care. Instead, she sees them as if they were meant for her own personal use.” 68. The applicants appealed on 5 April 1995, requesting that they be granted exemption from costs and afforded free legal representation. They also requested an oral hearing. 69. On 7 April 1995 a further child, R., was born to the applicants. Having given birth, K. left the hospital for a while on the same evening with the new-born baby wrapped in a blanket, walking barefoot in the cold weather until the hospital staff realised what had happened and intervened. 70. On 13 April 1995 K. was committed to compulsory psychiatric care and treated at the hospital of H. until 29 May 1995, while R. was being cared for by T. According to a psychiatrist’s observation of 10 April 1995, K. “must have been suffering from paranoid schizophrenia for some time”. 71. On 15 June 1995 the County Administrative Court granted the applicants exemption from costs and appointed Ms Suomela as their representative in the case concerning their appeal against the Social Welfare Board’s decision of 14 March 1995. It decided not to hold a hearing in respect of the applicants’ request for a revocation of the care orders and provided the parties with an opportunity to supplement their written observations. 72. On 28 September 1995 the County Administrative Court rejected the applicants’ appeals of 5 April 1995 without holding an oral hearing. The court noted, inter alia, that according to the medical certificates, K.’s state of health had improved but her emotional life was still unstable. She therefore continued to be in need of psychotherapy and medication. In addition, a further child had been born to the applicants and K. had again been treated at the hospital of H. These two factors had caused an additional strain militating against a revocation of the care orders. 73. On 17 November 1994 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on neutral premises at the Family Advice Centre of K., where the foster parents were living. The applicants objected to this proposal, considering that it would have entailed a further restriction of their access to the children. Instead, they requested two meetings a month, one of which was to be at their place of residence. On 22 December 1994 they asked for a separate written decision concerning their access request, so that they could appeal against it. 74. In a letter of 22 December 1994 the Social Director informed the applicants that there were no longer any grounds for the access restriction. Meetings between the applicants and the children were nevertheless only authorised for three hours once a month on premises chosen by the Social Welfare Board. They were also informed that the meetings would be supervised. 75. In his decision of 11 January 1995 the Social Director confirmed that there were no longer any grounds for the access restriction. On 31 January and 28 February 1995 the Social Welfare Board confirmed the decision of 11 January 1995. The applicants appealed. 76. As regards the applicants’ appeal against the Social Welfare Board’s decisions of 31 January and 28 February 1995, the County Administrative Court considered, on 15 June 1995, that the revised care plan drawn up on 17 November 1994 had already entailed an access restriction which had later been renewed by further decisions, without the applicants having been properly heard, in respect of their access request. The matter was referred back to the Social Welfare Board for further consideration. 77. In the light of the County Administrative Court’s decision the Acting Social Director, on 28 June 1995, formally restricted the applicants’ access to the children to one meeting a month up to 31 May 1996. The meetings were to take place in the foster home. In addition, the foster parents were to visit the applicants with the children every six months. The Director considered, inter alia, that it was important that the children settle themselves in the foster family environment in which they would grow up. Closer contacts with their parents would mean change and insecurity as well as the creation of a new crisis in their development. The process of settling which had started well would be jeopardised. For the children’s progress it was therefore necessary that their situation remain stable and secure. The Director’s decision was confirmed by the Social Welfare Board on 22 August 1995. The applicants appealed. 78. On 3 November 1995 the County Administrative Court rejected the applicants’ appeal against the access restriction confirmed on 22 August 1995. 79. On 25 May 1996 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on the premises of a school at the children’s place of residence. As the applicants were not present when the proposal was made, the care plan was again revised on 9 October 1996 in so far as the access restriction was concerned. The applicants then proposed that the children meet them without supervision once a month. The public care plan was, however, revised as proposed by the social welfare officials. 80. On 17 June 1996 the Social Director restricted both applicants’ access to the children, until 30 November 1997, to one monthly visit on the premises of a school at the children’s place of residence, where access was to take place under supervision for three hours. One of the foster parents was also ordered to be present at the time of the access. The Social Director’s decision was confirmed by the Social Welfare Board on 20 August 1996. The applicants’ appealed against the decision to the County Administrative Court, requesting an oral hearing. The court obtained a statement from a child psychiatrist, Dr J.P., who was also recommended by the applicants’ representative to the Social Welfare Board. Dr J.P.’s statement included the following observations: “The right of access of M. and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and their health. This requires an examination of the quality, permanence and durability of their human relationships, because psychological growth and development take place in interaction with human relationships. In my opinion, the human relationships are to be examined from the children’s point of view. ... ... In conclusion, I note that before M. was placed in the children’s home ... the mother had been in psychiatric hospital for treatment eight times, making a total of thirteen months. Thus, M. had lived with his mother for forty-five months, namely, three years and nine months. The longest that they spent together was two years and one month. ... T. has, as ‘stepfather’, helped to look after M. for at most ten months. ... the foster parents have so far looked after M. for three years and three months without interruption. ... In practice, M. has not had any kind of relationship with his biological father ... In the light of the above, I note that the human relationships in M.’s early childhood have, owing to the circumstances, been non-continuous, short-term and changing. The most stable and continuous relationships have been with his foster parents ... Therefore, these relationships are the most relevant and important ones for M.’s psychological growth and development. ... J. was born in June 1993. She was taken into public care immediately after she was born. At first, she stayed in the district hospital for a short time, and later at a reception home for small children. T., as the biological father of J., looked after her for two weeks in June and August 1993. J. was placed in the foster family ... in January 1994, when she was some seven months old. So far, J. has stayed with her foster family for some three years and three months without interruption. J. is now a little over 3 years and 10 months old. In the light of the above, I note that, due to the circumstances, J. has not had any significant and important relationships other than those with her foster parents. J.’s relationship with her foster parents is of primary importance for her psychological growth and development. ... ... From the children’s point of view, especially, but naturally also from that of the foster parents, the foster family is a family to which the principles concerning family life enshrined in the United Nations Convention on the Rights of the Child and in the European Convention on Human Rights can be applied in the same way as to biological families. This point of view is especially important when, due to the circumstances, the biological family has not lived together. In the light of the above, I note that the arrangements for helping and supporting the foster parents of M. and J. are in the best interests of the children. The arrangement will, in the first place, ensure the important, continuous and safe human relationships of M. and J. with their foster parents ... It is also important for M. and J.’s psychological growth and development that, in the safe and stable conditions provided by the foster family, they are able to form and maintain a good internalised picture of their biological parents ... from whom they have been separated because of the circumstances. In my opinion, this can be done by complying with the decision of the Social Welfare Board of S. of 20 August 1996 concerning the right of access. At present, an unrestricted right of access or a right of access of the extent suggested by the applicants is not in the interests of the children, because K. and T. are not capable of meeting the emotional needs of M. and J. ... Such arrangements concerning the right of access would clearly endanger the health and development of M. and J. In my opinion, the question of an unrestricted right of access should be evaluated when the children have attained the age of 12.” 81. In a statement of 10 September 1996 Dr K.P. stated that in her opinion K.’s psychiatric state did not preclude K.’s having custody of her daughter R. 82. On 2 April 1997 the care plan was again revised by the social welfare authorities. The applicants had been informed of the time of the meeting concerning the revision of this care plan on home visits on 15 January and 10 March 1997. Their representative had also been informed of the meeting by a letter sent on 10 February 1997. The applicants did not attend the meeting, and neither did their representative. The applicants were thus not explicitly heard in this connection but, as they had expressed their opinion on other occasions, the authorities recorded their point of view in the plan. 83. On 12 June 1997 the County Administrative Court rejected the applicants’ appeal against the Social Welfare Board’s decision of 20 August 1996 to restrict the applicants’ access right (see paragraph 80 above). It refused the applicants’ request for an oral hearing. 84. Although the applicants had stated only in their reply that the appeal was also made on R.’s behalf, the County Administrative Court found in its decision that it was in part made in her name. The court stated that a person to whom a decision was directed, or upon whose right, duty or interest it had a direct effect, had the right of appeal. The court considered that the Board’s decision, which concerned R.’s siblings’ and parents’ right of access, was not such a decision. 85. On 28 November 1997 the Social Director restricted the applicants’, and consequently their youngest child R.’s, access to J. and M. to one monthly visit of three hours on the premises of a school at the children’s place of residence until the end of 1998. The applicants did not appeal. 86. The care plan was again revised on 1 December 1998. 87. According to a statement made on 3 July 1998 by Dr K.M. (formerly Dr K.P.), K. had not been hospitalised since May 1995 and her health had been stable since the beginning of 1995. There had been no problems concerning the care of R. (who had lived with her parents all the time and had not been taken into care). It was recommended by Dr K.M. that the social welfare authorities should reduce or discontinue control visits to the applicants’ home in order to give K. the possibility of settling down to normal life without constant supervision by the authorities. 88. The restriction orders were extended by the Social Director on 11 December 1998, until the end of 2000. The visits were to take place under supervision on the premises of a school at the children’s place of residence. However, one of the visits was to take place at the applicants’ home in the presence of the foster parents. The Social Director considered, inter alia, that the reunification of the family was not in sight as the foster family was now the children’s de facto home; that the applicants’ access to the children once a month and through correspondence was enough to maintain the children’s awareness of their biological parents; and that closer contacts with the applicants would endanger the children’s development, bring change and insecurity and create a new crisis in their development. The applicants appealed against this decision to the Social Welfare Board which, on 2 February 1999, rejected the appeal and upheld the Social Director’s decisions. In its reasoning, the Board quoted both the County Administrative Court and Dr J.P. 89. According to the reports drawn up by the supervisor who attended the meetings of the children and the applicants during the period from 25 May 1996 to 10 January 1999, the adults got on quite well together during the meetings. J. often played games with M. When R. was smaller, J. played by herself, but later it seemed that the girls, J. and R., spent more time together. On the other hand, it seemed that the first applicant made very little contact with J. and M. According to the supervisor’s description, especially in the earlier reports, the first applicant seemed to have concentrated on R. 90. M. visited K. and T. at their home for the weekend of 21 to 23 July 2000 without supervision. 91. The applicants appealed against the Social Welfare Board’s decision of 2 February 1999, concerning the right of access, to the Administrative Court (formerly the County Administrative Court). An oral hearing, at which M. was also heard, was held on 3 October 2000. In its decision of 13 October 2000 the administrative court upheld the Social Welfare Board’s decision. 92. The social authorities reviewed the care plan on 23 November 2000, having consulted the applicants, among others. It was decided that the children would remain in the foster home. According to the care plan, M. and J. are allowed to meet K. and T and others close to them, as from 1 January 2001 until 31 December 2001, without supervision once a month alternately at the applicants’ home and the foster parents’ home. The meetings at the applicants’ home will take place from Saturday 11 a.m. until Sunday 4 p.m., and the meetings at the foster parents’ home on Sundays, from 11 a.m. until 5 p.m. The children are also allowed to meet their other relatives freely during those meetings. In addition to the above, the children will also spend a day and a night with the applicants each Christmas, and two weeks each summer during their school holidays. 93. J. and M.’s foster mother died in May 2001. 94. Section 1 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lag ang. vårdnad om barn och umgängesrätt 361/1983) defines what is meant by child custody and what is required from the person having custody. 95. The Child Custody and Right of Access Act requires both the parents and the authorities to ascertain the wishes and views of the child when making and implementing a decision concerning the child, if this is possible in view of the age and stage of development of the child (sections 4(2), 8, 9(4), 11, 34(1)(3); and sections 34(2), 39(1) and (2) and 46(2)). Court decisions concerning custody and access cannot be executed against the will of a child who has attained the age of 12. 96. According to the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 – “the 1983 Act”, as amended by Law no. 139/1990), a child who has attained the age of 12 is given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal against them. 97. In situations where the child does not live with its parents or where they are separated because of the need for protection or some other relevant reason, the child has in principle the right to maintain personal relations and contacts with its parents. However, this right may be limited on specific grounds and by certain procedures prescribed by law, for example, where there is a danger or threat caused by contacts or on the basis of the best interests of the child (section 2 of the Child Custody and Right of Access Act; sections 19(2), 24 and 25 of the 1983 Act; Articles 9 and 10 § 2 of the Convention on the Rights of the Child). 98. According to section 1 of the 1983 Act, a child is entitled to a secure and stimulating growth environment and a harmonious and well-balanced development, and has a special right to protection. The objective of the 1983 Act is that a child will in all circumstances get such care and upbringing as is required by the Child Custody and Right of Access Act. 99. Where the parents or those who have custody of the child are not able to provide the child with sufficiently secure conditions for its growth and development, the social welfare board and its officials must take the necessary measures in accordance with the 1983 Act. These measures include the assistance in open care referred to in sections 12 to 14 and the duty to take a child into care and provide substitute care referred to in section 16. 100. According to section 13(1) of the 1983 Act (as amended by Law no. 139/1990), where the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, or a young person in the process of becoming independent who had been a recipient of social welfare assistance before attaining the age of 18, local authorities must provide adequate financial support without delay and correct deficiencies in housing conditions or provide housing according to need. 101. Assistance in open care, referred to in section 13(2) of the 1983 Act, includes general assistance in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982). In addition to general assistance, special forms of assistance are mentioned. These include voluntary help or help from a supporting family; appropriate therapy; holiday and recreational activities; and assisting a child in his or her education and training, in job and home finding, and in his or her leisure activities and other personal needs, by providing financial and other support. The assistance must be provided in cooperation with the child or young person and the parents or other persons caring for him or her. 102. According to section 16 of the 1983 Act, the social welfare board must take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by alcohol or drug abuse, by committing an illegal act other than a minor offence or by any other comparable behaviour; (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child. 103. If a child is in imminent danger for a reason stated in section 16 or is otherwise in need of an urgent care order and substitute care, the social welfare board may take him or her into care without submitting the decision to the county administrative court for approval (section 18 of the 1983 Act). 104. According to section 9(2) of the 1983 Act, substitute care must be provided without delay where it is needed and is in the best interests of the child. 105. An emergency care order expires within fourteen days of the decision unless a normal section 17 care order is applied for during that period. Such a care order must be made within thirty days or, on special grounds, within sixty days of the emergency order. A decision on emergency care can be appealed against in the normal way. 106. Taking into care differs from adoption in that the parents are able to keep limited rights and responsibilities regarding custody and guardianship. 107. Care in accordance with section 16 of the 1983 Act terminates when the child attains the age of 18 or marries. Public care may be terminated earlier where the conditions for the termination of care exist. 108. According to section 20 of the 1983 Act, the social welfare board must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section 16, unless such discharge is clearly contrary to the best interests of the child. 109. On the custody of a child in care, section 19(1) of the 1983 Act stipulates: “When the social welfare board takes a child into care, it shall be empowered to decide on the child’s care, upbringing, supervision, other welfare and residence. The board shall, however, make every effort to cooperate with the parents or other persons having custody of the child.” 110. Through a decision to take a child into care the social welfare board automatically takes over the power to decide on contacts between the child and its parents and other persons close to the child (section 19(2) of the 1983 Act). 111. According to section 24 of the 1983 Act, a child who is in substitute care must be guaranteed the continuous and secure human relations that are important for his or her development. The child is entitled to meet his or her parents and other persons close to him or her and to keep in touch with them. The social welfare board must support and facilitate the child’s access to his or her parents and to other persons close to him or her. 112. According to section 25 of the 1983 Act, the social welfare board or the director of a residential home may restrict the right of access of a child in substitute care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child, or (b) such a restriction is necessary for the safety or security of the parents, the children or the staff in the residential home. On the above-mentioned grounds, the social welfare board may decide that a child’s whereabouts shall not be disclosed to its parents or custodians while the child is in care. 113. According to section 25 of the 1983 Act and section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), a decision concerning restriction of the right of access is valid for a specified time, and it must name the persons whose rights are restricted. In addition, the decision must specify what kind of contacts are restricted and the scope of the restriction. 114. A decision to restrict the right of access restricts the child’s right to meet its parents and other persons close to it. Such persons close to the child are the child’s guardian or other legal representative, relatives and those persons who have kept in touch with the child before and after he or she was taken into care. 115. A care plan must be made for each case of family-oriented and individual child welfare, unless the matter under consideration requires only temporary counselling or guidance. This plan must be adjusted when necessary. 116. In the case of a child taken into care (section 16 of the 1983 Act) or a child placed in residential care as a form of assistance in open care (section 14 of the 1983 Act) the care plan must specify (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s access to its parents and other persons close to the child will be organised; and (d) how after-care will be organised. 117. According to section 4 of the Child Welfare Decree, the care plan must be drawn up in cooperation with those involved. 118. According to section 4 of the Social Welfare Act, a social welfare board, with several members elected by the municipality, is responsible for providing social welfare in its area, and is charged with the responsibilities assigned to social welfare boards in other Acts. 119. According to section 12 of the Social Welfare Act, the decision-making authority of a municipal social welfare board can be delegated to officials subordinate to the board, with the exception of decisions involving compulsory welfare for an individual. 120. According to section 17(2) of the 1983 Act, a decision made by the social welfare board on taking a child into care or placing him in substitute care, must be submitted within thirty days to the county administrative court for approval if a child who has attained the age of 12 or the persons having custody of him or her oppose the measure or if the hearing required by section 17(1) of the Act could not be arranged. 121. According to section 36, decisions concerning taking into care or placement in substitute care can be appealed against in the county administrative court within thirty days of notification of the decision. During that time, such an appeal may also be lodged with the local social welfare board, which must forward it to the county administrative court together with its own statement within fourteen days. The submission and the appeal shall in this case be dealt with and decided at the same time. 122. According to section 37(1) of the 1983 Act, appeals against a decision on care orders, on placement in substitute care, on termination of care or on a matter concerning housing, as specified in section 13(1) of the Act, made by the county administrative court in pursuance of this Act, may be lodged with the Supreme Administrative Court. 123. According to section 37(2) of the 1983 Act, decisions other than those contemplated in subsection (1), relating to family-oriented and individual child welfare rendered by the county administrative court in pursuance of the 1983 Act, cannot be appealed against. 124. According to section 35(2) of the 1983 Act, a child who has attained the age of 12, his or her parents, the persons having custody of him or her or the person responsible for his or her care and upbringing or who was responsible immediately prior to the case in question, may appeal in cases concerning the taking of a child into care, placement in substitute care or termination of the care. 125. A person challenging a decision made by an official subordinate to a municipal social welfare board has the right, under the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982), to have the decision reviewed by a municipal social welfare board within fourteen days of being informed of the decision. The social welfare board’s decision can be appealed against in the county administrative court. 126. According to section 46 of the Social Welfare Act, a decision made by the social welfare board is subject to appeal to a county administrative court within thirty days of service of the decision. Certain decisions by the county administrative court can be appealed against in the Supreme Administrative Court. 127. When the decision of an authority can be appealed against, the authority in question must attach to its decision information about the appeal procedure. 128. According to section 47 of the Social Welfare Act, a decision made by a municipal social welfare board is enforceable notwithstanding any appeal if (a) the decision requires immediate implementation; or (b) for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; and (c) the social welfare board has ordered the decision to be enforced at once. 129. When an appeal has been lodged, the appellate authority can stay enforcement of the decision or order that enforcement be suspended. 130. Section 38(1) of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996), which entered into force on 1 December 1996, contains rules on the right to an oral hearing before administrative courts. 131. According to the Child Custody and Right of Access Act, a person under 18 years of age is, as a minor, legally incompetent. A child who has attained the age of 12 is entitled to be heard in child welfare cases as stipulated in section 15 of the Administrative Procedure Act; he or she is also entitled to request the support of the social services and other support mentioned in section 13. 132. Section 17(1) of the 1983 Act lists the parties to be heard in matters concerning taking a child into care, placing a child in substitute care and termination of care. According to this section, the following persons have the right to be heard in accordance with section 15 of the Administrative Procedure Act: (a) the person having custody of the child; (b) a biological parent who does not have custody of the child; (c) a person currently in charge of the child’s care and upbringing or who was in charge immediately prior to the case in question; and (d) a child who has attained the age of 12. They must also be notified of a decision concerning the taking of a child into care and termination of care following the procedure for special notification. The authorities also have an obligation to inform them, where appropriate, of the possibility of an appeal. 133. Section 15(1) of the Administrative Procedure Act lays down a general obligation to hear the parties. Before any decision is made, a party must be afforded an opportunity to reply to the claims put forward by others as well as to any evidence that may affect the decision. 134. The county administrative board (lääninhallitus, länsstyrelsen), in the capacity of a regional State authority, has general powers to supervise the activities of municipalities. Following a procedural appeal, the county administrative board can also investigate whether a local authority has acted in accordance with the law. 135. In addition, the Ministry of Social Affairs and Health supervises and directs, in its capacity as the highest authority in social welfare and health matters, the activities of municipalities and, when necessary, also the activities of the county administrative board in child welfare. Appeals concerning individual cases addressed to the Ministry of Social Affairs and Health are sent to the county administrative board, which decides on the matter at first instance. 136. The Parliamentary Ombudsman and the Chancellor of Justice (oikeuskansleri, justitiekansler) are empowered to supervise the legality of the measures taken by any authorities. | 1 |
dev | 001-59164 | ENG | AUT | CHAMBER | 2,001 | CASE OF WALDER v. AUSTRIA | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. On 15 April 1971 the Tirol Regional Government acting as the Agricultural Authority of First Instance (Landesregierung als Agrarbehörde 1.Instanz, “the Agricultural Authority”) received a motion dated 19 January 1971 for opening land consolidation proceedings at Kalkstein in the municipality of Innervillgraten, signed by the land owners concerned including the applicant. 9. On 3 May 1971 the Agricultural Authority ex officio opened the Kalkstein land consolidation proceedings (Zusammenlegungsverfahren), involving property in Innervillgraten of which the applicant and his siblings are co-owners. 10. On 28 May 1974 the Agricultural Authority held a hearing with the land owners concerned as regards the provisional transfer of land (vorläufige Übergabe). The majority of land owners accepted the authority’s proposal, whereas the applicant opposed it. At the close of the hearing the authority orally delivered the decision ordering the provisional transfer of land and informed the participants that no remedy was available against it under the Tirol Agricultural Land Planning Act 1969 (Flurverfassungs-Landesgesetz). 11. On 7 May 1979 the Agricultural Authority issued the consolidation scheme (Zusammenlegungsplan). 12. On 5 February 1981 the Provincial Board upon, inter alia, the applicant’s appeal, set aside the consolidation scheme on the ground that the Agricultural Authority had failed to carry out a proper valuation of the plots of land involved. Further, it declared that the area had to be cultivated as provided for in the provisional transfer of land of 28 May 1974 until a new consolidation scheme was issued. 13. On 14 September 1982 the Administrative Court (Verwaltungs-gerichshof), upon the complaint of the applicant and his co-owners, quashed the Provincial Board’s declaration that the consolidation area had to be cultivated as provided for in the provisional transfer until a new consolidation scheme was issued. It found that the Provincial Board had not been competent to make such a declaration. It was only called upon to decide on the merits of the case which had been before the Agricultural Authority, i.e. in the present case it had to decide on the lawfulness of the consolidation scheme. In any event, the decision on the provisional transfer of land had become final long ago. 14. After having held a hearing on 28 April 1983, the Agricultural Authority issued an occupation and valuation schedule (Besitzstandsausweis und Bewertungsplan). 15. On 1 December 1983 the Provincial Board dismissed the applicant’s appeal. It noted that the applicant had not contested the occupation schedule and had not submitted any arguments as regards the valuation of specific plots of land. There were no reasons to depart from the Agricultural Authority’s findings. 16. On 8 October 1984 the Constitutional Court (Verfassungs-gerichtshof) declined to deal with the applicant’s complaint and referred the case to the Administrative Court. 17. On 28 May 1985 the Administrative Court dismissed the applicant’s complaint, finding that he had not submitted any specific objections against the occupation and valuation schedule. 18. On 28 January 1990 the Agricultural Authority received further documents relating to a number of changes in the valuation of land. 19. On 17 May 1991 the Agricultural Authority issued a new consolidation scheme. It found, having regard to the valuation of the land, that the difference in value between the plots the applicant had owned prior to the proceedings and the plots allocated to him was less then the 5% which were admissible under the Agricultural Land Planning Act. For this difference it ordered payment of compensation. The consolidation scheme was open to public inspection at the Innervillgraten local authority during two weeks in July 1991. 20. The applicant did not appeal against the consolidation scheme which, following its publication, became final on 1 July 1991. However he appealed against the notification of 17 May 1991 by which the Agricultural Authority had informed the parties of the publication of the consolidation scheme. 21. On 29 October 1992 the Provincial Board rejected the applicant’s appeal as being inadmissible. It noted that the said appeal was directed against the notification of 17 May 1991, which was in itself not subject to appeal. 22. On 14 June 1993 the Constitutional Court declined to deal with the applicant’s complaint and referred the case to the Administrative Court. 23. On 24 October 1995 the Administrative Court dismissed the applicant’s complaint. 24. By decision of 12 April 1996 the Agricultural Authority closed the consolidation proceedings following the entry of all changes of property in the land register in 1993 and the final settlement of the costs in early 1996. 25. On 21 June 1996 the Provincial Board dismissed the applicant’s appeal against the decision of 12 April 1996. | 1 |
dev | 001-70120 | ENG | TUR | CHAMBER | 2,005 | CASE OF ERNEKAL v. TURKEY | 4 | Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 4. The applicant was born in 1949 and lives in Siirt. 5. On 20 December 1990 the General Directorate of National Roads and Highways expropriated three plots of land belonging to the applicant. A committee of experts assessed the value of the plots of land and the relevant amount was paid to him. 6. Following the applicant's request for increased compensation, on 8 September 1998 the Baykan Civil Court of First-instance awarded him additional compensation of 114,180,000 Turkish liras (TRL), plus interest at the statutory rate applicable at the date of the court's decision. In order to calculate the amount of increased compensation, the court consulted several experts. 7. The General Directorate of National Roads and Highways appealed against the judgment of 8 September 1998. 8. On 19 October 1998 the Court of Cassation upheld the judgment. 9. According to the order of the General Directorate of National Roads and Highways, the amount of TRL 248,595,000 was paid to the applicant on 22 December 1998. The applicant claimed that he was paid on 4 January 1999. 10. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25). | 0 |
dev | 001-96529 | ENG | POL | ADMISSIBILITY | 2,009 | DLUGIEWICZ v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | The applicant, Mr Krzysztof Długiewicz, is a Polish national who was born in 1969 and lives in Helmstedt, Germany. He was represented before the Court by Mr J. Angermann, a lawyer practising in Helmstedt, Germany. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 May 2004 the applicant was arrested by the police. On 22 May 2004 the Gdańsk District Court (Sąd Rejonowy) decided to detain the applicant on remand in view of the reasonable suspicion that he had smuggled into Poland a large quantity of an illegal substance used for the production of amphetamines. The court held that his detention was necessary to secure the proper course of the proceedings as there was a fear that the applicant would attempt to influence witnesses or evade his trial since he lived in Germany. On 14 June 2004 the Gdańsk Regional Court (Sąd Okręgowy) dismissed an appeal by the applicant against the decision to detain him. On 13 August and 17 November 2004 the District Court further extended the applicant’s detention. In the latter decision the court relied on the likelihood that a heavy sentence might be imposed on the applicant. On 16 December 2004 the applicant was charged with having committed other offences relating to prostitution, deriving profits from it and participating in an organised criminal gang. On 10 February 2005 the applicant and two co-accused were indicted before the Gdańsk Regional Court. On the same day the trial court extended the applicant’s detention, referring to the grounds given previously and holding that there was a risk that the accused would try to put pressure on witnesses. On 15 March 2005 the Gdańsk Regional Court decided that the Gdynia District Court was competent to try the applicant’s case. That decision was quashed on appeal by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 27 April 2005. On 28 June, 27 September and 15 December 2005 and 14 March 2006 the Gdańsk Regional Court extended the applicant’s pre-trial detention. The trial court reiterated the grounds given previously and found that the accused had not proved the existence of circumstances justifying their release. The court also held that keeping the applicant in detention was necessary to secure the proper course of the trial as not all the witnesses had been heard yet. The applicant lodged an appeal against the decision of 28 June 2005 but it was dismissed on 3 August 2005 by the Gdańsk Court of Appeal. As the length of the applicant’s detention had reached the statutory timelimit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court applied to the Gdańsk Court of Appeal (Sąd Apelacyjny), asking for the applicant’s detention to be extended beyond that term. The Gdańsk Court of Appeal extended his detention on 18 May and 30 August 2006. The court justified it by the probability that a severe sentence might be imposed on the applicant, which made it likely that, if released, he would obstruct the proceedings. The applicant appealed against the decision of 30 August 2006 but the appeal was dismissed by the Gdańsk Court of Appeal on 13 September 2006. Applications by the applicant for release or for the imposition of other preventive measures were dismissed on 2 February 2005 and on 14 March and 10 August 2006. The trial court held the first hearing on 27 October 2005. Thereafter, hearings were held at regular intervals. On 24 November 2006 the Gdańsk Regional Court gave judgment in the applicant’s case. The applicant was convicted as charged and sentenced to four years’ imprisonment and a fine. The applicant did not appeal against that judgment and it became final. On 2 December 2006 the applicant was released. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006). | 0 |
dev | 001-95093 | ENG | RUS | CHAMBER | 2,009 | CASE OF ANTIPENKOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1980 and lived until his arrest in the town of Dyatkovo in the Bryansk Region. He is serving his sentence in the correctional colony in the village of Kamenka in the Bryansk Region. 7. On 14 December 2002 the police arrested the applicant and brought him to the Dyatkovskiy District police station. 8. On the same day a police officer, I., who had taken part in the applicant's arrest, drew up a report, informing the chief of the Dyatkovskiy District police station that a man had approached him and his fellow officers in a street, complaining that he had been beaten up and robbed. The applicant had passed by and the victim had identified him as the robber. The applicant had tried to escape but he had been apprehended and taken to the police station. The report did not indicate whether force or special means had been used during the arrest. 9. The applicant lodged a complaint with the Dyatkovo Town Prosecutor's office, seeking institution of criminal proceedings against the arresting police officers. In particular, he alleged that the police officers had unlawfully applied force against him during the arrest. 10. On 30 December 2002 a deputy Dyatkovo Town Prosecutor issued a decision, finding that there was no case to answer and dismissing the applicant's complaint. The decision stated that on 14 December 2002, after the applicant had committed the robbery, police officers had stopped him in a street and had ordered him to get into a police car. The applicant had refused, had punched police officer Ka. in the face and had attempted to escape, threatening the officers with a knife. Police officer I. had hit the applicant with a rubber truncheon on the arm, forcing him to drop the knife. Subsequently, the police officers had forced the applicant into the car. The deputy prosecutor concluded that there had been no indication of a criminal offence in the police officers' actions. The applicant was served with a copy of that decision. 11. According to the applicant, after being taken to the Dyatkovskiy District police station on 14 December 2002, he had been placed in a cell. An assistant police officer on duty, P., had approached the applicant and hit him with a rubber truncheon approximately ten times on the left side of the body and once in the face. An officer on duty, S., had entered the cell and had started beating the applicant as well. The beatings had continued for an hour and a half. The applicant had subsequently been placed in the detention facility of the Dyatkovskiy District Police Department. 12. The Government, relying on the information provided by the Prosecutor General's office, submitted that on 14 December 2002 the applicant had been taken in a state of alcoholic intoxication to the duty unit of the Dyatkovskiy District police station. After being placed in a cell for administrative detainees, he had started kicking the door, using obscene language and ignoring the police officers' orders to stop the unlawful behaviour. Police officer P. had entered the cell and hit the applicant a number of times in the back with a rubber truncheon. After officer P. had left, the applicant had stripped to the waist and started pushing the door. The police officers, using force, had transferred him to another cell. While he was being escorted to the new cell and was passing the desk of an officer on duty, the applicant had started spitting on the desk communication board. Officer P. had thus been forced to hit the applicant with a rubber truncheon. In the new cell the applicant had continued kicking the door. The police officers had had no choice but to handcuff the applicant to a metal bar, so he could not reach the door. Shortly after, when the applicant had calmed down, the handcuffs had been removed. No force had been applied against the applicant after that incident. 13. On 15 December 2002, on admission to the detention facility of the Dyatkovskiy District Police Department, an officer on duty examined the applicant and drew up a report, recording the following injuries on his body: bruises on the chest, numerous injuries on the back, bruises on the left hip and buttock, injuries on the forehead, face and left cheek. As shown by the documents presented by the parties, on 16 December 2002 an emergency doctor was called to attend to the applicant in response to his complaints about severe pain in the jaw and chest. The doctor examined the applicant, noted his injuries and, suspecting that he could have had a rib fracture, recommended an examination by a traumatologist. 14. Five days later the applicant complained to the head of the detention facility about the beatings in the police station and sought the institution of criminal proceedings against the police officers. 15. On 20 December 2002 the applicant was examined in the medical division of the Dyatkovskiy District Police Department and a report was drawn up. According to the report, he had a hypodermic injury on the left side of the chest. The injury measured 15 centimetres in length and 5 centimetres in width and resulted from a blow by a rubber truncheon. 16. Ten days later the applicant, being diagnosed with encephalomyelopolyneurotis, was admitted to the hospital of the Dyatkovskiy District Police Department where he stayed until his transfer, on 22 January 2003, to Bryansk prison hospital no. OB-21/2. He remained in that hospital until 4 February 2003 with a diagnosis of “consequences of neuritis of the left fibular nerve”. 17. In the meantime the applicant lodged a complaint with the Dyatkovo Town Prosecutor, describing the beatings in the police station on 14 December 2002 and asking for an investigation into the incident. 18. On 23 January 2003 a deputy Dyatkovo Town Prosecutor refused to institute criminal proceedings against police officers P. and S., finding that their actions, in a situation where the applicant had behaved in an unruly manner, had been lawful and proportionate. 19. On 4 April 2003 a deputy Bryansk Regional Prosecutor annulled the decision of 23 January 2003 and authorised a re-examination of the applicant's ill-treatment complaints. The relevant part of the decision read as follows: “The decision [of 23 January 2003] was manifestly ill-founded and premature, as the investigation had been incomplete; the circumstances in which the injuries to [the applicant] had been caused were not fully examined; [the applicant] was not questioned and [he] did not undergo an examination by a medical expert; administrative and criminal arrestees detained in [the police station] were not questioned about the events; the traffic police officers who had brought [the applicant] to the [police station] were not questioned; therefore [the decision] should be annulled.” The deputy prosecutor also drew up a list of measures which should be taken in the course of the new round of the investigation, including a medical examination and questioning of the applicant, and the establishment and questioning of possible eyewitnesses among those persons who had been detained with the applicant. 20. On 14 April 2003 a deputy Dyatkovo Town Prosecutor, in a decision worded identically to the one issued on 23 January 2003, once again refused to institute criminal proceedings against officers S. and P., confirming the lawfulness of their actions. 21. On 6 August 2003 the Bryansk Regional Prosecutor informed the applicant that the decision of 14 April 2003 had been quashed, that an additional investigation into his complaints was to be conducted and that the case file had been sent back to the Dyatkovo Town Prosecutor's office. When quashing the decision of 14 April 2003, the Bryansk Regional Prosecutor's office repeated the list of investigative steps to be taken. 22. On 22 August 2003 an assistant Dyatkovo Town Prosecutor dismissed the applicant's complaints against police officers S. and P., finding no case of ill-treatment. The decision of 22 August 2003 was similar in its wording to those issued on 23 January and 14 April 2003. 23. In October 2003 a neuropathologist examined the applicant and diagnosed him with asthenovegetative syndrome related to a head injury. 24. On 21 October 2003 the Dyatkovo Town Prosecutor annulled the decision of 22 August 2003, finding that the investigation had been incomplete. A new round of investigation was authorised. 25. Three days later, on 24 October 2003, an investigator of the Dyatkovo Town Prosecutor's office once again dismissed the applicant's complaint, repeating the findings made in the decision of 22 August 2003. In addition, the investigator recounted statements made by the applicant, by an investigator who had interviewed him on 14 December 2002, by a doctor who had examined the applicant on 16 December 2002, by two persons who had been detained with the applicant on 14 December 2002, and by the victim whom the applicant had robbed. The applicant had maintained his complaints. The investigator had testified that he had not seen any injuries on the applicant and that the latter had not made any complaints. The doctor had stated that she had been called to attend to the applicant who had complained about pain in the jaw and on the left side of the chest. She had examined the applicant and recorded injuries on the chest and lower jaw. She had presumed that the applicant had had a rib fracture. She had indicated that the applicant had to be examined by a traumatologist. The inmates had testified that the applicant had been placed in their cell in the second half of the day on 14 December 2002. He had shown them injuries on his back and complained that he had been beaten up by the police officers. The victim had testified that he had not seen any injuries on the applicant's body on the day of the robbery. The investigator concluded that officers S. and P. had acted in full compliance with requirements of Articles 13 and 14 of the Police Act. 26. On 19 May 2004 the Dyatkovo Town Court, acting on the applicant's appeal against the decision of 24 October 2003, confirmed the findings made by the investigator. The Town Court noted that the officers' actions had been beyond reproach, the lawfulness and proportionality of their actions being manifest. 27. On 23 July 2004 the Bryansk Regional Court quashed the decision of 19 May 2004 and remitted the case for re-examination to the Town Court. The Regional Court held, in particular, as follows: “At the same time it is impossible to conclude that the decision of the investigator refusing institution of criminal proceedings was lawful and well-founded, taking into account the following considerations. As shown by the material from investigation no. 1-13 opened upon the [applicant's] complaint, the investigator's conclusions drawn up in the decision [of 24 incomplete. The fact of [the applicant's] arrest and [his] placement in the detention facility of the Dyatkovskiy District Police Department on 14 December 2002, at 7.20 p.m., was confirmed by an extract from the registration log of persons brought to the police department... According to an extract from the record of medical examinations of persons detained in the detention facility of the Dyatkovskiy District Police Department, on 15 December 2002, at the time of the placement, [the applicant] had injuries on the left and right sides of the body, the left and right buttocks, injuries on the forehead, the bridge of his nose, the left cheek, and numerous injuries on the back. As is apparent from the statements by [the victim of the robbery], on 14 December 2002, at about 7 p.m., [the applicant] had no visible injuries. The decision [of 24 October 2003] did not indicate whether it had been established that [the applicant] had been injured by officers of the police department during his arrest. Therefore, in the course of the investigation the investigator of the prosecutor's office did not establish the time, place, extent, or method and means of infliction of the injuries which [the applicant] had been found to have during his examination on 15 December 2002; the severity [of those injuries] was likewise not established. Accordingly, [the court] cannot regard as rightful and substantiated the investigator's finding that [the applicant] received injuries as a result of the two blows to his back made by Mr P. and by [the applicant's] knocking on the door and walls and by his being handcuffed. The investigator did not examine, and thus did not evaluate, the [applicant's] statements concerning the effect of the injuries which had led to his having obtained a leg disease... accordingly, [an investigator] did not check information concerning [the applicant's] stay in hospital; a diagnosis which had been pronounced at the end of the treatment; the severity of the damage caused to [the applicant's] health leading to the diagnosis; the existence of a causal link between the injuries which he had been found to have on 15 December 2002 and his illness. In the decision the investigator refers to statements by Mr K. and Mr G., from which it transpires that they were arrested and detained in cell no. 7, when on 14 December 2002 after dinner, [the applicant] was placed there, allegedly in a state of intoxication; [he had] injuries and explained that they had been caused by the police officers when he had offered resistance to the arresting officers. At the same time, as is apparent from the material in investigation file no. 1/13, on 14 December 2002, at 11.50 p.m., [the applicant] was placed in a cell where Mr Sh., Mr T., and Mr D. were being held. On 15 December 2002, at 4 p.m., [the applicant] was placed in cell no. 7 with Mr G. and Mr K. In these circumstances, the [Regional] Court considers that the conclusions of the [Town] Court about the lawfulness and rightfulness of the investigator's decision of 24 October 2003, concerning the refusal to institute criminal proceedings, do 28. On 4 November 2004 the Dyatkovo Town Court accepted the applicant's complaint and annulled the investigator's decision of 24 October 2003, endorsing the reasoning of the Regional Court. The decision of 4 November 2004 was upheld on appeal on 24 December 2004. 29. On 19 November 2004 the investigator of the Dyatkovo Town prosecutor's office refused to institute criminal proceedings against officers S. and P. The wording of that decision was similar to that of the decision of 24 October 2003, but with an additional paragraph which read as follows: “[The applicant] in his numerous complaints stated that, as a result of being beaten by the police officers, his legs had been paralysed; however, his statement is refuted by the conclusions of a forensic medical examination which had been performed [in compliance with the Town Court's decision of 4 November 2004] on the basis of [the applicant's] medical records from facilities nos. IZ-32/1 [detention facility of the Police Department] and OB-21/2...; on the basis of which it was established that the illnesses with which [the applicant] had been diagnosed in those facilities...do not have a pathogenetic causal link to his injuries and that [the illnesses] are independent diseases of a non-traumatic character. When [the applicant] asked for medical assistance on 15 December 2002, he had an injury on the forehead and the nose bridge, an injury on the left cheek-bone, bruises on the left and right sides of the chest, and bruises on the back and buttocks. Those injuries were caused by numerous applications of firm blunt objects to those parts [of the body], which could have been carried out by blows with those objects or by his being hurled against those objects. Those injuries, taken together or separately, caused 'slight' damage to the health ... During the examination and treatment of [the applicant], immediately after the injuries had been caused or in a subsequent period of time, [the investigation] did not establish any data which could have shown that [the applicant] had had a head injury, a rib fracture, a spinal injury or any other injuries of a traumatic character.” 30. On 1 December 2006 a deputy Bryansk Regional Prosecutor quashed the decision and authorised the Dyatkovo Town Prosecutor's office to open an additional investigation into the applicant's complaints. 31. According to the Government, three days later the Dyatkovo Town Prosecutor closed the investigation, finding no criminal conduct in the police officers' actions. The Government did not produce a copy of the decision of 4 December 2006. However, they submitted that officers S. and P. had been questioned and had confirmed the statements they had made during the previous rounds of the investigation. In particular, the officers had stressed that the use of rubber truncheons had been an adequate and proportionate response to the applicant's unlawful behaviour. The Government further noted that in his decision of 4 December 2006 the prosecutor had relied on the results of the applicant's medical examination of 4 November 2004. The examination had established that the applicant's illnesses had had no causal link to the injuries recorded on 15 December 2002. The prosecution authorities had also questioned four persons who had been detained together with the applicant on 14 and 15 December 2002. According to those individuals, the applicant had not complained about being beaten in the police station. 32. The Government further noted that the Prosecutor General's office of the Russian Federation had thoroughly studied the conclusions of the investigation conducted by the Dyatkovo Town prosecutor's office between 1 and 4 December 2006, and in the Government's view the investigation had been comprehensive. The applicant's injuries had been “caused as a result of his unlawful actions”. The Prosecutor General's office had conceded that officers S. and P. had not overstepped the boundaries of their professional responsibilities in applying force against the applicant. 33. On 29 May 2003 the Dyatkovo Town Court found the applicant guilty of robbery and assault and sentenced him to eight years and three months' imprisonment. On 11 July 2003 the Bryansk Regional Court, on appeal, reduced the sentence by one year. 34. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities' own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 35. Rubber truncheons may be used in the following cases: - to repel an attack on a staff member of a detention facility or on other persons; - to repress mass disorder or put an end to collective violations of the detention rules and regulations; - to put an end to a refusal to comply with lawful orders of facility administration and warders; - to release hostages and liberate buildings, rooms and vehicles taken over by a detainee; - to prevent an escape; - to prevent a detainee from hurting himself (section 45). 36. Police officers are only entitled to use physical force, special means and firearms in the cases and within the procedure established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act (section 12). 37. Section 12 of the Police Act provides that a police officer resorting to physical force, special means or a firearm, should warn an individual that force/special means/firearms are to be used against him. In cases when a delay in the use of force, special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage such a warning is not necessary. Police officers should ensure that damage caused by the use of force/special means/firearms is minimal and corresponds to the character and extent of the danger that an unlawful conduct and a perpetrator pose and the resistance that the perpetrator offers. Police officers should also ensure that individuals who have been injured as a result of the use of force/special means/firearms receive medical assistance. 38. By virtue of section 13 of the Police Act police officers may use physical force, including combat methods, to prevent criminal and administrative offences, to arrest individuals who have committed such offences, to overcome resistance to lawful orders, or if non-violent methods do not ensure compliance with responsibilities entrusted to the police. 39. Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including rubber truncheons and handcuffs, and firearms may be used. In particular, rubber truncheons may be used to repel an attack on civilians or police officers, to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting work of transport, means of communication and legal entities. Handcuffs may only be used to overcome resistance offered to a police officer, to arrest an individual caught when he is committing a criminal offence against life, health or property and if he is attempting to escape, and to bring arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers. | 1 |
dev | 001-99949 | ENG | GEO | ADMISSIBILITY | 2,010 | TEIMURAZ ANDRONIKASHVILI v. GEORGIA | 3 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicant, Mr Teimuraz Andronikashvili, is a Georgian national who was born in 1928 and lives in Tbilisi. He was represented before the Court by Mr Alexander Baramidze, Mr Irakli Kandashvili and Mr Hans von Sachsen-Altenburg, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's father, a member of the Georgian aristocracy, was deprived of his land and other assets by the Soviet Government during the 1920s and 1930s. On 25 May 2005 the applicant brought an action against the relevant local authority, seeking restitution of his ancestral lands. In support of his claim, the applicant submitted archives confirming his father's title to the claimed land and, as a legal basis, referred to general rules on the protection of property and inheritance contained in the Civil Code, the Constitution and the international human-rights treaties ratified by Georgia. The action was registered by the Gurjaani District Court on the same day. According to the file as it stands at present, the restitution proceedings are still pending at first instance; no hearing has been held so far. Article 172 of the Civil Code bearing on the protection of ownership reads as follows: Article 172 §§ 1 and 2 “1. The owner can claim the asset back from the possessor unless the latter is entitled to possess it. 2. In the event of interference with the exercise of ownership other than the taking of the asset, the owner may request the trespasser to put an end to such an action. If the interference persists, the owner may bring a court action against the trespasser.” By passing the Act of 11 December 1997, the Georgian State recognised that Georgian nationals were subjected to political persecution by the Soviet State between February 1921 and 28 October 1991, entitling the victims to seek rehabilitation. The Act defined the notion of a victim of political persecution and created a procedure by which to obtain that status. In particular, section 6 of the Act provided that only a court could declare a person to be a victim. Section 3 specified that the next of kin of a direct victim was also entitled to seek rehabilitation. Section 8 (1) and (2) stated that, once recognised as a victim of political repression, the person in question would automatically have his or her political and civil rights reinstated. This excluded the reinstatement of any property rights, in so far as subsection 3 of the same section specified that “the means for the restitution of property of victims of political repression shall be governed by a separate Act”. No act concerning the restitution of property of victims of Soviet repression has yet been passed. In a decision of 31 July 1998, the Gori District Court reinstated the ownership rights of the claimant Mrs E. Cholokashvili over her late parents' land expropriated by the Soviet State in the 1930s. Mrs Cholokashvili had previously been recognised as a victim of Soviet repression within the meaning of the Act of 11 December 1997. Likewise, in a decision of the Krtsanisi-Mtatsminda District Court in Tbilisi of 24 October 2000, Mrs K. Chachua-Daghundaridze and Mrs T. Daghundaridze, the claimants, were declared the owners of assets once belonging to their ancestors who had been recognised as victims of Soviet repression. Another similar case was that of Mr N. Abkhazi, who, in a decision of 18 January 2005 of the Gurjaani Distrcit Court, was granted title to land expropriated from his grandfather by the Soviet State in 1923 and 1924. The only difference between this and the two above-mentioned cases was that, prior to the restitution of the property, neither Mr Abkhazi, the claimant, nor any of his ancestors had been recognised as victims of the Soviet State within the meaning of the Act of 11 December 1997. In all three above-mentioned cases, the claimants were excused from having missed the statutory time-limit for recovery of property, in view of the fact that the expropriation of their ancestors' property had been carried out by force and the respondents were either private persons or public agencies. The domestic courts' reasons underlying their decisions to allow restitution were based on the general principles of protection of property and the inheritance rules contained in the Civil Code, the Constitution and international human-rights treaties. Certain other general principles of law, such as equity, were also relied on. As acknowledged by the President of the Supreme Court in his foreword to its Recommendations, one of the problems of the Georgian judiciary was the lack of consistent case-law on similar disputes. Consequently, the Supreme Court deemed it necessary, for the purposes of harmonising judicial practice, to advise the lower courts on how certain types of dispute should be resolved. The President noted that the Recommendations were not of a mandatory nature but emphasised their significance. Chapter XIV of the Recommendations advised the courts that they should declare claims for restitution of property expropriated by the Soviet State in the 1920s and 1930s admissible but refuse them on the merits in view of the absence of a right to restitution under Georgian law. | 0 |
dev | 001-83922 | ENG | TUR | CHAMBER | 2,007 | CASE OF K.Ö. v. TURKEY | 4 | No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect) | null | “On the night of 19 November 1999, I was tricked into opening the door as they said that they were Osman and Şefik, my brothers-in-law. The three people who entered the house said they were from the anti-terrorism branch and they pulled my headscarf over my mouth. They were carrying Kalashnikovs. They asked for my daughter and said they were going to kill me and my children...One of them spoke Kurdish and said that he was from Urfa. The one who was tall and thin, with white skin and black hair, strangled me with an iron cord. One of them, who I cannot describe, took off my baggy trousers and pants. I fainted from shame and fear when the other inserted a truncheon into my sexual organ... When I woke up they were searching the house. They found money underneath the bed and took it with them... When my son arrived he took me to a private doctor. This doctor did not draw up a report but gave me medicine and an injection. As I was not getting better he took me to the doctors at the Human Rights [foundation]... These same three people came to my house on 27 December 1999 and said that it was not good that I had complained about them...they called their superior and a police patrol came to pick us up. My son Teyfik was next to me... At the police station, an officer named Erkan was nice to us... I was sent to the hospital. The doctor said, without examining me, that there was nothing wrong with me. After this date I was not harassed.” 30. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004). | 1 |
dev | 001-5489 | ENG | ISL | ADMISSIBILITY | 2,000 | KONRADSSON v. ICELAND | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is an Icelandic citizen, born in 1960 and resident in Reykjavik. Before the Court he is represented by Mr Ragnar Aðalsteinsson, an advocate practising in Reykjavik. The respondent Government are represented by their Agent, Mr Thorsteinn Geirsson, Director General, Ministry of Justice and Ecclesiastical Affairs. The facts of the case, as described mainly in the domestic courts’ judgments, may be summarised as follows. On 24 November 1989, the applicant drove his car along a country road up a slope, and met three lorries travelling at short intervals in the opposite direction. As the applicant met the third lorry he lost control of his car which went off the road, which went unnoticed by the lorry drivers. The car went over a patch of stony gravel, came to a halt at a fence and was damaged. His head was knocked against the windscreen; he lost consciousness and was taken to hospital. The applicant instituted proceedings against the company that owned the lorries and its insurance company before the District Court of Reykjavik and requested compensation for the damage to his car and the loss of its use, claiming that the third lorry was being driven unduly fast and very carelessly. According to the applicant when he noticed the lorries he reduced his speed from 50-60 km to approximately 20 km per hour. The third lorry drove so far over to the applicant’s side of the road that the applicant had been forced to the edge and off the road. The applicant had stated that he drove on radial tyres of the so-called all year type. The respondents disputed that the accident could be attributed to any facts for which they were responsible and challenged the applicant’s assertion that the driver of the third lorry had failed to yield to the side and was travelling at high speed. While the lorry drivers had been travelling as slowly and carefully as possible under the circumstances, the applicant had himself acknowledged in the police reports that he had been travelling at 50-60 km per hour. There was no evidence as to the position on the road of the respective vehicles when they met. In any event the applicant was in part responsible, as he had driven with summer tyres at a considerable speed on a slippery road. According to the applicant, during the proceedings before the District Court he had submitted certain evidence, mainly police reports, in support of his statement of the facts of the case, which counsel for the defendant had stated was a correct presentation of the facts. Moreover, counsel for each party had the following declaration recorded: “That they are in agreement to base their case on the statements given by witnesses as if they had been confirmed in court, should witnesses be unable to appear before it.” By judgment of 19 February 1993 the District Court ordered the respondents to pay the applicant approximately ISK 572,000 in compensation plus an amount for legal costs. In its judgment the District Court observed that, while the applicant was driving up the slope at Glerárskógar, he met three lorries driving in succession down the slope in a southerly direction. According to the statements of witness E., who was driving at a short distance in front of the applicant’s car, and of witness M., who observed the events at a distance of 200 to 300 metres, the vehicles proceeded fast, in spite of the fact that the road was slippery and narrow compared to their size. The drawing made by Dalasýsla police indicated that the road was 3 metres wide and flanked by gravel shoulders 0.70 metre wide at the point where the applicant’s car went off, while the rearmost lorry was 2.48 metres wide. The District Court further observed that the road was covered with a thin layer of snow and was slippery. The driver of the leading lorry stated that its speed was approximately 50 km per hour, the driver of the second lorry stated that its speed had been 30-40 km. Given the conditions at the scene and, in particular, the third lorry’s width, its speed was deemed excessive. Considering witness E.’s statement that the lorry had not been swung to the side to make room for the applicant’s car and police officer S.G.’s report to the effect that no evidence had been found to the contrary, the District Court upheld the applicant’s assertion that its driver had failed to observe the relevant provisions of the Road Traffic Act. It found it not established that the applicant’s car had been inadequately equipped. Nor could he be considered to have driven with such lack of care as to make him partly responsible for the accident. The company that owned the lorries and the insurance company appealed to the Supreme Court. By judgment of 5 March 1995 the Supreme Court found for the appellant companies. In reaching this conclusion the Supreme Court observed that the facts of the case were not adequately described in the District Court’s judgment. It considered the various items of evidence in the case, notably the initial report of the Dalasýsla Police, which quoted statements by the applicant and witnesses M. and E., subsequent witness statements taken by the police from M. and E. and the latter’s testimony to the District Court, statements taken by the police in May 1990 from the three lorry drivers, and a police report of 3 April 1990. The Supreme Court noted, inter alia, the following. In the initial police report it was indicated that the applicant’s car was equipped with summer tyres but that, according to his own statement he had been driving with radial tyres. The driver of the rearmost lorry had stated that he had proceeded as closely to the road edge as possible and that the applicant had done the same, that the estimated speed of the lorries was 20-30 km per hour and that the slippery condition of the road was the only factor requiring caution. None of the lorry drivers had noticed the applicant’s mishap. Nearly 1 month after the accident witnesses M. and E. had made statements to the effect that they were unable to say where on the road the rearmost lorry had been while meeting the applicant’s car, whereas in later statements they had indicated that the lorries proceeded on the middle of the road. Five months after the event witness M. had stated that the lorries proceeded at high speed, while witness E. had not, until the District Court’s hearing, commented on the speed but without being able to do so with any accuracy. In the view of the Supreme Court, the above witnesses were in a poor position to observe clearly the events leading to the accident and exactly how the danger had developed; this reduced the evidential value of their statements. Moreover, the Supreme Court noted a number of deficiencies in the initial police report (of November 1989) and the drawing of the scene appended to it, including on such matters as tyre tracks, the absence of a scale, an indication of the time of the police’s arrival at the scene and, in particular, the road dimensions. According to the road measurements reproduced in the police report, the width of the permanent road surface was 3 metres, and the width of each road shoulder 0.7 metre, making a total width of 4.4 metres. The lorries had been 2.48 metres wide, and the applicant’s car 1.67 metres wide. According to the drawing the vehicles thus had a surplus space of 0.25 metre within which to pass. This made it clear to the Supreme Court that the road dimensions indicated could not be accurate and that the drawing had little evidential value as regards the circumstances at the scene. The Supreme Court concluded that the applicant should have been aware that it would be difficult and risky to pass so large and voluminous vehicles on the slope, as the road could be assumed to have been narrow and his car was not perfectly equipped for winter driving. He should have stopped his car as close to the edge as possible and waited there until the lorries had passed, as he clearly was in a better position to yield and make room on the road. Instead he drove without hesitation up the slope, regardless of success or failure. By this conduct he had obviously endangered his own car and safety. He had failed to establish that the lorries proceeded too fast or unduly on to his side of the road and that the accident could be traced to any other cause than his own inadvertence. On 29 May 1995 the applicant requested the Supreme Court to reopen the proceedings, which the latter refused on 12 July 1995. | 0 |
dev | 001-58917 | ENG | POL | CHAMBER | 2,000 | CASE OF SOBCZYK v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Georg Ress | 8. In 1990 a group of industrial enterprises in the coal industry was dismantled. As a result, the applicant was dismissed. On 27 July 1990 the Sosnowiec District Court annulled his dismissal and ordered the Minister of Industry to assign a company to re-engage him. In April 1992, the Ministry of Industry informed the applicant that the Niwka-Modrzejów coal-mine had taken over certain obligations of his former employer and would re-engage him. However, the coal-mine refused to do so, considering that the applicant did not satisfy applicable medical requirements. 9. On 27 May 1992 the applicant filed an action against the Niwka-Modrzejów coal mine with the Sosnowiec District Court, claiming that he should be re-engaged to work in accordance with the judgment of the same court given on 27 July 1990, ordering that he be re-engaged to work as a manager. He also claimed compensation for the period for which he had remained unemployed as a result of the defendant’s failure to comply with the 1990 judgment. 10. On 25 June 1992 the defendant company submitted its pleadings in reply to the applicant's statement of claim. Subsequently there was an exchange of pleadings between the parties. In August 1992 the judge rapporteur set the date of the first hearing for October 1992. Subsequently the applicant informed the court that he would be unable to attend this hearing for medical reasons. 11. At the hearing of 26 October 1992 the court, at the request of both parties' lawyers, stayed the proceedings. In December 1992 the applicant requested the court to order the Ministry of Industry to join the proceedings as co-defendant and to resume the proceedings. The court refused to resume the proceedings, considering that the applicable provisions of the Code of Civil Procedure did not allow for so doing. 12. In January 1993 the applicant asked the court whether the Minister of Industry had already been called to join the proceedings. Later in January he informed the court that he had withdrawn the power of attorney of his lawyer and requested the court to appoint a lawyer to represent him under the legal aid scheme. He also reiterated his request for the proceedings to be resumed. In a letter to the court of 31 January 1993, the applicant complained that the proceedings had exceeded a reasonable time. 13. On 10 February 1993 the court resumed the proceedings and assigned a lawyer to represent the applicant. On 18 February 1993 the applicant requested that the court summon the prosecutor to join the proceedings. The hearing to be held on 29 March 1993 was adjourned as the defendant’s representative had not been duly summoned. By a letter of 29 March 1993 the applicant extended his compensation claim to 1,000,000,000 (old) Polish zlotys. 14. In April 1993, following the increase of the applicant’s claim, the case was transmitted to the Katowice Regional Court which became competent to examine the case. On 28 April 1993 the court fixed the date of the first hearing for 30 June 1993 and summoned the Minister of Industry to join the proceedings as a codefendant. 15. On 5 May 1993 the applicant complained to the Minister of Justice about the length of the civil proceedings and about the District Court's failure to assess correctly the value of his claim. On 17 May 1993 the applicant complained again about the delay in the proceedings and requested the Katowice Regional Court to order the Minister of Industry to join the proceedings as a co-defendant. 16. At a hearing on 30 June 1993, the Katowice Regional Court ordered that the Ministry of Industry should join the proceedings as a co-defendant and requested the defendant enterprise to submit a list of posts in which the applicant could eventually be re-engaged. The applicant was requested to provide information about his earnings since his engagement by another company in November 1990. The applicant submitted the requested information on 5 July 1993. 17. The next hearing was held on 10 August 1993. In order to establish the applicant's state of health for the purposes of his claim for compensation for deterioration of his health brought about allegedly by stress originating from his dismissal, the court requested several public health care institutions to submit the applicant’s medical records. The court further requested the defendant company to submit a description of health requirements for the posts in which the applicant could eventually be re-engaged. It also requested the Ministry of Industry as a co-defendant to submit documents concerning the take-over of the obligations of the applicant’s former employer by the defendant coal-mine Niwka-Modrzejów, and in particular concerning the trade union’s position relating to the possibility of re-engagement of former managers. 18. As the medical records requested by the court had not been submitted in their entirety, the hearings to be held on 13 October and 17 November 1993 were adjourned and the court urged the health care institutions concerned to submit them. 19. At a hearing held on 22 December 1993 the court established that part of the applicant’s medical records had been misplaced while being processed by the health care institutions. The applicant was therefore required to submit to the court his medical insurance booklet. 20. On 17 January 1994 the applicant extended his compensation claim by a further claim for income from technical inventions which he was unable to obtain as a result of his dismissal. 21. At a hearing on 26 January 1994 the Katowice Regional Court questioned the parties and examined the applicant’s medical documents. The court further prepared a list of questions concerning the applicant’s health, to be answered by a neurologist, a psychiatrist and a psychologist, with a view to establishing whether the applicant suffered from any ailments which could have originated from or be linked to his dismissal. On 31 January 1994 a request to prepare a medical expert opinion, a list of questions and the applicant’s medical records were submitted to the Department of Forensic Medicine of the Silesian Medical University. The expert report was to be prepared within one month. 22. By a letter of 11 April 1994 the President of the Katowice Regional Court informed the applicant that the expert opinion would not be ready before three months. 23. On 9 May 1994 the applicant complained to the court and to the Minister of Justice, alleging that the court had amended the list of questions to be answered by the medical experts and had deleted several questions which were of direct relevance for the outcome of the case. The applicant indicated that he had become aware of these changes only during his medical examination at the Medical University. He requested the court to put these questions to the experts. This letter apparently remained unanswered. 24. In a letter of 13 June 1994 the President of the Regional Court brought to the attention of the President of the Labour Division of the Katowice Regional Court that the proceedings in the applicant's case were unacceptably long and requested him to supervise their conduct, in particular with a view to ensuring that the expert opinion be prepared with no delay. 25. On 1 September 1994 the Minister of Justice informed the applicant that his complaint about the length of the proceedings had been forwarded for investigation to the President of the Katowice Court of Appeal. 26. The medical expert report was submitted to the Katowice Regional Court on 18 October 1994, after the court had urged the experts in writing five times, on 11 April, 12 May, 10 June, 7 July and 5 September 1994, and twice by telephone on 14 June and on 20 July 1994, to expedite their work. 27. On 18 October 1994 only a part of the applicant’s medical files was returned by the experts. On 3 November 1994 the applicant requested the court to reconstruct the part of the case-file which had allegedly been lost during the transfer from the Medical University. He reiterated his complains about the length of the proceedings. The remaining part of the files was submitted to the court on 10 November 1994. On 14 November 1994 the court set the date of the next hearing for 29 November 1994. 28. On 22 November 1994 the Minister of Justice informed the applicant that the missing medical files had been found and that the next hearing before the Katowice Regional Court had been fixed for 29 November 1994, with a view to pronouncing the judgment on that date. 29. At the hearing held on 29 November 1994 the applicant's lawyer was not present for medical reasons. The court decided to request the local Bar to assign a new lawyer to the case and to request the Medical University to submit an additional expert opinion in order to establish the percentage of the applicant's health's loss which could be attributed to his dismissal. On 30 November 1994 the case-file was again sent to the Medical University for a further report to be prepared. 30. On 29 December 1994 the applicant submitted pleadings to the court in which he argued that the Ministry of Industry should order his re-engagement. On 5 January 1995 the court urged the Medical University to submit the complementary medical opinion. 31. On 6 January 1995 the President of the Katowice Court of Appeal forwarded to the applicant a letter from the President of the Labour Division of the Katowice Regional Court explaining that the delay in the proceedings in 1994 had been caused by the experts' failure to prepare their report in due time. On the same day the additional expert report was submitted to the court. On 9 January 1995 the presiding judge fixed the date of the next hearing for 24 January 1995 and ordered the defendant to submit a list of salaries earned by persons employed in posts comparable to that of the applicant in order to establish the income which he had lost following his dismissal. 32. On 19 January 1995 the applicant complained to the Bureau of the Council of Ministers about the length of the proceedings. He submitted, in particular, that since 26 January 1994 the court had failed to take any steps to ensure that the expert opinion be prepared, that the court had not reacted to the fact that the Ministry of Industry had persistently failed to send its representative to the hearings, that the court had ordered him to submit the same documents several times and that hearings had not been held often enough. 33. At a hearing on 24 January 1995 the court again questioned the applicant and decided that the medical report should be submitted to the Medical University so that its specialists could reply to objections that the applicant had expressed in its regard. 34. In their further report of 9 February 1995 the medical experts estimated the applicant's health loss at ten percent. 35. On 20 February 1995 the applicant submitted further pleadings to the court. He requested that the defendants apologise in writing for his unjustified dismissal and publish the apology in the gazette of the mining industry. 36. In his pleadings of 7 March 1995 the applicant requested the court to give a decision to the effect that he should be employed by the defendant enterprise Niwka-Modrzejów as Chief Mechanic. In his further pleadings of 15 March 1995 he requested that the period from 1 August 1990 to 1 February 1992 be counted towards the period giving rise to social insurance disability benefits of employees of the mining industry. 37. The hearing on 21 March 1995 was adjourned, as the medical experts failed to attend, having submitted a justification therefor. They were questioned by the court at the hearing on 6 April 1995. 38. By a judgment of 13 April 1995 the court awarded the applicant compensation from the Ministry of Industry of 13,163 PZL for the loss of income resulting from his unemployment from August 1990 to March 1992 and 4,413 PZL for loss of health caused by stress which he had suffered, and dismissed the applicant’s remaining claims. Written grounds for the judgment were sent to the parties on 19 May 1995. On 26 June 1996 the court dismissed the applicant's request of 18 May 1995 to have the judgment supplemented by rulings on his various requests and claims submitted in the course of the proceedings. 39. On 28 April 1995 the Katowice District Prosecutor refused the applicant's request to institute criminal proceedings against persons who had allegedly breached his rights guaranteed by various provisions of labour law and had committed numerous other offences to the applicant's detriment. 40. On 6 June 1995 the applicant, and on 16 June 1995 the Ministry of Industry, lodged their appeals against the judgment of 13 April 1995 with the Regional Court. On 13 September 1996 the case file and the appeals were transmitted to the Katowice Court of Appeal. 41. On 26 June 1995 the applicant was re-engaged in the Niwka-Modrzejów coal mine, pursuant to the judgment of 27 July 1990. Apparently the applicant, dissatisfied with his new post, later instituted proceedings in the Sosnowiec District Court, claiming that he should obtain a post identical to that from which he had been dismissed in 1990. 42. On 19 September 1995 the Katowice Regional Prosecutor quashed in part the District Prosecutor’s decision of 28 April 1995 and ordered that the case be re-examined regarding the alleged breach of the applicant's rights as an employee. On 30 November 1995 the Katowice District Prosecutor discontinued, however, the investigations, finding that no offence had been committed. The applicant appealed. 43. On 20 December 1995 the applicant complained to the Ministry of Justice that there was no progress in the appellate proceedings pending before the Katowice Court of Appeal. 44. In letters of 22 and 29 January and of 2 and 3 February 1996 the applicant submitted additional arguments in support of his appeal to the Katowice Court of Appeal. 45. On 16 February 1996 the Katowice Court of Appeal partly amended the first-instance judgment of 13 April 1995 in that it reduced certain sums awarded to the applicant as compensation and increased other sums. The court also partly dismissed the applicant’s appeal. Further, a part of the judgment concerning the compensation claim for the loss of earnings, caused by the defendant enterprise’s failure to re-engage the applicant after April 1992, was quashed. Likewise, the part relating to his compensation claim for his reduced earning power resulting from the deterioration of his health, was quashed and the case was remitted to the lower court for reconsideration. 46. The case was subsequently re-examined by the Katowice Regional Court. Hearings were held before that court on 4 and 29 November 1996, 13 December 1996, 21 February 1997, 14 March 1997 and 8 August 1997. 47. By a partial judgment of 14 August 1997 the Katowice Regional Court awarded the applicant compensation. The defendant coal mine lodged an appeal against this judgment. On 25 March 1998 the Katowice Court of Appeal dismissed the appeal. 48. A further hearing was held before the Katowice Regional Court on 9 October 1998. The applicant was questioned and on that occasion he reduced his compensation claims. The hearing was adjourned in order for the defendants to submit their comments. 49. On 20 November 1998 the hearing was adjourned as the defendant’s representatives failed to attend. On the same date the court imposed a fine on the applicant for insulting the court. By a judgment of 15 January 1999 the Katowice Regional Court awarded further compensation to the applicant. On the same date the court rejected the applicant’s appeal against the decision of 20 November imposing a fine on him. 50. On 5 March 1999 the Regional Court refused the applicant’s request for interpretation of the 15 January 1999 judgment. 51. On 15 October 1999 the Katowice Court of Appeal dismissed the applicant’s appeal against the judgment of 15 January 1999. 52. Subsequently the applicant lodged a cassation appeal with the Supreme Court. | 1 |
dev | 001-5720 | ENG | NLD | ADMISSIBILITY | 2,000 | P.R. v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Cape Verdean and Dutch national, born in 1959 and living in the Netherlands. She is represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam. A. The facts of the case, as submitted by the applicant, may be summarised as follows. On 3 March 1989 the applicant moved from the Cape Verde Islands to the Netherlands where she married a Dutch man. On the basis of the marriage she obtained a residence permit. At the time the applicant came to the Netherlands she had three minor children, O.C. A.C. and S.D., who stayed behind in the Cape Verde Islands in the care of their grandmother. On 3 December 1992 the applicant’s husband passed away. The applicant’s residence permit was subsequently withdrawn. She remained in the Netherlands, however, and in July 1995 she obtained Dutch citizenship. On 27 November 1995 the applicant filed a request to the head of police (korpschef) of the Rotterdam Rijnmond region for a provisional entry visa (machtiging tot voorlopig verblijf) for her three children. The request was forwarded for consideration on the merits to the Visa Department (Visadienst) of the Ministry of Foreign Affairs. At the time of the request the children were 17, 13 and 11 years of age respectively. On 19 January 1996 the Visa Department, on behalf of the Minister of Foreign Affairs, rejected the applicant’s request. The Visa Department concluded that the family ties had been broken since, after the applicant had left, the children had been living with the grandmother and were being brought up by her. There was no indication that this situation could not be maintained. Moreover, the applicant had not shown that she had been involved with the upbringing and care of the children. The fact that the applicant had regularly transferred money to the Cape Verde Islands was insufficient to assume that family ties had continued to exist. The decision further stated, in accordance with national aliens policy, that, apart from international obligations, aliens could only be allowed for residence in the Netherlands if this served “essential interests of the Netherlands” (wezenlijk Nederlands belang) or in case of cogent reasons of a humanitarian nature (klemmende redenen van humanitaire aard). Neither of these conditions was met in the case of the applicant’s children. On 15 February 1996 the applicant filed an objection (bezwaar) through her counsel to the head of the Visa Department with respect to her two youngest children, M.C. and S.D.. On 29 March 1996 she filed additional grounds for her request which emphasised the applicant’s special and emotional ties with her children. The explanation given for the time elapsed between the applicant’s departure from the Cape Verde Islands and the request for entry of her children (6.5 years) was that the applicant had waited for naturalisation before applying for family reunification. The applicant submitted that she had been back to the Cape Verde Islands twice, in 1993 and 1996, to visit her children, that she made monthly phone calls to her children, that she received child benefits in the Netherlands and had made 12 money transfers for her children between 3 October 1991 and 26 March 1996. She moreover held that her mother, who was 61 and suffering from a nervous disease - for which the applicant submitted a medical certificate - was unable to provide further care for the children. On 9 May 1996 an inquiry commission (hoorcommissie) of the Immigration and Naturalisation Department of the Ministry of Justice (Immigratie en Naturalisatiedienst van het ministerie van Justitie) held a hearing with the applicant with a view to her objection. On 9 August 1996 the Minister of Foreign Affairs rejected the applicant’s objection concluding that, other than mere kinship, no special relationship could be distinguished between the applicant and the children. Furthermore, as regards the care of the children in the Cape Verde Islands, the applicant had not sufficiently shown why her mother, in spite of her disease, would not be able to continue taking care of the children. Moreover, the Minister established that a brother and sister of the applicant’s children who were of age were living with the applicant’s minor children at the same address and they could contribute to their care. The applicant lodged an appeal on behalf of her children with the Aliens Chamber of the Hague Regional Court sitting in Haarlem (Arrondissementsrechtbank te ‘s-Gravenhage zittinghoudende in Haarlem, Enkelvoudige Kamer voor Vreemdelingenzaken). She invoked, among others, Article 8 of the Convention in support of her claim. On 15 May 1997 the Regional Court rejected the appeal as unsubstantiated. It held that the children in fact did no longer belong to the applicant’s family. It dismissed the argument of the applicant’s uncertain status in the Netherlands before her naturalisation, with a reference to the fact that she had not tried to get her children to come to the Netherlands when her Dutch husband was still alive. The Regional Court further held that the financial contributions made by the applicant could not be considered as a real contribution to the care and upbringing of the children. It stated that no evidence had been produced as to the mentioned phone calls from the applicant to the children and also that the applicant had only visited the children twice after her departure. The Regional Court assessed that the applicant had brought the family’s living as a unit to an end when she decided to leave the Cape Verde Islands and come to the Netherlands. The Regional Court concluded that no other special relation had further been established between the applicant and her children and that therefore the family ties between applicant and her children should be considered to have ceased to exist. It found no grounds therefore to grant admission for family reunification. The Regional Court dismissed the claim for admission of the children on humanitarian grounds since it had not been shown that care for the children could not be continued in the Cape Verde Islands. When assessing whether the State’s actions had been in compliance with the requirements of Article 8 of the Convention the Regional Court firstly acknowledged that there was “family life” in terms of that provision. It reasoned, with reference to the Gül v. Switzerland judgement of 19 February 1996 and the Ahmut v. the Netherlands judgement of 28 November 1998, that its task was to strike a balance between the interests of the applicant and those of the society as a whole (the latter interest being the necessity of a restrictive immigration policy). The Regional Court finally concluded in the light of the Court’s jurisprudence that the applicant’s choice of family life had been one of not being with her children and that if the applicant wished to re-establish direct family life with her children, this would also be possible in the Cape Verde Islands. The Regional Court decision was final and not subject to appeal. B. Relevant domestic law Article 11 of the Aliens Law (Vreemdelingenwet) provides that the Minister of Justice (Minister van Justitie) decides on requests lodged by aliens for admission to and residence in the Netherlands. The Minister may refuse access and residence on general interest grounds (gronden aan het algemeen belang ontleend). In view of the situation in the Netherlands as regards population size and employment, Government immigration policy - defined in the Aliens Circular (Vreemdelingencirculaire) of 1994 - is aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves “essential interests of the Netherlands”, e.g. economic or cultural interests; (c) there are “cogent reasons of a humanitarian nature” (Chapter A4/5.3 of the Aliens Circular). The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular. This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted to a parent of Dutch nationality with minor children, when the children factually belong to his/her family and family ties with one of the parents already existed abroad. Family ties are considered to have definitely ceased to exist in case of long-term integration of the child into another family while the parent(s) no longer exercise parental authority and no longer provide for the costs of upbringing and care of the child. | 0 |
dev | 001-77734 | ENG | TUR | ADMISSIBILITY | 2,006 | KAHRAMANOĞLU v. TURKEY | 4 | Inadmissible | Nicolas Bratza | The applicant, Kenan Kahramanoğlu, is a Turkish national, who was born in 1972 and lives in Istanbul. He is represented before the Court by Mr Ö. Kılıç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 August 1996 police officers from the Beyoğlu Police Department in Istanbul arrested the applicant and transferred him to the Anti-Terrorism branch of the Istanbul Security Directorate. He was accused of membership of an illegal organisation called the Revolutionary Left (THKP-C Devrimci Sol). It was alleged that he had been involved in armed attacks organised by the said organisation in 1992. In particular, the applicant, whose code name was ‘Yusuf’ within the organisation, allegedly took part in the killing of a police superintendent. On 28 August 1996 the applicant was questioned by two police officers from the Anti-Terrorism branch in relation to his involvement in the organisation. He confessed to being a member of the THKP-C and to having taken part in the killing of the police superintendent. He claimed, however, that he had not been involved in the organisation since 1994. On 2 September 1996 the applicant was examined by a doctor from the Istanbul State Security Court Forensic Medicine Institute. The doctor, MD Cahit Alkış, reported that the applicant had described to him a sensation of pain in his right shoulder and testicles as well as numbness in his right arm. It was also noted in the report that the applicant had complained of pain when urinating. The doctor concluded that the applicant should be transferred to a State hospital for a further neurological and urological examination. Following his examination in the State Hospital, the applicant was again examined on 3 September 1996 by Dr Alkış from the Forensic Medicine Institute. Referring to the applicant’s examination by the urology department of the State hospital, Dr Alkış noted in his report that there was no pathological finding. However, the neurological examination had indicated that the applicant had felt weakness in the region of his shoulder and shoulder blade and in particular when squeezing his right hand. The applicant had also complained of pain in his right elbow and right shoulder when extending his arm. Dr Alkış thus requested the applicant to undergo an EMG (electromyogram) examination the next day. On 3 September 1996 the applicant was brought before the public prosecutor attached to the Istanbul State Security Court, where he denied the charges. He submitted that the incriminating police statements had been taken under torture and that he had not been able to read the statements before signing them. He further stated that he did not have any connections with the said organisation and that he had not been in Istanbul in 1992. On the same day, the applicant was taken before the Istanbul State Security Court. He denied the content of the police statements and maintained that he had been subjected to ill-treatment during his detention in police custody and had been forced to confess to crimes which he had not committed. The court ordered the applicant’s detention on remand. In an indictment dated 25 September 1996 the public prosecutor attached to the Istanbul State Security Court initiated criminal proceedings against the applicant, charging him with membership of a terrorist organisation and recommending the imposition of the death penalty under Article 146 § 1 of the Criminal Code (attempt to undermine the constitutional order). On 25 November 1996 the public prosecutor at the Istanbul State Security Court issued a decision of non-jurisdiction ratione materiae in relation to the alleged torture of the applicant during his detention in police custody between 27 August and 3 September 1996. Having completed his preliminary investigation, the Public Prosecutor transferred the investigation file containing medical reports and the applicant’s statements to the Chief Public Prosecutor’s office in Fatih district. In a letter of 4 December 1996 the Fatih public prosecutor requested the Sakarya Chief Public Prosecutor to instruct the authorities of the Sakarya Prison to take the applicant to a hospital and to have him undergo an EMG examination. On the same day, the public prosecutor wrote a letter to the Anti-Terrorism branch of the Istanbul Security Directorate in which he requested that the names of the police officers who had questioned and taken statements from the applicant be reported to him. He further asked for a copy of the last page of the statements taken from the applicant, the arrest protocols as well as all relevant reports. On 20 December 1996 the Sakarya Prison Administration transferred the applicant to the Sakarya State Hospital for an EMG examination. However, given that this hospital lacked EMG facilities, the Prison Administration decided to transfer the applicant to the Haydarpaşa Numune Hospital in Istanbul. In a letter of 8 January 1997 the Director of Prisons and Incarceration Facilities requested the Sakarya Chief Public Prosecutor to order the transfer of the applicant to a special prison in Istanbul with a view to his examination and treatment at the Haydarpaşa Numune Hospital. On 3 February 1997 the applicant submitted before the Istanbul State Security Court that he had been subjected to ill-treatment while in police custody. On 20 March 1997 the applicant underwent a urine analysis at the Haydarpaşa Numune Hospital. The laboratory doctor prescribed antiinflammatory medicine and antibiotics for the applicant. He was then examined by a doctor at the neurology department of the same hospital. The neurologist noted in his report that the applicant felt weakness in his right arm and thus advised an EMG examination. In a letter dated 2 September 1997 the Fatih Public Prosecutor repeated his earlier request to the Sakarya Chief Public Prosecutor that the applicant be taken to a hospital for an EMG examination. By a letter of 2 September 1997, the Fatih Public Prosecutor requested the authorities of the Anti-Terrorist Branch at the Istanbul Security Directorate to provide him with a copy of the last page of the applicant’s statements which were taken during his detention in police custody, the arrest protocols and reports as well as documents pertaining to the permission to hold him in custody. The public prosecutor also asked for the names of the police officers who had taken statements from the applicant or participated in his interrogation. He instructed that those police officers appear before the Fatih Chief Public Prosecutor’s office. On 12 September 1997 this letter was received by the police officers concerned, namely F.V., E.K., R.İ. and M.T. On 22 September and 1 October 1997 the Fatih Public Prosecutor took statements from E.K., R.İ. and M.T., who had all been involved in the interrogation of the applicant. Referring to the medical report dated 3 September 1996, which stated that there was no pathological finding on the applicant’s body, the police officers all denied that they had illtreated the applicant. They claimed that such allegations were a routine practice used by members of illegal organisations to deny the crimes which they had committed. According to a report dated 12 November 1997, which was drafted by the Sakarya Prison Director and signed by two prison officers, the applicant refused to leave his cell and to be brought to the Haydarpaşa Numune Hospital for an EMG examination. This report was sent to the Sakarya Chief Public Prosecutor’s office for information. On 5 March 1998 and 17 April 1998 the applicant, at the request of the Istanbul Assize Court, was summoned to give evidence before the Sakarya Assize Court in relation to his allegations of illtreatment. The applicant refused to appear before the court for health reasons. On 1 May 1998 the applicant gave evidence before the Sakarya Assize Court. He alleged that he had been subjected to Palestinian hanging following his arrest. He had seen through his blindfold the police officers who had hit him. He had also seen the same officers when they had removed his blindfold in order to confront him with H.K. The applicant had filed a complaint through his lawyer about these police officers. He reiterated his request for the prosecution of the police officers who had tortured him. On 28 January 1998 the Fatih Public Prosecutor initiated criminal proceedings before the Istanbul Assize Court against two police officers, F.V. and R.İ., charging them with ill-treatment of the applicant in violation of Article 243 § 1 of the Turkish Criminal Code. On 2 April 1998 the Istanbul Assize Court heard evidence from F.V. and R.İ. They both denied the charges and claimed that they had not been involved in the interrogation of the applicant. F.V. stated that he had only taken statements from the applicant in the course of his transfer to the State Security Court. R.İ. claimed that he had only acted as a clerk when taking statements from the applicant. In a petition dated 16 July 1998, filed with the Istanbul Assize Court, the applicant requested information on the state of the proceedings concerning the prosecution of the impugned police officers. In a letter dated 17 August 1998, which was served on the applicant on 7 September 1998 in the Sakarya E-type prison, the president of the Istanbul Assize Court informed him that the criminal proceedings were still pending and that a final hearing was scheduled for 23 September 1998. On 23 September 1998 the Istanbul Assize Court delivered its judgment. Referring to the applicant’s testimony dated 1 May 1998 before the Sakarya Assize Court in which he had claimed that he had been ill-treated before his statements had been taken, and in view of the police officers’ defence submissions, the court found that the two accused police officers had merely taken statements from the applicant. However, it was undisputed that the alleged ill-treatment inflicted on the applicant occurred prior to that stage - either during his arrest or at the time of his interrogation. The court further took into consideration the medical report dated 2 September 1996 which did not indicate any signs of bodily injury. Accordingly, the court concluded that there existed no evidence to substantiate that the applicant had been ill-treated by the accused police officers and therefore acquitted them of the charges. The court’s decision was not served on the applicant since he had not intervened in the criminal proceedings against the accused police officers. As there was no appeal, the decision became final on 21 November 1998. On 8 May 2000 the Istanbul State Security Court ordered the applicant’s release pending trial. On 23 June 2000 the applicant obtained a copy of the Istanbul Assize Court’s decision concerning the acquittal of the police officers. The lawyer representing the applicant in the Convention proceedings also represented him in the proceedings before the State Security Court. In the meantime, the applicant provided the Court with a copy of a document which indicated that R.İ, one of the accused police officers who had allegedly inflicted ill-treatment on the applicant, had been convicted of inflicting ill-treatment in the past. On 27 October 2004 the Istanbul Assize Court convicted the applicant of attempting to undermine the constitutional order of the State and sentenced him to life imprisonment. On 24 May 2005 the Deputy to the Istanbul Chief Public Prosecutor appealed to the Court of Cassation and requested that the conviction be quashed on the grounds that there was insufficient evidence against the applicant and that the judgment was contradictory. The public prosecutor noted that the only evidence available was the applicant’s statements to the police officers. On 18 July 2005 the Court of Cassation quashed the judgment of 27 October 2004. It reasoned that the Istanbul Assize Court had failed to carry out a sufficient examination of the case in that it had not inquired into the outcome of the criminal proceedings concerning the alleged ill-treatment of the applicant by the security forces and the medical report to that effect. “1. Whoever, being a president or member of a court or council or a public officer, tortures an accused person in order to obtain a confession, shall be punished by a prison sentence of up to five years and shall be disqualified from holding public office, temporarily or for life. The offender shall be punished even if he had acted under an order or encouragement from his superior.” “Any person who is injured as a result of a criminal act may, at any phase of the investigation, intervene in the public prosecution. Those so intervening may also submit their personal claims for adjudication.” The intervening party is entitled to request compensation for the prejudice arising from the offence. However, the exercise of this right is subject to procedural rules: the person who is injured as a result of a criminal act must intervene in the public prosecution and request explicitly the right to ask for compensation. The compensation request is not therefore automatic. It also has to be justified and an assessment of the amount must accompany the request. Section 366 provides that intervention should be made by means of the submission of a petition to the relevant authority or by a declaration made to the clerk of the court. Thereupon, the intervening party enjoys the same rights as a prosecutor of personal claims (section 367). Decisions rendered before the intervention remain valid and, if the public prosecutor does not appeal against the final decision within the requisite time-limit, the intervener loses the right to appeal (section 369). Furthermore, according to section 370, if the intervener or his/her representative does not attend the trial, the judgment is served on him/her. Section 371 empowers the intervening party to file a separate appeal against a judgment regardless of whether the public prosecutor chooses to appeal. If the intervening party succeeds in his/her appeal, the public prosecutor is required to institute criminal proceedings afresh. | 0 |
dev | 001-92810 | ENG | GEO | ADMISSIBILITY | 2,009 | DAVITASHVILI v. GEORGIA | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicant, Mrs Natela Davitashvili, is a Georgian national who was born in 1947 and lives in Tbilisi. The respondent Government were represented by their Agent, Mr Mikheil Kekenadze of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant had worked, under a contract of indefinite duration, as a laboratory assistant in a tuberculosis hospital since 1994. By an order of 12 July 2002, the hospital administration (“the respondent”) dismissed her. The applicant sued for unlawful dismissal and, in a judgment of 29 November 2002, the Didube-Chughureti District Court in Tbilisi found in her favour. Enforcing the terms of the above judgment, the respondent issued, on 29 November 2002, an order reinstating the applicant to her previous position. On 1 December 2002 the respondent offered, and the applicant accepted, an employment contract for six months. On 1 April 2003 the respondent notified the applicant that her contract would expire on 1 June 2003 and that no extension was possible. On 27 June 2003 the applicant filed another action, requesting, inter alia, that the respondent be ordered to re-employ her. She claimed that she had signed the six-month contract by mistake. On 18 June 2004 the Tbilisi Regional Court, overturning a lower instance decision, found for the applicant, ordering the respondent to offer her a contract of indefinite duration, as the situation had stood prior to her unlawful dismissal of 12 July 2002. The appellate judgment noted, in its operative part, that a cassation appeal lay within a month following delivery of its motivated copy to the parties. On 24 September 2004 the respondent lodged a cassation appeal. On 26 January 2005 the Supreme Court allowed the respondent’s cassation appeal, by quashing the appellate judgment of 18 June 2004 and dismissing the applicant’s employment action of 27 June 2003. The cassation court established that the Didube-Chughureti District Court’s binding decision of 29 November 2002 had been properly enforced, in so far as the respondent had duly issued, on 29 November 2002, an order reinstating the applicant to her permanent position. It was only subsequent to that reinstatement that the respondent had offered her an employment contract for six months, which she had accepted herself. The Supreme Court noted in that regard that the Labour Code did not preclude employers and employees from replacing a permanent labour relation with that of a definite duration. Nor did the labour legislation impose upon employers an obligation to extend contracts of limited duration against their will. Throughout the second set of proceedings, a labour union of which the applicant was a member submitted to the domestic courts legal arguments on her behalf. Pursuant to Article 264 §§ 1 and 2 of the Code of Civil Procedure (“the CCP”), if a cassation appeal had not been lodged within the statutory period, the appellate judgment became binding. Subsequent to Article 397 § 1 of the CCP, the period for lodging a cassation appeal, which could not be either restored or extended, was one month. That period started to run from the moment of delivery of the appellate judgment to a party in question. Delivery was made either by handing a copy of the appellate judgment or its communication by registered post to a party. Article 397 § 2 of the CCP further stated that, if the appellate court had orally pronounced the reasoned text of its judgment in the presence of a party concerned, the period for lodging a cassation appeal started to run upon pronouncement. | 0 |
dev | 001-105841 | ENG | AZE | CHAMBER | 2,011 | CASE OF ORUJOV v. AZERBAIJAN | 4 | Violation of P1-3 | Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1957 and lives in Baku. 6. The applicant applied for registration as an independent candidate for the forthcoming elections to the Milli Majlis (Parliament) of 6 November 2005. On 19 August 2005 the Constituency Electoral Commission (“the ConEC”) for Nasimi First Election Constituency no. 21, a single-mandate constituency in Baku, registered him as a candidate. 7. On 26 October 2005 Police Office No. 19 of the Nasimi District Police Department informed the ConEC that the applicant was privately funding certain urban improvement works (such as laying new asphalt and repairing public recreation facilities for children) in some public areas of his constituency, allegedly with the purpose of winning over the support and votes of the local residents, in breach of the requirements of the electoral law. To this effect, the police drew up a record, signed by three police officers and two employees (A.A. and V.Q.) of the local housing utilities committee responsible for the residential buildings in question, which stated that the applicant had “laid fresh asphalt in front of the residential buildings indicated on the attached drawing ... and this fact [was] confirmed by the signatures below”. 8. In support of this submission, the police office submitted handwritten statements by several local residents, all of which were addressed directly to the police and expressed gratitude to the applicant for the work he had carried out in their neighbourhood. While some of the statements were dated 26 October 2005, two statements were dated 27 October 2005. 9. In particular, a statement by I.K., dated 26 October 2005 and addressed to Police Office No. 19, read as follows: “I have resided at the above-mentioned address since 1989. During this time, no renovation has been done in the courtyard [of our building]. But in the last month a lot of renovation work has been carried out in the courtyard ... [a description of specific improvements follows]. The above-mentioned works were organised and carried out by our respected neighbour ... Nadir Orujov. He is a person who is willing to share all the problems of the entire neighbourhood and to assist [in resolving these problems]. We wish this person only victory in the upcoming elections”. 10. A statement by G.N., dated 27 October 2005 and addressed to Police Office No. 19, read as follows: “In reply to the questions asked of me, I inform you that Nadir Oruj oglu Orujov, who has nominated himself as a candidate [for the parliamentary elections], has carried out benevolent renovation works in our courtyard in the pre-election period. He has laid fresh asphalt in front of the buildings. I have written this statement myself. I confirm [the authenticity of] my signature”. 11. A statement by S.A., dated 27 October 2005 and addressed to Police Office No. 19, read as follows: “I inform you that Nadir Oruj oglu Orujov, who has nominated himself as a candidate [for the parliamentary elections], is laying fresh asphalt in front of the buildings [in our courtyard]. He is a good person. I have written this statement myself. I confirm [the authenticity of] my signature.” 12. Other statements were of a similar content. 13. According to an extract from the minutes of the ConEC meeting held on 28 October 2005, made available to the applicant and later submitted by him to the Court, the ConEC decided as follows: “1. To take into consideration the statements by voters ... 2. To confirm, based on the statements and other material submitted, breaches of Articles 88.4.4 and 88.4.5 of the Electoral Code by Nadir Oruj oglu Orujov, who is registered as a candidate for the elections to the Milli Majlis. 3. In accordance with Article 113.2.3 of the Electoral Code, to apply to the Court of Appeal with a request for the cancellation of the applicant’s registration as a candidate owing to the breach of the requirements of Articles 88.4.4 and 88.4.5 of the Electoral Code. ...” 14. The full copy of the same minutes of the above ConEC meeting, as submitted by the Government, indicates that this meeting was held on 29 October 2005. 15. By a letter of 28 October 2005, the ConEC submitted the cancellation request to the Court of Appeal. The request stated, inter alia: “[C]andidate Nadir Oruj oglu Orujov has breached the requirements of Article 88 of the Electoral Code and thus violated the rights of other candidates. There have been repeated oral submissions to [the ConEC] concerning his illegal actions. Finally, citizens have applied to Police Office no. 19 of the Nasimi District Police Department and requested [the police] to put an end to his illegal actions. ... It has been proved that [the applicant] conducted [certain renovation works], in breach of Articles 88.4.4 and 88.4.5 of the Electoral Code, with the purpose of buying votes. ...” 16. According to the applicant, he was not informed about the ConEC’s request in a timely manner. 17. The Court of Appeal examined the case the next day, at 11 a.m. on Saturday 29 October 2005. 18. According to the record of the court hearing, the court examined the documents submitted by the ConEC and heard a number of witnesses. In particular, two police officers, F. Zamanov and R. Samadov, testified that, according to “residents of the buildings” in question, the applicant had carried out unauthorised urban improvement works in the constituency. 19. The court also heard six local residents. It appears that three of them (G.N., R.I. and V.Q.) had submitted handwritten statements to the police earlier. These three witnesses told the court that they did not know the applicant personally and had not known who had carried out the renovation works, that on 26 October 2005 police officer F. Zamanov had approached each of them individually on the street, engaged them in conversation and informed them that the works had been carried out by the applicant, and that F. Zamanov had then asked them to write a “thank-you note” expressing their gratitude to the applicant for his efforts on behalf of the community. The witnesses said that they had not been told that their statements would be used against the applicant later. 20. Of the remaining three local residents, one stated that she did not know who had carried out the urban improvement works near her home, and two stated that the works had been carried out by the local residents themselves at their own expense. 21. In its judgment of 29 October 2005, consisting of one and a half typed pages, the Court of Appeal summarised the above-mentioned witness statements as follows: “... witnesses F. Zamanov and R. Samadov confirmed that [the renovation works] at [the location in question] had been carried out under the instructions and with the assistance of the candidate for the elections to the Milli Majlis, N.O. Orujov. This circumstance was also confirmed by witnesses [R.I. and G.N.] when questioned at the court hearing. ... Witnesses [V.Q. and M.M.], when questioned at the court hearing, stated that they did not know who had laid the fresh asphalt and carried out the renovation works, while witnesses [Q.H. and G.V.] stated that these renovation works had been carried out by the local residents themselves”. 22. The court then directly proceeded to a finding that the applicant, by carrying out renovation works in public areas “with the aim of winning over voters” and “promising to provide assistance to voters in return for their votes”, had attempted to influence the voters’ opinion in a manner prohibited by Article 88.4 of the Electoral Code. The court therefore decided to cancel the applicant’s registration as a candidate. 23. On 31 October 2005 the applicant enquired as to the identity of the local residents who had testified against him. He discovered that two of the persons (S.A. and T.T.) who had complained about him to the police did not actually live in his constituency and had used false addresses in their written submissions. 24. Three other witnesses (I.K., G.N. and V.Q.) made notarised affidavits addressed to the Supreme Court in which they retracted their previous handwritten submissions to the police, claiming that, in fact, none of them had known whether the renovation works had actually been carried out by the applicant, and that they had been either pressured or tricked by the police into making these statements, without being informed that the police intended to use them against the applicant. 25. The applicant lodged a cassation appeal with the Supreme Court, arguing that the evidence used against him had been fabricated, that the Court of Appeal had made manifest errors in examining the evidence and had based its decision on unproven allegations, and that therefore his registration had been cancelled arbitrarily. With his cassation appeal, he also enclosed the witness affidavits mentioned above. 26. On 3 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 29 October 2005. It refused to admit the new evidence submitted by the applicant challenging the reliability of the original evidence used against him (including the witnesses’ 27. Article 88.4 of the Electoral Code of 2003 provides as follows: “88.4. Candidates ... are prohibited from gaining the support of voters in the following ways: 88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work; 88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work; 88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material); 88.4.4. providing services free of charge or on privileged terms; 88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.” 28. According to Articles 113.1 and 113.2.3 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4 of the Code. 29. Complaints concerning decisions of electoral commissions must be examined by the courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11). 30. Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code. 31. Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case (Article 291.2). 32. The appellate court’s decision can be appealed against to the higher court (the court of cassation) within three days. This appeal must be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292). | 0 |
dev | 001-111177 | ENG | RUS | CHAMBER | 2,012 | CASE OF SHAKUROV v. RUSSIA | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (Conditional);Non-pecuniary damage - award | Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1972 and lives in Yasnogorsk, the Tula Region (Russia). 6. In March 2002 the applicant, an officer in the Uzbek Armed Forces, left his military unit in Uzbekistan and went to Russia for employment-related reasons. He settled in the town of Yasnogorsk, in the Tula Region, some thirty kilometres to the north of Tula. Two years later his spouse and their two children, born in 1994 and 2000, moved over from Uzbekistan and subsequently obtained Russian citizenship. In 2007 the applicant’s spouse bought a house in Yasnogorsk. 7. Until 2007, for unspecified reasons, the applicant lived separately from his spouse and children. 8. On 30 July 2009 the Uzbek Ministry of Health recommended, at the applicant’s spouse’s request, that their elder daughter be admitted to a neurological hospital in Moscow in order to treat her neurological condition. The certificate stated that the child should be accompanied by her mother. 9. The applicant did not apply for Russian citizenship, as he explained, because he had lost his Uzbek national passport in 2002. Neither did he make any attempts to regularise his stay in Russia or to register his residence in the country between 2002 and 2010. 10. In the meantime, on 24 June 2002 the Uzbek authorities instituted criminal proceedings against the applicant under Article 287-3 of the Uzbek Criminal Code (“the UCC”) for desertion. The offence was punishable by up to five years’ imprisonment. 11. On 29 July 2002 the military prosecutor’s office of the Tashkent Command (“the military prosecutor’s office”) issued a bill of indictment and an arrest warrant against the applicant. On the same day the military prosecutor’s office suspended the investigation on account of the failure to establish the applicant’s whereabouts and put his name on a wanted list. 12. On 6 September 2002 the military prosecutor’s office issued a search warrant for the applicant. 13. On 9 November 2009 the military prosecutor’s office re-classified the charges against the applicant as aggravated desertion, punishable by five to ten years’ imprisonment, and charged him in absentia under Article 228-2 of the UCC. 14. On 27 October 2009 the Yasnogorsk District Department of the Interior (“the ROVD”) brought criminal proceedings against the applicant on suspicion of having threatened his spouse with death (Article 119-1 of the Russian Criminal Code, “the RCC”). On the same day the applicant was arrested and placed in remand centre no. 71/1. 15. On 29 October 2009 the Yasnogorsk District Court of the Tula Region (“the district court”) authorised the applicant’s detention at the request of the ROVD. The Yasnogorsk District Prosecutor’s Office (“the district prosecutor’s office”) backed up the request, referring, in particular, to the fact that the applicant was wanted for a crime committed in Uzbekistan. The district court ordered the applicant’s detention on the basis of Articles 99, 100 and 108 of the Russian Code of Criminal Procedure (“the CCrP”), stating as follows: “It can be seen from materials submitted to the Court that Mr Shakurov is suspected of a minor criminal offence carrying a penalty of up to two years’ imprisonment. He is unemployed, that he has no permanent income, and has not registered his residence in Russia. Therefore, the court agrees with the investigator that there are grounds to believe that, if at large, he, understanding the nature of the penalty he could face, may flee investigation and prosecution, continue criminal activities and put pressure on the victim and witnesses so that they alter their testimony, thus hindering the criminal proceedings”. The applicant did not appeal. 16. On 16 December 2009 the district court extended the applicant’s detention to 16 January 2010 on similar grounds, with reference to Articles 108 § 3 and 109 §§ 1 and 2 of the CCrP. The applicant did not exercise his right of appeal. 17. On 11 January 2010 the Justice of the Peace of the Yasnogorsk District discontinued the criminal proceedings against the applicant because of reconciliation between the parties, and ordered his immediate release. It is unclear whether the applicant was indeed released. On the same day he was placed in custody with a view to extradition (see paragraph 37 below). 18. In the meantime, on 27 October 2009 the ROVD received information concerning the criminal proceedings initiated against the applicant in Uzbekistan from their Uzbek counterparts. 19. On 4 November 2009 the district prosecutor interviewed the applicant. As can be seen from the questioning record, signed by the applicant, the applicant explained that he had left Uzbekistan in March 2002 as he had faced workplace discrimination “on account of his origins” from his commanding officers, who had refused to consider his resignation requests. He had arrived in Russia with a view to obtaining Russian citizenship and getting employment. He had applied neither for Russian citizenship, as he had lost his Uzbek passport, nor for political asylum or refugee status, as he had not been subjected to persecution on political grounds in Uzbekistan. He considered himself a Russian citizen. The applicant understood that the Uzbek authorities wanted him for military desertion. The prosecutor concluded as follows: “Presently, Mr Shakurov’s extradition to the law-enforcement authorities of Uzbekistan is precluded by the criminal proceedings brought under Article 119 § 1 of the RCC, which are pending against him in Russia”. 20. On 5 November 2009 at an interview with a deputy district prosecutor the applicant added that he had left the military service also because of the very low wages and discrimination from his senior colleagues due to his poor command of Uzbek. Discrimination on that ground had been very common at his workplace. Thus, the commanding officers had “fabricated” criminal cases against fifteen servicemen. The applicant feared that he would be tortured by Uzbekistan security forces in the event of extradition, since it was common practice. He intended to submit an asylum request as he feared persecution on the grounds of his nationality and language skills. He considered that the criminal proceedings pending against him in Russia and the fact that his spouse and children lived in Russia and were Russian citizens were obstacles to his extradition to Uzbekistan. 21. On 6 November 2009 the prosecutor’s office of the Tula Region (“the regional prosecutor’s office”) forwarded the extradition material to the International Legal Cooperation Unit of the Prosecutor General’s Office, stating as follows: “The measure of restraint with a view to ensuring Mr Shakurov’s possible extradition has not been applied to him because it is not necessary.” 22. On 23 or 25 November 2009 the Prosecutor General’s Office received a request for the applicant’s extradition from its Uzbekistan counterpart, dated 13 November 2009. The request was reasoned by the charges brought against the applicant under Article 288-2 of the UCC. Relying on Article 66 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”), the Uzbek authority assured its Russian counterpart that the applicant would not be extradited to a third country without the consent of the Russian Federation, that no criminal proceedings would be initiated and he would not be tried or punished for an offence which was not the subject of the extradition request and he would be able to freely leave Uzbekistan once the court proceedings had terminated and the punishment served. 23. On 30 November 2009 the Russian Prosecutor General’s Office asked the Prosecutor General’s Office of Uzbekistan to provide diplomatic assurances and conduct a check as to the applicant’s allegations of workplace discrimination and torture in the event of his extradition to Uzbekistan. 24. On 7 December 2009 the Russian Federal Migration Service (“the FMS”) stated that the applicant had neither applied to register his residence in the Tula Region nor to obtain migrant status or Russian citizenship. 25. On 10 December 2009 the Federal Security Service (“the FSB”) wrote to the regional prosecutor’s office stating that it saw no obstacles to the applicant’s extradition. 26. On 15 December 2009 a district military prosecutor of the Tashkent Command of Uzbekistan issued a statement in connection with the criminal proceedings pending against the applicant in Uzbekistan, which read as follows: “Following Mr Shakurov’s statement at the interview of 4 November 2009 [...], military prosecutors of the Tashkent command questioned the former commanding officer Mr S., the head of the human resources Mr K. and [some other] officers. They clarified that the unit servicemen had mainly spoken Russian. Servicemen who had not mastered Uzbek had not been subjected to discrimination. Mr Shakurov had spoken good Russian and Uzbek. During the period of his service, he had submitted only one request, dated 25 August 2000, whereby he had asked to extend his term of office until 24 November 2003. That request had been granted.” 27. On 21 December 2009 the Uzbek Prosecutor General’s Office assured its Russian counterpart that the criminal proceedings against the applicant had been conducted without discrimination on account of his ethnic origin, religion, language or social status and that, if extradited, the applicant would not be subjected to ill-treatment and his right to defend himself, including through legal assistance, would be secured. The criminal proceedings would be carried out in strict compliance with the Uzbek Code of Criminal Procedure and international treaties. 28. On 11 January 2010 the Yasnogorsk District Court ordered the applicant’s placement in custody with a view to extradition (see paragraph 37 below). 29. On 19 January and 3 February 2010 the Ministry of the Interior and the FSB informed the Prosecutor General’s Office that there were no obstacles to the applicant’s extradition to Uzbekistan. 30. On 24 June 2010 the Deputy Prosecutor General granted the extradition request. The prosecutor decided to extradite the applicant under charges of desertion, a crime punishable under Article 338-1 of the RCC. He noted that the statute of limitations for the offence had not expired either in Russia or in Uzbekistan. He further pointed out that, in line with the Minsk Convention and the CCrP, differences in the classification of the offence and its elements under the Russian and the Uzbek criminal law were not sufficient grounds for refusing extradition. The prosecutor also referred to the information provided by the FMS that the applicant was an Uzbek national who had not applied for Russian citizenship. The prosecutor concluded that there were no obstacles to his extradition to Uzbekistan. 31. On 6 and 14 July 2010 the applicant sought judicial review of the extradition decision. He stated, in particular, that his decision to leave the Uzbek army had been wrongly classified as desertion; that the statute of limitations for desertion had expired; that, since he had not mastered the Uzbek language, he had been discriminated against in Uzbekistan, in particular by superior colleagues who had told him he should learn Uzbek; that, if extradited, he ran the risk of being subjected to torture, a widespread practice in Uzbekistan, along with other human rights violations; that he had been permanently residing in Russia for over eight years and had no intention to return to Uzbekistan; that his spouse and children were Russian citizens and that his disabled daughter needed costly medical treatment, unavailable in Uzbekistan. 32. From 6 to 9 August 2010 the Tula Regional Court (“the regional court”) heard the applicant’s case in the presence of his lawyer. The applicant specified that he had left Uzbekistan for Russia in order to ensure his family’s well-being. He considered that after his departure, the Uzbek authorities had launched a search for him with a view to bringing him to justice for desertion. Uzbek policemen had threatened his spouse. He clarified that he would risk political persecution in the event of extradition for the reason that he had not mastered Uzbek, although he had studied it at school, and that he generally disapproved of the politics of Uzbekistan, although neither he nor his family had been politically or religiously active or persecuted. While in Russia, the applicant had used his USSR military officer’s professional card (удостоверение офицера СССР) as an identity document and, consequently, had had no need to apply for asylum or refugee status there. 33. On 9 August 2010 the regional court upheld the extradition decision and, relying on Articles 462 § 1 and 464 §§ 1-2 of the CCrP and Article 57 of the Minsk Convention, rejected the applicant’s appeal. The court established that the applicant had left Uzbekistan for purely economic reasons. Neither the applicant nor his extended family had been discriminated against or persecuted for political reasons in the requesting country. The alleged police threats towards his spouse were unsubstantiated. The Uzbek authorities had provided sufficient assurances that the applicant’s rights would be fully respected in the event of extradition. The statute of limitations for desertion had not expired either under the Uzbek or the Russian law. The applicant’s health was in a satisfactory condition and, as such, did not preclude him from being extradited. As regards the applicant’s family situation, the court stated the following: “Mr Shakurov’s argument that his departure from Uzbekistan in 2002 was motivated by the necessity to provide medical treatment for his child is unsubstantiated. As can be seen from medical certificate no. 490 appended to the case file, the Ministry of Health of Uzbekistan recommended the treatment [in Moscow] only on 30 July 2009 at the relatives’ request. Mr Shakurov’s children have been living with his spouse, who has been taking care of them”. 34. On 12, 16 and 31 August and 10 September 2010 the applicant and his legal counsel appealed against the first-instance judgment. They challenged the charges against the applicant, argued that the regional court had failed to take into account the circumstances which had prompted his departure from Uzbekistan, underlined that his spouse and children were Russian citizens and expressed a fear for his life in case of extradition. As to the applicant’s family life, the applicant’s lawyer argued as follows: “The first-instance court did not properly take account of the difficult family circumstances of [the applicant]: his daughter’s illness and disability status, the recommendation that her health care be sought in Russia, and the futility of [the applicant’s] retirement applications to the military command and insufficiency of the emoluments...” 35. On 30 September 2010 the Supreme Court of the Russian Federation (“the Supreme Court”) dismissed the points of appeal and upheld the first-instance judgment. The hearing was held by video link and the applicant was legally represented. The appeal court found that the lower court had issued a lawful and reasoned decision. It pointed out that the applicant had been prosecuted for the crime of desertion punishable both in Uzbekistan and Russia, that the statute of limitations had not expired and that the Uzbek authorities had furnished the necessary diplomatic assurances. The court relied on Chapter 54 of the CCrP. 36. On 11 January 2010 the district prosecutor submitted a request to place the applicant in custody with a view to extradition on the basis of Articles 108, 109 and 466 § 1 of the CCrP. 37. On 11 January 2010 the district court ordered the applicant’s placement in custody pending extradition. The applicant was kept in remand centre no. 71/1. Relying on Article 56 § 2 of the Minsk Convention and Articles 108, 109 and 466 § 1 of the CCrP, the district court stated as follows: “Under Article 287-3 of the UCC and Article 337-4 of the RCC, desertion is punishable by up to five years’ imprisonment. [...] Mr Shakurov is an Uzbek citizen. He has not applied to renounce his Uzbek citizenship. Mr Shakurov has not applied for political asylum or refugee status in Russia. He has not had access to data under the Russian official secrets legislation or data which could affect Russian national security interests. He has not been persecuted in Uzbekistan on political, racial or religious grounds or for any antisocial activity. [...] The criminal proceedings brought against him in Russia under Article 119 § 1 of the RCC were terminated on 11 January 2010 in view of the parties’ reconciliation. According to the materials submitted to the Court, the Prosecutor General’s Office should receive documents from the Uzbek law-enforcement authorities in support of the lawfulness of the arrestee’s extradition and carry out the extradition request. Given that the charges against [the applicant] constitute a crime both in Uzbekistan and Russia and that he previously absconded from the Uzbek investigation authorities, there are no grounds for denying his extradition under Article 464 of the CCrP”. The District Court did not set a time-limit for detention. 38. The applicant and his counsel lodged an appeal. They claimed, in particular, that the statute of limitations for his prosecution in Uzbekistan had expired, that the applicant had been living in Russia for over eight years and that his spouse and children were Russian citizens. The applicant asked the court to change the measure of restraint to an undertaking not to leave Russia or to quash it and grant him refugee status or political asylum. 39. On 10 February 2010 the regional court upheld the detention order on appeal, supporting the district court arguments with the following: “Pursuant to Article 8 of the Minsk Convention and Article 78 of the RCC, the running of the statute of limitations is suspended in the event that the accused is being searched for. Mr Shakurov is an Uzbek citizen and has not obtained Russian citizenship. His residence in Russia is not in compliance with domestic law and cannot be a ground for granting him Russian citizenship. He has not applied for political asylum or refugee status in Russia. [...] the court rejects as unsubstantiated the applicant’s argument that he was unaware of the charges brought against him in Uzbekistan, the institution of criminal proceedings against him and the search warrant issued for him there. His other arguments for appeal, such as his continuous residence in Russia and family situation, cannot be taken into account for the purpose of ordering detention pending extradition. The court observes that the district court committed no breaches of the CCrP which could necessitate the quashing of its decision”. 40. On 4 March 2010 the district court extended the applicant’s detention pending extradition to 11 May 2010, taking it to a total of four months. The court relied on Article 109 of the CCrP. The applicant and his lawyer attended the hearing. The court established that there were no grounds for altering the preventive measure, stating as follows: “According to the materials submitted to the Court, the Prosecutor General’s Office should receive documents confirming the lawfulness of the arrestee’s extradition from the Uzbek law-enforcement authorities and carry out the extradition procedure. Mr Shakurov is charged with an offence constituting a crime both in Uzbekistan and in Russia, he absconded from the Uzbek prosecuting authorities and no ground for denying extradition under Article 464 of the CCrP can be applied to his case. Mr Shakurov’s placement in custody as a measure of restraint was valid, lawful, well-grounded and conducted in compliance with the criminal-procedure laws. The circumstances under which the measure of restraint was imposed on Mr Shakurov have not changed.” 41. On 10 March 2010 the applicant submitted his points of appeal. He specified that his application for political asylum had been disallowed (see paragraph 61 below) and contested that he had absconded from the Uzbek law-enforcement authorities. He further reiterated his reasons for departing from Uzbekistan, such as his disapproval of the Uzbek political regime, discrimination against the Russian-speaking population and the ensuing lack of opportunity for his spouse to obtain a University degree, the absence of quality medical care and of educational prospects for the children, and a low standard of living. The applicant pursued his argument as follows: “I believe that the above-mentioned facts allow me to choose a place of residence for me and my family. I have always thought of Russia as my motherland (although I was born in Kazakhstan). I also ask the honourable court to consider that I have never been convicted, I have been officially married since 1993, my spouse is a Russian citizen, I have to provide for two underage children (one of whom has been suffering from a disability since childhood) who are also Russian citizens, and I have been permanently residing in Yasnogorsk (what else is needed to obtain Russian citizenship?). In view of the above, I ask you to quash the decision of the district court [to extend the detention term]. For, in the event of my extradition and unlawful conviction in Uzbekistan [...], I have rather substantiated reasons to fear persecution and I really fear for my life.” The points of appeal reached the regional court on 23 March 2010. 42. On 28 April 2010 the regional court dismissed the applicant’s appeal, addressing his arguments in full and rejecting them as unsubstantiated. The applicant’s lawyer attended the hearing. With reference to Article 109 of the CCrP and Article 34 of the Ruling of 29 October 2009 of the Russian Supreme Court, the regional court stated as follows: “Extending Mr Shakurov’s detention pending extradition, the [district] court put forward convincing arguments. In view of the material in its possession, the judges’ panel agrees with these arguments.... The personal situation of the accused, including his arguments for appeal, was taken into account by the [district] court. Although there is no information in the case file as to Mr Shakurov’s child’s disability, this fact cannot cast doubt on the validity of the court’s argument in favour of the extension of the detention term.” 43. On 6 May 2010 the district court extended the applicant’s detention to 11 July 2010, taking it to a total of six months. In doing so, the district court referred to Article 109 of the CCrP and provided similar reasoning as in its decision of 4 March 2010 (see paragraph 40 above). It also took into account the letter of the Uzbek Prosecutor General’s Office (see paragraph 22 above) and the applicant’s pending request for refugee status. The applicant and his lawyer attended the detention hearing. However, neither of them appealed. 44. On 7 July 2010 the district court extended the applicant’s detention to 11 September 2010 under Article 109 of the CCrP, taking it to a total of eight months. The hearing was held in the presence of the applicant and his legal counsel. They challenged the lawfulness of the charges pending against the applicant in Uzbekistan and claimed that Article 109 of the CCrP was inapplicable to his case since the applicant had not been charged with a serious criminal offence and thus could not be detained for more than six months under the CCrP. 45. With reference to the letter of the 13 November 2009 of the Uzbek Prosecutor General’s Office (see paragraph 22 above), the court considered that aggravated desertion was a serious crime punishable by up to ten years’ imprisonment under Article 228-2 of the UCC and Article 338-2 of the RCC. Therefore, Article 109 was applicable to the applicant’s case with a view to extending his detention above six months. The court also took note of the refusal of his refugee application by the FMS on 7 June 2010 (see paragraph 65 below). The court stated as follows: “As can be seen from the materials submitted to the court, Mr Shakurov has been charged with a criminal offence which is classified as serious both in the territory of Uzbekistan and in the territory of Russia. He has previously absconded from the Uzbek investigation authorities. Presently, the Russian Prosecutor General’s Office has granted the extradition request submitted by its Uzbek counterpart [...]. Mr Shakurov’s placement in custody as a measure of restraint was valid, lawful, well-grounded and conducted in compliance with the Russian criminal-procedure laws. The circumstances under which the measure of restraint was imposed on Mr Shakurov have not changed.” 46. On 12 July 2010 the applicant appealed against the first-instance decision. He challenged the validity of the extradition request, claimed that the Uzbek authorities had failed to prove that he had been timely informed of the charges pending against him and their subsequent re-classification as aggravated desertion. Lastly, he complained that the first-instance court had disregarded his personal situation. On 15 July 2010 the applicant’s points of appeal reached the district court. On an unspecified date, the district court submitted the file to the regional court, which was the appeal-instance court for the detention issue. It is likewise unclear when the file in fact reached the regional court. The regional court issued its decision on 18 August 2010. It is undisputed, however, that, having received the file, the appeal court issued its decision within three days, as required under the CCrP (see paragraph 75 below). 47. As indicated, on 18 August 2010 the regional court examined the applicant’s arguments and dismissed them as unsubstantiated. Both the applicant and his lawyer were present at the hearing. The regional court stated, inter alia, that the district court had taken its decision in compliance with Chapters 13 and 54 of the CCrP, the European Convention on Extradition of 13 December 1957 and the Minsk Convention. The district court had considered the extradition request to the extent that the international treaties and Chapter 54 of the RCC so allowed. The applicant’s personal situation had also been taken into account. In view of the above, the regional court concluded that: “Hence, as a result of real judicial review, the [district] court reasonably and rightly established that Mr Shakurov’s term of detention should be extended. At present, Mr Shakurov’s detention does not fall foul of Article 5 § 1 (c) of the European Convention [...] or Article 55 § 3 of the Russian Constitution, according to which individual rights and freedoms can only be restricted by a Federal Law in so far as it is necessary for the protection of the constitutional order, morals, health and legal interests of other citizens.” 48. On 8 September 2010 the district court, at the request of the Deputy Regional Prosecutor of 1 September 2010, extended the applicant’s detention to 11 November 2010, taking it to a total of ten months. Relying on Article 109 of the CCrP, the court provided similar reasoning as on 7 July 2010 (see paragraph 44 above). As an additional ground for extension, the court referred to the pending judicial review in respect of the Prosecutor General’s Office’s decision to grant the extradition request. The applicant and his legal counsel attended the hearing. 49. On 13 September 2010 the applicant submitted his points of appeal. Yet again, he challenged the charges brought against him in Uzbekistan and argued that the statute of limitations had expired. He referred to Article 464 §§ 1-4 of the CCrP. On 16 September 2010 the points of appeal reached the district court. On an unspecified date, the district court submitted the file to the regional court. Whereas it is unclear when the file reached the regional court, it remains undisputed that, having received the file, the appeal court issued its decision within three days, as required under the CCrP (see paragraph 75 below). 50. On 29 September 2010 the regional court dismissed the applicant’s appeal with similar reasoning as on 18 August 2010 and also referred to Article 5 § 1 (c) of the Convention, the European Convention on Extradition and the Minsk Convention. Relying on the ruling of 29 October 2009 of the Supreme Court, the regional court highlighted that in extending detention with a view to extradition, a court was to apply Article 109 of the CCrP, according to which detention can be extended to up to twelve months. The applicant did not attend the hearing but was represented at it. 51. On 8 November 2010 a deputy regional prosecutor requested to extend the applicant’s detention for another two months, taking it to a total of twelve months. The prosecutor took note of the refusal of the applicant’s asylum and refugee status requests (see paragraphs 61, 65 and 68 below), against which the applicant did not appeal. The prosecutor also pointed to the application of Rule 39 of the Rules of Court to the applicant’s case, stating as follows: “Up to present the European Court has not lifted Rule 39 of the Rules of Court and, therefore, Mr Shakurov cannot be extradited and should be remanded in custody in accordance with Article 109 of the CCrP.” The prosecutor requested to extend the applicant’s detention, inter alia, “with a view to ensuring his detention until the European Court of Human Rights examines his application and with a view to surrendering him to the Uzbek law-enforcement authorities for the purpose of prosecution.” 52. On 11 November 2010 the district court granted the prosecutor’s request and extended the applicant’s detention to 11 January 2011 under Article 109 of the CCrP. Both the applicant and his legal counsel attended the hearing. The applicant argued that the term of his detention pending extradition had started running on 4 November 2009 when the district prosecutor interviewed him following the receipt of information on the charges pending against him in Uzbekistan (see paragraph 19 above). The applicant’s lawyer asked the court to release the applicant since the term authorised under Article 109 of the CCrP had expired and Rule 39 of the Rules of Court had been applied to his case. The court established that the applicant’s placement in custody with a view to extradition had been ordered on 11 January 2010 and rejected the applicant’s argument as unsubstantiated. In extending the detention term, the court relied on Article 109 of the CCrP and gave similar reasoning as on 7 July 2010 (see paragraph 44 above). 53. On 17 and 18 November 2010 the applicant and his legal counsel introduced their points of appeal. They reiterated that the applicant’s term of detention with a view to extradition had started running on 4 November 2009 at the latest. Yet on 29 October 2009 the court deciding on the extension of his detention on criminal charges in Russia had been aware that the applicant had been wanted for a crime committed in Uzbekistan (see paragraph 15 above). In accordance with Article 109 § 3, detention could be extended beyond twelve months only in view of particularly serious charges, which was not his case. The prosecutor had wrongly construed Rule 39 of the Rules of Court as a ground for extending his detention pending examination of his application by the Court. Since the application of Rule 39 barred the applicant from extradition, his continuous detention was unlawful and contrary to Article 5 § 1 (f) of the Convention. The applicant had no intention to flee Russia and asked the appeal court to consider his family situation. 54. On 1 December 2010 the regional court dismissed the applicant’s and his lawyer’s points of appeal, who both attended the hearing. The regional court upheld the grounds for extending the applicant’s detention put forward by the district court and emphasised that his detention was not in breach of Article 5 of the Convention. The court established that the date of the applicant’s detention pending extradition had started running on 11 January 2010, reasoning as follows: “Contrary to the assertions of the [applicant’s] lawyer, the fact that the Uzbek law-enforcement authorities had been searching for Mr Shakurov for the purpose of prosecution was not the ground for the court’s order to place him in custody [on 29 October 2009]. The fact that the extradition check was launched when Mr Shakurov was being held in custody on criminal charges brought against him in Russia is no reason for calculating the term of his detention pending extradition from this date. Thus, pursuant to Article 465 of the CCrP, a foreign national who is being prosecuted or is serving a penalty for a crime committed in the Russian territory cannot be surrendered until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served. On 11 January 2010 the justice of the peace [...] terminated Mr Shakurov’s prosecution under Article 119 § 1 of the RCC [...], lifted the measure of restraint and released him. Thereafter the district prosecutor submitted a court request under Articles 97 § 2 and 466 of the CCrP to place Mr Shakurov in custody pending his possible extradition to Uzbekistan. On 11 January 2010 the district court granted the said request. Therefore, the term of Mr Shakurov’s detention with a view to extradition under Article 109 of the CCrP started running from this date.” 55. On 11 January 2011 the district prosecutor ordered that the applicant be released under house arrest for the reason that the maximum authorised detention term had expired and that Rule 39 of the Rules of Court had been applied to his case. The prosecutor relied on provisions of Chapters 13 and 54 of the CCrP, in particular Article 109 § 2. The applicant was released. 56. On 18 January 2011 the applicant appealed. 57. On 1 February 2011 the regional prosecutor’s office quashed the decision of 11 January 2011. 58. On the same day the district court discontinued the proceedings on the ground that the impugned decision had been quashed and the applicant had consequently recalled his complaint of 18 January 2011. 59. On 2 February 2011 the district prosecutor’s office ordered the applicant not to leave his town of residence. 60. On 15 January 2010 the applicant lodged a request for political asylum and refugee status with the FMS department in the Tula Region (“the regional FMS”). He submitted, in particular, that he disapproved of the politics of Uzbekistan and the low-quality medical care, that he had left Uzbekistan for work-related reasons and that he and his family had been discriminated against there, owing to their insufficient command of the Uzbek language. 61. On 22 January and 1 February 2010 the regional FMS stated that the applicant’s request for political asylum could not be processed in view of the visa-free regime between Russia and Uzbekistan. Consequently, the regional FMS advised the applicant to apply for refugee status. 62. On 17 February 2010 the applicant submitted an application for refugee status, as indicated. He provided the same reasoning as in the request of 15 January 2010. 63. On 12 March 2010, at an interview with a regional FMS officer, the applicant stated that in the event of his extradition to Uzbekistan he feared prosecution and imprisonment for desertion, a crime that he had not committed. 64. On 29 March 2010 the applicant submitted that the statute of limitations for desertion had expired and that he had not been notified of the launch of the criminal proceedings against him in Uzbekistan. 65. On 7 June 2010 the regional FMS rejected the applicant’s request for refugee status. The FMS found that the applicant faced no risk of persecution on account of his origin, religion, nationality or belonging to a particular social group. Discrimination that the applicant might face owing to his allegedly insufficient command of the Uzbek language did not amount to persecution on account of his origin. The applicant had left Uzbekistan for economic reasons. The FMS concluded that he did not wish to return to Uzbekistan so as to avoid prosecution for the crime with which he had been charged. The FMS also noted that since the applicant’s arrival in Russia in 2002 he had made no steps to claim refugee status until his arrest and subsequent detention with a view to extradition. 66. The applicant did not appeal against the above decision. 67. The applicant submitted two requests for temporary asylum, on 23 June 2010 and 18 January 2011. The second request emphasised the applicant’s risk of being subjected to torture as a result of politically motivated persecution in the event of extradition. He supported his argument with references to the systematic practice of torture described by international human rights reports. 68. On 12 July 2010 the regional FMS rejected his first application on the ground that the applicant’s health was in a satisfactory condition, that he did not require any medical care and that, in the event of his extradition to Uzbekistan, he would face no risk of being subjected to torture or ill-treatment, or being involved in an internal or international conflict. With reference to a report of the Ministry of Foreign Affairs no. 22201/3 fms of 4 March 2010 (№ 22201/3 фмс, “the MFA report”) and an information notice from the FMS on the socio-political and socio-economic situation in Uzbekistan of 23 April 2010 (“the information notice”), the regional FMS stated that there was no information as to the practice of ill-treatment in respect of persons extradited to Uzbekistan and those detained in Uzbek prisons. The notice emphasised ongoing reforms of the Uzbek judiciary and the abolition of the death penalty in the country as of 1 January 2008. It also specified that Uzbekistan had ratified over sixty international human rights treaties. Copies of the report and the information notice were not submitted to the Court. 69. The applicant did not appeal against the above decision. 70. On 26 April 2011 the regional FMS granted a year’s temporary asylum to the applicant, valid until 25 April 2012. The FMS reasoned that the Prosecutor General’s Office had allowed the extradition request, that Rule 39 of the Rules of Court had been applied to the applicant’s case and that, otherwise, his stay in Russia would remain irregular until the European Court delivered its judgment. 71. Everyone has a right to liberty and security (Article 22 § 1). Detention is permissible only on the basis of a court order. The length of time for which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2). 72. The term “court” is defined by the Code of Criminal Procedure (CCrP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54). 73. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 74. Chapter 13 of the CCrP governs the application of preventive measures. Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by at least two years’ imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A court request for detention is submitted by an investigator (следователь) with the support of the head of the investigative authority or by a police officer in charge of the inquiry (дознаватель) with the support of a prosecutor (Article 108 § 3). A request for detention should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned (Article 108 § 4). 75. A judge’s decision on detention is amenable to appeal before a higher court within three days after its delivery date (Article 108 § 11 of the CCrP). A statement of appeal should be submitted to the first-instance court (Article 355 of the CCrP). While the CCrP contains no time-limit during which the first-instance court should send the statement of appeal and the case file to the appeal-instance court, Order no. 36 of 29 April 2003 by the Judicial Department of the Supreme Court of Russia requires that, “after the expiry of the three-day time-limit for appeal”, the first-instance court should submit the detention file to the higher court. Having received this file, second-instance courts should examine appeals lodged against the judge’s decisions on detention within three days (Article 108 § 11). 76. The period of detention pending investigation of a criminal case must not exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level. Further extensions up to twelve months may be granted with regard to persons accused of serious or particularly serious criminal offences (Article 109 § 2). Extensions up to eighteen months may be granted as an exception with regard to persons accused of particular serious criminal offences (Article 109 § 3). 77. A measure of restraint can be applied with a view to ensuring a person’s extradition in compliance with the procedure established under Article 466 of the CCrP (Article 97 § 2). 78. Chapter 54 of the CCrP (Articles 460-468) governs the procedure to be followed in the event of extradition. 79. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4). 80. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be denied: a Russian citizen (Article 464 § 1-1) or a person who was granted asylum in Russia (Article 464 § 1-2); a person in respect of whom a conviction became effective or criminal proceedings were terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1-3); a person in respect of whom criminal proceedings cannot be launched and a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground under Russian law (Article 464 § 1-4); or a person in respect of whom a Russian court established obstacles to extradition, in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1-5). Finally, extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under the RCC (Article 464 § 1-6). 81. In the event that a foreign national, whose extradition is being sought, is being prosecuted or is serving a penalty for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served (Article 465 § 1). 82. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to “take measures” in order to decide on the preventive measure in respect of the person whose extradition is being sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1). 83. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 84. Verifying the compatibility of section 31 § 2 of the Law on the Legal Status of Foreign Nationals in the USSR of 1981, the Constitutional Court ruled that a foreign national liable to be expelled from the Russian territory could not be detained for more than forty-eight hours without a court order. 85. Assessing the compatibility of Article 466 § 1 of the CCrP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 86. In the Constitutional Court’s view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is the procedure laid down in the CCrP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. 87. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or in excess of the time-limits fixed in the Code. 88. The Prosecutor General asked the Constitutional Court for official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition. 89. The Constitutional Court refused the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction. 90. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified. 91. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code. 92. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate constitutional rights of [the claimant] ...” 93. In Ruling no. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“the Ruling of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCrP, only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor’s request for that person to be placed in custody (paragraph 34 of the Ruling). In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCrP. 94. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCrP. 95. When carrying out actions requested under the Minsk Convention, to which Russia and Uzbekistan are parties, an official body applies its country’s domestic laws (Article 8 § 1). 96. Extradition for the institution of criminal proceedings can be sought with regard to a person whose acts constitute crimes under the legislation of the requesting and requested parties and are punishable by imprisonment of at least one year (Article 56 § 2). 97. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is being sought, except in cases where no extradition is possible (Article 60). 98. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 99. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days of the date of placement in custody (Article 62 § 1). 100. For relevant reports on Uzbekistan in the period between 2002 and 2007, see Muminov v. Russia, no. 42502/06, §§ 6772, 11 December 2008. 101. The UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006 the following: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 102. In November 2007 the UN Committee Against Torture considered the third periodic report of Uzbekistan (CAT/C/UZB/3) and adopted, inter alia, the following conclusions (CAT/C/UZB/CO/3): “6. The Committee is concerned about: (a) Numerous, ongoing and consistent allegations concerning routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings; (b) Credible reports that such acts commonly occur before formal charges are made, and during pre-trial detention, when the detainee is deprived of fundamental safeguards, in particular access to legal counsel. This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws; (c) The failure to conduct prompt and impartial investigations into such allegations of breaches of the Convention... 9. The Committee has also received credible reports that some persons who sought refuge abroad and were returned to the country have been kept in detention in unknown places and possibly subjected to breaches of the Convention... 11. The Committee remains concerned that despite the reported improvements, there are numerous reports of abuses in custody and many deaths, some of which are alleged to have followed torture or ill-treatment...” 103. In November 2007 Human Rights Watch issued a report entitled “Nowhere to Turn: Torture and Ill-Treatment in Uzbekistan”, which provides the following analysis: “Prolonged beatings are one of the most common methods used by the police and security agents to frighten detainees, break their will, and compel them to provide a confession or testimony. They often start beating and kicking detainees with their hands, fists, and feet and then continue using truncheons, filled water bottles and various other tools... Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it... Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees. After forcing an old-fashioned gas mask over the head of the victim, who in some cases is handcuffed to a chair, the oxygen supply is cut...” 104. The UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008 the following: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials... ... 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002...” 105. Amnesty International issued on 1 May 2010 a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following: “Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ... Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ... Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners. According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other ill-treatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill-treatment remains the exception rather than the rule. Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible.” 106. In January 2011 Human Rights Watch released its annual World Report 2010. The chapter entitled “Uzbekistan”, in so far as relevant, states as follows: “Uzbekistan’s human rights record remains abysmal, with no substantive improvement in 2010. Authorities continue to crack down on civil society activists, opposition members, and independent journalists, and to persecute religious believers who worship outside strict state controls ... ... Criminal Justice, Torture, and Ill-Treatment Torture remains rampant in Uzbekistan. Detainees’ rights are violated at each stage of investigations and trials, despite habeas corpus amendments that went into effect in 2008. The Uzbek government has failed to meaningfully implement recommendations to combat torture that the United Nations special rapporteur made in 2003. Suspects are not permitted access to lawyers, a critical safeguard against torture in pre-trial detention. Police use torture and other illegal means to coerce statements and confessions from detainees. Authorities routinely refuse to investigate defendants’ allegations of abuse. ... Key International Actors The Uzbek government’s cooperation with international institutions remains poor. It continues to deny access to all eight UN special procedures that have requested invitations, including those on torture and human rights defenders ...” 107. The applicant referred to a document entitled “On Torture and Arbitrary Detention in Uzbekistan and Turkmenistan. Report to UN Special Mechanisms”, which was issued on 3 March 2011 by the World Alliance for Citizen Participation (CIVICUS). In so far as relevant, it stated the following: “[...] years after the special rapporteur on torture concluded that systemic torture exists in Uzbekistan, torture [...] continues to be a routine component of investigations and detention and is a common practice in the penal systems. Forms of torture include. • Bludgeoning with batons • Genital mutilation • Male and female rape and sodomy • Psychological humiliation and degradation • Electrocution ... Other at risk groups include: ... • Refugees and asylum seekers who are often deported from other CIS countries back to Uzbekistan...” 108. Chapter “Uzbekistan 2011” of the Amnesty International annual report 2011, released in May of the same year, in so far as relevant, states as follows: “Despite assertions by the authorities that the practice of torture had significantly decreased, reports of torture or other ill-treatment of detainees and prisoners continued unabated. In most cases, the authorities failed to conduct prompt, thorough and impartial investigations into these allegations. ... Uzbekistan again refused to allow the UN Special Rapporteur on torture to visit the country despite renewed requests”. 109. In support of his allegation of the risk of ill-treatment in Uzbekistan, in particular, poor conditions of detention and a lack of medical assistance in prisons, the applicant also referred to a news item available on the Internet site http://www.fergananews.com. This document described the case of Colonel Yuriy Korepanov, formerly a citizen of Uzbekistan who had taken Russian citizenship and had been prosecuted for treason in Uzbekistan. At a certain point after his conviction Mr Korepanov had suffered a stroke and had been transferred to another prison, without his family being informed thereof. | 1 |
dev | 001-70184 | ENG | TUR | CHAMBER | 2,005 | CASE OF CEVDET AND HATİCE YILMAZ v. TURKEY | 4 | Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings | null | 4. The applicants live in Izmir. 5. On 7 June 1996 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants. A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place. 6. Following the applicants’ request for increased compensation, on 22 June 1998 the Bornova Civil Court of First-instance awarded them additional compensation plus interest at the statutory rate. 7. On 8 December 1998 the Court of Cassation quashed the judgment. 8. On 27 July 1999 the Bornova Civil Court of First-instance awarded the applicants additional compensation plus interest at the statutory rate. 9. On 12 October 1999 the Court of Cassation quashed the judgment. 10. On 15 May 2000 the Bornova Civil Court of First-instance awarded the applicants additional compensation of 9,976,332,312 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision, running from 26 February 1998, the date on which the title deed to the land had been transferred to the General Directorate of National Roads and Highways in the land registry. 11. On 11 September 2000 the Court of Cassation upheld the judgment. 12. On 13 August 2001 the General Directorate of National Roads and Highways paid the applicants TRL 28,686,390,000. 13. The relevant domestic law and practice are set out in the Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV). | 0 |
dev | 001-57782 | ENG | ITA | CHAMBER | 1,992 | CASE OF FRANCESCO LOMBARDO v. ITALY | 2 | Preliminary objection withdrawn (non-exhaustion of domestic remedies);Violation of Art. 6-1;Just satisfaction not applied | C. Russo;John Freeland;N. Valticos;R. Pekkanen | 7. Mr Francesco Lombardo resides in Rome. The facts established by the Commission pursuant to Article 31 para. 1 (art. 32-1) of the Convention are as follows (see paragraphs 15-30 of its report): 15. The applicant served in the Carabinieri from 15 August 1946 to 14 March 1974, on which date he was invalided out of the service because he had become disabled as a result of two illnesses - an ulcer and neoplasia. 16. Since 29 January 1975 the applicant has been in receipt of an ordinary retirement pension. 17. On 10 June 1974 he applied for an ‘enhanced ordinary pension’ on the ground that the illnesses which had caused his disablement were ‘due to his service’. On 19 October 1976 the applicant was examined at the Messina military hospital by the Ministry of Defence medico-legal board. On 26 November 1976 the board concluded that the neoplasia which had caused the applicant’s disablement was not ‘due to his service’. 18. On 21 May 1977, in its decision on the applicant’s request, the Ministry of Defence granted him payment at the enhanced rate for two years, on the ground that the ulcer he suffered from was ‘due to his service’, but rejected that part of his application concerning the neoplasia. 19. In a registered letter dated 20 December 1977 the applicant appealed to the Court of Audit against this decision. The appeal was received by the Court of Audit on 22 December 1977 and reached the competent division of that court on 3 January 1978, being registered under file no. 0110931. 20. On 7 September 1978 the applicant asked for his appeal to be given priority, by derogation from the chronological order principle usually applied. Following this request, on 13 September 1978, the registry of the Court of Audit asked the Ministry of Defence for the applicant’s administrative file; on 23 September 1978 it again asked for this file to be forwarded. 21. In a note of 20 October 1978 the Ministry of Defence announced that it was shortly to adopt an administrative measure concerning the applicant [- an adjustment of his pension -] and that the file would be transmitted thereafter. 22. The file was received by the registry of the Court of Audit on 4 December 1980. On 13 January 1981 the applicant’s appeal and his file were transmitted to the principal public prosecutor, who [granting Mr Lombardo’s application of 23 February 1982] on 8 January 1983 decided to give the case priority. 23. On 17 September 1985 the principal public prosecutor requested the opinion of the Ministry of Defence medico-legal board. He received this opinion on 7 April 1986. It confirmed that the applicant’s neoplasia was not ‘due to his service’. 24. On the basis of this opinion, on 6 June 1987, the principal public prosecutor submitted his pleadings, calling for the appeal to be dismissed. 25. On 28 October 1987 the applicant again asked for his case to be given priority. 26. On 30 November 1987 the president of the division of the Court of Audit dealing with the case arranged for a hearing to be held before that division on 27 April 1988. However, the hearing did not take place because, following a judgment of the Constitutional Court (no. 270 of 25 February 1988), the Judicial Division of the Palermo Court of Audit gained jurisdiction to hear the case, which was transferred to it on 25 May 1988. 27. This division heard the case at a hearing held on 15 February 1989, at the end of which it upheld the applicant’s appeal. The text of the judgment was deposited with the registry on 7 July 1989. ... B. The relevant domestic law 28. In pursuance of the provisions of Presidential Decree no. 1092 of 29 December 1973, state public servants are entitled to an ‘enhanced ordinary pension’ when their employment in the public service is terminated as a result of a disability or injury attributable to the requirements of the service. 29. Public servants make direct contributions to the pension fund through monthly payments calculated as a fixed percentage of their wages and deducted therefrom. 30. The nature of the disability or injury is taken into account for the purpose of deciding which scale is to be applied in calculating the amount of pension. For professional members of the armed forces these scales range from 30% to 100% of the figure used as the basis for the calculation of pension, i.e. the full amount of the latest remuneration received, plus certain allowances where appropriate. Consequently, the amount of the pension granted is not directly linked to the total contributions paid into the pension fund by the person concerned." 8. On 26 November 1991 the applicant informed the Court that Italy had now paid him part of the amount in issue. | 1 |
dev | 001-59454 | ENG | TUR | GRANDCHAMBER | 2,001 | CASE OF CYPRUS v. TURKEY | 1 | No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude);Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);No violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for home;Respect for private life;Article 8 - Right to respect for private and family life);Violation of Article 13+9 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9-1 - Freedom of religion;Article 9 - Freedom of thought conscience and religion);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+P1-2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 of Protocol No. 1 - Right to education;Right to education-{general});No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 8 - Right to respect for private and family life;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Luzius Wildhaber | 13. The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court's consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in the following terms (Loizidou v. Turkey judgment of 18 December 1996 (merits), Reports of Judgments and Decisions 1996-VI, p. 2223, §§ 16-17): “16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army's headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana. 17. The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns 'TRNC citizens' by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the 'TRNC'.” 14. A major development in the continuing division of Cyprus occurred in November 1983 with the proclamation of the “Turkish Republic of Northern Cyprus” (the “TRNC”) and the subsequent enactment of the “TRNC Constitution” on 7 May 1985. This development was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the “TRNC” legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was made by the Security Council on 11 May 1984 in its Resolution 550 (1984). In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus. 15. According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations. 16. United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, inter-communal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the Turkish-Cypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN Secretary-General's Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be “bi-communal” and “bi-zonal”. Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations. 17. The events of July and August 1974 and their aftermath gave rise to three previous applications by the applicant Government against the respondent State under former Article 24 of the Convention. The first (no. 6780/74) and second (no. 6950/75) applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention (“the 1976 report”) in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. On 20 January 1979 the Committee of Ministers of the Council of Europe in turn adopted, with reference to an earlier decision of 21 October 1977, Resolution DH (79) 1 in which it expressed, inter alia, the conviction that “the enduring protection of human rights in Cyprus can only be brought about through the re-establishment of peace and confidence between the two communities; and that inter-communal talks constitute the appropriate framework for reaching a solution of the dispute”. In its resolution the Committee of Ministers strongly urged the parties to resume the talks under the auspices of the Secretary-General of the United Nations in order to agree upon solutions on all aspects of the dispute (see paragraph 16 above). The Committee of Ministers viewed this decision as completing its consideration of the case. The third application (no. 8007/77) lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 (“the 1983 report”). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission's 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed. 18. The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to “decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1”. These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus. 19. The Court considers it appropriate at this stage to summarise the Commission's findings of fact in respect of the various violations of the Convention alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the Commission. 20. The applicant Government essentially claimed in their application that about 1,491 Greek Cypriots were still missing twenty years after the cessation of hostilities. These persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State. 21. The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody. In their principal submission, the issues raised by the applicant Government should continue to be pursued within the framework of the United Nations Committee on Missing Persons (see paragraph 16 above) rather than under the Convention. 22. The Commission proceeded on the understanding that its task was not to establish what actually happened to the Greek-Cypriot persons who went missing following the Turkish military operations conducted in northern Cyprus in July and August 1974. Rather, it saw its task as one of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention. 23. To that end, the Commission had particular regard to its earlier findings in its 1976 and 1983 reports. It recalled that in its 1976 report it had stated that it was widely accepted that a considerable number of Cypriots were still missing as a result of armed conflict in Cyprus and that a number of persons declared to be missing were identified as Greek Cypriots taken prisoner by the Turkish army. This finding, in the Commission's opinion at the time, created a presumption of Turkish responsibility for the fate of persons shown to be in Turkish custody. While noting that killings of Greek-Cypriot civilians had occurred on a large scale, the Commission also considered at the time of its 1976 report that it was unable to ascertain whether, and under what circumstances, Greek-Cypriot prisoners declared to be missing had been deprived of their life. 24. In the present case, the Commission further recalled that in its 1983 report it found it established that there were sufficient indications in an indefinite number of cases that missing Greek Cypriots had been in Turkish custody in 1974 and that this finding once again created a presumption of Turkish responsibility for the fate of these persons. 25. The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktaş, “President of the TRNC”, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Professor Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission's earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries. 26. The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims' relatives. 27. The Commission further concluded that its examination of the applicant Government's complaints in the instant application was not precluded by the ongoing work of the CMP. It noted in this connection that the scope of the investigation being conducted by the CMP was limited to determining whether or not any of the missing persons on its list were dead or alive; nor was the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP was limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. The Commission also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the CMP's investigation could extend to actions by the Turkish army or Turkish officials on Cypriot territory. 28. The Commission established the facts under this heading against the background of the applicant Government's principal submission that over 211,000 displaced Greek Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern Cyprus and from having access to their property there for any purpose. The applicant Government submitted that the presence of the Turkish army together with “TRNC”-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and, as a corollary, that their cross-border family visits were gravely impeded. What started as a gradual and continuing process of illegality over the years had now resulted in the transfer of the property left behind by the displaced persons to the “TRNC” authorities without payment of compensation and its re-assignment, together with “title deeds”, to State bodies, Turkish Cypriots and settlers from Turkey. 29. The respondent Government maintained before the Commission that the question of the Varosha district of Famagusta along with the issues of freedom of movement, freedom of settlement and the right of property could only be resolved within the framework of the inter-communal talks (see paragraph 16 above) and on the basis of the principles agreed on by both sides for the conduct of the talks. Until an overall solution to the Cyprus question, acceptable to both sides, was found, and having regard to security considerations, there could be no question of a right of the displaced persons to return. The respondent Government further submitted that the regulation of property abandoned by displaced persons, as with restrictions on cross-border movement, fell within the exclusive jurisdiction of the “TRNC” authorities. 30. The Commission found that it was common knowledge that with the exception of a few hundred Maronites living in the Kormakiti area and Greek Cypriots living in the Karpas peninsula, the whole Greek-Cypriot population which before 1974 resided in the northern part of Cyprus had left that area, the large majority of these people now living in southern Cyprus. The reality of this situation was not contested by the respondent Government. 31. The Commission noted with reference to its earlier findings in its 1976 and 1983 reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application. Accordingly, and this was not disputed either by the respondent Government, displaced Greek Cypriots had no possibility of returning to their homes in northern Cyprus and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the Turkish army. The arrangements introduced by the “TRNC” authorities in 1998 to allow Greek Cypriots and Maronites to cross into northern Cyprus for the purposes of family visits or, as regards Greek Cypriots, visits to the Apostolos Andreas Monastery, did not affect this conclusion. 32. Nor did the respondent Government dispute the fact that Greek-Cypriot owners of property in northern Cyprus continued to be prevented from having access to, controlling, using and enjoying their property. As to the fate of that property, the Commission found it established that up until 1989 there was an administrative practice of the Turkish-Cypriot authorities to leave the official Land Register unaffected and to register separately the “abandoned” property and its allocation. The beneficiaries of allocations were issued with “possessory certificates” but not “deeds of title” to the properties concerned. However, as from June 1989 the practice changed and thereafter “title deeds” were issued and the relevant entries concerning the change of ownership were made in the Land Register. The Commission found it established that, at least since June 1989, the Turkish-Cypriot authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. The Commission found confirmation for this finding in the provisions of “Article 159 § 1 (b) of the TRNC Constitution” of 7 May 1985 and “Law no. 52/1995” purporting to give effect to that provision. 33. Although the respondent Government pointed out in their submissions to the Commission that the issue of the right of displaced Greek Cypriots to return to their homes was a matter to be determined within the framework of the inter-communal talks sponsored by the Secretary-General of the United Nations (see paragraph 16 above), the Commission found that there had been no significant progress in recent years in the discussion of issues such as freedom of settlement, payment of compensation to Greek Cypriots for the interference with their property rights, or restitution of Greek-Cypriot property in the Varosha district. 34. The applicant Government adduced evidence in support of their complaint that the dwindling number of Greek Cypriots living in the Karpas peninsula of northern Cyprus were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity. In addition to the harassment and intimidation which they suffered at the hands of Turkish settlers, and which has gone unpunished, the enclaved Greek Cypriots laboured under restrictions which violated many of the substantive rights contained in the Convention. The continuous daily interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the “TRNC” courts. Similar but less extensive restrictions applied to the Maronite population living in the Kormakiti area of northern Cyprus. 35. The respondent Government maintained before the Commission that effective judicial remedies were available to all Greek Cypriots living in northern Cyprus. However, they claimed that the applicant Government actively discouraged them from taking proceedings in the “TRNC”. The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made. 36. The Commission established the facts under this heading with reference to materials submitted by both Governments. These materials included, inter alia, written statements of persons affected by the restrictions alleged by the applicant Government; press reports dealing with the situation in northern Cyprus; case-law of the “TRNC” courts on the availability of remedies in the “TRNC”; “TRNC legislation” and decisions of the “TRNC Council of Ministers” on entry and exit arrangements at the Ledra Palace check-point. The Commission also had regard to United Nations documents concerning the living conditions of enclaved Greek Cypriots and especially to the UN Secretary-General's progress reports of 10 December 1995 and 9 March 1998 on the humanitarian review carried out by UNFICYP in 1994-95 concerning the living conditions of Karpas Greek Cypriots, the so-called “Karpas Brief”. 37. Furthermore, the Commission's delegates heard the evidence of fourteen witnesses on the situation of Greek Cypriots and Maronites living in northern Cyprus. These witnesses comprised two persons who were closely associated with the preparation of the “Karpas Brief” as well as persons proposed by both Governments. The delegates also visited, on 23 and 24 February 1998, a number of localities in northern Cyprus, including Greek-Cypriot villages in the Karpas area, and heard statements from officials and other persons encountered during the visits. 38. The Commission considered the above-mentioned “Karpas Brief” an accurate description of the situation of the enclaved Greek-Cypriot and Maronite populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by UNFICYP following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time. Although the Commission noted that there had been a considerable improvement in the overall situation of the enclaved populations, as evidenced by the UN Secretary-General's progress reports on the “Karpas Brief” recommendations, there still remained a number of severe restrictions. These restrictions were not laid down in any “TRNC legislation” and were in the nature of administrative practices. 39. The Commission further found that there existed a functioning court system in the “TRNC” which was in principle accessible to Greek Cypriots living in northern Cyprus. It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by Greek-Cypriot litigants before the civil and criminal courts. However, in view of the scarcity of cases brought by Greek Cypriots, the Commission was led to conclude that the effectiveness of the judicial system for resident Greek Cypriots had not really been tested. 40. In a further conclusion, the Commission found that there was no evidence of continuing wrongful allocation of properties of resident Greek Cypriots to other persons during the period under consideration. However, the Commission did find it established that there was a continuing practice of the “TRNC” authorities to allocate to Turkish-Cypriots or immigrants the property of Greek Cypriots who had died or left northern Cyprus. 41. In the absence of legal proceedings before the “TRNC” courts, the Commission noted that it had not been tested whether or not Greek Cypriots or Maronites living in northern Cyprus were in fact considered as citizens enjoying the protection of the “TRNC Constitution”. It did however find it established that, in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the “TRNC Council of Ministers”, any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts. 42. Although the Commission found no evidence of cases of actual detention of members of the enclaved population, it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to Greek Cypriots and Maronites notwithstanding recent improvements. It further observed that an exit visa was still necessary for transfers to medical facilities in the south, although no fees were levied in urgent cases. There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered; nor was there any indication of a deliberate practice of delaying the processing of such applications. 43. The Commission found it established that there were restrictions on the freedom of movement of Greek-Cypriot and Maronite schoolchildren attending schools in the south. Until the entry into force of the decision of the “TRNC Council of Ministers” of 11 February 1998, they were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. The age-limit of 16 years was still maintained for Greek-Cypriot male students. Up to the age-limit, certain restrictions applied to the visits of students to their parents in the north, which were gradually relaxed. However, even today such visits are subject to a visa requirement and a reduced “entry fee”. 44. As to educational facilities, the Commission held that, although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them. The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of Greek-Cypriot and Maronite schoolchildren to the north after the completion of their studies had led to the separation of many families. Furthermore, school textbooks for use in the Greek-Cypriot primary school were subjected to a “vetting” procedure in the context of confidence-building measures suggested by UNFICYP. The procedure was cumbersome and a relatively high number of school-books were being objected to by the Turkish-Cypriot administration. 45. Aside from school-books, the Commission found no evidence of any restrictions being applied during the period under consideration to the importation, circulation or possession of other types of books; nor was there evidence of restrictions on the circulation of newspapers published in southern Cyprus. However, there was no regular distribution system for the Greek-Cypriot press in the Karpas area and no direct post and telecommunications links between the north and south of the island. It was further noted that the enclaved population was able to receive Greek-Cypriot radio and television. 46. The Commission did not find any conclusive evidence that letters destined for Greek Cypriots were opened by the “TRNC” police or that their telephones were tapped. 47. As to alleged restrictions on religious worship, the Commission found that the main problem for Greek Cypriots in this connection stemmed from the fact that there was only one priest for the whole Karpas area and that the Turkish-Cypriot authorities were not favourable to the appointment of additional priests from the south. The Commission delegates were unable to confirm during their visit to the Karpas area whether access to the Apostolos Andreas Monastery was free at any time for Karpas Greek Cypriots. It appeared to be the case that on high religious holidays (which occur three times a year) visits to the monastery are also allowed to Greek Cypriots from the south. 48. Concerning alleged restrictions on the freedom of association of the enclaved population, the Commission observed that the relevant “TRNC” law on associations only covered the creation of associations by Turkish Cypriots. 49. The applicant Government contended before the Commission that Turkish Cypriots living in northern Cyprus, especially political dissidents and the Gypsy community, were the victims of an administrative practice of violation of their Convention rights. They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention, police misconduct, discrimination and ill-treatment and interferences in various forms with other Convention rights such as, inter alia, fair trial, private and family life, expression, association, property and education. 50. The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the “TRNC” to aggrieved persons. 51. The Commission's investigation into the applicant Government's allegations was based mainly on the oral evidence of thirteen witnesses who testified before the Commission's delegates on the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus. The witnesses were proposed by both parties. Their evidence was taken by the delegates in Strasbourg, Cyprus and London between November 1997 and April 1998. 52. The Commission found that there existed rivalry and social conflict between the original Turkish Cypriots and immigrants from Turkey who continued to arrive in considerable numbers. Some of the original Turkish Cypriots and their political groups and media resented the “TRNC” policy of full integration for the settlers. 53. Furthermore, while there was a significant incidence of emigration from the “TRNC” for economic reasons, it could not be excluded that there were also cases of Turkish Cypriots having fled the “TRNC” out of fear of political persecution. The Commission considered that there was no reason to doubt the correctness of witnesses' assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the “TRNC” police. However, it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the “TRNC” authorities, including the courts, of refusing protection to political opponents of the ruling parties. In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents, the Commission did not have sufficient details concerning the incidents complained of (for example, the dispersing of demonstrations, short-term arrests) which would allow it to form an opinion as to the justification or otherwise of the impugned acts. The Commission noted that, in any event, it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention. 54. Regarding the alleged discrimination against and arbitrary treatment of members of the Turkish-Cypriot Gypsy community, the Commission found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near Morphou and the refusal of airline companies to transport Gypsies to the United Kingdom without a visa. 55. In a further conclusion, the Commission observed that there was no evidence before it of Turkish-Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration. Furthermore, and with respect to the evidence before it, the Commission considered that it had not been established that, during the period under consideration, there was an official prohibition on the circulation of Greek-language newspapers in northern Cyprus or that the creation of bi-communal associations was prevented. In respect of the alleged refusal of the “TRNC” authorities to allow Turkish Cypriots to return to their properties in southern Cyprus, the Commission observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration. | 1 |
dev | 001-103043 | ENG | HUN | CHAMBER | 2,011 | CASE OF BLOCK v. HUNGARY | 3 | Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-a - Prompt information);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) (Article 6-3-b - Adequate time;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos | 5. The applicant was born in 1953 and lives in Bad Brückenau, Germany. 6. The Budapest Public Prosecutor's Office indicted the applicant for preparation to counterfeit money (section 304 of the Criminal Code). 7. On 30 November 2006 the Budapest Regional Court found the applicant guilty as charged and sentenced him to a fine. 8. On appeal, the Budapest Court of Appeal held a public session and completed the findings of fact as established by the Regional Court. It observed that the defendant's act could be re-characterised as attempted aggravated fraud (section 318 of the Criminal Code) and enquired as to whether he wished to have an adjournment on that account. The applicant replied in the negative. 9. On 10 October 2007 the Budapest Court of Appeal reversed the first-instance judgment and re-characterised the applicant's offence as forgery of public documents (section 274 of the Criminal Code). The applicant submitted that there had been no taking of evidence in this regard before the Court of Appeal. His sentence remained unchanged; nevertheless, he filed a petition for review. 10. On 30 April 2009 the Supreme Court held a public session and upheld the applicant's conviction without taking evidence. In the reasoning of that decision, it was observed that the judgment of the Court of Appeal amounted to a violation of the substantive provisions of the Criminal Code in that although the applicant, a national of Germany, had committed the crime in question abroad, the lower courts had not explored whether his act was punishable under German law or obtained the Attorney General's requisite endorsement of the indictment. However, the Supreme Court held that the applicant's deed in fact constituted the offences of complicity in attempted aggravated fraud (section 318 of the Criminal Code) and in forgery of private documents (section 276 of the Criminal Code). It did not change the sanction imposed on the applicant. This decision was served on 18 June 2009. 11. Section 274(1) of the Criminal Code provides that a person who prepares a forged official document or falsifies the contents of an official document, uses a fake or forged official document or an official document issued under the name of another person, or co-operates in the inclusion of untrue data, facts or declarations in an official document regarding the existence, change or termination of a right or obligation, commits the felony of forgery of official documents. 12. According to section 276 of the Criminal Code, a person who uses a fake or forged private document or a private document with untrue contents for providing evidence for the existence, change or termination of a right or obligation, commits the offence of forgery of private documents. 13. Under section 304(1) of the Criminal Code, a person who copies or forges money with the purpose of distribution, obtains counterfeit or forged money with the purpose of distribution, exports or imports such money or transports it through the territory of the country, or distributes counterfeit or forged money commits the felony of counterfeiting money. 14. According to section 318(1) of the Criminal Code, a person who deceives someone, or maintains someone's deception, in order to make unlawful gains, commits the offence of fraud, provided that actual damage has occurred as a result of his conduct. | 1 |
dev | 001-112306 | ENG | BGR | CHAMBER | 2,012 | CASE OF MARIN KOSTOV v. BULGARIA | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1981 and is currently serving a prison sentence in Pleven Prison. 6. The applicant was detained in Belene Prison from an unspecified date in August 2002 until 29 March 2007, when he was moved to Pleven Prison. He stated that the conditions of detention in Belene Prison had been inhuman and degrading. 7. It appears that the applicant submitted frequent complaints to various institutions against the administration of Belene Prison. 8. On an unspecified date in 2005 he complained to the prosecuting authorities that some of the letters he had sent had been withheld by the administration and had never reached their addressees. Following an inquiry, his complaint was dismissed both by the regional prosecutor on 14 July 2005 and on appeal on 17 August 2005 by the prosecutor in appeal proceedings who established that between January 2004 and June 2005 the applicant had sent thirty-one letters, which had been duly entered in the prison register and forwarded to their addressees. 9. On 26 and 31 October 2006 the director of Belene Prison ordered the confinement of the applicant in an isolation cell for two five-day periods following two violent incidents between the applicant and another prisoner which had occurred at short intervals. The applicant appealed. 10. The Levski District Court opened two sets of proceedings and on 10 November 2006 examined the applicants’ appeals in two separate hearings held consecutively. The applicant appeared in person while the prison administration did not send a representative. 11. At the start of the first hearing the court stated that it had summoned Mr K., a prison guard, as a witness. It noted that Mr K. had not appeared, the prison administration having submitted a medical certificate to the effect that he had been admitted to hospital. The applicant requested that another prison guard, Mr S., be questioned but nevertheless agreed that the court should proceed with the examination of the case. 12. On the merits, the applicant stated that he had been insulted and attacked by an inmate. He denied having insulted the inmate concerned and claimed that he was not responsible for the incident and that the punishment was unjustified. 13. In a final decision of the same date the District Court upheld the order of 31 October 2006, stating that the director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order. The director had considered the applicant’s and witnesses’ statements and the report of a prison employee. The court further noted that the written statements of the witnesses corroborated the director’s conclusions and did not support the applicant’s account of the events. As to the punishment, it had been determined with due regard to the gravity of the offence and the applicant’s conduct as a whole. 14. Then the court proceeded with the second hearing. It noted that the prison guard Mr S., who had been summoned as a witness, was also in hospital. The applicant insisted on the appearance of Mr S. and stated that he wanted to call a second witness, Mr F. He also asked to be assigned a court-appointed lawyer and sought an adjournment. 15. The court dismissed those requests, stating that it was obliged to complete the examination of the applicant’s appeal within three days of its being lodged and that the absence of a lawyer was not a reason for adjourning the hearing. 16. On the merits, the applicant explained that the incident had been similar to the first one and that he had been insulted and attacked by the same inmate. 17. In a final decision of the same date the District Court upheld the order of 26 October 2006. It found that on 28 September 2006 a conflict had arisen between the applicant and another prisoner which had developed into a fight. That had necessitated the intervention of the guard on duty. The director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order. He had considered the applicant’s and witnesses’ statements and the report of a prison employee. The court further noted that the written statements of the witnesses corroborated the director’s conclusions and did not support the applicant’s account of the events. As to the punishment, it had been determined with due regard to the gravity of the offence and the applicant’s conduct as a whole. 18. On 18 December 2006, while the applicant was isolated in a disciplinary cell in connection with the above punishments, his mother sent him a parcel which was not delivered to him. On an unspecified date in December 2006 the applicant asked why his right to receive parcels had been restricted. The prison administration informed him that no parcel had arrived. 19. On 3 January 2007 the applicant complained to the public prosecutor that the prison administration had refused to give him the parcel. He requested that the matter be investigated and the responsible officials punished. He stated that the prison employees often made such mistakes in respect of prisoners. Lastly, he stated that the incident amounted to a criminal offence under Article 171 of the Criminal Code, which made it an offence to, inter alia, hide or destroy a package intended for another person. 20. On 8 January 2007 the applicant gave a copy of his complaint to a prison employee, who transmitted it to the prison director. Following an internal inquiry, it was established that on 18 December 2006 a parcel for the applicant had indeed arrived and was sent back to the sender because the applicant was not entitled to receive parcels while in isolation. In relation to the above, the director of Belene Prison considered the applicant’s statements to the public prosecutor defamatory and on 29 January 2007 punished him with fourteen days’ isolation in a disciplinary cell. He also justified the punishment on grounds of the applicant’s overall conduct, referring to the punishments imposed on him on 26 and 31 October 2006 (see paragraph 9 above) and the fact that the applicant had frequently sent similar complaints to various institutions. The applicant appealed. 21. The District Court held a hearing on 5 February 2007. An employee of the prison submitted that the parcel had been lawfully returned because prisoners were not allowed to receive parcels while punished with solitary confinement. The witness further stated that he had suggested that the applicant be punished because the latter had made insulting and defamatory statements against the prison administration. The witness pointed out that this was the applicant’s third breach of the disciplinary rules. 22. The applicant replied that he would not have complained to the public prosecutor had the prison administration informed him about the parcel. He stated that he had not received a reply from the public prosecutor. 23. In a final decision of the same date the District Court upheld the order of 29 January 2007. It referred to the statements of the witness and the information contained in the disciplinary file and held that the order was reasoned and lawful and that the conduct of the applicant within the last year had been taken into consideration. 24. On an unspecified date in 2007 the applicant requested the General Directorate of Enforcement of Sentences at the Ministry of Justice to transfer him to another prison, stating that the administration of Belene Prison had subjected him to harassment. In particular, he referred to the dispute about the parcel and the ensuing punishment (see paragraphs 18-23 above). 25. On 16 March 2007 the Deputy Minister of Justice granted the applicant’s request and ordered that he be moved to Pleven Prison. He noted that the prison authorities had given inaccurate information to the applicant about the parcel and that, therefore, the applicant had acted in good faith in complaining to the public prosecutor. The honesty of his intention was also evident from the fact that he had provided the prison administration with a copy of his complaint. The Deputy Minister further noted that prisoners were entitled to make applications and complaints to public bodies and stressed that the disciplinary liability envisaged in the Enforcement of Sentences Act could not be used to restrict that right. Noting that the punishment of 29 January 2007 had been upheld by the court and had become final, the Deputy Minister considered that the applicant had understandably lost confidence in the administration of Belene Prison and that that risked jeopardising his reform, should he remain in that prison. 26. Under section 76(k) of the Execution of Sentences Act (ESA) of 1969, in force at the relevant time, a prisoner who violated prison regulations or disciplinary rules or failed to fulfil his duties could be punished by, inter alia, confinement in an isolation cell for up to fourteen days. During confinement, prisoners could not use the telephone or receive any visits or parcels but were still entitled to one hour’s daily exercise in the open air, separated from the other prisoners (section 76a of the ESA and section 103 of the ESA Implementing Regulation of 1969). 27. Section 46 of the ESA Implementing Regulation of 1969 provided that where a prisoner used defamatory or offensive language in his or her submissions or complaints, he or she was liable to disciplinary and criminal punishment. On 1 June 2009 the ESA of 1969 was superseded by the new Enforcement of Sentences and Detention Orders Act (the “ESDOA”). Pursuant to section 90 (5) of the ESDOA, prisoners shall not be liable to disciplinary punishment because of having made a request or lodged a complaint. 28. In accordance with sections 78 and 78b of the ESA of 1969, an appeal lay to the General Directorate of Enforcement of Sentences or the district court against punishment by confinement in an isolation cell. The former was obliged to examine the case within two months, and the latter within three days. Execution of the punishment was not suspended pending the outcome of the appeal, unless the relevant appeal body decided otherwise. In proceedings before the district court the public was excluded and the absence of the prisoner’s lawyer was not an obstacle to the examination of the case. The court was obliged to examine all circumstances relevant to the lawfulness of the punishment. Its decision was final. 29. Pursuant to the ESA of 1969 and the relevant Implementing Regulation, the General Directorate of Enforcement of Sentences at the Ministry of Justice was responsible for managing and supervising prisons. Its General Director could annul the decisions of prison directors. 30. Under the Judiciary Act of 2007 and the ESA of 1969, the public prosecutor was competent to supervise prisons and the enforcement of sentences. His powers included examining complaints from prisoners, giving mandatory instructions to the prison administration for correcting irregularities, and suspending unlawful acts which were amenable to appeal. 31. Disputes between prisoners and the prison administration concerning the enjoyment of rights such as visiting rights or the rights to receive correspondence or parcels were not amenable to appeal before the court. 32. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as amended in July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials committed in the course of or in connection with the performance of administrative action.” 33. The relevant extracts from the Recommendation on the European Prison Rules read as follows: “70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. 70.2 If mediation seems appropriate this should be tried first. 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority. 70.4 Prisoners shall not be punished because of having made a request or lodged a complaint. ... 70.7 Prisoners are entitled to seek legal advice about complaints and appeals procedures and to legal assistance when the interests of justice require.” | 1 |
dev | 001-92087 | ENG | MDA | CHAMBER | 2,009 | CASE OF STRAISTEANU AND OTHERS v. MOLDOVA | 4 | Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The first three applicants, Mr Gheorghe Straisteanu, Ms Natalia Straisteanu and Ms Daniela Straisteanu, are a family of Moldovan nationals who were born in 1954, 1957 and 1986 respectively. The fourth applicant, Codrana-Lux S.R.L., is a limited liability company incorporated in Moldova. Sixty percent of its stock belongs to the first three applicants’ family. 6. The first applicant is a well-known businessman and a former member of the Moldovan Parliament, between 1998 and 2001. He was, inter alia, the founder of the first Moldovan private television company and owned a chain of petrol stations. After the Communist party won the general election in 2001 he retired from politics and had to wind up most of his businesses, including the television station and the petrol business. 7. In May 2001 the fourth applicant bought a plot of land measuring 14.63 hectares from the Onesti Local Council. The land was later sold by the fourth applicant to the first two applicants. Subsequently, the first applicant donated a part of the land to the third applicant and an artificial lake was built on the family’s property. 8. Also in May 2001, the fourth applicant concluded a contract of lease with the Onesti Local Council for a period of ten years concerning a natural lake measuring 5.63 hectares adjacent to the property which it had bought. 9. The first three applicants settled on the above property and developed it with a view to using it for tourism and fishing. According to them, in 2005 Government officials started to exercise pressure on the first applicant to induce him to give up the property. 10. On 20 July 2005 the first applicant was arrested in Chişinău together with his driver. At the police station, he was informed that he and his driver were being accused of carrying out a series of car thefts over the past year in Chişinău. It would appear that several criminal complaints concerning car thefts were joined in a single procedure, while others were joined later (see paragraph 14 below). 11. On 22 July 2005 the Centru District Court issued a detention warrant in the first applicant’s name for a period of ten days. The grounds for detention were that he was suspected of committing a serious offence punishable by more than two years’ imprisonment, that the criminal case was complex, and that he might abscond, hinder the investigation and the finding of the truth. An appeal by the applicant was dismissed and his detention was subsequently extended on the same grounds. 12. On 18 August 2005 Judge A.B. from the same court ordered the applicant’s release. The grounds for release were that there were no reasons to believe that the applicant would abscond or hinder in any way the investigation. However, the prosecuting authorities refused to comply with the order and continued to hold the applicant in detention. They applied a second time for an extension of the detention but Judge A. B. refused again on 19 August 2005 and found that the prosecutor had failed to comply with his previous decision and that therefore the applicant’s detention had been unlawful. The prosecutor refused again to comply with the order of release and ordered his further detention on account of charges of theft from a Volkswagen car, an episode which had not been joined to the main criminal case at that time. On the same date the prosecutor applied to another court, the Râşcani District Court, for a detention warrant. The charges against the first applicant were the same as before and no new reasons for detention were adduced. On 22 August 2005 that court upheld the application and ordered the continued detention of the applicant. It did not give any reasons for detention except that the prosecutor’s application related to another criminal case. 13. On 25 July 2005 the Ministry of Internal Affairs issued a press release which stated that the first applicant was a member of a criminal gang which was robbing car drivers in Chişinău. The major Moldovan media reported on the event the same day. 14. On 24 August 2005 the episode concerning the theft from a Volkswagen car was joined to the main criminal proceedings against the applicant. 15. On 25 August 2005 the applicant appealed against the detention warrant of 22 August 2005. 16. On 29 August 2005 the criminal case in the applicant’s case was remitted to a court for examination and from that date on the applicant was detained without a detention warrant. 17. On the same date the Chişinău Court of Appeal discontinued the appeal proceedings against the detention warrant of 22 August 2005 on the ground that the criminal case had been remitted to a court and that therefore no detention warrant was now needed. His habeas corpus applications were dismissed and he remained in detention until 17 November 2005, when a judge ordered his release. 18. During the first applicant’s detention he was held in the detention facility of the General Police Station (Comisariatul General de Poliţie). According to him, the cells in which he was detained were overcrowded, dark, damp, dirty and hot. There was no natural light, but instead there was a very weak light bulb which was switched on all the time. The ventilation was not working properly and the inmates were allowed to smoke in the cell. The cell was infested with vermin and rats and the inmates were allowed to take showers only once every twenty days with cold water. The cells measured approximately ten or eleven square metres and were occupied by at least eight people at all times. Because of the conditions of his detention the applicant contracted influenza. 19. On 7 September 2005 Amnesty International organised action in support of the first applicant on its web page, stating, inter alia, the following: “Amnesty International is concerned that Gheorghe Straisteanu is being charged on the basis of evidence which has been extracted under torture. Amnesty International has information that a second individual gave evidence after being subjected to torture by investigating officers. However, he reportedly fears that he will be subjected to further ill-treatment if his name is mentioned. The organization is also concerned that Georghe Straisteanu is being detained arbitrarily. On 18 August 2005 the central district court of Chişinău ordered the release of Gheorghe Straisteanu on bail, but police officers immediately re-detained him in the court room and took him back to the temporary detention facility despite the court decision. On 19 August, after his lawyer appealed against this arbitrary detention, the court declared that his detention was illegal. However, police officers again defied the court order and detained him in the court room. On 22 August Gheorghe Straisteanu was sentenced to ten days’ imprisonment by the court of Riscani district in Chişinău. The ten day period was due to expire on 31 August, but the investigating authorities have declared that the investigation is closed and that the case has now been transferred to the court. This effectively prolongs Gheorghe Straisteanu’s detention until the court hearing has been held. Furthermore, Amnesty International is concerned about the conditions in which Gheorghe Straisteanu is being held at the temporary detention facility on Tighina Street. He is currently being held in a cell with ten to 12 other detainees. The only washing facility is a tap and a basin in the cell, and conditions are damp and badly ventilated. Georghe Straisteanu has contracted influenza since he has been in detention and his family report that he has difficulty breathing. He has not been given access to a doctor and he has only been able to receive the medicine that his daughter passed to him when she saw him in court.... Please send appeals to arrive as quickly as possible [to the Prosecutor General’s Office, the Ministry of Internal affairs and/or to Moldovan Embassies abroad]...: · expressing concern for the health of Gheorghe Straisteanu and asking for assurances that he will be given access to the medical care he requires in conformity with the UN Standard Minimum Rules for the Treatment of Prisoners; · expressing concern at allegations that some of the evidence that has been used to convict Gheorghe Straisteanu has been extracted from another individual under torture; · urging the authorities not to use any evidence extracted under torture in this case and reminding the authorities that as a party to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment they must ensure that any statement which has been made as result of torture is not used as evidence in criminal proceedings; · expressing further concern at allegations that the police did not respect court decisions regarding the illegal detention of Gheorghe Straisteanu and that he was arbitrarily detained by police twice in defiance of court orders; · urging an investigation into the allegations of arbitrary detention and asking for his release if the allegations are found to be correct.” 20. On an unspecified date in October 2005 the President of Moldova, Mr V. Voronin, held a meeting with high ranking officials, among whom was the Prosecutor General, the head of the Anti-Corruption Department, the head of the Cadastral Authority and the prefect of the county where the applicants’ land was situated. During the meeting he expressed great dissatisfaction with the fact that in spite of his clear indications to numerous State bodies, the applicants’ property was still in their possession and had not been returned to the State and a monastery. He gave them a deadline of 17 November 2005 to solve the problem, threatened them with dismissal and left the room, slamming the door. 21. A video of this event was broadcast by a television channel on 4 April 2006 in a programme entitled ‘The President’s working day’ which reported on the busy schedule of the President. A copy of it was sent to the Court by the applicant. 22. According to the applicants, after the first applicant’s arrest their family started to experience harassment from law enforcement bodies such as the Department for the Fight against Organised Crime and Corruption, the police and the Prosecutor’s Office, who intimidated and pressured them to give up their property. While in detention the first applicant was approached by police officers, who proposed that he sell the property in exchange for his release. The second applicant was visited on numerous occasions by people claiming to be representatives of the above bodies. They requested her family to leave the property, failing which she would not see her husband again. The third applicant was contacted on numerous occasions by police officers and investigators in charge of her father’s case and ordered to sell the property. 23. On 25 August 2006 the second applicant lodged a complaint with the Prosecutor General’s Office complaining about the actions of two police officers who had entered her property without any legal basis and ordered her, also in the absence of any legal basis, to take down a billboard at the entrance to the property. 24. On 4 October 2006 the second applicant received a letter from the Prosecutor General’s Office, in which she was informed that the matters described by her had proved to be partially true; however, there were no sufficient reasons to justify the prosecutor office’s intervention. 25. On 26 October 2005 the Prosecutor General filed an action with the Economic Court asking for the annulment of the contract of lease for 5.63 hectares of land concluded between the Onesti Local Council and the fourth applicant in May 2001, on the ground that the Local Council had failed to organise an auction. 26. On an unspecified date the President of the Superior Council of Magistrates and the President of the Supreme Court of Justice, Ms V.S., inquired with the Vice President of the Economic Court, Judge M.M., about the above case. 27. In a letter of 30 October 2005 Judge M.M. wrote to Ms V.S. stating, inter alia, that the case was scheduled to be examined on 8 November 2005 and that she would be dealing with it. It appears that the hearing of 8 November was adjourned. 28. On 14 November 2005 the fourth applicant was sent a registered letter informing it that the hearing in the case was scheduled for 17 November 2005. It appears that the fourth applicant was no longer at the address to which the summons was sent and therefore did not receive the summons. 29. On 17 November 2005 Judge M.M. examined the case in the absence of the fourth applicant and upheld the Prosecutor General’s action relying on Article 50 of the old Civil Code, in force at the time of the conclusion of the lease contract. It found that the Onesti Municipal Council had contravened the law by failing to organise a public auction for the lease of the property. 30. On an unspecified date in January 2006 the fourth applicant appealed against the above judgment and argued, inter alia, that it had not been summoned and that it did not even know about the prosecutor’s application before 25 November 2005. According to the law in force at the time of the conclusion of the lease, there was no obligation to hold an auction. That obligation referred only to sale of land by local authorities, but not to leases. In any event, the action was time-barred. 31. On 19 January 2006 a panel of the Supreme Court of Justice presided over by Judge I.M. dismissed the applicant’s appeal and argued, inter alia, that it had been summoned at the address which appeared in the database of the Registration Chamber, and that therefore the applicant had been legally summoned. The court also found that the local council had been under an obligation to organise an auction before renting out the land in question. The Supreme Court did not refer to the applicants’ objection concerning the Statute of Limitations. 32. On an unspecified date the fourth applicant lodged an action with the Economic Court claiming compensation for the investments it had made in respect of the leased property. It claimed 5,034,304 Moldovan lei (MDL). 33. On 20 February 2006 the Economic Court refused to examine the application because the fourth applicant had not paid the court fees of three per cent of the amount sought. 34. In March and April 2006 the fourth applicant paid a part of the court fees and applied again to the court. It argued that it did not have any more money because all its assets and bank accounts had been frozen by the Prosecutor’s Office. 35. On 20 June 2006 the Economic Court refused again to examine the action on the same grounds. The fourth applicant’s appeal was dismissed. 36. On 10 November 2005 the Prosecutor General brought an action with the Economic Court of Moldova seeking the annulment of the purchase of the plot of land of 14.63 hectares by the fourth applicant from the Onesti Local Council in May 2001 and of all the subsequent contracts by which the property had been transmitted to the first, second and third applicants. The Prosecutor General argued that the Onesti Local Council had acted ultra vires and had committed numerous irregularities in organising the auction, establishing the price of the property and selling the property. 37. The applicants opposed all the Prosecutor General’s submissions. Their main arguments were that the Prosecutor General’s action was time-barred, that they had acquired the property in good faith and that the property could not be expropriated without compensation. At the same time the second and third applicants lodged a counter action in which they submitted that if the Prosecutor General’s action was upheld they should be entitled to compensation for the investments they had made in the development of the property in an amount of approximately 216,000 euros (EUR) and EUR 768,000 respectively. 38. On 11 May 2006 the Economic Court requested the applicants to pay court fees in the amount of three percent of the claimed amounts. The applicants appealed and argued that all their accounts had been seized by the Prosecutor’s Office, that they were unemployed and that they could not pay the court fees. They asked, on the basis of the law on court fees, to be allowed to pay the fees after the adoption of a judgment in the case. 39. On 29 June 2006 a panel of the Supreme Court of Justice presided by Judge I.M. dismissed the appeal. 40. On 2 August 2006 the applicants’ counter action was dismissed on the ground of their failure to pay court fees. The applicants appealed against this decision. However, their appeal was dismissed on 21 September 2006 by a panel of the Supreme Court of Justice presided over by Judge I.M. 41. On 18 December 2006 Judge B.B. from the Economic Court upheld the action lodged by the Prosecutor General, relying on Article 50 of the old Civil Code, in force at the time of the conclusion of the lease contract. Judge B.B. found that the Onesti Local Council had breached the rules concerning the conduct of public auctions, namely that it had failed to observe the rules concerning the advertising of the auction, the composition of the auction commission and the drafting of the auction record. The court did not refer to the applicant’s objection concerning the Statute of Limitations and considered all the prosecutor’s arguments well-founded. It ordered that the parties be put in the same position as they had been prior to the conclusion of the contract. 42. The applicants appealed and argued, inter alia, that they had been punished for errors of the local authorities which were not imputable to them, that the court was not independent and impartial, that the action was time-barred and that the actions against them had been orchestrated by President Voronin, submitting a copy of the video in which the President was shown instructing State officials to take away their property. 43. On 15 February 2007 the Supreme Court of Justice dismissed the applicants’ appeal. It held that according to the Code of Civil Procedure claims filed in the State’s interest were exempt from the requirement to observe time-limits. 44. On 3 August 2006 a bailiff came to the applicants’ property, accompanied by the mayor of Tiganesti village, in order to enforce one of the civil judgments concerning the applicants’ property. A quarrel took place between the first applicant and the mayor and two weeks later the latter lodged a complaint with the Prosecutor’s Office, complaining that the first applicant had made death threats against him. In particular, he submitted that during the quarrel the first applicant had said that he would feed him (the mayor) to the fishes. 45. On 21 August 2006 the applicant was arrested and placed in detention. On 23 August 2006 the Straseni District Court issued an order for him to be detained for ten days. That was extended on numerous occasions and the first applicant’s appeals and habeas corpus requests rejected. 46. He was detained in the detention centre of the Straseni Police Station until 24 September 2006 and then in Chişinău no. 13 prison. According to the applicant, the conditions of detention in both detention facilities amounted to inhuman and degrading treatment. 47. The applicant’s detention under the new charges continued until 28 November 2006, when he was placed under house arrest. 48. On an unspecified date in 2007 the first applicant initiated civil proceedings against the Government claiming compensation for poor conditions of detention in 2005 and in 2006 and for detention contrary to Article 5 of the Convention. He relied, inter alia, on the Court’s findings in respect of conditions of detention in Ostrovar v. Moldova (no. 35207/03, 13 September 2005), Sarban v. Moldova (no. 3456/05, 4 October 2005), and Holomiov v. Moldova (no. 30649/05, 7 November 2006) in which the applicants had been detained in the same detention facilities. 49. On 27 June 2007 the Centru District Court dismissed the applicant’s action, upholding the Government’s position and finding that the conditions of detention on both occasions were acceptable. The court accepted several of the applicant’s submissions, such as that his cell window did not have glass for several days, that a person with scabies was placed in his cell on one occasion, that there was no linen or mattresses in the cell, and that there was no sewerage in one of the detention facilities. Nevertheless, it considered that these shortcomings were not sufficient for the application to be upheld, because the applicant did not have to share a bed with the ill prisoner, the latter had been receiving treatment for five days and at the time of his placement in the cell he was no longer contagious. Moreover, the window cell was repaired after only four days and in any event the temperatures at the end of September were usually moderate. In addition, prisoners were allowed to bring their own mattresses and linen. In so far as the complaint under Article 5 was concerned, the court found that there were no civil remedies against the alleged breaches under Moldovan law. This judgment was confirmed by the Court of Appeal on 3 October 2007 and by the Supreme Court of Justice on 7 May 2008. 50. On 18 May 2008 the applicant lodged another action with the Rascani District Court, again claiming compensation for his allegedly unlawful detention between August and November 2005. It appears that his action has not yet been determined. 51. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, unofficial translation) read as follows: B. Establishments visited ... - EDP of Chişinău Police Inspectorate (Follow-up visit) ... b. remand centres (EDPs) 53. In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity. 54. Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. ... 55. One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the Moldovan authorities have paid no attention to the CPT recommendations. In fact, this state of affairs strongly suggests that, setting aside economic considerations, the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty. 56. Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit. In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m². 57. The delegation also received numerous complaints about the quantity of food in the EDPs visited. This normally comprised tea without sugar and a slice of bread in the morning, cereal porridge at lunch time and hot water in the evening. In some establishments, food was served just once a day and was confined to a piece of bread and soup. ... ...Concerning the issue of access to toilets in due time, the CPT wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of one or several other persons, in a confined space such as the EDP cells which also serve as their living space, is in itself degrading, not only for the individual concerned but also for those forced to witness what is happening. Consequently, the CPT recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should – if they so request – be taken out of their cell without delay during the day in order to go to the toilet. 59. The CPT also recommends that steps be taken to: - reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level; - supply persons in custody with clean mattresses and clean blankets; - authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter. In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.” 4. Conditions of detention. a. Institutions of the Ministry of Internal Affairs 41. Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs. The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow lifting the concern of the Committee. In fact, most recommendations made have not been implemented. 42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited such access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to pass the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives... 45. As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereals at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions. 47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.” II. Institutions of the Ministry of Internal Affairs In so far as the conditions of detention in the police establishments are concerned, it appears that this is the field in which the least progress has been achieved. It is not necessary to enumerate here in detail all the shortcomings observed by the delegation, which are more or less the same as those observed during past visits (and of which the Ministry of Internal Affairs is perfectly aware). ... Numerous persons are still detained overnight in police establishments, in cells which should not be used to detain persons for more than a few hours. It is high time to remedy these problems, in particular by placing accused persons under the supervision of institutions of the Ministry of Justice and building new prisons corresponding to CPT standards and to the norms laid down by the Moldovan legislation.” 52. Article 25 of the Constitution of the Republic of Moldova, in so far as relevant, states as follows: “(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of thirty days. The lawfulness of the warrant may be challenged, in accordance with the law, before a hierarchically superior court. The period of detention may be extended only by a court, in accordance with the law, to a maximum of twelve months.” 53. The relevant part of the Code of Criminal Procedure reads as follows: (2) The application for a detention warrant... shall be examined without delay by the investigating judge... at the place of the conduct of the criminal investigation, at the place of arrest or at the place of residence of the detainee’s representative. (5) A repeated application for a detention warrant... in respect of the same person and in the same proceedings, after the dismissal of a previous application, shall be possible only if new reasons for detention have appeared. 54. The relevant provisions of the Civil Code, in force at the relevant time, provide: The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations. The competent court ... shall apply the limitation period whether or not the parties request such application. Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim. If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected. The limitation period does not apply: ... (2) to claims by State organisations regarding restitution of State property found in the unlawful possession of ... other organisations ... and of citizens;”. 55. The relevant provisions of the new Civil Code, in force after 12 June 2003, read as follows: “(1) The civil law does not have a retroactive character. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the already created effects of a legal situation which has extinguished or in the process of execution.” 56. In a judgment of 20 April 2005 (case nr. 2ra-563/05) the Supreme Court of Justice dismissed the plaintiff’s contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that, therefore, the provisions of the old Civil Code were applicable. | 1 |
dev | 001-60421 | ENG | GRC | CHAMBER | 2,002 | CASE OF ANGELOPOULOS v. GREECE | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Françoise Tulkens | 7. The applicants are the co-owners of a plot of land in Drafi. Adjacent to their plot, but separated by a road, there are three plots of land owned by a co-operative of civil servants of the Ministry of Agriculture, Mr M and Mr Y respectively. On 11 May 1974 an area comprising the three plots of land in question was included in the town plan. The applicants’ plot was not. In September 1977 a decision drawing the exact limits of the area covered by the town plan was issued. 8. On 1 June 1989 the applicants obtained a permit for the reconstruction of a house on their plot of land. 9. On 15 February 1992 the forests’ inspector requested the authorities to revoke the applicants’ reconstruction permit on the ground that their plot of land was in a forest area. On 20 February 1992 the first applicant lodged with the Council of State an application for judicial review of the forests’ inspector’s request. 10. On 6 April 1993 the first applicant lodged with the Council of State an application for judicial review of a series of acts in essence preparing the modification of the town plan of 11 May 1974. 11. On 19 July 1993 the authorities proposed a modification of the town plan. The applicants objected. 12. On 12 January 1994 the authorities informed the applicants that they were not entitled to compensation for the expropriation of part of their plot of land that would result from the 19 July 1993 modification of the town plan. As a result, the expropriation in question needed not be revoked. 13. On 31 January 1994 the prefect decided that the applicants’ plot of land was part of an area that should be turned back into a forest. 14. On 22 April 1994 the applicants applied to the Council of State for judicial review of the refusal of the authorities to revoke the expropriation plan. The proceedings are still pending. 15. On 5 May 1994 the prefect issued a second decision to the effect that the applicants’ plot of land was part of an area that should be turned back into a forest. 16. On 4 July 1994 the applicants applied to the Council of State for judicial review of the prefect’s decision of 5 May 1994. The proceedings are still pending. 17. On 2 November 1994 the applicants applied for judicial review of the prefect’s decision of 31 January 1994. The proceedings are still pending. 18. On 2 October 1995 the head of the district (periferiarhis) issued a decision confirming the decisions of 31 January 1994 and 5 May 1994 of the prefect. On 27 November 1995 the applicants applied to the Council of State for judicial review of this decision. The proceedings are still pending. 19. On 12 September 1996 the applicants intervened in the proceedings instituted in the Council of State by the co-operative against the forests’ inspector. 20. On 9 July 1997 the Council of State at the request of the minister examined a draft decree with a new proposed modification of the town plan. It found it to be illegal. 21. On 15 May 1998 Y obtained a new building permit. On 1 October 1998 the applicants applied to the Council of State for judicial review of the relevant decision. The proceedings are still pending. 22. On 5 January 1994 the first applicant submitted additional observations for the judicial review of the modification of the town plan. The Council of State fixed the date of the hearing for 7 December 1994, but on that date it decided to adjourn the case until 5 April 1995 and then until 29 November 1995 and 8 May 1996. On 22 April 1996 the applicant submitted fresh observations whereby he declared that he also challenged another act, the Presidential Decree which approved the modification of the town plan. Moreover, the first applicant rebutted the arguments of the cooperative (which had intervened in the proceedings in favour of the State on 22 March 1995) and submitted thirty-nine new documents for consideration by the Council of State. 23. As a result, the hearing was adjourned again until 18 December 1996 and then until 8 January 1997, 12 March 1997, 21 May 1997 and 15 October 1997. On 25 September 1997 and again on 6 October 1997 the applicant submitted additional observations and evidence. On 13 October 1997 he challenged the reporting judge and another judge of the bench of the Council of State and thus the hearing was adjourned until 5 November 1997. On that date the Council of State dismissed the challenge. 24. On 19 November 1997, the first applicant submitted further observations and further evidence. 25. On 29 June 1998 the Council of State rejected the first applicant’s application (judgment no. 2777/1998) on the ground that “preparatory acts” could not be challenged. The applicant received a copy of the judgment on 1 October 1998. 26. On 27 October 1998 the applicant asked for the reopening of the proceedings concerning his application of 6 April 1993 on the ground that the Council of State had not taken into consideration certain documents which had been missing from the file. 27. On 26 March 1999 the President of the Fifth Chamber of the Council of State decided that the application would be heard on 20 October 1999. Thus the Council of State granted the applicant’s request to join this application to the application which he had lodged with his wife on 22 April 1994. On 29 September 1999 the applicant submitted observations in regard to this latter application. On 20 October 1999 the case was adjourned until 2 February 2000. However, on 17 January 2000 the reporting judge resigned and the Council of State adjourned the examination of the case until 17 May 2000. On that date a new reporting judge was appointed and the hearing fixed on 22 November 2000. 28. On 22 April 1994 the applicants applied to the Council of State for judicial review of the refusal of the authorities to revoke the expropriation plan. A hearing was listed for 5 April 1995. On that date the Council of State adjourned the consideration of the case until 13 December 1995, 5 June 1996, 13 November 1996, 2 April 1997, 24 September 1997 and 8 April 1998. According to the Government, these adjournments were decided by the Council of State in agreement with the applicants who wanted the Council of State to consider first their application introduced on 6 April 1993. 29. On 2 December 1998 the hearing was adjourned again because the reporting judge was on sabbatical leave. As a result, the presiding judge appointed another reporting judge and adjourned the consideration of the case until 12 May 1999. 30. In view of the new date of the hearing, the applicants submitted additional observations whereby they challenged three more acts, in addition to those indicated in their application of 22 April 1994. Consequently, the hearing was adjourned until 20 October 1999, when the Council of State would examine the application made by the first applicant on 27 October 1998. 31. On 19 January 2000 the case was struck off the list and returned to be heard by the Administrative Court of Appeal, by virtue of article 29 § 1 of Law no. 2721/1999. 32. When the Government submitted their observations to the Court, the case file had not been transmitted to the Administrative Court of Appeal because, on 25 January 2000, the applicants invited the Council of State to hold a hearing for both applications of 22 April 1994 and 27 October 1998. The hearing was set down for 27 September 2000 but was adjourned until 22 November 2000, in order for the applicant’s request for a joint hearing with his applications of 6 April 1993 and 27 October 1998 to be satisfied. | 1 |
dev | 001-75898 | ENG | SVK | CHAMBER | 2,006 | CASE OF TERENI v. SLOVAKIA | 4 | Violation of Art. 6-1 (length of one set of proceedings);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1936 and lives in Vráble. 5. On 23 April 1991 the applicant was dismissed from his job as a sports teacher at a secondary school. 6. On 13 September 1991 the Levice District Court found that the applicant’s dismissal was void. 7. On 22 November 1991 the applicant again received a notice of dismissal. 8. On 13 May 1992 the Levice District Court dismissed the applicant’s action challenging the lawfulness of the dismissal. 9. On 15 March 1993 the Nitra branch of the Bratislava Regional Court declared the applicant’s dismissal unlawful. 10. In 1993 the applicant claimed payment of the salary which the employer owed him. 11. On 12 December 1994 the Levice District Court dismissed the action, but the Nitra branch of the Bratislava Regional Court quashed this decision on 29 November 1995. 12. On 23 August 1996 the Levice District Court ordered the defendant to pay the outstanding salary to the applicant. 13. On 23 April 1998 the Nitra Regional Court upheld this decision. 14. On 19 July 1993 the applicant received a third notice of dismissal from his employer due to redundancy. 15. On 25 January 1994 he challenged the lawfulness of his dismissal before the Levice District Court. In the course of February 1994 the applicant supplemented his submission in accordance with the court’s instruction. 16. On 12 March 1994 the court asked the applicant to pay the court fee. It also sent the action to the defendant for comments. The applicant paid the fee on 18 March 1994. The defendant’s comments were submitted on 28 March 1994. 17. The first hearing was held on 1 June 1994. The case was adjourned due to the defendant’s absence. 18. At the second hearing held on 17 August 1994 the court heard the parties. 19. Between August and November 1994 the District Court obtained further evidence. 20. On 16 January 1995 the Levice District Court dismissed the action. The judgment was served on 1 March 1995 and the applicant appealed on 7 March 1995. 21. On 5 April 1995 the applicant paid the fee and the file was submitted to the court of appeal on 20 April 1995. 22. On 17 April 1996 the Nitra Regional Court quashed the first instance judgment and returned the case to the District Court. In its decision the Regional Court explicitly stated which evidence needed to be taken with a view to establishing the relevant facts. The file was returned to the District Court on 10 July 1996. 23. In the course of August 1996 the District Court obtained further evidence. A hearing was scheduled for 2 October 1996. 24. In a submission of 1 October 1996 the applicant challenged the presiding judge. He reiterated his objection at the hearing on 2 October 1996. The request was submitted to the Regional Court which refused to exclude the judge on 31 October 1996. The file was returned to the District Court on 14 November 1996. 25. The District Court heard the parties on 6 December 1996. On 10 December 1996 it again dismissed the applicant’s action. On 14 February 1997 the applicant appealed. The file was transmitted to the court of appeal on 13 March 1997. 26. On 8 July 1997 the court of appeal scheduled a hearing for 21 December 1998. It asked the defendant to submit further evidence at the hearing. 27. On 21 December 1998 the Nitra Regional Court quashed the first instance judgment of 10 December 1996. The court of appeal noted, in particular, that the District Court had disregarded the legally binding opinion set out in its decision of 17 April 1996 and had failed to take evidence with a view to establishing the relevant facts. The case file was returned to the District Court on 3 August 1999. 28. On 16 September 1999 the judge instructed the court’s registry to serve the decision of the court of appeal. The parties were asked to submit further information. The parties submitted their replies on 4 and 9 November 1999. 29. On 4 January 2000 the District Court scheduled a hearing for 15 March 2000. It also asked a trade union for information concerning the applicant. The trade union replied on 7 February 2000. 30. The Levice District Court held hearings on 3 March 2000 and on 12 April 2000. It also obtained further evidence during that period. 31. In its third judgment in the case given on 14 April 2000 the District Court dismissed the applicant’s action. It held, with reference to the evidence taken, that the school where the applicant had been employed had been restructured as a result of which the staff had to be reduced. The employer had had no possibility of offering a different job to the applicant. The court also examined the applicant’s objection that under the relevant law his dismissal should have been subject to approval by the trade union. It found that the trade union established within the school had given such consent on 28 June 1993. 32. The judgment was served on the applicant on 5 October 2000. He appealed on 19 October 2000. The applicant argued that the judgment was arbitrary in that, in particular, the District Court had overlooked the fact that the employer could have offered a different job to him. He also argued that he was a member and president of a different trade union which had existed at the school and that that organisation had not been duly consulted prior to his dismissal. 33. On 7 December 2000 the President of the Levice District Court admitted that there had been undue delays in serving the judgment of 14 April 2000 on the applicant and informed the latter that the judge dealing with the case had been disciplined. 34. On 24 January 2001 the Nitra Regional Court upheld the District Court’s judgment of 14 April 2000. It concurred with the first instance court that the statutory requirements for dismissing the applicant had been met in that a causal link existed between the restructuring of the school and the applicant’s redundancy, and the evidence available showed that the employer had not been in a position to offer a different job to the applicant. 35. As to the applicant’s allegation that his trade union had not been consulted, the appellate court held that the defendant had not been notified that such trade union existed within the school and that the statutes of that trade union did not foresee consultations with employers in similar cases. In addition, the defendant had consulted the trade union which had been established within the school and the existence of which had been officially known to everybody. 36. On 18 April 2001 the applicant filed an appeal on points of law. He argued that the courts had disregarded the fact that he had been dismissed after he had become inconvenient because of his criticism of the management of the school and that they had failed to hear the other persons who had also been dismissed for similar reasons at that time. 37. The Supreme Court dismissed the appeal on points of law by a decision given on 30 July 2001. It noted, in particular, that there were no apparent shortcomings in the proceedings at the lower instances which would render an appeal on points of law admissible under the relevant provisions of the Code of Civil Procedure. The decision was served on the applicant on 24 August 2001. | 1 |
dev | 001-23528 | ENG | BGR | ADMISSIBILITY | 2,003 | POPOV and OTHERS, VAKARELOVA, MARKOV and BANKOV v. BULGARIA | 4 | Inadmissible | Christos Rozakis | All applicants are practising medical doctors. Some of them are members of the Bulgarian Doctors’ Union („Български лекарски съюз“ – “BDU”), established in July 1998 by the Professional Organisations of Doctors and Dentists Act („Закон за съсловните организации на лекарите и стоматолозите“ – “PODDA” or “Act”), while some have refused to become such members. The applicants in the first application (no. 48047/99), Mr Toma Dimitrov Popov, Mr Marcel Haim Levy, Mr Ivan Yordanov Chalakov and Mr Velko Vladimirov Kalaydjiev, are Bulgarian nationals who were born in 1949, 1960, 1947 and 1964 respectively and live in Sofia. They were represented before the Court by Ms Z. Kalaydjieva and Ms N. Sedefova, lawyers practising in Sofia. The applicant in the second application (no. 48961/99), Ms Mariana Ilieva Vakarelova, is a Bulgarian national who was born in 1959 and lives in Sofia. She was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia. The applicant in the third application (no. 50786/99), Mr Nikolai Markov Markov, is a Bulgarian national who was born in 1952 and lives in Sofia. He was represented before the Court by Mr E. Nikolov, a lawyer practising in Sofia. The applicant in the fourth application (no. 50792/99), Mr Georgi Hristov Bankov, is a Bulgarian national who was born in 1967 and lives in Veliko Tarnovo. He was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia. The BDU was originally established in 1901 as a professional association of medical doctors. During World War II membership in the union became compulsory. After the war the union was liquidated. Similarly, the Union of Dentists in Bulgaria („Съюз на стоматолозите в България“ – “UDB”) was established in 1905 as a professional association of dentists and ceased to exist after World War II. In 1991 an organisation named BDU was founded by a group of medical doctors. It was registered as a notforprofit association under the Persons and Family Act (the statute governing this type of organisations). The association was active on the whole territory of Bulgaria and had numerous members. The applicant in application no. 48961/99, Ms Vakarelova, was one of its members. Between 1991 and 1993 she chaired the regional section of the BDU in the Fourteenth Regional Hospital. On 8 July 1998 the Bulgarian Parliament adopted PODDA. The Act was published in the State Gazette on 21 July 1998 and entered into force on 25 July 1998. It established two organisations: the BDU and the UDB, and provided, in paragraph 9 of its transitional and concluding provisions, that the two organisations were the respective successors of the BDU of 1901 and the UDB of 1905. By virtue of PODDA all practising medical doctors and dentists in the country were obliged to become members of, respectively, the newly established BDU and UDB. Those medical doctors and dentists who were not practising could, but were not obliged to, become members. PODDA introduced amendments to the Labour Code and Criminal Code whereby a medical doctor or a dentist working under an employment contract who had not become a member of the respective union was liable to be dismissed from work without notice and became criminally liable if he or she continued to practise. In August 1998 sixty Members of Parliament requested the Constitutional Court to declare PODDA unconstitutional. They argued that compulsory membership in the BDU and the UDB went against Article 44 of the Constitution, enshrining, inter alia, negative freedom of association. They further submitted that the Act infringed Article 48 of the Constitution, guaranteeing the right to work, and also the principle that government functions should not be entrusted to public organisations without their express consent. They also maintained that the Act created undue privileges for the two unions to the detriment of other organisations and that it regulated matters which should have been left to the discretion of the unions’ governing bodies. Finally, the MPs asserted that section 34(1)(7) of PODDA was vague and could lead to unjustified gathering of irrelevant information about BDU and UDB members. The Constitutional Court gave judgment on 11 November 1998. In respect of the allegation that PODDA infringed the medical doctors’ and dentists’ negative freedom of association it held as follows: “... Through PODDA the legislature regulated the structure, the organisation and the activities of the professional organisations of the medical doctors and the dentists, the conditions for practising medicine and odontology, and the responsibility for breaches of professional ethics. According to section 1(2) of the Act the professional organisation of medical doctors is the BDU, and that of dentists – the UDB. Section 3(1) provides that all medical doctors and dentists who practise their profession must be members of the BDU or the UDB, respectively. The [Members of Parliament] who filed the request maintain that the above provisions contravene Article 12 § 1, Article 44 § 1 and Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, as well as international treaties ... which ... are part of the domestic law of the country... It is submitted that by requiring all practising medical doctors and dentists to be members of the BDU and the UDB the Act infringes the constitutionally protected freedom of association (Article 44 of the Constitution), because it brings about an element of compulsion which is irreconcilable with that freedom. In addition, according to the request, the provisions of the challenged Act run counter to Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, which proclaims on the one hand the citizens’ right to work and on the other – the obligation for the State to create the conditions for the realisation of that right. The Constitutional Court finds that these submissions and the arguments presented in support of the request are illfounded. I.1. PODDA does not contain a provision which excludes the right of other organisations, including professional and tradeunion type, founded by medical doctors and dentists, to exist alongside the BDU and the UDB. It does not proscribe the establishment of associations by medical doctors and dentists under the Persons and Family Act or another statute. Therefore, the Act does not run counter to Article 44 § 1 of the Constitution. It does not affect the constitutionally protected freedom of association, because that freedom pertains to privatelaw associations, including trade unions under Article 49 of the Constitution. This constitutionally recognised freedom includes not only the freedom to take up the initiative and to form an association, respectively to become a member of an existing one, but also the socalled “negative freedom”, i.e. the right to not become a member of an existing association. 2. PODDA does not lie on the plane of Article 44 § 1 of the Constitution. It is an Act which creates publiclaw corporations with compulsory membership of medical doctors and dentists. These corporations are endowed with certain publiclaw functions: to organise, control and discipline medical doctors and dentists. Accordingly, freedom of association, proclaimed by Article 44 § 1 of the Constitution, does not apply to them: they are created by statute and not through the free will of their members. The Constitutional Court considers that, when deciding on the applicability of Articles 12 and 44 of the Constitution to publiclaw corporations, it must have regard to the caselaw of the European Court of Human Rights and the interpretation of Article 11 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [(“ECHR”)]. This provision corresponds to Article 44 § 1 of our Constitution. This is so, because [ECHR] is part of domestic law and, according to its Article 46, the judgments of the European Court of Human Rights [and the interpretations of the ECHR contained therein] are binding on all State bodies in the country. [In] a judgment of the European Court of Human Rights in Strasbourg of 27 May 1981, the issue [was] whether the compulsory membership of medical doctors in a publiclaw corporation – “Ordre des médecins” –, created by act of the king of Belgium, ran counter to Article 11 § 1 of the ECHR (which corresponds to Article 44 § 1 of our Constitution). That corporation’s aim was to protect the citizens’ health by exercising control over the practice of medicine. This function led to [the giving] a number of administrative powers to the “Ordre [des médecins]”, including the power to discipline the medical doctors registered with it. According to the unanimous judgment of the European Court of Human Rights, the corporation of Belgian medical doctors “Ordre [des médecins]” could not be considered as an association within the meaning of Article 11 of the ECHR and [compulsory membership in it] did not run counter to this Article. 3. It should be pointed out that a similar opinion was expressed by the German Federal Constitutional Court and by the prevailing German doctrine in respect of the various publiclaw corporations (the socalled “chambers”) which exist in Germany, such as: the lawyers’, notaries’, medical doctors’, dentists’, pharmacists’, handicraftsmen’s, etc. chambers. According to this opinion, the compulsory membership of the persons who practise the respective professions in these chambers does not contravene Article 9 § 1 of the Constitution of the Federal Republic of Germany which proclaims freedom of association, because that Article concerns the formation of notforprofit associations and of companies, which are of privatelaw character and thus do not fall in the category of publiclaw corporations. For this reasons these corporations [were] not [considered] unconstitutional... 4. In order to better understand the fundamental difference between a publiclaw corporation with compulsory membership of all persons who practise the respective profession and a voluntary privatelaw association, regard must be had to the European Court of Human Right’s judgment of 13 August 1981 in the case of Young, James and Webster [v. the United Kingdom, series A no. 44]. Its subjectmatter was an agreement for the compulsory membership of employees in a trade union. Since Article 11 § 1 of the ECHR (corresponding to Article 44 § 1 of our Constitution) applies to trade unions, the European Court in Strasbourg found in favour of the applicants, because it found that the freedom of association in trade unions could not be restricted through compulsory membership in a given trade union under the threat of dismissal from work of an employee who was not a member. The abovementioned judgments of the European Court of Human Rights draw a sharp distinction between publiclaw corporations, which have compulsory membership, and privatelaw associations, including trade unions. Article 11 § 1 of the ECHR, corresponding to Article 44 § 1 of our Constitution, applies only to privatelaw associations. The conclusion drawn by the Constitutional Court is that PODDA does not contravene Article 44 § 1 of the Constitution. 5. A decisive argument in support of this conclusion is Article 134 of the Constitution. Article 134 provides that the Bar is selfgoverning and provides for the adoption of a special statute on its organisation and activities. It is common knowledge that in many countries, and in our country even before the Constitution of 1991, the practising of the legal profession was subject to membership in the respective lawyers’ organisation, i.e. registration of the person wishing to practise as a lawyer in this organisation. It is therefore beyond question that the Bar is a telling example of a publiclaw corporation. These elements abound in our Bar Act [of 1991]. It is true that the Constitution does not expressly provide that the medical doctors’ and dentists’ unions should be corporations with publiclaw elements. But this is by no means necessary. The formation of various corporations with publiclaw elements is a matter of legislative discretion and is not dependent upon an express constitutional command. By its very nature the Constitution cannot and should not exhaustively enumerate the permissible forms of organisation. But when it regulates the Bar, it clearly indicates that organisations like it are compatible with the Constitution. Such an organisation is also the Notaries Chamber (see the Notaries Act [of 1996]). Such is also the Act challenged before the Court. 6. Through this Act the State performs its obligation under Article 52 § 3 of the Constitution to protect the citizens’ health and to provide them with highquality health care. By entrusting to medical doctors and dentists themselves the supervision of the two professions through corporations ran by them, the challenged Act manages to achieve in the most expedient manner the observance of the Professional Ethics Code and the Rules of Good Medical Practice, as well the regulation of the profession. Otherwise these functions would have to be entrusted to civil servants who would not be as competent and would cost considerable amounts of money to the State budget. This explains why the manner of organisation of medical doctors and dentists used by PODDA is also used in a number of European countries such as Austria, Belgium, Germany, Greece, Italy, Spain, Iceland, Poland, Slovenia, Croatia, the Czech Republic, [and] France. 7. PODDA is necessary also because of the inseverable link between it and the Health Security Act [of 1998 („Закон за здравното осигуряване“ – “HSA”)], because health insurance, guaranteed by Article 52 § 1 of the Constitution, may function only if the organisations of medical doctors and dentists created by PODDA exist. These organisations are parties to the National Framework Agreement concluded for the purpose of carrying out the activities under HSA. By section 55 of HSA, the National Framework Agreement regulates the conditions for and the manner of selecting medical service providers, the forms, conditions and manner in which medical services are dispensed, the amount, prices and method of payment for the medical services and drugs, as well as all other matters relating to health security. In other words, not a single health security activity could be carried out without this Agreement, which would deprive the citizens of the possibility to exercise their constitutionally guaranteed (Article 52 § 1 [of the Constitution]) right to health security. This convincingly demonstrates that not only does PODDA not contravene the Constitution, but that it is in fact mandated by the Constitution, so that the right guaranteed by Article 52 § 1 of the Constitution becomes a social reality. ...” As regards the allegation that section 34(1)(7) of PODDA was vague and allowed the gathering and retention of personal information, the Constitutional Court held: “... it is true that point 7 [of section 34(1)] has a blanket wording. However, it is sufficient to connect this provision with section 32 of [PODDA] in order to see that the term “other circumstances” means a number of facts set forth in section 32(3), without being expressly referred to in section 34(1) points 1 to 6, but which should nevertheless be entered in the register (e.g. length of service, indication that a doctor is a foreign national, [and] criminal record). If sections 32 and 34 are construed in connection with one another, the conclusion could and should be that “other circumstances” means exactly the facts mentioned in section 32. Thus, the blanket wording of point 7 of section 34(1) becomes clear and the alleged infringement of the rights set forth by Article 32 of the Constitution is excluded.” Five judges dissented from the Constitutional Court’s judgment, each writing an individual dissenting opinion. The dissenting judges were of the opinion, inter alia, that the BDU and the UDB could not be considered as falling outside the scope of Article 44 of the Constitution. The argument that they had been created by law was not persuasive because PODDA had merely branded two notforprofit associations “professional organisations” and had endowed them with certain publiclaw functions without declaring their liquidation or transformation or annulling the court’s decisions for their registration; it was doubtful whether this could be done by an Act of Parliament. The unions were essentially privatelaw associations, much like the one at issue in the case of Sigurður A. Sigurjónsson v. Iceland (judgment of 30 June 1993, Series A no. 264). Also, the notion of publiclaw functions was not unambiguous and could not serve as a basis for excluding the unions in question from the ambit of Article 44 of the Constitution. Indeed, by section 5(1) of PODDA, the two unions represented their members and protected their professional rights and interests, which were functions of a typical association or trade union. “1. Citizens’ associations shall serve for fulfilling and protecting citizens’ interests. 2. Citizens’ associations, including trade unions, may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “The private life of the citizens shall be inviolable. Everyone shall have the right to be protected against illegal interference in his private or family life and against encroachments on his honour, dignity and reputation.” “1. Citizens may associate freely. 2. Organisations whose activity is directed against the sovereignty, the territorial integrity of the country [or] the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity, towards the infringement of the citizens’ rights and freedoms, as well as organisations which seek to achieve their goals through violence, shall be prohibited.” The structure, the organisation and the activities of the professional organisations of the doctors and dentists – the BDU and the UDB –, are regulated by PODDA (section 1(1)). By section 3 of the Act, all practising medical doctors and dentists must be members of the respective union, whereas the membership of nonpractising doctors and dentists is optional. PODDA provides that the functions of the BDU and the UDB are as follows: a) to represent their members and protect their professional rights and interests; b) to represent their members as parties to the National Framework Agreement with the National Health Security Fund; c) to draft a Professional Ethics Code for medical doctors, respectively dentists, and to exercise control for compliance with that Code; d) to adopt, together with the National Health Insurance Fund, Rules for Good Medical Practice, to submit them for approval by the Minister of Health and to exercise control for compliance with them; e) to impose the sanctions which PODDA provides for medical malpractice; f) to draw up and keep a national and regional registers of their members; g) to participate in the organisation and conducting of professional qualification courses for doctors and dentists; h) to appoint representatives to the High Medical Council at the Ministry of Health; i) to express opinions on draft bills and regulations in the area of public health; j) to cooperate with other organisations and institutions in the country and abroad; k) to provide assistance to their members and their families in case they need it; l) to carry out any other activity which their statutes provide for (section 5). PODDA provides that the BDU and the UDB are legal persons and sets forth their structure and bodies. By section 18 of the Act, the BDU and the UDB have regional sections in all municipalities of the country. All practising medical doctors and dentists within a given municipality must be members of the regional section of the BDU or the UDB, respectively. The central bodies of the BDU and the UDB are their conventions (consisting of the elected representatives of their regional sections – section 8(1)), their managing boards (consisting of a chairperson, deputychairpersons, secretarygeneral and members – section 11), their control commissions (consisting of a chairperson and members – section 15(1)), and their professional ethics commissions (consisting of a chairperson and members – section 16(1)). The regional bodies of the unions are the general meetings of all practising doctors, respectively dentists, in the region (consisting of the delegates – at a one to ten rate – of all doctors or dentists within the given region – section 20(1)), the managing boards of the regional sections (consisting of a chairperson, deputychairpersons, secretarygeneral and members – section 23(1)), the control commissions of the regional sections (consisting of a chairperson and members – section 26(1)), and the professional ethics commissions of the regional sections (consisting of a chairperson and members – section 28(1)). The Act describes in detail the powers of each of the bodies. Under HSA, health coverage for all Bulgarian citizens and foreigners permanently residing on the territory of Bulgaria is provided by the National Health Security Fund („Национална здравноосигурителна каса“)(section 33 of HSA). The Fund, which receives monthly payments in respect of all persons with health coverage (section 40 of HSA), enters into a National Framework Agreement with the BDU and the UDB, as established by PODDA (section 54 of HSA). The National Framework Agreement sets forth, inter alia, the types of medical services to which all persons with health coverage are entitled, the manner of their dispensing, and the prices that the medical service providers (hospitals and medical doctors and dentists) can charge the Fund and the patients for these services (a patient pays a minimal amount every time he or she uses medical services and the remainder is paid directly by the Fund)(section 55(2) of HSA). The Agreement between the Fund and the BDU and the UDB is renegotiated every year (section 55(1) of HSA). Thus, the BDU and the UDB represent all medical doctors and dentists for the purpose of negotiating the terms of the Agreement and therefore the prices hospitals and doctors and dentists can charge the Fund for providing medical services to persons with health coverage and the manner of providing such services. The Agreement must be countersigned by the Minister of Health and is subject to control by the Supreme Administrative Court in the same manner as is delegated legislation (решение № 8145 от 18 август 2003 г. по адм. д. № 3896/ 2003 г., V чл. св на ВАС, обн. ДВ, бр. 76 от 2003 г.). All hospitals, other medical institutions and individually practising medical doctors and dentists enter into individual contracts with the local branches of the Fund pursuant to the National Framework Agreement (section 59(1) of HSA). These contracts cannot deviate from the terms of the National Framework Agreement (section 59(2) and (8) of HSA). Section 25a(4)(4) of the Public Health Act of 1973 („Закон за народното здраве“), as in force until 1999, and section 40(6) of the Medical Institutions Act of 1999 („Закон за лечебните заведения“), which superseded it, provide that in order to register private practice a medical doctor or a dentist has to produce a certificate to the effect that he or she has been registered with the BDU or the UDB, respectively. Article 324 § 2 of the Criminal Code, as amended by PODDA, provides that a medical doctor or a dentist who practises his or her profession in violation of the law is punishable with up to three years’ imprisonment or a fine from one to three hundred Bulgarian levs. By Article 330 § 2 (2) of the Labour Code, as amended by PODDA, a medical doctor or a dentist may be dismissed from work without notice if he or she had been struck off the registers kept respectively by the BDU or the UDB. Section 34(1) of PODDA enumerates the kinds of information which should be entered in the registers of medical doctors and dentists kept by the regional sections of the BDU and the UDB. While points 1 to 6 of section 34(1) set forth specific types of information (e.g. name, address, education, speciality), point 7 of that section provides that in the register shall be entered “other circumstances”. Section 32(3) of PODDA provides that the application for membership in the BDU, respectively the UDB, should be accompanied by a diploma, a document certifying that in case of a career interruption of more than five years the medical doctor or dentist has successfully passed a validation examination, a scientific degree certificate (if the doctor or dentist has one), a document certifying the place of work and the length of service, and, for foreign nationals – a residence permit and a document certifying that have passed the requisite examinations, as well as a criminal record. In 2002 Parliament adopted the Protection of Personal Data Act („Закон за защита на личните данни“), the purpose of which was to guarantee the integrity of the person and the private life by protecting the individuals from illegal processing of personal data relating to them and to regulate the right of access to such data (section 1(2) of the Protection of Personal Data Act). | 0 |
dev | 001-83464 | ENG | POL | CHAMBER | 2,007 | CASE OF LUCZAK v. POLAND | 3 | Violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - financial award (total);Costs and expenses partial award - Convention & domestic proceedings | Nicolas Bratza | 8. The applicant, who is a French national of Polish origin, was born in 1950 and lived in Brzeg. 9. The applicant moved to Poland in about 1984. He was in employment for a number of years and consequently was affiliated to the general social security scheme. The relevant law governing it did not exclude the participation of foreign nationals in the general social security scheme. 10. On 20 January 1997 the applicant and his wife, who is a Polish national, jointly bought a farm. They took possession of it on 20 November 1997. At about that time the applicant terminated his employment and decided to make his living from the farm. 11. On 2 December 1997 the applicant requested the Częstochowa branch of the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego) to admit him to the farmers' social security scheme. 12. On 16 December 1997 his request was refused on the ground that he was not a Polish national, a condition stipulated in the Farmers' Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). As a result, the applicant did not have social security cover in the event of sickness, occupational injury and invalidity. In addition, he could not pay contributions towards his old-age pension. 13. In a decision given on the same date, the applicant's wife was admitted to the farmers' scheme. 14. The applicant appealed against the decision given in his case. He submitted that as a self-employed farmer he was exposed to the risk of work-related accidents. Furthermore, he argued that since he had acquired the farm he had terminated his previous employment and that the farm was intended to provide for his livelihood. The applicant also submitted that when previously employed he had been covered by the general social security scheme despite his foreign nationality. As a result of the refusal, he could not pay his social security contributions, so the relevant time would not be taken into account when calculating his future retirement pension. 15. He also submitted that he had been informed about an obligation to join the scheme by way of a clause in the notarial deed whereby he had acquired the farm. In addition, the applicant stated that he had been living in Poland for 18 years and that he had had a permanent residence permit for 15 years. He also referred to his Polish origin and his willingness to pay the relevant contributions to the scheme. 16. On 30 March 1998 the Częstochowa Regional Court dismissed the applicant's appeal, finding that the applicant could not be admitted to the farmers' social security scheme as he did not have Polish nationality. On the other hand, it observed that in the event of a serious occupational injury the applicant could be granted a one-off compensation payment as provided in section 10(1)(2) of the 1990 Act. As regards access to health services, the Regional Court noted that the applicant, as a foreign national permanently residing in Poland, would be provided with such access by a law which was to come into force on 1 January 1999. 17. The applicant appealed against that judgment. He submitted that the refusal to admit him to the social security scheme for farmers on the basis of his nationality was discriminatory. He alleged a breach of the principle of equality, relying on the Constitution and the International Covenant on Economic, Social and Cultural Rights (“the ICESC”). 18. On 22 December 1998 the Katowice Court of Appeal dismissed the applicant's appeal. It found that the applicant could not base his claim for admission to the farmers' social security scheme on the Constitution as the latter provided in Article 37 § 2 for statutory limitations on the rights of aliens. Similarly, the Court of Appeal held that the 1948 bilateral treaty concluded between France and Poland in matters of social security was applicable exclusively to employees. The applicant's claim based on the ICESC was also dismissed. The Court of Appeal noted that Article 9 of the ICESC included a provision on the right of everyone to social security. However, it held that the provisions of the Covenant were not self-executing and left States a margin of discretion as to the manner of their implementation in domestic law. 19. The applicant lodged a cassation appeal against that judgment with the Supreme Court. On 8 February 2000 the Supreme Court dismissed his cassation appeal, relying principally on the same grounds as the Court of Appeal. Additionally, it observed that Article 67 of the Constitution provided that the right to social security was guaranteed only to Polish nationals. 20. In 1998 the applicant requested the President of the Farmers' Social Security Fund to admit him to the farmers' scheme as an exception to the existing rules. On 7 August 1998 the President of the Farmers' Social Security Fund refused and informed the applicant that the 1990 Act expressly excluded the admission of non-Polish nationals to the scheme. That rule was applicable to farmers, their spouses and members of their household. 21. In 1998 the applicant petitioned the Ombudsman. On 16 September 1998 the Ombudsman wrote to the Minister of Agriculture, stating that discrimination on the ground of nationality in respect of the provision of social security to farmers was questionable in view of the obligations specified in the ICESC. He requested the Minister to urgently prepare a relevant amendment to the 1990 Act. On 30 September 1998 the Minister informed the Ombudsman that amendments were being prepared. Those amendments would enable farmers of foreign nationality having permanent residence status in Poland to join the farmers' scheme. It was envisaged that the amendments would enter into force on 1 January 1999. The applicant was informed of this by the Ombudsman. However, the amendments were not enacted. 22. In 2002, in view of the prolonged uncertainty as to his social security cover, the applicant went to the Netherlands, where he obtained a job. From April 2004 to April 2006 the applicant was on sick leave and subsequently he has been in receipt of a sickness allowance. 23. On 2 April 2004 the 1990 Act was amended in connection with Poland's accession to the European Union (EU). The amendments provided, inter alia, that nationals of EU Member States and foreign nationals in possession of a residence permit could join the farmers' scheme. 24. The European Social Charter 1961 (“the Social Charter”), which entered into force in respect of Poland on 25 July 1997, provides, as relevant: “The governments signatory hereto, being members of the Council of Europe, ... Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin; ... Have agreed as follows: ...” “The Contracting Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs. ...” “With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake: 1. to establish or maintain a system of social security; 2. to maintain the social security system at a satisfactory level at least equal to that required for ratification of International Labour Convention (No. 102) Concerning Minimum Standards of Social Security; 3. to endeavour to raise progressively the system of social security to a higher level; 4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties; b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.” 25. In accordance with Article 20 of the Social Charter, the Republic of Poland considered itself bound by a number of substantive provisions of the Charter, including Article 12. 26. Article 37 of the Constitution reads: “1. Any person within the jurisdiction of the Republic of Poland shall enjoy the freedoms and rights guaranteed by the Constitution. 2. Exemptions from this principle with respect to aliens shall be specified by statute.” Article 67 § 1 of the Constitution provides: “A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or invalidity as well as having attained retirement age. The scope and forms of social security shall be specified by statute.” 27. The social security scheme for farmers is regulated by the Farmers' Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). At the relevant time section 1(1) of the 1990 Act provided, in so far as relevant: “The social security [scheme] for farmers shall cover farmers of Polish nationality and Polish members of their household working with them.” 28. The Social Security (Farmers and Members of their Families) Act of 14 December 1982, which predated the 1990 Act, did not lay down a nationality condition. 29. The scheme set out in the 1990 Act provides the following benefits: (1) sickness and maternity benefit, (2) benefit in respect of occupational injury and disease, and (3) old-age and invalidity pension. It is operated by the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego), a specialised government agency which is subsidised by the State budget. Depending on the size of their farms, farmers are either required to join the scheme by law or may join at their own request. Each farmer admitted to the scheme is required to pay contributions to it, the amount of which does not depend on the size of the farm or the level of income from it. The precondition for admission to the scheme is to be an owner of a farm, regardless of whether farming is the main source of the farmer's livelihood. 30. On 2 April 2004 the 1990 Act was amended. The relevant amendment, which entered into force on 2 May 2004, broadened the range of farmers who could be admitted to the farmers' social security scheme by, inter alia, including nationals of the EU Member States and foreign nationals residing in Poland on the basis of a visa or a residence permit. 31. At the relevant time the rules governing the operation of the general social security scheme for employees were laid down in the Social Security (Organisation and Financing) Act of 25 November 1986 (ustawa o organizacji i finansowaniu ubezpieczeń społecznych). The Act did not provide for any restrictions on admission to the general social security scheme on the basis of an employee's nationality, with the exception of those aliens who did not reside permanently in the country or were employed by foreign diplomatic missions. On 1 January 1999 the Act of 25 November 1986 was repealed and replaced by the Social Security System Act of 13 October 1998 (ustawa o systemie ubezpieczeń społecznych). However, the rule in respect of the admission of employees of foreign nationality to the general social security scheme remains the same. 32. In 1948 Poland and France concluded the General Convention on Social Security (Konwencja Generalna pomiędzy Polską a Francją o zabezpieczeniu społecznym). However, the provisions of that Convention were applicable exclusively to employees and other workers in comparable positions, as opposed to self-employed persons. | 1 |
dev | 001-85861 | ENG | GBR | ADMISSIBILITY | 2,008 | HIGHAM v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr John Higham, is a British national who was born in 1943 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 5 September 1997. On 20 June 2000, the applicant made a claim for widows’ benefits. On 6 July 2000, the applicant was informed that his claim had been disallowed as he was not a woman. On 28 July 2000 the applicant made a request for reconsideration. On 18 August 2000 his claim was reconsidered but the decision remained unchanged. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
dev | 001-5967 | ENG | GBR | ADMISSIBILITY | 2,001 | MARSHALL v. THE UNITED KINGDOM | 3 | Inadmissible | Georg Ress;Nicolas Bratza | The applicant, Mr Gary Marshall, is an Irish national, born in 1968 and living in Lurgan, Northern Ireland. He is represented before the Court by Mr Paul Mageean, a lawyer working with the Committee on the Administration of Justice, a non-governmental organisation based in Belfast, Northern Ireland. The Government are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 February 1998 around 3.15 p.m. the applicant was arrested under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) by a military patrol accompanied by an officer of the Royal Ulster Constabulary (“RUC”). The applicant was brought to Castlereagh Holding Centre in Belfast where he was questioned about his involvement in serious paramilitary activity including the abduction and murder of an individual. On the morning of 23 February 1998 an application was made to the Secretary of State for an extension order under section 14(5) of the 1989 Act, extending the applicant’s detention for a further three days. Notice of the application was given to the applicant, who consulted his lawyer on the terms of the application. No representations were made by the applicant to the Secretary of State. The application was granted by the Secretary of State. At 11.40 a.m. on 26 February 1998 the applicant was given notice that a further application had been made to the Secretary of State for an extension order for a further period of forty-eight hours in order to check an alibi statement which the applicant had advanced during interview and to await the results of forensic tests. No representations were made by the applicant to the Secretary of State, who granted the extension requested. On 27 February 1998 at around 5.05 p.m. the applicant was released without charge. His period of detention from arrest was six days, one hour and fifty minutes. While in detention the applicant was never brought before any judicial authority. Throughout the period of detention the applicant was able to have access to a solicitor including before the start of each interview. The applicant saw his solicitor on ten occasions during his detention. His detention during the first forty-eight hours was regularly reviewed by senior police officers not directly involved in the case as required by the 1989 Act and the Code of Practice issued under section 52 of the Northern Ireland (Emergency Provisions) Act 1996. The applicant has drawn attention in his observations in reply to those of the Government to his claim that police officers made intimidating and abusive remarks about his solicitor during his detention and to the fact that she was subsequently murdered on 15 March 1999. The applicant also criticises the austerity of the holding conditions in the Castlereagh Centre where he was detained. In its Brogan and Others v. the United Kingdom judgment (29 November 1988, Series A no. 145), the Court held that there had been a violation of Article 5 § 3 of the Convention in the case of all four applicants, who had been detained under section 12 of the Prevention of Terrorism Act 1984, which was the predecessor provision of section 14 of the 1989 Act. The applicants had been held for periods ranging between six days and sixteen-and-a-half hours and four days and six hours without being brought before a judicial authority. The Court found that even the shortest of the periods of detention, namely four days and six hours, fell outside the strict constraints as to time permitted by the first part of Article 5 § 3. In the Court’s view, the undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism was not on its own sufficient to ensure compliance with the specific requirements of Article 5 § 3. Following that judgment, the United Kingdom informed the Secretary General of the Council of Europe on 23 December 1988 that the Government had availed themselves of the right of derogation conferred by Article 15 § 1 to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 § 3 of the Convention. Part of that declaration reads as follows: “... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government’s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice...” In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require. The 1989 Act has been renewed annually ever since. Section 14 of the 1989 Act provides as follows: “14. (1) Subject to subsection (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be– (a) a person guilty of an offence under section 2, 8, 9, 10 or 11 above; (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this section applies; or (c) a person subject to an exclusion order. (2) The acts of terrorism to which this section applies are– (a) acts of terrorism connected with the affairs of Northern Ireland; and (b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland. (3) The power of arrest conferred by subsection (1)(c) above is exercisable only– (a) in Great Britain if the exclusion order was made under section 5 above; and (b) in Northern Ireland if it was made under section 6 above. (4) Subject to subsection (5) below, a person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest. (5) The Secretary of State may, in any particular case, extend the period of fortyeight hours mentioned in subsection (4) above by a period or periods specified by him, but any such further period or periods shall not exceed five days in all and if an application for such an extension is made the person detained shall as soon as practicable be given written notice of that fact and of the time when the application was made. (6) The exercise of the detention powers conferred by this section shall be subject to supervision in accordance with Schedule 3 to this Act. (7) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.” The notification made by the United Kingdom Government under Article 15 § 3 of the Convention was withdrawn on 19 February 2001, with effect from 26 February 2001. The political and security situation covering the years 1974-1987 is described in the Court’s Brannigan and McBride v. the United Kingdom judgment of 26 May 1993 (Series A no. 258, pp. 38-39, §§ 12-15). Official statistics indicate that between 1969 and 1999 (3 June) a total number of 3,295 persons (military and civilian) have died due to the security situation. The number of deaths (military and civilian) due to the security situation between 1989 and 1999 (3 June) is as follows: 1989: 62; 1990: 76; 1991: 94; 1992: 85; 1993: 84; 1994: 62; 1995: 9; 1996: 15; 1997: 22; 1998: 55; 1999: 6. Official statistics indicate that between 1968 and 1999 (3 June) a total of 42,766 persons (military and civilian) have been injured as a result of the security situation. The number of persons injured (military and civilian) over the period 1989 to 1999 (3 June) is as follows: 1989: 959; 1990: 906; 1991: 162; 1992: 1066; 1993: 824; 1994: 825; 1995: 937; 1996: 1419; 1997: 1237; 1998: 1564; 1999: 550. The reviews undertaken by the authorities of the Prevention of Terrorism (Temporary Provisions) Act 1974 and of the amending Act passed in 1976 are summarised at paragraphs 13 to 15 of the Brannigan and McBride judgment. Reviews of the operation of 1989 Act were undertaken by JJ Rowe QC for each of the years 1993 to 1998. In his 1996 Report, which was completed on 4 February 1997, the reviewer noted that there had been a marked increase in the level of terrorist activity in the wake of the IRA’s decision to end the cease-fire which it called in August 1994. In his 1997 Report, which was completed on 16 February 1998, the reviewer noted that the threat of terrorism continued to be real and observed that, while in principle, there should be judicial participation in the extension of detention, “this was not yet possible ... because the judges in [Northern Ireland] cannot yet be asked to do this work.” In his 1998 Report, which was completed on 11 February 1999, the reviewer observed that, despite the cease fire declared by the major paramilitary groups in 1994 “there are dissident elements who are intent upon causing injury and damage, and they have the capacity to do so. All in all there is a real threat that some terrorist activity will continue in Northern Ireland ... My conclusion is this, criminals with a terrorist or paramilitary disposition have the means to carry out attacks with explosives and firearms at any time; furthermore, some of them have maintained an organisation which has structure and influence.” As to the continuing use of the power of extended detention, the reviewer reiterated his view expressed in earlier reports, that he favoured judicial involvement in the decision-making process. He noted that the appropriate place to examine this issue thoroughly was in the Consultation Paper which the Government of the day had presented to Parliament in December 1998. The Consultation Paper proposed judicial participation in applications for extension. In their submissions in the instant case, the Government indicated that they envisage the introduction of legislation to include provisions for a form of judicial involvement in extensions of detention. An analysis of court remedies relevant to arrest and detention under the prevention of terrorism legislation including section 14 of the 1989 Act is contained in the above-mentioned Brannigan and McBride judgment (pp. 1645, §§ 16-29). | 0 |
dev | 001-107174 | ENG | RUS | CHAMBER | 2,011 | CASE OF USHAKOV v. RUSSIA | 4 | Violation of Art. 3 (substantive aspect) | Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1977 and is serving a prison sentence in the Samara Region. 6. From 11 July to 22 October 2008 the applicant was held in remand prison no. IZ-63/2 of Syzran in the Samara Region pending criminal proceedings against him. 7. The Government and the applicant provided differing descriptions of the conditions of the applicant’s detention. 8. The Government submitted extracts from the register of the remand prison population. They further submitted data concerning the size of the cells based on statements made by the remand prison officers. In particular, they provided the following information: 9. The applicant spent a considerable amount of time outside the prison cells. He participated in questioning and other investigative activities, and met with his lawyer, relatives and other persons. He was allowed at least an hour-long daily walk in a specially equipped prison yard and weekly showers. During inspections and cleaning of the cells the inmates, including the applicant, were taken outside the cells as well. 10. All the cells of the remand prison were equipped with natural and artificial ventilation which was in a good working order. The windows were covered with metal bars which did not prevent daylight coming through. The artificial day lighting in the cells was in compliance with the applicable specifications and was on from 6 a.m. to 10 p.m. At night low-voltage bulbs were used to maintain lighting for surveillance and practical reasons (for example, to provide lighting in the toilet area). 11. Each cell was equipped with a toilet and a sink located in the corner. The distance between the table and the toilet was at least 1.5 m and the distance between the toilet and the nearest bed was at least 1.2 m. The toilet was separated from the living area of the cell by a partition measuring at least one metre in height. 12. The applicant contested the description of the conditions of his detention in the remand prison provided by the Government. In particular he provided the following information: 13. While it was true that on several occasions the applicant was transported to the courthouse to attend hearings, the rest of the time he was confined to his cell. He was allowed to see his lawyer only once. That meeting lasted no longer than one hour. The meetings with the officers of the remand prison which took place outside his cell did not exceed thirty minutes. 14. The applicant was provided with an individual bed only when detained in cell no. 114. For the rest of the time he had to share the bed with two to three other inmates. 15. The ventilation did not function properly and was insufficient due to the overcrowding of the cells. The air was stuffy and humid. It was filled with tobacco smoke. Dirty condensation accumulated on the walls and the ceiling and then trickled down. The light was constantly on. Low-voltage bulbs were not used. The windows were covered with metal bars both on the inside and outside. 16. The flushing system in the toilet did not provide a sufficient amount of water to keep the toilet clean. The odour emanating from the toilet was very bad and the inmates had to burn paper to mask it. The distance between the toilet and the dinner table was 1.8 metres in cells nos. 113, 122, 144. In cell no. 114 the toilet was located some 1.2 metres away from the dinner table. 17. In his submissions of 1 June 2010, the applicant alleged that on the days of the trial hearings he had been transported to and from the courthouse in appalling conditions. The vans were overcrowded and each trip lasted over two hours. 18. On 29 September 2008 the applicant was convicted of another drugrelated offence and sentenced to six years and six months’ imprisonment in a high-security colony. He was sent to serve a prison sentence in correctional colony no. IK-13 in the Samara Region. 19. The applicant was held in the colony from 21 January to 11 July 2009. 20. The applicant was provided with an individual bed, bedding and cutlery. While he was held in the disciplinary cell he was allowed a daily walk which lasted at least an hour in a specially equipped yard. He also spent time outside the cell when taking a shower. He was invited to meetings with the administration of the correctional colony. 21. The dormitories and the disciplinary cell were equipped with artificial and natural ventilation. The dormitories had at least ten windows and nine lamps. The disciplinary cell had a window measuring 0.9 by 1.0 sq. m. It was reinforced with metal bars which did not prevent daylight coming into the cell. The cell was provided with two daylight lamps. At night low-voltage bulbs were used to light the cells for surveillance and practical reasons. 22. The dormitories had separate restrooms ensuring sufficient privacy. The toilet in the disciplinary cell was placed in the corner one metre away from the dinner table. The distance between the toilet and the nearest bed was 0.6 m. 23. The applicant contested the description of the conditions of his detention in the colony. In particular he provided the following information: 24. There was no artificial ventilation in disciplinary cell no. 2. The opening of a window pane measuring 0.2 by 0.3 m was insufficient to ensure the proper ventilation of the cell. The lighting was dim and insufficient. The toilet was not cleaned and reeked. It was located some 0.85 metres and 1.2 metres away from the dinner table. The windows were covered with two rows of metal bars inside and outside. 25. For the whole time the applicant was detained in the disciplinary cell he was never taken for a walk outside. 26. On 1 February and 5 April 2010 the administration of correctional colony no. IK-29 allegedly opened the applicant’s letters addressed to his representative before the Court. 27. The applicant’s letter dispatched on 2 April 2010 did not reach his representative. 28. The applicant’s letters of 4 and 19 May 2010 addressed to his representative were allegedly dispatched with a delay of thirteen and six days respectively. 29. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 30. Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male prisoners in correctional colonies. | 1 |
dev | 001-61704 | ENG | DEU | CHAMBER | 2,004 | CASE OF HAASE v. GERMANY | 1 | Violation of Art. 8 with regard to taking into care;No separate issue under Art. 6-1;Inadmissible under Art. 8 with regard to denial of access;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award | Ireneu Cabral Barreto | 7. The applicants were born in 1968 and 1967 respectively and live in Altenberge (Germany). 8. Mrs Haase is the mother of twelve children. While she was married to M. she gave birth to seven children, Matthias, born in 1985, Sascha, born in 1986, Ramona, born in 1987, Alexander, born in 1988, Timo, born in 1990, and the twins Lisa-Marie and Nico, born in 1992. With her second husband, Mr Haase, she had five children. Anna-Karina was born in 1995, Sandra-Kristin in 1998, Maurice-Pascal in 2000 and Laura-Michelle on 11 December 2001. In December 2003 Mrs Haase gave birth to her last child. 9. In 1993 the relations between Mrs Haase and M. deteriorated. In April 1993 M. instituted divorce proceedings and requested to be afforded parental rights over the children. By a decision of 29 October 1993 the Münster District Court (Amtsgericht) granted parental rights over the three younger children, Timo, Lisa-Marie and Nico, to Mrs Haase and over the four older children to her first husband. The Münster Youth Office appealed against the decision, but withdrew the appeal in September 1994. In December 1993 Mrs Haase moved with the three children to live withher present husband. On 18 November 1994 the Münster District Court pronounced Mrs Haase's divorce from her first husband. The applicants have been married since December 1994. 10. In February 2001 Mrs Haase applied to the Münster Youth Office (Amt für Kinder, Jugendliche und Familien - KSD) for family aid. In order to be granted the aid, the applicants agreed to have their family situation assessed by a psychological expert. In May 2001 the Municipal Social Service instructed G. to draw up an expert report. The expert met Mrs Haase and three of her children on 26 September and 11, 15 17 and 22 October 2001 at the applicants' home. 11. Being of the opinion that the questions put to the children by the expert were irrelevant for the purposes of family aid and having regard to the expert's objection to Mrs Haase attending the meetings with the children's teachers, the applicants refused to co–operate with the expert any longer. 12. On 17 December 2001 the expert submitted his report to the Münster Youth Office. According to this report, the deficiencies in the children's care and home conditions risked jeopardising their development seriously. There was a damaging cycle of events in which the applicants were unreasonably harsh with their children on repeated occasions and had beaten them. The children needed to be in a secure long-term placement and any further contact between them and the applicants would have to be avoided. 13. On the same day the Youth Office applied to the Münster District Court for an interim injunction (einstweilige Anordnung) withdrawing the applicants' parental rights over the seven children, namely their four children, Anna-Karina, Sandra-Christine, Maurice-Pascal and Laura-Michelle, and three of the children born during Mrs Haase's first marriage, namely Timo, Nico and Lisa-Marie. 14. On that very day, i. e. on 17 December 2001, the Münster District Court, without hearing the parents or their children, issued the requested interim injunction. The applicants were ordered to hand over the children forthwith to the Münster Youth Office. The officer in charge of enforcing the decision was authorised to use force if necessary to collect the children. Relying notably on the findings of the expert report, the District Court found that the parents' inability to give the children satisfactory care and education and an abusive exercise of parental authority jeopardised the physical, mental and psychological well-being of all of the children to the extent that their separation from the applicants appeared to be the only possible solution to protect them. The District Court referred to the relevant provisions of the Civil Code (Articles 1666 and 1666a - see paragraphs 53 and 54 below). 15. By a decision of 18 December 2001 the Münster District Court supplemented its decision of 17 December 2001, prohibiting all access between the applicants and their children and the three children of the first marriage, Timo, Nico and Lisa-Marie. The whereabouts of the children were not to be communicated to the applicants. The District Court further prohibited all access between the four other children of the first marriage and Mrs Haase. She was also forbidden to come nearer than 500 metres to the four other children's residence or their schools. The District Court considered that the expert opinion was sufficient evidence to show that the separation of the parents from their children was necessary for the protection of the children. It had further been shown that the parents would object and try by all means to exert pressure upon the children. In order to avoid stress to the children, these measures were necessary in their best interests. The parents were urged to recognise their own deficiencies in respect of the care and the physical and psychological well-being of the children and take into account the clearly expressed need of the children for a change in their situation. The parents were invited to accept - at least for the time being - the measures taken and to contribute as far as possible to a calming of the general situation. This was only possible if the parents accepted the existing circumstances. The approach of the Youth Office met in part the expressly stated wishes of the children. The District Court concluded that the momentarily inevitable measures were proportionate to the urgent needs and the objective interests of all of the children. 16. The children were taken on the same day about noon from three different schools, a nursery and from home and were placed in three foster homes. The seven-day-old youngest daughter, Laura-Michelle, was taken from the hospital and since that time has lived with a foster family. 17. In a letter of 18 December 2001 Dr W., a gynaecologist and head physician at the Johannesstift hospital in Münster, complained to the Münster District Court about the conduct of the authorities. He stated that, according to a telephone call of 17 December 2001, the six children of Mrs Haase as well as the newborn child in the hospital were to be removed from their mother without her knowledge. His patient was to be informed of the measure after her child had been taken from the nursery. Staff members were asked to take the child downstairs to the hospital's entrance and place it in a taxi. He, as the head physician, and the medical hospital staff were surprised and shocked by the lack of warning and considered this conduct an affront to both Mrs Haase and the medical staff. Since 1992 Mrs Haase had been taken care of by the medical staff of the hospital. She had always given the impression of a being highly responsible person. She had come regularly to the preventive medical check-ups during her pregnancy. When she was accompanied by her children, the children behaved well, were friendly and well brought-up. There were no signs that they were in any way neglected or ill-treated. 18. On 19 December 2001 the Youth Office informed the applicants that the children had been granted financial assistance in the sum of EUR 4,000 per month and that the parents had to contribute to these fees according to their financial means. 19. On 19 December 2001 the applicants appealed against the District Court's decision of 17 December 2001. They submitted that it was difficult to understand that in the context of family aid an expert opinion on the parents' ability to bring up their children had been drawn up and that they had not been informed about this opinion. The contested decision was unexpected and had been given at a moment when Mrs Haase was in a critical state of health, having given birth to her daughter a week before. They proposed witnesses who would confirm that the children had not been ill-treated, but were being brought up with love and understanding. 20. On 7 January 2002 the District Court held a hearing in the presence of the applicants assisted by a lawyer, Mrs Haase's first husband, representatives of the Münster Youth Office, a representative of a nursery and the expert G. The four witnesses of the applicants' own choosing were not heard and had to leave the courtroom. The District Court instructed G. to proceed with the assessment of the remaining children and to finalise his report. It further appointed a new expert, H., to assess the applicants' capacity to bring up their children. 21. In the following interviews to prepare the assessment, the applicants asked the expert make a tape-recording of the interviews. Upon the expert's refusal to do so, the applicants were unwilling to continue to co-operate with him. 22. On 1 March 2002 the Hamm Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal against the decision of 17 December 2001. It noted that the District Court had had regard to the report submitted by the Youth Office in connection with its request of 17 December 2001 to revoke the applicants' parental rights and to the expert opinion submitted by G. and that the District Court had considered that the impugned measure was justified. The expert had concluded that the basic needs of the children were not satisfied and that patterns of violence and permanent shortcomings of all kinds determined the children's day-to-day life. It was thus necessary to put an end to the risk to which the well-being of the children appeared to be exposed. A new expert opinion was to be expected by the middle of April 2002. The Court of Appeal found that the applicants' appeal could therefore be dismissed without holding a hearing. It was against the best interests of the children to take them out of the new environment in which they were building up new contacts, and to restore them to their former family, there being the risk that they would be taken to a new environment again shortly afterwards. 23. On 8 March 2002 the applicants challenged the judge at the Münster District Court for bias. 24. On 4 April 2002 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, dismissed the applicants' request for an interim injunction. The Federal Constitutional Court found that the applicants' constitutional complaint was neither inadmissible nor manifestly ill-founded. There were doubts in particular whether the courts had breached the applicants' right to a fair hearing and their right to respect for their family life. However, if the requested interim injunction was issued and if later the constitutional complaint had to be dismissed, the children would have to be taken from the applicants again and placed somewhere else. Having regard to the fact that the expert opinion was to be drawn up by mid-April 2002, the applicants should await the outcome of the main proceedings rather than have the children run the risk of being separated from their parents again later. It had to be assumed that the competent courts would conduct the main proceedings speedily having regard to the time element in these matters. 25. On 10 April 2002 the Münster District Court dismissed the challenge to the judge and on 11 April 2002 another to the expert G. 26. On 19 April 2002 the Münster District Court appointed a lawyer of the Münster Bar as curator ad litem (Verfahrenspfleger) to represent the children in the proceedings. It instructed the already appointed experts to submit the results of their investigations obtained so far and discharged them from any further expert activity. It appointed a new expert, Professor K., with a view to determining whether separating the children from the family was the only way of eliminating all danger for them. 27. On 11 June 2002 Professor K. interviewed the applicants at their home. The interview lasted for six hours. 28. On 21 June 2002 the Federal Constitutional Court, sitting as a bench of three judges, set aside the decisions of the Hamm Court of Appeal of 1 March 2002 and the Münster District Court of 17 December 2001 and referred the case back to the Münster District Court. 29. In so far as the applicants complained about the decisions of the Münster District Court of 18 December 2001 and 7 January 2002, the Federal Constitutional Court declared the constitutional complaint inadmissible, since the applicants had failed to appeal against these decisions in accordance with section 19 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit - FGG). 30. In so far as the constitutional complaint was admissible, the Federal Constitutional Court considered that, in accordance with the principles established in its case-law, the decisions of the Münster District Court and the Court of Appeal violated the applicants' family rights as guaranteed by Article 6 § 2, first sentence, of the basic Law, taken together with Article 6 § 3 (see “Relevant Domestic Law” below). There were serious doubts whether the courts had respected the importance of parental rights when giving their decisions and whether they had sufficiently taken into account the principle of proportionality. The question whether the evidence established that there was a risk of harm to the children had not been adequately considered. The District Court and the Court of Appeal had merely referred to the report of the Youth Office and the expert opinion. It did not appear from their decisions whether the expert's conclusions were based on reliable facts. An assessment of the applicants' submissions and considerations as to the possibility of ordering alternative measures, that would not have required the total revocation of parental rights, had not been made. Both the Court of Appeal and the District Court had failed to question the children or give the persons taking part in the proceedings the opportunity to be heard. The measures which had been ordered had led to a drastic change in the lives of all the persons concerned and constituted a particularly serious interference with parental rights. However, no inquiries had been made, even by telephone, before the decision was taken. No reasons were given justifying the urgency of the matter. The Family Court had no information on the possible effects of its decision, since the Youth Office and the expert had not commented on this issue. When examining the advantages and disadvantages of a family measure it was, however, relevant to consider that a separation of the children from their parents could jeopardise the development of the children, in particular in their first years of life. The courts had also failed to clarify the contradiction between the findings in the expert opinion according to which the applicants were not ready to co-operate and the fact that Mrs Haase herself had asked to be granted child-rearing guidance. Furthermore there was no indication whether and to what extent the applicants had refused any contact or help offered by the Youth Office and it was not clear which “specific measures granting assistance” (einzelne Jugendhilfemaßnahmen) had been carried out in the past and why they were not successful. The District Court should have first clarified the questions which arose and in the meantime could have taken alternative provisional measures if there was serious reason to believe that the welfare of the children was at risk. 31. According to the Federal Constitutional Court, it could not be excluded that, prior to the termination of the proceedings on the merits, which had to be dealt with as a priority, the District Court would issue another emergency decision. If so, the District Court was directed to examine carefully whether, in the light of the evidence obtained in the meantime, the continued separation of the children from the applicants was still justified and whether a repeated change of the children's place of residence would be in their best interests. If the District Court found that the present situation were to be maintained, it would have to consider whether the applicants should be granted a right of access, restricted or subject to conditions if necessary, and whether, in strict accordance with the principle of proportionality, the effects of such a decision should be limited in time. 32. On 13 and 14 June 2002 four of the children, Timo, Nico, Anna-Karina and Lisa, were interviewed by the judge at the Münster District Court at the respective institutions where they were placed. 33. According to the minutes of the District Court of 14 June 2002, Timo declared that he wished to return to his parents. He knew that there were certain reasons for placing him and his siblings in a different environment and confirmed that he had had too much work and strain at home. He sent his greetings to his brothers and sisters. 34. Nico, Anna-Karina and Lisa were interviewed in another foster home. Nico stated that he wished to know whether his parents and his “favourite” father (Lieblingsvater) were all right. He asked why he could not join his “favourite” father and whether somebody, his parents, his father or Maurice, could not come to see him. Lisa and Anna were with him and, according to them, were all right. Lisa had let him know that she too wished to return home. He stated that he was fine. Asked about his dreams, he said that he wished to go to his “favourite” father who was very nice, better than his stepfather. In reply to the question whether the judge should leave a message, he dictated the following letter on a dictaphone: “Dear Sascha (his favourite brother), (his favourite sisters Lisa and Ramona), dear Alex, what a pity that we don't see each other ... Sascha, Matthias, Ramona, Alex, his favourite father and his parents should come and visit him.” (Lieber Sascha (sein Lieblingsbruder), (Lieblingsschwestern Lisa und Ramona) lieber Alex, schade, dass wir uns nicht sehen ... Sascha, Matthias, Ramona, Alex, sein Lieblingsvater und seine Eltern sollten ihn besuchen kommen.) The following letter to his mother was recorded on a dictaphone: “Dear Mama, it is a pity that you do not come and best regards from Maurice and Sandra and Timo and Lisa. Lisa and Anna are all right. Yes and perhaps could you come to see us? Or is that not possible? “ (Liebe Mama! Schade, dass Du nicht kommst und liebe Grüsse von Maurice und Sandra und von Timo und von Anna und dass es Lisa und Anna gut geht. Ja und, vielleicht: könntet Ihr ja mal herkommen. Oder geht das nicht?) 35. Anna-Karina stated that she felt fine. She was in the company of Lisa and Nico. Everybody said that she should tell her parents that everything was all right. She then added that she did not like it there. 36. Lisa-Marie regretted that “poor Sandra” was all on her own without any member of the family. She would never bear this. She had to protect Nico and Anna. That was her duty as the elder sister. Nico was beaten very often in that place. She did not know the reason. In reply to a question, she stated that she was doing her homework thoroughly and that she was doing well in school. At home she had almost fallen asleep when doing her homework. When asked what message the judge could pass on, she said that she did not like the place and that she wished to return home. However, the staff did not believe her. She did not really like them. She did not want to go to another institution. She wished to go home. If she were not allowed to go home, she should at least be authorised to see everybody, her brothers and sisters, parents and stepfather. She missed taking Maurice to bed sometimes. Having been told that Nico wished to return to his “favourite” father, Lisa-Maria replied that, unlike Nico, she loved both her father and her stepfather. 37. On 24 June 2002, as a consequence of the decision of the Federal Constitutional Court, the Münster District Court set down for hearing on 1 July 2002 the request of the Münster Youth Office of 17 December 2001 to provisionally revoke the parental rights of the applicants over the children. It transferred to the Youth Office the right to decide where the children should live (Aufenthaltsbestimmungsrecht). The District Court found that the best interests of the children did not require a modification of the present situation before a decision on the merits was given. The District Court considered that its decision of 18 December 2001 prohibiting the applicants all access to the children was still relevant, since it had not been set aside by the Federal Constitutional Court. 38. On 1 July 2002 the Münster District Court held a hearing attended inter alia by the applicants assisted by a lawyer, Mrs Haase's first husband, the curator ad litem, a lawyer and representatives of the Münster Youth Office, the experts G. and Professor K. and the children's paediatrician Dr J. Professor K. gave details of her visit to the applicants' home on 11 January 2002 and resumed the content of the interview. Having studied the extensive files concerning the applicants and G.'s report, Professor K. could not confirm that the findings in the report were erroneous. She expressed the view that the children should not be returned to the applicants. The children's paediatrician, Dr J., stated that all the children had been his patients since their birth except the daughter born in December 2001. Although he knew about the children's problems, in particular the difficulties with Nico, the applicants made a quite positive impression on him. It was a big family with many children. However, the applicants were loving parents who took great care of their children. There was no indication that the children had been beaten or otherwise abused. The curator ad litem was opposed to contacts between the applicants and the children. 39. By an interim injunction of the same day, namely 1 July 2002, the Münster District Court provisionally transferred the custody (Personensorge) over the children to the Münster Youth Office and confirmed its decision of 18 December 2001. The expert was instructed to add to her report. She was requested to comment in particular on whether, in the best interest of the children, it was necessary to maintain the access prohibition, whether the children should be granted access to the older children of the first marriage, Matthias, Sascha, Ramona and Alexander, and if appropriate, in what way such contact could be arranged while keeping the children's place of residence secret. 40. The District Court relied in particular on the findings of the expert G. that the separation of the applicants from their children had to be maintained. The applicants were incapable of bringing up their children because of their own basic and irreparable educational deficiencies and their abuse of parental authority. The children were emotionally disturbed and presented unusual patterns of behaviour. They had been beaten and locked up. Furthermore the four older children of the first marriage had approved the separation of the younger children from their mother and had refused any contact with her. The sole reason why Mrs Haase was intent on giving a positive impression of herself was to obtain support from others. However, any such support was foredoomed. The District Court noted that Professor K. had not yet submitted her report. However, she had confirmed the findings of the expert G. and had stated at the hearing of 1 July 2002 that there was no alternative to separating the children from the applicants. According to her, Mrs Haase had never been willing to call her own behaviour into question. She satisfied her own needs only and refused to accept child-rearing guidance with a view to reducing her own deficiencies. In fact, she had admitted not having undergone therapy in 1994. Professor K. had found that G.'s expert opinion could not be objected to. The District Court considered that the numerous written statements of witnesses submitted by the applicants confirming that the children had not been beaten or ill-treated did not constitute sufficient evidence in their favour. Harm, such as verbal cruelty, could be of a psychological nature. The statement made by Lisa-Marie that she wished to return to the applicants did not reflect her real intention, but resulted from a conflict of loyalty. The District Court further compared the situation described in an expert report drawn up in 1993 with the present situation: Mrs Haase was always well-dressed while her husband looked tired and worn out. It concluded that Mrs Haase was not aware of her problems. She aggravated with each new pregnancy the emotional deficiencies of the children. This had been confirmed by Professor K. after a discussion with the applicants on 11 June 2002. The District Court affirmed that its decision of 17 December 2001 was based on its experience in cases where coercive measures had to be taken. Had the parents been warned of the requested measure, they would have offered resistance, as was shown by their own reaction and the excessive reaction of the media in the case. An enforcement of the court decisions with the intervention of the authorities and the police would have been contrary to the best interests of the children. 41. On 16 July 2002 the applicants appealed against this decision to the Hamm Court of Appeal. 42. On 20 August 2002 the applicants challenged Professor K. for bias. They complained that she had intentionally delayed the preparation of her expert report in order to separate the children from their parents for a longer period. She could not be relied upon to act in the best interests of the children. Without having seen them, she had recommended at the hearing before the District Court of 1 July 2002 that they be separated from the applicants. Her unfriendly conduct vis-à-vis the applicants, when interviewing them at their home on 11 June 2002, and the reference to files dating from Mrs Haase's divorce problems in 1993 confirmed the view that she was not impartial. 43. On 18 September 2002 the applicants challenged the judge at the Münster District Court for bias. They referred to previous decisions given by that judge in favour of the Youth Office, allegedly in contrast to expert recommendations. On 23 September 2002 the judge declined to stand down. On 30 September 2002 the applicants' lawyer again challenged the judge at the District Court and Professor K. for bias. On 7 October 2002 the Münster District Court dismissed the challenge to the judge on the ground that the applicants' allegations were unsubstantiated. 44. On 10 December 2002 the Hamm Court of Appeal dismissed the applicants' appeal against the Münster District Court's decision of 7 October 2002. On 19 December 2002 the Münster District Court rejected the challenge for bias in respect of Professor K. 45. On 13 January 2003 Professor K. submitted her report. She confirmed her previous findings. 46. On 19 February 2003 the Federal Constitutional Court, sitting as a bench of three judges, refused to entertain the applicants' constitutional appeal against the decisions of 10 December 2002 and 7 October 2002. 47. On 18 February 2003 the Münster District Court held a hearing. The applicants, the Youth Office, the curator ad litem and the experts G. and K. were present. The curator ad litem declared that the children had adapted to the changed living conditions and appeared to be comfortable with the new situation. 48. On 4 March 2003 three of the children living with their father, Matthias, Sascha and Alexander, were heard separately by the Münster District Court. They were opposed to seeing their mother. 49. By a decision on the merits of 6 March 2003, the Münster District Court withdrew the applicants' parental rights over their four children and the three children of the first marriage previously living with them and prohibited access to them until June 2004. It relied on Articles 1666, 1666a and 1684 § 4 of the Civil Code (see paragraphs 53-55 below). The authorities were compelled to take the contested measures, which were justified under Article 6 § 3 of the Basic Law, and necessary in a democratic society for the protection of the health and the rights of the children within the meaning of Article 8 § 2 of the Convention. It found that the domestic situation was difficult and that the children were in danger. The applicants, in particular Mrs Haase, were inflexible and incapable of understanding the children's needs and with her it would be impossible to implement any educative measures. The conditions in which the children had been brought up were highly unsatisfactory. The children had made positive progress in the foster homes in which they had been placed, had gained in confidence and were less affected by behavioural disorders. 50. By a separate decision of the same day the Münster District Court prohibited contact between Mrs Haase and her four eldest children, Matthias, Sascha, Ramona and Alexander before the end of 2004, or in the case of Mrs Haase's eldest son Matthias, before he attained his majority. 51. The applicants appealed against the above decisions. 52. Article 6 of the Basic Law (Grundgesetz) reads as follows: “... (2) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them. The state watches over the performance of this duty. (3) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law, if those so entitled fail in their duty or if the children are otherwise threatened with neglect. 53. Article 1666 of the Civil Code (Bürgerliches Gesetzbuch) provides that the family courts are under an obligation to order necessary measures if a child's welfare is jeopardised (Gefährdung des Kindeswohls). 54. The first sub-paragraph of Article 1666a provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child's welfare. The second sub-paragraph of Article 1666a provides: “Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger [Die gesamte Personensorge darf nur entzogen werden, wenn andere Maßnahmen erfolglos geblieben sind oder wenn anzunehmen ist, dass sie zur Abwendung der Gefahr nicht ausreichen].” 55. According to Article 1684 § 4 of the Civil Code, the family court can restrict or suspend the right of access if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child's well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association. | 1 |
dev | 001-94312 | ENG | POL | ADMISSIBILITY | 2,009 | WNUK v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Ms Mariola Wnuk, is a Polish national who was born in 1977 and lives in Trzebnica. The applicant lodged with the Wrocław Regional Court an action for payment against the State Insurance Company (“PZU”). On 8 October 1999 the Regional Court partly allowed the applicant’s claim. She appealed. On 29 March 2000 the Wrocław Court of Appeal slightly increased the amount awarded to the applicant. The applicant lodged a cassation appeal with the Supreme Court, alleging, inter alia, erroneous assessment of evidence and application of incorrect criteria by the lower courts in respect of the value of her claim. On 8 May 2002 the Supreme Court refused to entertain the cassation appeal. It relied on a provision of the newly amended Code of Civil Procedure (which entered into force on 1 July 2000) allowing it to leave without examination manifestly ill-founded appeals or appeals in cases where no serious legal issue arises. The decision was taken by a single judge sitting in camera. The written reasons provided as follows: According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law or the cassation appeal is manifestly ill-founded (§ 1). (...) In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal. On 11 October 2002 the applicant lodged a constitutional complaint with the Constitutional Court, alleging, inter alia, a breach of her right of access to court and to a fair hearing on account of the retrospective application of new Article 393 of the Code of Civil Procedure to cassation appeals lodged before its entry into force. On 31 March 2005 the Constitutional Court delivered judgment no. SK 26/02, having joined several complaints, including the applicant’s complaint, in the same proceedings (see domestic law below). A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser. Article 3931 of the Code of Civil Procedure as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” Article 3933 specified the requirements of a cassation appeal. It read in its relevant part: “§ 1. A cassation appeal should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation appeal; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. Pursuant to Article 3937 a cassation appeal, in principle, was examined during a hearing by a panel of three judges; the court could, however, reject a cassation appeal on formal grounds at a sitting. The judgment or decision had to be accompanied by written reasons. On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It entered into force on 1 July 2000. It introduced, inter alia, the following provision (amended Article 393) – the so-called “pre-judgment” (preliminary assessment of a cassation appeal): “§ 1. The Supreme Court may refuse to entertain the cassation appeal, if: 1) there is no appearance of any significant legal issue in the case, 2) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law, 3) the appeal is manifestly ill-founded. § 2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law.” Pursuant to amended Article 3937 the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera in a single judge formation. Although the legal provisions did not expressly provide for such a possibility, usually the written reasons accompanying such decisions were limited to a simplified, schematic formula which did not contain any legal analysis, did not indicate the specific grounds for the decision, did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case. On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions governing the cassation appeal. In its judgment of 31 March 2005 (SK 26/02) the Constitutional Court examined a number of constitutional complaints challenging the provisions of Article 393 of the Code of Civil Procedure. The Constitutional Court held that although the Constitution did not guarantee a right to cassation as such, the fact that it was provided for by the Code of Civil Procedure meant that it had to meet the requirements of the rule of law and procedural justice. The Constitutional Court observed, inter alia, that certain terms describing the conditions which a cassation appeal had to meet under Articles 393 et seq. of the Code (“significant legal issue”, “provisions raising serious doubts or causing discrepancies in the courts’ case-law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of the Supreme Court. The Constitutional Court considered the relevant requirements of Article 393 and their interpretation by the Supreme Court to be vague and subjective and, in practice, known exclusively to the Supreme Court but not to those who wished to lodge a cassation appeal. According to the Constitutional Court, if the conditions for admissibility of a claim (preliminary assessment of a cassation appeal) were formulated in imprecise terms, the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body. In this context the court criticised, in particular, the practice of “simplified reasons”. It held that the use of open-ended concepts by the legislator could not be considered, in itself, as unconstitutional, as it allowed the courts a certain flexibility, to better tailor their decisions to circumstances at hand. However, in such case the obligation to substantiate the legal norm was shifted to the stage of its application. This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision. Consequently, a general and imprecise procedural clause required a strong justification and indication of specific circumstances. The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how, if at all, the Supreme Court had performed the necessary assessment to substantiate those vague terms. The case-law providing guidance on their application was thus practically non-existent. The court informed the addressee of its decision that the requirements of the given article had not been met, but did not indicate any circumstances which justified this conclusion. As a result, a principle of trust has been breached. Moreover, it was impossible for lawyers in general to recognise the Supreme Court’s understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future. Consequently, the “pre-judgment” did not guarantee procedural predictability to the party, who has lodged a cassation appeal meeting all formal requirements. The right of access to a court had thus been transformed into a pretence of this right. Nevertheless the Constitutional Court found that it was the practice of the Supreme Court that deserved disapproval and not the relevant provisions, and the wording of those provisions could not be considered unconstitutional. In this context the court observed that the practice was not uniform and certain chambers of the Supreme Court justified their decisions in a much more elaborate and substantive way. The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment. Accordingly, the Constitutional Court refused to decide on the compatibility of those provisions with the Constitution and discontinued the proceedings in this respect. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” Article 39 of the Constitutional Court Act reads: “1. The Court shall, at a sitting in camera, discontinue the proceedings: 1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible; 2) in consequence of the withdrawal of the application, question of law or constitutional complaint; 3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal. 2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings. 3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.” Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court. | 0 |
dev | 001-61877 | ENG | BGR | CHAMBER | 2,004 | CASE OF VACHEV v. BULGARIA | 1 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant was born in 1941 and lives in Teteven. He was the executive director of ElpromEMT, a Stateowned company, against which bankruptcy proceedings were opened in 1997. 9. On 14 May 1997 the Teteven District Prosecutor’s Office opened criminal proceedings against the applicant and against the deputy director of ElpromEMT and a company employee. 10. On 3 June 1997 the applicant was charged with abuse of office and making false official documents, contrary to Articles 282 § 2 and 311 § 1 of the Criminal Code (“the CC”). It was alleged that, together with the deputy director, he had abused his managerial position during the period April 1996 – March 1997 and had occasioned losses to the company in order to secure a financial benefit for a private limited liability company in which his wife was a member. The alleged loss to ElpromEMT amounted to 23,302,275 old Bulgarian levs (BGL). It was also charged that to facilitate that offence the applicant had made false documents and had incited the deputy director and a company employee to make false documents. 11. On 6 June 1997 a prosecutor of the Lovech Regional Prosecutor’s Office ordered the suspension of the applicant from his position of executive director, on the grounds that the charges against him were for jobrelated offences and that there were sufficient grounds to believe that he could jeopardise the investigation if he remained in office. 12. On 20 June 1997 the investigator in charge of the case ordered an expert financial report, which was assigned to two former employees of ElpromEMT. 13. On 4 August 1997 counsel for the applicant requested to be allowed to consult the case file. The request was granted on 10 August. 14. A graphological report ordered earlier was ready on 18 September 1997. 15. On 25 September 1997 the applicant was questioned. Counsel for the applicant requested to be allowed to inspect the case file. The investigator allowed them to consult certain documents but refused access to the whole file. 16. On 16 October 1997 the expert financial report ordered on 20 June 1997 was ready. 17. On 20 October and 25 November 1997 the investigator ordered expert reports on the prices of certain items relevant to the investigation. 18. On 10 December 1997 the applicant was questioned and was allowed, together with his counsel, to consult certain documents in the case file, including the expert reports. 19. On 29 December 1997 counsel for the applicant requested the disqualification of one of the experts who had prepared the expert financial report. They argued, inter alia, that one of the experts had been chief accountant of ElpromEMT and had been dismissed for disciplinary reasons by the applicant, which cast doubt on his objectivity. The request was denied. 20. It seems that most of the witnesses in the case were questioned on dates between June and December 1997. 21. On 10 February 1998 the applicant was questioned. His request to be allowed to consult the case file was granted. 22. On 12 February 1998 counsel for the applicant again requested the disqualification of the experts who had prepared the expert financial report. They repeated their arguments in respect of the first expert and also averred that the other expert had been involved in the bankruptcy proceedings of ElpromEMT. 23. The same day the applicant was presented with the amended charges. These included aggravated embezzlement facilitated by the making of false official documents (Article 202 in conjunction with Article 311 of the CC), embezzlement (Article 201 of the CC), abuse of office (Article 282 of the CC), deliberately entering into contracts disadvantageous to the company he was managing (Article 220 of the CC) and making false official documents (Article 311 of the CC). It was alleged that between March 1996 and February 1997, together with the deputy director of ElpromEMT, he had embezzled company assets amounting to BGL 4,833,264.54, for the commission of which offence he had made false official documents, that in June 1995 he had misappropriated a trailer owned by ElpromEMT, that between March 1996 and February 1997, together with the deputy director, he had abused his office to secure a financial benefit for a private company, that between August 1996 and January 1997, together with the deputy director, he had deliberately made disadvantageous contracts between ElpromEMT and the same private company for which he had secured a financial benefit, and that in December 1994 he had made two false invoices for sums amounting to 365,000 German marks. After the being charged the applicant was questioned in the presence of counsel. He refused to give explanations. 24. On 16 February 1998 the applicant and his counsel were allowed to consult the entire case file. The applicant objected to the expert reports and requested the disqualification of the experts. The investigator denied his requests and proposed to the prosecution that the applicant be indicted. 25. On 16 June 1998 counsel for the applicant requested that the case be remitted for additional investigation, arguing that this was necessary to rectify certain procedural violations. 26. On 9 July 1998 the Teteven District Prosecutor’s Office granted the request and referred the case back for investigation. It observed that the relevant circumstances about the relations between ElpromEMT and the private company which had allegedly benefited from it had not been fully elucidated and that the investigator had erred in the legal qualification of the offences. It gave specific instructions as to the facts which had to be established. It further expressed the view that the applicant’s request for the disqualification of one of the experts who had prepared the expert financial report was wellfounded, since he had been dismissed by the applicant for disciplinary reasons and the applicant had good reasons to fear his lack of objectivity. It was therefore necessary to prepare a new expert report. In addition, it asserted that it was necessary to charge the applicant anew, since the original presentation of the charges against him had not been specific enough. Finally, it noted that the applicant’s counsel had also been ElpromEMT’s counsel in the bankruptcy proceedings against the company, which raised certain doubts as to a potential conflict of interests. It was therefore necessary to establish whether the applicant had reason to doubt the loyalty of his counsel, because if that issue was not elucidated, the applicant could use it as an argument that his defence rights had been infringed. 27. On 4 November 1998 the investigator, complying with the instructions of the prosecution, ordered a new financial report. 28. On 26 April 1999 the Teteven District Prosecutor’s Office, finding that the investigator in charge of the case had not carried out any of its instructions apart from ordering a new financial report, replaced him with a new one. 29. On 1 June 1999 the new investigator proposed to discontinue the proceedings, on the ground that the charges against the applicant were not supported by sufficient evidence. 30. On 7 June 1999 the Teteven District Prosecutor’s Office rejected the proposal and referred the case back for additional investigation. It held that the evidence was not sufficient because the investigation had not been performed thoroughly. 31. On 9 June 1999 the investigator allowed the applicant to consult the case file. 32. On 13 June 1999 the financial report ordered on 4 November 1998 was ready. 33. On 7 January 2000 counsel for the applicant informed the investigator that she would be unavailable until 18 January. 34. On 19 January 2000 the investigator charged the applicant anew. The charges included, apart from the previous ones, a new charge under Article 219 of the CC (mismanagement resulting in loss for the company). After charging the applicant the investigator questioned him and allowed him and his counsel to consult the case file. 35. On 31 January 2000 the investigator recommended that the applicant be indicted solely under Article 219 of the CC. 36. On 14 February 2000 the Teteven District Prosecutor’s Office decided to discontinue the investigation in respect of the charges under Articles 202 (aggravated embezzlement), 282 (abuse of office) and 311 (making false official documents) of the CC. On 23 March 2000 the Lovech Regional Prosecutor’s Office overturned that decision and referred the case back to the investigator. On appeal by the investigator on 6 April 2000 the Veliko Tarnovo Appellate Prosecutor’s Office affirmed the overturning. 37. On 12 May 2000 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC. Its decision was overturned by the Veliko Tarnovo Appellate Prosecutor’s Office on 21 July 2000 and the case was referred back to the Lovech Regional Prosecutor’s Office with instructions to carry out certain investigative steps (inter alia, to order an expert report) and elucidate certain facts relating to transactions carried out by ElpromEMT during the period 199697. 38. On 4 August 2000, when the case was back at the investigation stage, the investigator ordered an additional expert report. 39. On 8 June 2001 the applicant’s counsel informed the investigator that she would be unavailable until 12 June. 40. On 12 June 2001 the investigator allowed the applicant and his counsel to consult the case file. 41. On 19 June 2001 the investigator recommended that the applicant be indicted under Articles 219 (mismanagement resulting in loss), and 311 (making false official documents) of the CC. 42. On 20 July 2001 the Lovech Regional Prosecutor’s Office decided to drop the charges under Article 219 of the CC and to transfer the case to the Teteven District Prosecutor’s Office for continuation of the proceedings under the remaining charges. 43. On 5 September 2001 the Teteven District Prosecutor’s Office remitted the case for additional investigation, holding that the investigative steps carried out up until then had not established all relevant circumstances. 44. On 24 September 2001 the investigator ordered a new expert report, assigning it to new experts. 45. On 26 February 2003 the applicant and the prosecution entered into a pleabargain agreement. The criminal proceedings against him were apparently discontinued soon after. 46. On 3 June 1997 the applicant was put under house arrest by an investigator who saw him in person and questioned him. 47. On 12 June 1997 the applicant lodged with the Teteven District Prosecutor’s Office a request to be released on bail. On 16 June 1997 the Teteven District Prosecutor’s Office denied the applicant’s request. The applicant appealed to the Lovech Regional Prosecutor’s Office. The appeal was dismissed by an order of 8 July 1997. The applicant appealed to the Chief Prosecutor’s Office. On 3 September 1997 the Chief Prosecutor’s Office dismissed the appeal. The applicant lodged an appeal with the Head of the Investigations Division of the Chief Prosecutor’s Office. On 31 October 1997 the Head of the Investigations Division dismissed the appeal. 48. In the meantime, on 7 August and 2 September 1997, the Teteven District Prosecutor’s Office had denied two requests by the applicant to be allowed to leave his home for one day. Another request by the applicant to be allowed to leave his home for one day was denied on 29 October 1997. On 12 November 1997 the Teteven District Prosecutor’s Office allowed the applicant to leave his home for one day. 49. On 19 November 1997 the Teteven District Prosecutor’s Office denied a renewed application for release by the applicant. 50. On 4 December 1997 the applicant submitted a new request for release on bail. On 16 December 1997 the Teteven District Prosecutor’s Office granted bail, setting the amount at BGL 3,000,000. On an unspecified date in December 1997 the applicant paid the amount of the bail and was released from house arrest. 51. By Article 146 of the Code of Criminal Procedure (“the CCP”), a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecutable offence. One such measure is house arrest. 52. Article 151 of the CCP, as in force at the material time, defined house arrest as follows: “House arrest shall consist in prohibition for the accused to leave his home without permission by the relevant authorities.” In its interpretative decision no. 10/1992 (реш. № 10 от 27 юли 1992 г. по конституционно дело № 13 от 1992 г., обн., ДВ брой 63 от 4 август 1992 г.) the Constitutional Court held as follows: “... [H]ouse arrest is also a form of detention and [constitutes] an interference with the inviolability [of the person].” 53. At the relevant time and until 1 January 2000 house arrest at the pretrial stage of criminal proceedings could be ordered by an investigator or by a prosecutor. The investigator or prosecutor was not under an obligation to interview the accused in person when ordering house arrest. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2529 of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II). 54. At the relevant time the CCP did not provide for judicial review of house arrest. Thus, the only possibility for a person put under house arrest was to apply to a prosecutor who could order his release. If the prosecutor refused to release the person under house arrest, he or she could appeal to a higher prosecutor (Articles 181 and 182 of the CCP). 55. The CCP was amended with effect from 1 January 2000 and at present provides, in the newly introduced paragraph 2 of its Article 151, for full initial and subsequent judicial review of house arrest. 56. On 21 March 1997 the Assembly of the Criminal Divisions of the Supreme Court of Cassation decided to request the Constitutional Court to rule on the compatibility of Article 152 of the CCP, governing pretrial detention, with, inter alia, Article 5 of the Convention. It reasoned that by virtue of Article 5 § 4 of the Constitution the Convention was incorporated into Bulgarian law and that all statutory provisions should therefore be in compliance with it. It also stated that when deciding cases before them the Bulgarian courts should take into account the caselaw of the European Court of Human Rights (опред. № 1 от 21 март 1997 г. по н.д. № 1/ 1997 г. на ОСНК на ВКС). 57. Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1. pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]” The reported caselaw under section 2(1) of the Act is scant. However, all judgments in which State liability was found to arise under this provision related specifically to pretrial detention under Article 152 of the CCP, not house arrest under Article 151 of the CCP or any other form of deprivation of liberty ordered in the context of criminal proceedings (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The reported case-law also suggests that the terms “unlawful” and “lack of lawful grounds” refer to unlawfulness under domestic law. 58. By section 2(2) of the Act, in certain circumstances a claim may be brought for damage occasioned by the “unlawful bringing of criminal charges”. Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator, that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty. 59. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). The Government have not referred to any successful claim under general tort law in connection with unlawful house arrest. | 1 |
dev | 001-22174 | ENG | GBR | ADMISSIBILITY | 2,002 | OYSTON v. THE UNITED KINGDOM | 3 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Owen Oyston, is a United Kingdom national, who was born in 1934 and lives in Lancaster, England. He is represented before the Court by Mr David Price, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 May 1996, the applicant was convicted at the Liverpool Crown Court of raping and indecently assaulting a young woman, J. He was sentenced to six years’ imprisonment for rape and three years’ imprisonment for indecent assault, the two sentences to run concurrently. The applicant was acquitted at the same time of raping a second woman, B. The background of the case may be described as follows. When J. was aged 14 she joined a modelling agency in Manchester and began attending weekend classes. The agency was owned by Peter Martin, a friend of the applicant, and the weekend classes took place at Martin’s home. When J. was aged 15, she started staying overnight at Martin’s house on Fridays and Saturdays. A number of other girls aged between 13 and 20 also stayed at the house. Martin exerted control over the girls, to the extent that he would tell them what to wear, what to eat, when to wash and when to go to bed. J. left school when she was aged 16 and went to live permanently at Martin’s house at about Easter 1992. Martin used to take the girls to restaurants. On one such occasion, about eight weeks after J. began living with him, Martin pointed out the applicant to her, telling her that he was “a very important man and dead rich”. About two weeks later, when Martin, J. and another girl from the agency L. were at the restaurant, the applicant was also present. After the meal, Martin said that they were to drive the applicant home in Martin’s car. At the trial, J. gave evidence that she got into the back of the car at Martin’s suggestion, while L. sat in the front with Martin who was driving. J. stated that during the journey the applicant forced her to have oral sex with him. On arrival at the applicant’s home, Martin told J. and L. to get out as the applicant wanted to show them his house. J. followed the applicant and L. and ended up in a bedroom. The applicant and L., who was his girlfriend, had sexual intercourse. The applicant then told J. to take off her clothes and made her have sexual intercourse with him. J. and L. then left the house and joined Martin who was waiting in the car. J. said that she did as the applicant wanted because she was dominated by Martin, and was afraid of upsetting the applicant, whom she knew to be Martin’s friend. J. contacted the police in October 1994. On 9 February 1995, the applicant was arrested and charged with a number of offences of a sexual nature allegedly committed against young women from the modelling agency. Martin, who had been arrested in September 1994 was also charged with a number of offences of a sexual nature committed against young women from the modelling agency, including the rape of J. The applicant was originally charged with six offences. His defence to each charge was that the event alleged had never taken place. The applicant’s evidence was that he had no recollection of J. having visited his home, and that there had been no contact of a sexual nature between him and J. at any time. At the end of J.’s examination in chief by the prosecution, the applicant’s leading counsel obtained leave from the trial judge pursuant to section 2(1) of the Sexual Offences (Amendment) Act 1976 (see below) to cross-examine J. on her sexual experiences with Martin, and in particular on the fact that she had been raped by Martin and about the alleged control that he exerted over her. It was the defence case that J. was obsessed with a hatred of Martin and it was this which motivated her allegation against the applicant. J. was extremely distressed by this cross-examination. L. gave evidence for the defence. She had started working at Martin’s agency when aged 11 and had begun a relationship with the applicant when aged 16. She stated that on one occasion she had travelled to the applicant’s home with Martin, the applicant (with whom she was then having a relationship) and J.; that Martin had driven the car, she had travelled in the front passenger seat, and the applicant and J. had travelled in the back of the car; that L. had gone into the applicant’s bedroom in order to use the toilet in the en suite bathroom. When L. came out of the toilet, she saw J. and the applicant lying on the bed, fully clothed. They all then left. Nothing improper occurred. L. was asked in cross-examination by the prosecution about her relationship with the applicant, who had been introduced to her by Martin. She was also asked about sexual relationships with other men introduced to her by Martin. She accepted that she had had sexual intercourse with four of the men, when she was aged between 16 and 19 years, and in the case of two of the men, while she was still conducting a relationship with the applicant. When re-examined by defence counsel, she described these relationships as “almost dirty or sordid” and contrasted them with her relationship with the applicant, which she said was “[r]omantic, how it should have been”. L. was also asked by prosecution counsel about an abortion which she had had at around this time, and was asked whether she had had “three in a bed” sex involving the applicant. No reference was made to L.’s sexual experience by either counsel in their closing speeches, or by the judge in summing up the case for the jury. The jury proceeded to convict the applicant. On 12 June 1997, the Court of Appeal granted the applicant’s application for leave to appeal against conviction and sentence. The applicant applied at the same time for leave to adduce fresh evidence, in the form of a number of witnesses whose evidence was not available at the trial because, the applicant submitted, he was unaware of their existence or of the fact that they had material to make available to him. One of the witnesses was a young man with whom J. had had a sexual relationship while on holiday in Crete in 1992, and to whom she had subsequently written a letter, a copy of which formed part of the fresh evidence which it was sought to adduce. The Court of Appeal gave the applicant leave to amend his grounds of appeal in order to contend that his convictions were in all the circumstances unsafe, having regard to the fresh evidence. Lord Bingham CJ said, in giving judgment granting leave: “While we conclude that these witnesses are not in a position to give evidence which would have been admissible at the trial, we nonetheless consider that this is material which could have been used to attack the credit of J. and which the applicant should be free to draw to the attention of the court in support of his submission that in the light of these materials and of the case as a whole this court should consider the convictions of the applicant to be unsafe.” On 9 December 1997, the Court of Appeal dismissed the applicant’s appeal against conviction and sentence. The Court of Appeal received the fresh evidence under section 23(1)(c) of the Criminal Appeal Act 1968, and then considered its significance in the context of the appeal. Phillips LJ said, in giving the judgment of the Court of Appeal: “...the full Court ruled that we should give the new material such weight as it deserves when considering the extent to which the credit of J. might have been shaken had it been available to the defence at the time of the trial. The Court did not consider, however, that it amounted to evidence which could be placed before the jury. Before us [applicant’s counsel] challenged that conclusion. He submitted that where, as here, the prosecution case turns exclusively on the evidence of the complainant, evidence that bears on the credit of the complainant is not merely collateral, but goes to the heart of the case... It seemed to us somewhat arid to invite lengthy argument about the basis upon which we should consider the significance of the new material. If it proved such as to to lead us to doubt the credibility of the complainant, we would be loth to entertain argument that the convictions should nonetheless stand because of a technical rule of evidence against the admissibility of evidence going solely as to credit. ... In these circumstances, we decided that the convenient course was to receive the evidence under section 23(1)(c) of the Criminal Appeal Act 1968 and, having done so, to evaluate the significance of that material.” As regarded the significance of the evidence of J.’s holiday on Crete when it was alleged that she had had sexual intercourse with a young man, Lord Phillips said: “[Applicant’s counsel] urged that this evidence was significant and could have been admitted by the Judge on three bases: (1) it showed that J. was not as vulnerable as she appeared. (2) it had significance in relation to a pregnancy test. (3) the evidence was in conflict with other evidence J. had given and thus tended to destroy her credibility. J.’s vulnerable appearance To seek to introduce this evidence simply to counter the general impression that J. was making in the witness box would have been a paradigm example of the type of conduct that section 2 of the 1976 Act is designed to prevent. We have no doubt that the judge would have refused an application made on that basis. The fact that J. had enjoyed the brief relationship with a young man, which is reflected by the letter, whether before or after the date on which the offences were alleged to have been committed by the [applicant], is of itself of no relevance to the question of whether she was raped and indecently assaulted by a man nearly four times her age. The pregnancy test J. had a pregnancy test on 16th June 1992. The defence were aware of this, but naturally asked her nothing about it. The new material indicates that the test probably resulted from anxiety as a result of having had sexual intercourse with [the young man in Crete] so that it would have been safe to cross-examine as to why J. did not have a pregnancy test after the alleged rape by the [applicant]. This argument does not attach intrinsic significance to the evidence itself, nor constitute any reason why it should have been introduced at trial. There are various reasons why the victim of a rape might not think it necessary to have a pregnancy test and the fact that the defence refrained from asking about this under a misapprehension does not affect the safety of the verdicts.” Concerning alleged inconsistencies revealed in J.’s evidence, Lord Justice Phillips said: “In her evidence in chief, J. said nothing about the effect that the alleged offences had had on her. Under cross-examination she volunteered the statement that “when I came back from the house I spent a year of my life trying to forget what happened.” We do not find that the Cretan holiday, if it took place during the year in question, is inconsistent with that statement...[applicant’s counsel] submitted that the Cretan holiday was inconsistent with the statement that Martin had messed up her life completely and that she hated having sex...[applicant’s counsel] said that if all this material had been available he would have adopted a completely different approach to J.’s statement as to what happened... This puzzled us for we could not envisage how [applicant’s counsel] could have hoped to persuade the Judge to allow him to adduce evidence about what J. had said in relation to events at [Martin’s house] in order to cross-examine her on the truth of those statements. Furthermore, J. had given evidence at Martin’s trial which ended in his conviction in September 1996 on counts which included rape of J. We asked [applicant’s counsel] if he was suggesting that J.’s account of the sexual abuse and rape that Martin inflicted on her was untrue. He answered that he could not say that. It seems to us that that concession, which was inevitable, undermines the points that [applicant’s counsel] has sought to make on inconsistencies. There can be no doubt that J. was subjected to appalling sexual abuse by Martin. In whatever way she behaved thereafter, her behaviour cannot be an indication that this abuse never occurred, and thus we do not see it can be an indication that abuse at the hands of the [applicant] never occurred.” Section 2 of the Sexual Offences (Amendment) Act 1976 provides as follows: “(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant. (2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made by him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.” | 0 |
dev | 001-75662 | ENG | HRV | ADMISSIBILITY | 2,006 | SRPSKA PRAVOSLAVNA CRKVENA OPSTINA NA RIJECI v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicant, the Rijeka Serbian Orthodox Church (Srpska Pravoslavna Crkvena Opština na Rijeci), is a religious community with its seat in Rijeka. It is represented before the Court by Mr M. Markiš, a lawyer practising in Rijeka. The respondent Government are represented by their Agents, first Ms L. Lukina-Karajković and subsequently Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owns in Rijeka a flat of a surface of 104.57 square metres. A certain Ž.J. had a specially protected tenancy of the flat. On 22 October 1996 Parliament enacted the Lease Act, which regulates the conditions of leasing privately-owned flats, including those previously let under a specially protected tenancy. Under the Lease Act, on 8 November 1997 the applicant let the flat to Ž.J. On 1 April 1999 the applicant terminated the lease because it intended to lodge a priest in the flat. Since Ž.J refused to vacate the flat, the applicant instituted proceedings in the Rijeka Municipal Court (Općinski sud u Rijeci) seeking eviction of Ž.J. The applicant based its claim on the Lease Act claiming that it needed the flat for its own use, namely to house its priest. It also claimed that it could provide for Ž.J. another flat also situated in Rijeka, but a smaller one, of a surface of 48 square metres. On 5 June 2000 the Rijeka Municipal Court dismissed the applicant’s action, finding that it did not need the flat in question for itself but only to install its priest. The court found that the priest could have lived in any other flat including the one that the applicant was offering to Ž.J. The applicant appealed against the first-instance judgment arguing that installing its priest in the flat at issue amounted to the use of the flat by the applicant itself. On 4 April 2001 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal. It found that the applicant did not satisfy the conditions of section 40 of the Lease Act because it was a legal entity rather than a natural person. The court stated that the question whether there existed a need for the flat at issue on behalf of the applicant, the reasons for eviction of Ž.J., and the fact that the applicant had offered Ž.J. another flat, were irrelevant in the present case. The applicant subsequently filed a constitutional complaint claiming, inter alia, that its property rights were violated because it had no possibility to terminate the lease on the flat that it owned. On 3 June 2002 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint. It found that the lower courts’ decisions were based on law, and that the relevant provisions of the Lease Act providing for termination of a lease for personal reasons referred only to natural persons but not to legal entities. It stated that the applicant’s inability to terminate the lease did not violate its property rights. Meanwhile, Ž.J. died, but his wife, A.J., continues to live in the flat. The Flat Lease Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996) (“the Lease Act”) regulates the legal relationship between the landlord and the tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies on privately-owned flats. Such a category is, according to the Act, subject to a number of protections, for instance, an obligation for the owners to contract a lease for an unlimited period of time; payment of a so-called protected rent, the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease. The Lease Act abolished the specially protected tenancy as such. Pursuant to the Lease Act a landlord may terminate the lease of a protected tenant in the following cases: if the tenant does not pay the rent or charges; if the tenant sublets the flat or part of it, without permission from the landlord; if the tenant or other tenants in the flat disturb other tenants in the building; if another person, not figuring in the lease contract, lives in the flat longer than thirty days, without permission from the landlord, except where that person is a spouse, child or parent of the tenant or of the other legal tenants in the flat, or a dependant of the tenant or a person on whom the tenant is dependent; if the tenant or other legal tenants do not use the flat for living, but for other purposes; if the landlord does not have another flat and is entitled to social assistance benefits or is older than sixty years. Under section 40 (1) of the Lease Act, the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein. | 0 |
dev | 001-98926 | ENG | TUR | CHAMBER | 2,010 | CASE OF DUZDEMİR AND GUNER v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 5. The applicants were born in 1981 and 1961 respectively and lived in Diyarbakır. 6. On 5 May 1999 the applicants were laid off by the Diyarbakır Sur Municipality (“the Municipality”), with which they had been temporarily employed. 7. The applicants subsequently brought separate actions before the Diyarbakır Labour Court against the Municipality, claiming outstanding salaries, dismissal indemnities, severance pay and other pecuniary rights. 8. On 23 December and 11 November 1999, respectively, the labour court granted the applicants' request and ordered the payment of 324,681,000 Turkish liras (TRL) to the first applicant and TRL 927,531,000 to the second applicant, together with interest. In the absence of an appeal, these judgments became final on 3 January 2000 and 22 November 1999, respectively. 9. At the date of introduction of the applications, the judgment debts were still outstanding. However, in the meantime, friendly settlement agreements were reached between the applicants and the Municipality on 31 July 2008 and 10 February 2005, respectively, and the relevant payments were made to the applicants. 10. The relevant domestic law and practice in force at the material time are outlined in Ekici and Others v. Turkey (no. 28877/03, §§ 11-13, 23 September 2008). | 1 |
dev | 001-88827 | ENG | HUN | ADMISSIBILITY | 2,008 | JARFAS v. HUNGARY | 4 | Inadmissible | András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky | The applicant, Mr László Járfás, is a Hungarian national who was born in 1945 and lives in Budapest. He is represented before the Court by Mr I. Barbalics, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 February 1993 the applicant brought an action against his employer before the Veszprém Labour Court requesting compensation in the amount of 4,000,000 Hungarian forints (HUF) (approximately 15,800 euros (EUR)) for non-pecuniary damage and an additional monthly allowance of HUF 35,000 (approximately EUR 140) for pecuniary damage. The Veszprém Labour Court transferred the case to the Veszprém County Regional Court, because in the meantime the defendant company had gone into liquidation and the Regional Court was the competent authority to deal with the issue. The initial date of the liquidation procedure was 28 December 1991. On 25 September 1997 the Regional Court, after having held three hearings and obtained the opinion of a forensic medical expert, dismissed the applicant's claims. On appeal, the Supreme Court, acting as a second-instance court, quashed the first-instance decision and remitted the case to the Regional Court on 4 January 1999. Subsequently, the applicant raised his claims again. After having held nine hearings, the Regional Court delivered a decision on 16 July 2002. It partly found for the applicant and ruled that HUF 17,270,958 (approximately EUR 68,400), and an additional HUF 231,670 (approximately EUR 900) had to be registered on the applicant's behalf as a creditor's claim (hitelezői igény) in the liquidation procedure. On appeal, the Supreme Court, acting as a second-instance court, upheld this decision on 4 October 2004. On 23 December 2004 the applicant lodged a petition for review with the Supreme Court. The Supreme Court returned the applicant's motion for completion, observing that it did not meet the minimum requirements of a petition for review in that it failed to indicate a relevant breach of law or contain a clear request to have the final decision changed. It required the applicant to resubmit an amended petition in order that an examination of at least the admissibility thereof could be carried out. However, the applicant failed to comply with the Supreme Court's supplementation order. On 19 January 2005 the Supreme Court dismissed the applicant's petition for review as inadmissible, since it was incomplete. The applicant lodged a complaint against this decision. On 5 April 2005 the Supreme Court dismissed the applicant's complaint as incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure. It pointed out that, in accordance with those provisions, no appeal whatsoever lay against inadmissibility decisions of the Supreme Court. In December 2004 the debtor began to transfer the sum awarded into the applicant's bank account in instalments. The last instalment was paid in June 2005. | 0 |
dev | 001-75934 | ENG | MLT | CHAMBER | 2,006 | CASE OF ZARB ADAMI v. MALTA | 1 | Violation of Art. 14+4-3-d;Not necessary to examine Art. 14+6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | Giovanni Bonello;Javier Borrego Borrego;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza | 7. The applicant is a Maltese national and lives in Attard, Malta. 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. The applicant is a pharmacist in Malta. From 1971 he was placed on the lists of jurors and remained on them until 2005. 10. Between 1971 and 1997, the applicant was called to serve as a juror in three different sets of criminal proceedings. On these occasions, he was called to serve both as a juror and as a foreman of the jury. 11. In 1997 the applicant was again called to appear before the Criminal Court to serve as a juror. This time he failed to attend on the requested date and on 14 April 1997 he was fined 100 Maltese liri ((MTL) – approximately 240 euros (EUR)). 2. The constitutional proceedings 12. As the applicant failed to pay the fine, on 11 June 1997 the Registrar of the Courts of Malta submitted an application to the Criminal Court. It asked that court to summon the applicant before it and/or to convert the fine imposed into a term of imprisonment. 13. At the sitting of 26 June 1997 before the Criminal Court, the applicant raised the plea that the fine imposed on him was unconstitutional and constituted a breach of his fundamental rights. He alleged, in particular, that the sanction was discriminatory in terms of Article 45 of the Constitution and Article 14 of the Convention taken in conjunction with Article 4 § 3 (d), because it subjected him to burdens and duties to which other persons in the same position were not subjected. Moreover, the law and/or the domestic practice exempted persons of the female sex from jury service whereas, de facto, men were not offered this exemption. 14. Considering that the applicant’s plea was not merely frivolous and/or vexatious, on 29 September 1997 the Criminal Court referred it to the First Hall of the Civil Court. 15. Before the Civil Court, the applicant alleged that the Maltese system penalised men and favoured women, as statistical information showed that during the preceding five years only 3.05% of jurors had been women whereas 96.95% had been men. Moreover, the burden of jury service was not equitably distributed but was placed on a very small proportion of the population: in 1997 the lists of jurors represented only 3.4% of the list of voters. In practice, those who had on one occasion been placed on the lists of jurors would remain on them until they were disqualified, while others who also satisfied all the requirements were de facto exempted from such civic obligation. 16. In a judgment of 5 February 1999, the Civil Court rejected the applicant’s claims. It held that in stating that every Maltese citizen who had attained the age of 21 qualified to serve as a juror the law did not make any distinction between citizens. More specifically, there was no distinction between men and women. As to the practice criticised by the applicant, the latter had not substantiated his allegation that there were other persons eligible to serve as jurors who managed to avoid performing their duties. Moreover, the applicant had failed to seek exemption from jury service in accordance with domestic law. 17. The Civil Court also observed that the applicant had not proved that he was being treated differently to such an extent that the burdens and obligations imposed on him were greater than those imposed on another person. In particular, it had not been established that people who had been on the lists of jurors as long as the applicant had been removed without a valid reason, or that persons who were in a situation comparable to that of the applicant were left off the lists. The applicant had also failed to submit any evidence showing that the discrepancies between women and men called to serve as jurors were specifically attributable to an intention to discriminate between the sexes or were aimed at giving an unjust advantage to women in relation to men. 18. The applicant appealed against the judgment of 5 February 1999 to the Constitutional Court. He observed, in particular, that the existence of discrimination was clearly shown by the statistics he had produced. Given this factual background, it was unnecessary to prove an intention to discriminate on the part of the authorities. 19. In his submissions, the applicant pointed out that jury service was a burden as it required the person concerned to abandon his or her work in order to attend court hearings regularly; moreover, it imposed a moral burden to judge the innocence or guilt of a person. According to the Constitution of Malta and the Convention, social burdens should be shared by all in an equitable manner. However, statistics showed that lists of foremen were composed of 0.74% of women and 99.26% of men, and that the lists of jurors represented only 3.4% of the list of voters. 20. In a judgment of 2 November 2001, the Constitutional Court dismissed the applicant’s appeal and confirmed the judgment of the Civil Court. 21. The Constitutional Court reiterated that neither the law nor the administrative rules in relation to the compilation of the lists of jurors were in any way discriminatory. In fact, the statistics showed that the number of women on the lists of jurors was 145 in 1996 (almost double the number of the previous year), and that this number increased to 2,490 in 1997. Therefore, an irreversible administrative process had been set in motion in order to bring the number of women on the lists into line with that of men. 22. The Constitutional Court acknowledged, however, that the number of women actually called to serve as jurors was very low: only five per year in the years 1995, 1996 and 1997. This was clearly the result of the jury selection procedure, in which the reasons militating for and against the choice of a certain person as juror were evaluated. The results were dependant on many factors, such as the element of luck, challenges brought by the defence and exemptions granted by the courts. It was true that women were exempted from jury service for social, family and cultural reasons; however, this was perfectly legitimate and lawful when it was as a consequence of a claim by the defence, the prosecutors or the presiding judge. 23. The Constitutional Court also agreed that it appeared that the manner in which the lists of jurors were compiled favoured a situation in which when a person was placed on the lists he remained on them until the age restriction was reached. Therefore the applicant’s grievance that this system seemed to punish those persons who were on the lists could be justified. Thus, the Constitutional Court suggested that the system be amended and that the lists be periodically changed in order to exclude those persons who had already been called for jury service. 24. As concerned the applicability of Article 14 of the Convention, the Constitutional Court noted that jury service should be considered “a normal civic obligation” within the meaning of Article 4 of the Convention, and therefore Article 14 came into play. The Constitutional Court considered, however, that the applicant had not been subjected to burdensome treatment simply because he had had to serve as a juror on three occasions over a span of seventeen years. In any case, this circumstance did not entitle him to take the law into his own hands and decide to ignore the court summons. Instead, he should have made use of the ordinary remedies available to him, such as filing a request for exemption from jury service with the competent court. Had this request been refused, he could have appealed. 25. The Constitutional Court also rejected the applicant’s submission that the fine imposed on him was discriminatory. It observed that anyone who had been fined by the competent court was obliged by law to pay the fine and that anyone who disobeyed an order of a court was liable to be sanctioned. 26. On an unspecified date in 2003, the applicant petitioned the Registrar of the Criminal Court. He observed that, according to the Government Gazette of 28 August 2003, his name had been registered on the List of Jurors and on the List of Special Jurors. However, as he was a lecturer at the University of Malta, he sought exemption from jury service in accordance with Article 604(1) of the Criminal Code (hereinafter “the CC”). 27. By a decision of 23 October 2003, the Registrar of the Criminal Court rejected the applicant’s petition. 28. Having been summoned once again to serve as a juror in another trial, in 2004 the applicant requested to be exempted from jury service under Article 607 of the CC. This application was rejected by the competent domestic court. 29. On 18 April 2005 the applicant requested once again to be exempted from serving as a juror. He relied on Article 604(1) of the CC, providing an exemption for full-time lecturers at the University. On 25 April 2005 his request was accepted. 30. According to Article 603(1) of the CC, “Every person of the age of twenty-one years or upwards, residing in Malta and being a citizen of Malta, shall be qualified to serve as a juror provided such person has an adequate knowledge of the Maltese language, is of good character and is competent to serve as a juror.” 31. The compilation of the lists of jurors is regulated by Article 605 of the CC. The lists are drawn up by the Commissioner of Police together with two magistrates and the Registrar of the Courts. They are published in the Government Gazette in the month of August each year. Within fifteen days from the publication any person who, not possessing the qualifications required by law to serve as a juror, desires to be struck off the lists may file an application before the Criminal Court. The court shall proceed summarily on the application and the registrar shall note on the lists any correction which the court may order. Subsequently, the names of the jurors are written down on separate ballots of paper and every month ballots are drawn. 32. Article 604 of the CC provides: “(1) The following persons are exempted from serving as jurors: Members of the House of Representatives, judges, clergymen, members of the Armed Forces of Malta, persons holding the office of Head of a Government Department and their deputies, the magistrates, the Registrar of Courts, officers of the Executive Police, professors of the University, teachers of the Government secondary, primary and technical schools, District Medical Officers, health inspectors, the Principal Probation Officer and Probation Officers. (2) Moreover the court may, on an application to that effect, exempt from serving as a juror any apothecary of a village and any physician, surgeon or obstetrician actually practising his profession, and, in general, any person who has completed the sixtieth year of his age, unless, in some particular case, the court deems otherwise for the ends of justice. (3) A person who has the care of a family or of a person who suffers from any physical or mental infirmity shall also be exempt from serving as a juror.” 33. Article 607 of the CC provides that any person who is not qualified or liable to serve as a juror, or who may have special reasons for asking to be exempted from serving as a juror, may bring the matter before the court, by means of an application to be filed within four days after the service of a writ of summons. The court may, “if it deems the reasons alleged to be good, ... order the registrar to cancel the name of such person”. 34. According to Article 609 of the CC, if a summoned person (that is, a person called to serve as a juror) fails to appear before the court at the time stated in the writ, he will be sentenced by the court to a fine and may be compelled to serve as a juror by means of a warrant of escort or arrest. The court may, on an application to that effect, remit the fine if it is satisfied that there was good cause for the non-appearance. | 1 |
dev | 001-91461 | ENG | ALB;AUT;BEL;BGR;BIH;HRV;CYP;CZE;DNK;ESP;FIN;FRA;DEU;GRC;HUN;IRL;ITA;LUX;MDA;MKD;MLT;NLD;NOR;POL;PRT;ROU;SCG;CHE;SVK;SVN;SWE;TUR;GBR;UKR | ADMISSIBILITY | 2,008 | BOIVIN v. 34 MEMBER STATES OF THE COUNCIL OF EUROPE | 1 | Inadmissible | null | The applicant, Mr Philip Boivin, who has dual Belgian and French nationality, was born in 1966 and lives in Bornem (Belgium). He was represented before the Court by Mr F. Krenc, a lawyer practising in Brussels. The facts of the case, as submitted by the applicant, may be summarised as follows. The European Organisation for the Safety of Air Navigation (“Eurocontrol”) was created in 1960 for the purpose of supervising air traffic control in the airspace of its member States, which have included Belgium and France since the beginning. By a decision of Eurocontrol’s Director General dated 6 September 1995, the applicant was appointed to the post of chief accountant at the Institute of Air Navigation Services (a body which is part of Eurocontrol and is situated in Luxembourg) for a renewable term of five years. On 29 February 1996 Eurocontrol’s Director of Human Resources notified the applicant that his appointment had been cancelled following a complaint by another official of the organisation who claimed that there had been no notice of competition for the vacancy filled by the applicant. After a specific competition the applicant was appointed again. However, the same official challenged the applicant’s new appointment on the ground that there had been no substantiated report and obtained its cancellation. A fresh recruitment procedure was organised to fill the vacancy. However, the applicant’s name was not included on the list of qualified candidates drawn up by the new selection board. As a result, Eurocontrol’s Director General decided not to appoint him to the post. On 18 January 1999 the organisation’s Director of Human Resources sent the applicant a letter notifying him of the termination of his employment on 31 January 1999 and inviting him to discuss compensation with the legal department. After filing a number of internal administrative complaints, the applicant took his case to the International Labour Organisation’s Administrative Tribunal (the “ILOAT” – having sole competence to settle all disputes between Eurocontrol and its staff) to challenge the cancellation of his appointment and to seek compensation for the injury caused to him. In a judgment of 3 November 2000 (notified to the applicant on 12 February 2001), the ILOAT, finding that the recruitment procedure had not been flawed, upheld the decisions cancelling the applicant’s appointment. However, observing that Eurocontrol had “fail[ed] in its duty ... to protect [the applicant] from the injury caused by the quashing of an appointment he [had] accepted in good faith”, the ILOAT partly granted the applicant’s compensation claim and awarded him 220,000 euros in damages. The International Convention relating to Cooperation for the Safety of Air Navigation (the “Eurocontrol Convention”), signed in Brussels on 13 December 1960, established, as provided in Article 1, a European Organisation for the Safety of Air Navigation (Eurocontrol) to create a uniform European air traffic management system. Article 4 of the Eurocontrol Convention provides that “[t]he Organisation shall have legal personality”. Under Article V § 2 of Eurocontrol’s Statute, annexed to the Eurocontrol Convention, the ILOAT has “sole jurisdiction in disputes between the Organisation and the personnel of the Agency, to the exclusion of the jurisdiction of all other courts and tribunals, national or international”. The International Labour Organisation was founded in 1919 as the “International Labour Office” and since 1946 has operated as a tripartite agency of the United Nations that brings together representatives of governments, employers and workers from its member States. Its Administrative Tribunal hears complaints from officials or former officials of the International Labour Organisation and the other international organisations that have recognised its jurisdiction. The relevant provisions of the Tribunal’s Statute are as follows: “... 5. The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any other international organisation meeting the standards set out in the Annex hereto which has addressed to the Director General a declaration recognising, in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.” “1. The Tribunal shall take decisions by a majority vote; judgments shall be final and without appeal. 2. The reasons for a judgment shall be stated. The judgment shall be communicated in writing to the Director General of the International Labour Office and to the complainant. ...” Article XII § 1 of the Annex to the ILOAT’s Statute reads as follows: “In any case in which the Executive Board of an international organisation which has made the declaration specified in Article II § 5 of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice.” | 0 |
dev | 001-23819 | ENG | SVK | ADMISSIBILITY | 2,004 | WITKOVSKA V. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Ms Eleonóra Witkovská, is a Slovakian national, who was born in 1931 and lives in Smolník. The facts of the case, as submitted by the applicant, may be summarised as follows. On 3 April 1998 the applicant sued a private company before the Poprad District Court. She claimed that construction works carried out by the defendant in her house resulted in defects and that the defendant should be ordered to repair those defects. On 22 May 1998 the judge asked the applicant to submit further information including the address of the defendant as a letter of 15 April 1998 could not be served on its representatives. The applicant replied on 16 June 1998. On 16 July and on 14 September 1998 the judge asked the defendant to submit comments on the action. On 27 October 1998 the District Court discontinued the proceedings as the defendant had not been indicated correctly in the action. On 30 November 1998 the applicant appealed. The District Court unsuccessfully attempted to serve the decision of 27 October 1998 and the applicant's appeal against it on the representative of the defendant. On 1 March 1999 the police informed the court that the representative had moved and that his address was unknown. The District Court then unsuccessfully tried to have the above documents delivered at the registered address of the defendant company. The representative of the defendant company appeared at the District Court and was served with the documents on 18 May 1999. On 1 July 1999 the case file was transmitted to the Prešov Regional Court. On 17 November 1999 the Regional Court quashed the District Court's decision of 27 October 1998. The Regional Court's decision was delivered to the District Court on 30 December 1999. The District Court heard the parties on 11 February 2000 and on 10 March 2000. In the course of March 2000 the parties submitted further documents at the court's request. On 19 October 2000 the District Court heard witnesses. It then decided to obtain an expert opinion. An expert was appointed on 22 December 2000. The applicant was instructed to pay an advance on the expert's fees. The expert submitted the opinion on 30 January 2001. On 16 February 2001 and on 5 April 2001 the District Court urged the applicant to pay an advance on the expert's fees. On 5 April 2001 the applicant replied that the bank account number of the District Court had not been notified to her. On 23 April 2001 the applicant paid the sum due after she had received the relevant money transfer document from the District Court. On 19 July 2001 the case was adjourned as the applicant's representative did not appear and the applicant was not in a position to comment on the expert opinion as the lawyer had not transmitted it to her. The applicant submitted her written comments on the expert opinion on 11 September 2001. Following the applicant's complaint about the conduct of the proceedings the file was sent to the Regional Court on 24 October 2001. It was returned to the District Court on 13 December 2001. On 12 February 2002 and on 28 March 2002 the District Court adjourned the case with a view to obtaining further evidence. Such evidence was submitted in the course of May 2002. On 12 July 2002 the judge requested the defendant to submit additional information. A hearing was scheduled for 13 September 2002. The applicant's lawyer and a witness informed the District Court that they could not appear. The lawyer asked the court to proceed with the case in her absence. On 13 September 2002 the case was adjourned as the applicant insisted that it be proceeded with only in the presence of her lawyer. On 26 September 2002 the District Court partly granted the applicant's action. The judgment was served on the parties on 15 and 26 November 2002 respectively. On 29 November 2002 the applicant appealed against the part of the District Court's judgment by which her claim had been dismissed. The defendant appealed on 10 December 2002. On 7 January 2003 the judge instructed the defendant to pay the court fee and to submit another copy of the appeal. The case file was submitted to the Regional Court on 7 March 2003. On 23 September 2003 the Prešov Regional Court upheld the District Court's judgment of 26 September 2002. On 12 February 2003 the applicant complained to the Constitutional Court about the length of the above proceedings before the Poprad District Court. On 12 March 2003 the Constitutional Court declared the complaint admissible. On 2 July 2003 the Constitutional Court found that the applicant's right to a hearing within a reasonable time had not been violated. The decision stated that the case was not complex from the legal point of view. However, certain difficulties arose due to the fact that the contract between the applicant and the defendant concerning the repair of the applicant's house had been concluded orally and that its contents were disputed between the parties. This required extensive evidence to be taken including an expert opinion. The Constitutional Court held that the applicant and her representative had contributed to a certain extent to the length of the proceedings in that the lawyer had not transmitted the expert opinion to the applicant who was therefore not able to comment on it at the hearing held on 19 July 2001 at which her lawyer did not appear. In addition, the case had to be adjourned on 13 September 2002 as the applicant did not agree that it be proceeded with in the absence of her lawyer. The Constitutional Court's decision also stated that the applicant had paid an advance on the expert's fees belatedly and that she had not informed the District Court in time that she did not have at her disposal the information necessary for paying the fee. In 1971 the applicant was dismissed from her job for political reasons. The final decision on this issue was delivered by the Košice Regional Court on 9 February 1972. The State-owned company concerned again employed the applicant as from 1 November 1990. The company's representatives apologised to the applicant for the wrongs which had been caused to her. On 25 July 1991 the employer issued a certificate to the applicant under Section 22(1) of the Extra-Judicial Rehabilitations Act. The applicant sought to obtain compensation for her earlier persecution. She was informed by several authorities including the Constitutional Court and the General Prosecutor's Office that her claim for compensation could not be satisfied under the existing law. On 28 August 1996 the applicant claimed compensation for lost income from the Ministry of Justice under the State Liability Act of 1969. The Ministry refused to satisfy the claim and the applicant sought redress before the Spišská Nová Ves District Court. The District Court dismissed the action on 18 February 1997. The decision stated that the relevant judicial decisions concerning the applicant's dismissal had not been quashed in a separate set of proceedings as required by Section 4(1) of the State Liability Act, and that that the applicant had no right to compensation under Section 22(6) of the Extra-Judicial Rehabilitations Act. On 17 June 1999 the Košice Regional Court upheld the first instance judgment. The decision stated that in the applicant's case the Extra-Judicial Rehabilitations Act was a lex specialis with respect to the State Liability Act of 1969. Extra-Judicial Rehabilitations Act of 1991 The aim of the Extra-Judicial Rehabilitations Act (Zákon o mimosúdnych rehabilitáciách, in force as from 1 April 1991) is to redress certain infringements of property and social rights which occurred between 25 February 1948 and 1 January 1989. The following provisions are relevant in the present case. Pursuant to Section 21(1), legal actions terminating a person's contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void for the purpose of the Extra-Judicial Rehabilitations Act. Section 22(1) provides that the former employer or its successor shall issue, at the request of the person concerned, a certificate that the latter's contract of employment was terminated for reasons mentioned in Section 21(1). Pursuant to paragraph 6 of Section 22, the fact that a legal act is considered as void under Section 21 neither renews an earlier terminated labour contract nor does it give a right to compensation for lost income or other damage. Under Section 24(1), when the termination of employment is considered void within the meaning of Section 21, the period between the termination of the contract of employment and the date when the person concerned acquired a right to an old-age pension or invalidity pension is to be considered as the period of employment for the determination of that person's social security rights. State Liability Act of 1969 Section 1 of Act No. 58/1969 on the liability of the State for damage caused by a State organ's decision or by its erroneous official action (“the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings. Pursuant to Section 4(1), a claim for damages can only be lodged after the decision by which damage was caused has been quashed by the competent authority as being unlawful. | 0 |
dev | 001-81114 | ENG | HRV | CHAMBER | 2,007 | CASE OF NOVAK v. CROATIA | 4 | No violation of Art. 3 | Christos Rozakis | 4. The applicant was born in 1968 and lives in Ludbreg. 5. Following a conviction for a dangerous activity, the applicant was incarcerated in Lepoglava State Prison during an unspecified period in 1999 and 2000. 6. In a judgment of 4 July 2002 the Zagreb Municipal Court convicted the applicant of fraud and gave him a suspended sentence of ten months' imprisonment. In addition, it ordered him to undergo compulsory psychiatric treatment as he had been diagnosed as suffering from post-traumatic stress disorder (PTSD). It appears that the suspension of the sentence was lifted because the applicant was again sent to Lepoglava State Prison from 17 May 2002 until 17 April 2003. 7. In a judgment of 17 February 2003 the Varaždin Municipal Court convicted the applicant of fraud and gave him a suspended sentence of ten months' imprisonment. However, on an appeal by the State Attorney, on 24 September 2003 the Varaždin County Court altered the sentence to six months' unconditional imprisonment. 8. On 18 December 2003 a judge of the Varaždin County Court with responsibility for the execution of sentences ordered the applicant to start serving his prison sentence in Varaždin Prison on 28 January 2004. The applicant applied for the order to be postponed on account of his PTSD condition. On 12 January 2004 a Varaždin County Court judge responsible for the execution of sentences dismissed the application because the applicant had failed to submit medical documentation concerning his condition. 9. The applicant appealed against that decision and on 22 January 2004 the Varaždin County Court dismissed his appeal. It found, firstly, that the medical documentation subsequently submitted by the applicant was outdated since it originated from 1991, 1998 and 2001, and, secondly, that during his prison term the applicant would be provided with adequate medical care. 10. The applicant started to serve his sentence on 26 February 2004 in Varaždin Prison. He was placed in cell no. 8, measuring four by five metres, with thirteen beds. The number of inmates ranged from fifteen to twenty, so that some inmates had to sleep on the floor or on the table. The table in the cell was designed to accommodate four persons, so that the inmates had to eat on the beds or on the floor. There was one window in the cell, covered with wire so that light and air hardly reached the cell. 11. On 11 March 2004 the applicant was removed from cell no. 8 and placed in cell no. 5, measuring 21.87 square metres, which he shared with four other inmates. 12. The applicant's correspondence with the Court was opened. 13. The medical documentation presented by the applicant shows that he was examined on 26 February 2004 by the prison physician, who found that the applicant had suffered from PTSD since 1995 and also from a personality disorder. The prison doctor prescribed medication, a drug called Fluval. 14. On 15 March 2004 the applicant was transferred to Zagreb Prison Hospital but was sent back to Varaždin Prison the same day because the psychiatrist at the hospital found no reason to keep him there. The applicant's treatment was changed to drugs named Amyzol and Xanax. On 16 March 2004 the applicant complained that the drugs prescribed were “too heavy”. On 17 March 2004 the medication prescribed to the applicant was again changed to Fluval. No psychiatric treatment was provided. 15. On 8 March 2004 the applicant applied for a transfer to another prison or the immediate termination of his prison sentence on account of the lack of adequate treatment for PTSD in Varaždin Prison. He further complained about the overcrowded conditions in the cell where he was being held. On 19 March 2004 a Varaždin County Court judge responsible for execution of sentences dismissed the application, finding that the applicant was not in need of any additional treatment. However, as to the overcrowded conditions, the judge found: “... the prisoner's allegations concerning the number of inmates placed in one cell are true. However, such placement of prisoners is due to the considerable fluctuation in their number because persons sentenced to up to six months' imprisonment serve their sentences in [Varaždin] Prison. The Varaždin Prison authorities shall remove the said insufficiencies so as to afford enough space to inmates ...” 16. The applicant appealed against that decision, but his appeal was dismissed by a three-judge panel of the same court on 30 March 2004. 17. On an unspecified date the applicant filed an application for early release from the prison because he had not received adequate treatment for PTSD. On 26 May 2004 the Varaždin County Court dismissed the application. 18. On an unspecified date the applicant contacted the Croatian Helsinki Committee to complain about the inhuman conditions in Varaždin Prison, alleging that he was being held in a cell measuring 4 by 5 metres with thirteen beds and that the number of inmates in the cell surpassed the number of beds. He alleged that such cramped conditions had had an adverse effect on his health since he was suffering from PTSD. Furthermore, he complained that there was insufficient daylight in the cell. 19. In a letter of 17 June 2004 the Committee informed the Department for the Enforcement of Sanctions (Uprava za izvršenje sankcija) about the applicant's allegations and sought an answer from it. On 6 July 2004 the Prison Administration of the Ministry of Justice (Uprava za zatvorski sustav Ministartsva pravosuđa) answered the Committee's enquiry. As to the applicant's health condition, it was stated that he had been diagnosed with PTSD and therefore sent to the psychiatric ward of Zagreb Prison Hospital on 15 March 2004. However, a psychiatrist from that hospital had found that there had been no indications requiring the applicant's hospitalisation. Furthermore, the applicant himself had asked not to be kept in the hospital. During his detention in Varaždin Prison he had been administered drugs. As to the applicant's allegations about the inhuman conditions in his cell, it was stated that the conditions of the execution of his sentence complied with the standards prescribed in Part XI of the Enforcement of Prison Sentences Act and that each cell had access to daylight. 20. In a decision of 12 July 2004 the Varaždin Prison Administration released the applicant on licence. His licence expired on 26 August 2004. 21. The CPT visited Croatia between 20 and 30 September 1998. Its findings with regard to Zagreb Prison Hospital were as follows (extract from the report to the Croatian Government on the visit to Croatia from 20 to 30 September 1998, CPT/Inf. (2001) 4): “157. ... However, occupancy rates in the psychiatric ward were rather high, a drawback which was exacerbated by the fact that patients tended to spend most of the day in their rooms... In all wards, the general atmosphere in the patients' rooms was rather drab; efforts should be made to provide a more positive therapeutic environment. The practice observed in the hospital of having patients wear pyjamas/nightgowns continuously should also be reviewed. As regards, in particular, psychiatric patients, this practice is not conducive to strengthening personal identity and self-esteem; individualisation of clothing should form part of the therapeutic process. ... 159. ... The delegation was less impressed by the quality of psychiatric treatment, which was limited essentially to pharmacotherapy (though there were no indications of the misuse of medication). The hospital's doctors acknowledged that there was a clear need to develop rehabilitative and other therapeutic activities (occupational therapy, group therapy, individual psychotherapy, etc.) for the establishment's psychiatric patients; however, they commented that limited staff resources and the very nature of the establishment hindered progress in this area. 160. The CPT recommends that serious efforts be made to develop rehabilitative and other therapeutic activities for psychiatric patients at the hospital; the present state of affairs is untenable from a therapeutic standpoint. ...” 22. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows: “No one shall be subjected to any form of ill-treatment...” 23. The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) – “the Act”) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows: “(1) Inmates shall have the right to complain against an act or decision of a prison employee. (2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open...” “(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act. (2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.” “(1) The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions. (2) Inmates shall as a general rule be accommodated in separate rooms... (3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room. (4) Every room ... must have daylight and artificial light... (5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so. (6) Inmates shall have drinking water at their disposal at all times.” “(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...” “(1) Inmates shall have the right to unlimited correspondence at their own expense. ... (4) Inmates shall have the right to correspond with their lawyer, the State authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters...” 24. Rule 13 of the Varaždin Prison House Rules (Kućni red za zatvorenike i kažnjenike Zatvora u Varaždinu) provided that letters addressed to lawyers, State authorities or international organisations for the protection of human rights were not to be opened by the prison authorities. | 0 |
dev | 001-114526 | ENG | GBR | ADMISSIBILITY | 2,012 | SELLICK AND SELLICK v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 1. The applicants, Mr Santino Sellick and Mr Carlo Sellick, are brothers who were born in 1981 and 1982 respectively. They are British nationals and they are currently detained at HMP Whitemoor. They were represented before the Court by Mr Paul Martin, a lawyer practising in Romford with Paul Martin & Co Solicitors, assisted by Mr S. Solley QC and Mr A. Dos Santos, counsel. 2. At about 7 p.m. on 3 December 2001 Mr Paul Chambers was shot and killed in the car park of the Talisman public house in Wolverhampton. 3. The present application concerns the applicants’ conviction for the murder of Mr Chambers. They were tried together with a third man, Dominic Marandola, who was acquitted by the jury. Their main ground of complaint to this Court is that, at the men’s trial, the trial judge (Butterfield J) allowed the statements of four people to be read to the jury because he was satisfied either that they had been kept away through fear or that they could not be found and reasonable steps had been taken to trace them. 4. The circumstances of Mr Chambers’ murder, the trial and the applicants’ subsequent, unsuccessful appeal to the Court of Appeal may be summarised as follows. 5. As stated above, Carlo and Santino Sellick are brothers. Their halfbrother, Lee Sellick, was a friend of Mr Chambers. Lee Sellick’s girlfriend was Ms Carla Wedge. Santino Sellick’s girlfriend, Ms Tammy Pardoe, was Ms Wedge’s niece. Ms Carina Jackson, a friend of Tammy Pardoe, had been in a relationship with Carlo Sellick, which ended before the shooting. It was the statements of Lee Sellick, Carla Wedge and Carina Jackson (together with that of a fourth person, Ms Donna Mills) which came to be read at trial in the circumstances described in paragraphs 13–15 below. Tammy Pardoe gave live evidence, but as a hostile witness for the prosecution: see paragraph 16 below. 6. It was the prosecution’s case that Santino was the gunman. His motive for shooting Mr Chambers was that the deceased was a rival drug dealer and, just before the shooting, Santino had found out that Mr Chambers had slept with Tammy Pardoe. The prosecution also alleged that Carlo was Santino’s partner in drug dealing, that he drove Santino to the murder scene and that he provided the murder weapon. Mr Marandola was alleged to have been present at the scene as part of the joint enterprise of murder. It was also the prosecution’s case that, after the shooting, the three men had met Lee Sellick, Tammy Pardoe and Carla Wedge at a hotel where they discussed the shooting and how to ensure no one talked about it. 7. Santino’s defence was that he had been ill in bed at the time of the shooting. Carlo’s defence was that he was not present at the shooting and had no knowledge that it would take place. Mr Marandola’s case was that he was present at the scene of the shooting but did not know it would take place and was not a party to it. 8. In the course of the investigations, the police obtained the following witness statements. 9. Lee Sellick’s statements were made to the police after he had been arrested for conspiracy to murder Mr Chambers. He stated that he had been involved, with Carlo and Santino, in buying crack cocaine from Mr Chambers. In the days before the shooting, the brothers had owed GBP 2,000 to Mr Chambers, which Mr Chambers wanted paying. He also stated that, the day before the shooting, Tammy Pardoe and Santino had rowed because Ms Pardoe had told Santino that she had slept with Mr Chambers. On the day of the shooting he, Lee, had spoken to Mr Chambers about the money owed and learned that he would be at the Talisman that evening. He had told Carlo this and later telephoned Carlo from the pub to say that Mr Chambers was there. He had then left the pub for Carla Wedge’s flat. He returned to the pub with Ms Wedge when told about the shooting. In the telephone calls after the shooting he had asked Carlo what was going on; Carlo had told him to make sure no one saw anything. When Lee asked how he could do that, Carlo told him to sort himself out or he would get the same. Carlo had also asked him whether Mr Chambers was dead or alive. The following day, Santino called him to tell him to book them into a hotel. When Carlo, Santino and Mr Marandola arrived there, Santino said “it was not supposed to happen like that”. Carlo said (referring to Mr Marandola) “How do you think he feels? He only came along for the ride”. In the course of his statements Lee Sellick also told the police that he was scared, not only for himself, but for his family and for Carla. Later he also said that he was frightened for his safety and for any revenge Carlo and Santino might take against him, but he was willing to go to court. 10. Carla Wedge in her statements also said that, before the shooting there had been a row at her flat between Santino and Tammy Pardoe in which Santino had used considerable violence on Ms Pardoe. Her account of events at the hotel was similar to Lee Sellick’s account. She agreed that, if asked by the police, she would limit her account to events in the car park after finding Mr Chambers collapsed. She did so out of fear for herself, Lee Sellick, Ms Pardoe and her children. Ms Wedge also stated that she too was scared and that she “had her children to think about”. 11. In her statement Carina Jackson stated that the three brothers had dealt in drugs and that she understood that Carlo and Santino obtained their supplies from Mr Chambers. Her relationship with Carlo ended before the shooting. After it she had seen Tammy Pardoe with a black eye. There had been an occasion in November 2001 when Carlo had asked her to hide a balaclava and gun for him. 12. Donna Mills, an ex-girlfriend of Santino, provided a statement as to the types of car that he drove. 13. After making their statements, Lee Sellick and Carla Wedge were admitted to the witness protection scheme. On an unspecified date they left the scheme and returned to Wolverhampton, only to then disappear. When the matter came to trial at Birmingham Crown Court, neither Lee Sellick nor Carla Wedge could be found, despite witness summonses being issued for their attendance. The prosecution took the view that there had been a concerted attempt to subvert the trial and that this had been done on behalf of the defendants by members of their extended family. Accordingly, it applied for the statements of Lee Sellick and Carla Wedge to be read to the jury pursuant to section 23 of the Criminal Justice Act 1988 (see paragraph 33 below). Before determining that application, the trial judge heard evidence in chambers from Ms Wedge’s mother, Mrs Fox, and from two police officers who had attempted to trace Mr Sellick and Ms Wedge. One of the police officers gave evidence as to a conversation with Ms Wedge in which she recounted an incident where family members of the applicants approached her outside her son’s school and told her that “she should not be a grass”. 14. Having heard that evidence, the trial judge allowed the statements to be read. He ruled: “Having heard and seen the witnesses called in this application, I am satisfied so that I am sure of the following facts:- (1) Following the arrest of the defendants in February 2002, both Carla Wedge and Lee Sellick were made subjects of a witness protection scheme; (2) Both Carla Wedge and Lee Sellick voluntarily withdrew from that scheme in about April 2002 and returned to the Wolverhampton area where the murder had been committed. They were then living together and continued to live together until November of this year; (3) Carla Wedge and Lee Sellick were informed in writing of the date of this trial in August 2002 and September 2002 and were notified on those occasions that they were required to attend as witnesses; (4) On 18th September 2002, Carla Wedge attended Billeston Street Police Station where she spoke to DC Hutton. In that conversation, she described an incident which had taken place outside her son’s school when members of the Gamboni family, associates of the defendants, told her she should not be a grass; (5) Carla Wedge told DC Hutton on 18th September that she felt intimidated by the approach made to her by the Gamboni family and that she anticipated that that intimidation would become more intensive as the trial date approached. DC Hutton believed, from what Carla said to him and her general demeanour, that the Gamboni connection was capable of intimidating her and that she was fearful for her own safety and that of her family; (6) In November 2002, Carla Wedge and Lee Sellick both knew of the trial date, the place of trial and that they were required to attend to give evidence at trial; (7) From 18th November 2002 onwards, police officers have made repeated attempts to find Carla Wedge and Lee Sellick. Police officers have visited all addresses in any way associated with either witness and have pursued all available avenues of enquiry. Despite all those efforts, neither witness has been found; (8) The mother of Carla Wedge, Mrs Fox, has not seen her daughter for the past two weeks. Carla Wedge has left her home and her children, two boys aged nine and 15 months, and effectively disappeared. The children are being cared for by Mrs Fox. Mrs Fox has no knowledge of her daughter’s whereabouts and does not know how to get in touch with her. Since Carla Wedge left, her younger child was admitted to hospital but even that event, of which Carla learned through telephone contact with her grandmother, did not prompt her to reappear; (9) Mrs Fox told WDC Pearson that Carla was staying away from her children for two weeks until the trial was over to avoid getting killed and putting her children in danger; (10) Mrs Fox told WDC Pearson that Lee Sellick was frightened and thought he would be killed whether he gave evidence or not. He had tried to commit suicide; (11) Mrs Fox herself is a very frightened woman. She refused to make a written statement about the events surrounding the disappearance of her daughter. Her attendance at court had to be secured by a witness summons and a threat of arrest. The public gallery had to be cleared before she was prepared to give evidence. ... I am satisfied so that I am sure that all reasonable steps have been taken by the police to find both Carla Wedge and Lee Sellick but neither witness can be found. I reject the suggestion that the police should have done more to keep in contact with the witnesses in the months leading up to the trial. I am satisfied that the steps taken by the police were appropriate and reasonable in the light of the information available to them. ... There is, in my judgment, clear admissible evidence that both witnesses were in fear at the time they made their witness statements to the police. There is further admissible evidence that Carla Wedge was fearful about giving evidence in September 2002. There is, however, no admissible evidence that Lee Sellick was in fear of giving oral evidence and whilst it would be possible for me to infer from all these circumstances that he was, I am not able, in his case, to exclude the reasonable possibility that other factors may have influenced his disappearance. It is highly probable that fear of the consequences of giving evidence against the defendants and that alone has prompted him to disappear but I cannot be sure of that conclusion. However, in the case of Carla Wedge, I am entirely satisfied that fear for her own safety and fear for the lives of her children have driven her to behave as she has, abandoning her own children even when one of them was admitted to hospital. I am further satisfied, in the case of both witnesses, that no adjournment will secure their attendance. ... , in my judgment, wholly credible. The defendants are all in a position to controvert the contents of the statements if they dispute them. I accept, however, that there is a disadvantage to the defence if the statements are read and if they are admitted, the jury must receive clear directions emphasizing that disadvantage. Further, so far as Lee Sellick is concerned, the defence point to a number of features which they submit undermine his credibility. However, Section 28 of schedule two of the 1988 Act [see relevant domestic law and practice at paragraph 34 below] provides a wholly sufficient remedy for that concern. Having taken into consideration all the submissions made and given full weight to the provisions of Section 26, I am of the clear view that the statements made by Lee Sellick and Carla Wedge ought to be admitted in the interests of justice. I so rule.” 15. After the trial had started, the prosecution applied for leave to have the statements of Carina Jackson and Donna Mills read. They again relied on statements of police officers who had sought to trace the women. The trial judge allowed each woman’s statement to be read. In the case of Ms Jackson he found the evidence was “quite overwhelming” that she had been intimidated and that it was not possible to secure her attendance by any reasonable means. For Ms Mills, he was not satisfied that she was in fear, but was satisfied that all reasonable steps had been taken to find her. The statements were cogent, innately credible and, in each case, controvertible by evidence from the defendants and, indeed, by other possible means. It was in the interests of justice that the statements be admitted. 16. Tammy Pardoe gave evidence as to the three brothers’ drug dealing. She confirmed that she had slept with Mr Chambers. Santino had found out in the course of a row they had on 2 December and he had hit her. The following night, they met in the Talisman. Santino was angry and threatened to kill Mr Chambers, and had said that this would be Ms Pardoe’s fault. She left the pub and had been in Carla Wedge’s flat at the time of the shooting. At the hotel, Santino said that no one would know who pulled the trigger except him and Carlo. If she told anyone she would get the same. Carlo also told her to keep her mouth shut. She had another conversation with Santino on 30 December in which he admitted to being the gunman. There had been a further conversation, when Santino was in prison for other reasons, in which he said to her that the police had nothing on them. In crossexamination she accepted that her testimony was based on the account she had given to the police after she had been arrested for conspiracy to murder, but maintained that it was the truth. 17. Two witnesses gave evidence that they had seen a group of men in the car park, had heard shots and had then seen three people running to a car and driving away. A third witness testified that he had seen the deceased, heard a raised voice and then a bang, and that the deceased had then fallen over. A fourth witness testified that he had seen two men joined by a third and had heard some discussion which could have been about drug dealing. Moments later he heard two loud bangs. 18. The jury also heard evidence from a Mr Allen, who testified that he had gone to Lee Sellick’s flat after the shooting because he knew the person who had been with the deceased at the pub had gone to the flat with Lee Sellick about half an hour before. Lee Sellick, Carla Wedge and another woman returned to the car park with him. 19. Evidence of mobile telephone traffic was also led by the prosecution, which showed that there had been calls between Lee and Carlo Sellick after the shooting, that someone used a payphone at the hospital to call Carlo, Santino and Mr Marandola, and that Carlo’s telephone had been in use near the Talisman prior to the shooting. 20. For each brother, the prosecution relied on the fact that they had, on the advice of their solicitors, made no reply to any of the questions put to them during his police interview. For Santino, the prosecution also relied on the fact that, even by June 2002, Santino had stated that he was still unable to recall where he had been at the time of the shooting and that it was only by October that year that he had been able to say that he was in bed sick on the evening in question. For Carlo, the prosecution submitted that it was implausible for him subsequently to explain that his silence in interview was because he had been unable to recall driving to Porlock that day, not least because, on Carlo’s own evidence, Lee Sellick had phoned him that evening to tell him about Mr Chambers’ death. 21. Finally, the prosecution relied on covert recordings of conversations between the brothers while in their cells at the police station, which, the prosecution alleged, showed that they were plotting to subvert the evidence against them. The defence admitted the conversations but said that they were to wind the police up. 22. Santino gave evidence in which he denied killing Mr Chambers. He was not at the Talisman on the evening of the shooting; he had been in bed sick, where he had found out about the shooting from the television news. His memory had been jogged by being shown his mobile phone records for the day of the shooting. He said it was Lee who had been dealing in drugs. He was unaware that Tammy Pardoe had been unfaithful to him and had not assaulted her before the shooting. They had only rowed because he had slept with Carina Jackson. He denied the conversation with Tammy Pardoe in the pub after the shooting and had only gone to the hotel to drop off cannabis for Lee. At the hotel he had rowed again with Ms Pardoe over Carina Jackson and she had told him she would get him back. The only discussion of Mr Chambers had been over hearing about the shooting on the news. 23. In his evidence Carlo denied buying or selling drugs to or from Mr Chambers, but had been a heavy drug user himself. He too maintained that it was Lee who had been dealing with Mr Chambers and that, prior to the shooting, he had spoken to Lee because Lee was trying to borrow money. The evening of the shooting he and Mr Marandola had been driving to Porlock in Somerset to take cannabis to his uncle. When Lee summoned them to the hotel, they had collected Santino on the way back from Somerset. There was no conversation or suggestion that Carlo had been responsible for Mr Chambers’ death. 24. Mr Marandola did not give evidence, although his police interviews were introduced. When first interviewed he said that he was at his girlfriend’s at the time of the shooting but, in a subsequent interview, he said Carlo and Santino had picked him up in a car and said they were going to meet someone. They told him to stay in the car. He did not and saw the brothers and a third man approach from the pub. He heard two shots and then the brothers returned to the car, and the three of them drove off. 25. The trial judge’s summing up contained the following direction on the witness statements which had been read: “You will, I am sure, recall that I told you when the first of those statements was read how you should approach their evidence but it is important that I remind you again of what I told you. Their statements are emphatically not agreed. The defendants would have wished that all of them should be called to give evidence before you. However, there are circumstances where I, as the judge, may permit the prosecution to read the statements of a witness even where the defence wish those witnesses to be called. That is a matter for my decision and you are not, please, to speculate on why I have reached that decision. You will, of course, immediately appreciate that the defence are disadvantaged by the course I have permitted to take place. You cannot see the demeanour and appearance of the witness when assessing the extent, if at all, you are able to rely on the content of the statements. The defence cannot cross-examine, cannot test the accuracy and honesty of the evidence, cannot suggest to the witness a different account or explore with the witness other matters to which the witness does not speak in his or her statement. Thus, when you consider this evidence, bear those observations clearly in mind and give the disadvantage arising from the procedure the weight you think right in determining whether you can rely in any way on the witness statements read to you and, if so, to what extent. In this connection bear in mind the submissions of the defence on the accuracy and reliability of the statements of those witnesses. It is suggested that each of them may have a sinister motive for not wanting to give evidence and their protestations of fear in their statement are, submit the defence (my word not theirs) simply weasel words designed to protect themselves, not from any of the defendants, but from the consequences of their own involvement in what occurred on the night of 3rd December. You heard their submissions, you give them the weight you think right.” 26. The trial judge also explained to the jury that Lee Sellick’s statement had been given at the end of his interviews while he was under arrest for conspiracy to murder and that he had a substantial criminal record, including convictions for robbery. The trial judge instructed the jury that they could have regard to this background in assessing whether they could rely on his statements. When summarising Carina Jackson’s evidence in respect of the gun Carlo had given her to look after, the trial judge also commented that, if the jury chose to accept that evidence, it went no further than showing that, four weeks before the shooting, Carlo was in possession of a weapon of a broadly similar type as that used to shoot the deceased. The trial judge then asked the jury to bear in mind the criticisms that had been made of Carina Jackson and her evidence by the defence. 27. Further directions were given in the usual terms as to the adverse inferences which could be drawn from Carlo and Santino’s silence during their police interviews and that Dominic Marandola’s interviews were evidence only against him and not his co-accused. 28. On 16 December 2002 the jury unanimously convicted Carlo and Santino and acquitted Mr Marandola. The brothers appealed against their conviction. 29. The appeal was dismissed on 14 March 2005. In considering the relevant case-law of this Court, at paragraph 50 of its judgment, the Court of Appeal stated that what appeared from that case-law were the following propositions: “i) The admissibility of evidence is primarily for the national law; ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses; iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair. iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.” The Court of Appeal then stated: “The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight paragraph 40 of Luca seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Luca nor any of the other authorities were concerned with a case where a witness, whose identity was well-known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind. The question we have posed to ourselves is as follows. If the European Court were faced with the case of an identified witness, well-known to a defendant, who was the sole witness of a murder, where the national court could be sure that that witness had been kept away by the defendant, or by persons acting for him, is it conceivable that it would hold that there were no ‘counterbalancing’ measures the court could take which would allow that statement to be read. If care had been taken to see that the quality of the evidence was compelling, if firm steps were taken to draw the jury’s attention to aspects of that witnesses’ credibility and if a clear direction was given to the jury to exercise caution, we cannot think that the European Court would nevertheless hold that a defendant’s Article 6 rights had been infringed. In such a case, as it seems to us, it is the defendant who has denied himself the opportunity of examining the witnesses, so that he could not complain of an infringement of Article 6(3)(d), and the precautions would ensure compliance and fairness in compliance with Article 6(1). We for our part see no difficulty in such a clear case. More difficulty arises in cases where it is not quite so clear cut, but the court believes, to a high degree of probability, that identified witnesses are being intimidated for and on behalf of the defence, and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield J’s state of mind on Lee in the instant case). In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant’s Article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be ‘got at’ the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European Court in Strasbourg.” 30. The Court of Appeal then gave the following guidance when dealing with applications for statements to be read under sections 23 and 26 of the Criminal Justice Act 1988: “Our view is that certainly care must be taken to see that sections 23 and 26, and indeed the new provisions in the Criminal Justice Act 2003, are not abused. Where intimidation of witnesses is alleged the court must examine with care the circumstances. Are the witnesses truly being kept away by fear? Has that fear been generated by the defendant, or by persons acting with the defendant’s authority? Have reasonable steps been taken to trace the witnesses and bring them into court? Can anything be done to enable the witnesses to be brought to court to give evidence and be there protected? It is obvious that the more ‘decisive’ the evidence in the statements, the greater the care will be needed to be sure why it is that a witness cannot come and give evidence. The court should be astute to examine the quality and reliability of the evidence in the statement and astute and sure that the defendant has every opportunity to apply the provisions of Schedule 2. It will, as section 26 states, be looking at the interests of justice, which includes justice to the defendant and justice to the victims. The judge will give warnings to the jury stressing the disadvantage that the defendant is in, not being able to examine a witness.” 31. Finally, on the facts of the applicants’ case, the Court of Appeal concluded: “This was a case in which the judge was sure that Carla was being kept away through fear by virtue of the conduct of the appellants or those acting on their behalf. So far as Lee was concerned, his view was that it was ‘highly probable’ but he could not exclude the reasonable possibility that other factors may have influenced his disappearance. What he was sure of was that Lee could not reasonably be found, and it was legitimate to make part of his reasoning the high probability. The judge was further sure that Carina had been kept away through fear. He was simply sure so far as Donna Mills was concerned that she could not reasonably be found. So far as Donna Mills is concerned, her evidence was not of any great importance. Furthermore, so far as Carina was concerned, she supported the fact that the appellants were involved in drug dealing and she provided some evidence that Carlo had had in his possession at one time a gun which was broadly similar to that which expert evidence had been indicated for the killing. But in relation to that evidence the judge gave a clear warning to the jury about the limitations of that evidence over and above reminding the jury to bear in mind the criticisms made of Carina and her evidence (see page 35 (c) to (e) of the summing up). Thus the evidence of Carina could certainly not be described as decisive. Lee and Carla certainly did give important evidence. It was however certainly not the sole evidence. Lee, for example, gave evidence of a conversation with Carlo immediately after the shooting in which Carlo told him ‘to sort himself out, get control or he’d get the same’, which the judge described as ‘very important evidence in the case of Carlo’. (see page 30-31 of the summing up). Both Lee and Carla provided descriptions of the return of Santino, Carlo and Marandola to the Fox Hotel. However, there was a great deal of circumstantial evidence, including the tracking of the mobile phones of the appellants and Marandola. But, in particular, there was the oral evidence of Tammy. True, Tammy was treated as a hostile witness. True, also, that Tammy’s evidence was strongest against Santino, but it was powerful against Carlo too. We have no doubt that the judge properly exercised his discretion in this case. So far as Carla and Carina are concerned, they were witnesses kept away by fear, a fear for which the appellants were responsible. It should not be forgotten that part of the evidence against the appellants related to covert telephone calls in which they were seeking to subvert the trial. The statements originally taken from Lee and Carla contained statements to the effect that they were fearful of what might happen to them. Mrs Fox, who gave evidence in chambers, was clearly a frightened woman. Tammy was clearly a frightened witness. This was a trial in which fear was being generated by the appellants or those acting for them in order to prevent evidence being given against them. Where the judge was sure of that it seems to us that the appellants cannot complain that their Article 6 rights were being infringed simply by references to those witnesses not being at the trial. So far as Lee is concerned, the circumstances in which he could not reasonably be found included all the above circumstances and the high degree of probability as to his fear. In his case it cannot be said that the defendants lose their right to complain of an infringement under Article 6, but even in his case, where the evidence was ‘important’ as against Carlo, even if that meant ‘decisive’, our view is that provided counter-balancing procedures were properly in place the judge was entitled to admit his statement. Counter-balancing procedures clearly were in place in that the judge took account of section 28 and Schedule 2 [of the Criminal Justice Act 1988]. Lee was an identified witness and it was open to the appellants to attack the credibility of Lee; indeed they did so, suggesting that he was in fact himself responsible for the murder, that being the reason why he made the statement that he did. Furthermore, the judge warned the jury in relation to all the statements that were read in clear and unequivocal terms. He gave them a strong direction at the time the statements were read. ... If we had formed the view that there was a breach of Article 6, that would have rendered the trial unfair and we could not have, in those circumstances, upheld the conviction as safe and a retrial would have had to have been ordered. We are quite clear that the appellants’ rights under Article 6 were in no way infringed in this case. We are equally clear that the convictions of these appellants are safe and this appeal must be dismissed.” 32. The applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 3 November 2005. 33. At the time of the applicants’ trial, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988. Section 23 of the 1988 Act provided for the admission of first hand documentary hearsay in a criminal trial: “23.— ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if— (2) .... (a) ...the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness; [or] (c) ... all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.. 25.—(1) If, having regard to all the circumstances— (a) the Crown Court— (i) on a trial on indictment; (ii) on an appeal from a magistrates’ court; or (iii) on the hearing of an application under section 6 of the [1987 c. 38.] Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates’ court to Crown Court); or (b) the criminal division of the Court of Appeal; or (c) a magistrates’ court on a trial of an information, is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. (2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard— (a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them. 26.— Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, ..., for the purposes- (a) of pending or contemplated criminal proceedings; or (b) of a criminal investigation, the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard- (i) to the contents of the statement; (ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness in the accused or, if there is more that one, to any of them; and (iii) to any other circumstances that appear to the court to be relevant...” 34. Schedule 2 to the Act allowed for the admission of evidence relating to the credibility and consistency of the maker of the statement, where such evidence would have been admissible had he or she given evidence in person, or where the matter could have been put to him in cross-examination. The Schedule also provided that, in estimating the weight, if any, to be attached to such a statement regard had to be had to all the circumstances from which any inference could reasonably be drawn as to its accuracy or otherwise. | 0 |
dev | 001-101323 | ENG | RUS | CHAMBER | 2,010 | CASE OF BORIS POPOV v. RUSSIA | 3 | Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 6. The applicant was born in 1975 and is serving a sentence of imprisonment in the Tomsk Region. 7. During the night of 4 to 5 November 2001 there was a theft from an administrative building in the village of Pospelikha, Altay Region. A fax machine, an electric kettle, a wristwatch and a desk clock were stolen. On 6 November 2001 the authorities opened a criminal inquiry and arrested a Mr A. During his interview, from 6 to 6.30 p.m., he admitted the theft and named the applicant as his accomplice. A search was carried out in the applicant's house; several compact discs, a radio receiver and a telephone set were seized. 8. It appears that at about 6 p.m. on the same evening the applicant was arrested at his home by two officers from the Pospelikha district police station in the Altay Region. The applicant was taken to the police station and placed in the temporary detention centre. At an unspecified time on the same day Mr S., an investigator with the Pospelikha district police, notified the Pospelikha district prosecutor of the applicant's arrest. The notification had no reference number and no indication of the hour. 9. According to the applicant, at 11 a.m. on 7 November 2001 he swallowed an open safety pin in order to protest against his allegedly unlawful arrest. He was taken to a public hospital for an X-ray examination, which confirmed the presence of a safety pin in his stomach. At about noon the applicant was brought back to the police station. Policemen stripped him down to his underwear and handcuffed both his hands to the bars in the lobby of the detention centre. At 7 p.m. he was given a chair. During the night he was allowed to sleep on the floor. He remained handcuffed, was given some water and tea but no food. The applicant was interviewed by an investigator on the morning of 8 November 2001. At 2 p.m. he felt sick and was examined by paramedics. At 5 p.m. the applicant was released. 10. According to the Government, at 8 p.m. on 7 November 2001 the applicant swallowed an open safety pin. After he had been examined at the hospital, he was brought back to the police station. He threatened to slit his veins. He was taken out of the cell, inspected and handcuffed with one hand to metal bars. He remained under the supervision of the on-duty officer. At night the applicant was given a mattress and bedding. The handcuffs were regularly moved from one hand to the other. The applicant was taken to a toilet, at his request, and was given water and tea. On the morning of 8 November 2001 investigator S. interviewed the applicant. At or around 1 p.m. the applicant alleged that he felt sick because he had swallowed a razor blade. He was examined by paramedics, who found that the complaint was false. 11. On 9 November 2001 Mr A. was interviewed again and stated that he had committed the theft alone. It does not appear that the applicant was subsequently prosecuted for the theft committed during the night of 4 to 5 November 2001. It appears, however, that he was sentenced to a prison term in relation to other criminal offences. 12. As can be seen from an undated certificate issued by the Prosecutor's Office of the Pospelikha District, the arrested persons' register and the arrest notification register for 2001 did not contain any information that the applicant had been arrested between 6 and 8 November 2001 under Article 122 of the RSFSR Code of Criminal Procedure. 13. In February 2003 the applicant sued the Pospelikha district police station for compensation in respect of non-pecuniary damage caused by his allegedly unlawful detention and handcuffing on 7 and 8 November 2001. By a judgment of 3 April 2003 the Pospelikha District Court dismissed his claim. The applicant was neither present nor represented at the hearing. On 23 July 2003 the Altay Regional Court quashed the judgment on the ground that the applicant's attendance had not been secured, and remitted the matter for a fresh examination. The Ministry of Finance joined the resumed proceedings as a co-defendant. 14. By a judgment of 22 September 2003 the District Court dismissed the applicant's claim. On the basis of testimony by investigator S., it found that the applicant had been lawfully detained from 6 to 8 November 2001 with a view to dispelling or confirming the suspicion of his involvement in the theft. The District Court further found that the use of handcuffs had also been lawful and justified. In so finding, it took statements from witnesses: another detainee, Mr Z., and two on-duty officers, Po. and Mr Pu. They stated that the applicant had been verbally abusive and had shouted, banged at the door, incited to mass disorder and threatened to slit his veins with a razor blade. He had been handcuffed to prevent mass disorder and self-harm. While handcuffed, he had been given food and drink and a mattress to sleep on during the night, and had also been allowed to use the toilet. The District Court found that the use of handcuffs from 8 p.m. on 7 November to 1 p.m. on 8 November 2001 had been compatible with the requirements of section 45 of the Custody Act for the prevention of mass disorder or attempts to inflict self-harm (see paragraph 41 below). In the District Court's view, the application of handcuffs had not impaired the applicant's rights, inflicted physical suffering or diminished his honour or dignity. 15. On 10 December 2003 the Altay Regional Court upheld the judgment. It noted that the applicant's deprivation of liberty had been in compliance with Russian law and the Convention because he had been lawfully arrested for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense. 16. In the meantime, in September 2003 the applicant had asked the Altay regional prosecutor to open a criminal case against the police officers who had been allegedly responsible for his unlawful detention and handcuffing. 17. On 29 September 2003 Mr M., an investigator with the Pospelikha district prosecutor's office, refused to institute criminal proceedings. He noted that the Pospelikha district police station possessed no documents or records concerning the applicant's arrest in November 2001. He took a statement from investigator S., who denied that he had ever detained the applicant as a suspect. On the strength of that evidence the investigator concluded that the applicant had not been arrested or detained at the police station from 6 to 8 November 2001. 18. On 23 October 2003 the Pospelikha district prosecutor annulled Mr M.'s decision and asked his deputy, Mr Ch., to resume the inquiry. 19. By a decision of 4 November 2003 Ch. refused to institute criminal proceedings in respect of the applicant's allegations. He had not interviewed the applicant in person but instead quoted his statements to the District Court. He had interviewed investigator S., who had retracted his earlier statement and stated that he had apprehended the applicant as a suspect. A record of the arrest had been properly compiled, but after the applicant's release, he had taken it away from the police station with a view to putting it in the file but had subsequently mislaid it. Mr Ch. also interviewed the director and deputy director of the temporary detention centre, who claimed that the record of the arrest had been properly drafted and that the handcuffs had been applied to prevent self-harm. Two on-duty officers testified in the same vein. Relying on those statements and the findings of the District Court in the civil proceedings (see paragraph 14 above), Mr Ch. determined that the use of handcuffs had been lawful and justified. 20. By a judgment of 11 February 2004 the District Court upheld Ch.'s decision by way of judicial review. It found that the inquiry had been thorough and complete and that sufficient evidence of the lawfulness and reasonableness of the applicant's arrest and handcuffing had been collected. The District Court took note of the certificate from the head of the district police station showing that the record of the arrest and the detention registers for November 2001 had been destroyed after one year's storage. The District Court held in that connection that the “documents had been wrongly destroyed before the expiry of the correct retention period” but that there was no proof of malice on the part of the public officials. In the District Court's view, Ch. had not been required to hear the applicant in person because he had set out his allegations in sufficient detail. Nor had he been required to examine further witnesses, including other detainees, because the statements by police officers had been sufficient. Lastly, the District Court dismissed as insignificant the applicant's argument that the use of handcuffs had not been recorded in any reports, as required by domestic law. 21. On 30 September 2004 the Regional Court upheld the judgment. 22. By a letter of 7 September 2007 the Court informed the applicant that the present application had been communicated to the respondent Government. This letter was received at Rubtsovsk remand centre no. 22/4 on 29 October 2007 and was handed over to the applicant on an unspecified date. By a letter of 28 November 2007 the applicant was invited to submit before 30 January 2008 his comments on the Government's observations. This letter was received at the detention facility on 18 December 2007 and was handed over to him on or around 28 January 2008. By a letter of 8 January 2008 the applicant was provided with a copy of the English translation of the Government's observations. This letter was received at the detention facility on 17 January 2008 and was handed over to the applicant on 11 February 2008. The delays were due to the applicant's transfers between several detention facilities. All three letters were monitored and stamped by the prison staff. 23. It appears that on 20 May 2008 the detention facility dispatched a letter from the applicant to the Court. However, the letter was returned to the detention facility by the Russian Postal Service with a requirement to add stamp value and remove sellotape from the envelope. In October 2008 the Tayga Town Court of the Kemerovo Region held that the refusal to dispatch the letter for lack of funds was unlawful. 24. On 29 July, 28 August and 11 September 2009 the applicant's representative brought a number of complaints before the Court in relation to various restrictions concerning the correspondence between the applicant and the Court, as well as between the applicant and his representative before the Court (see below). 25. As can be seen from a certificate issued by the administration of colony no. 2 in the Tomsk Region, submitted by the Government, between August 2007 and September 2009 the applicant submitted a number of letters for dispatch to the Court. The register of outgoing correspondence contained various entries such as “complaint”, “petition”, “additional complaint”, “request concerning the course of proceedings”, “request concerning receipt of the previous letter”, “request concerning the list of previously submitted documents”, “complaint concerning a violation of his rights”. It appears that the entries for the letters submitted for dispatch in 2009 were marked as “sealed envelope” without any further indication of the contents. 26. On 29 January 2008 the International Protection Centre, a non-governmental organisation in Moscow, received a letter from the applicant enclosing an authority form for Ms Misakyan to represent him in the proceedings before the Court. 27. On 2 and 11 September, 16 October and 11 December 2008 and 12 March 2009 the applicant sent letters to Ms Misakyan at the address of the International Protection Centre. The letters were accompanied by covering notes by the facility administration, summarising their contents. On 6 June 2009 Ms Misakyan sent a letter to the applicant, who was then being held in prison hospital no. 1 in the Tomsk Region. The letter was monitored and stamped by the facility administration on 15 June 2009; the stamp was placed directly above the text of the letter. In the meantime, on 8 June 2009 the International Protection Centre had received a letter from the applicant, the envelope of which carries a stamp indicating that the letter had been inspected by a correspondence officer. 28. As can be seen from a certificate issued by the administration of colony no. 2 in the Tomsk Region, produced by the Government, in 2008 and 2009 the applicant submitted a number of letters for dispatch to Ms Misakyan at the address of the International Protection Centre. The register of outgoing correspondence contained various entries such as “request for legal assistance”, “complaint concerning the proceedings before the European Court”, “complaint”, “ letter – replies to questions from the European Court”, “request concerning legal assistance”, “request concerning samples of documents”, “request concerning translation”, and “personal letter”. 29. On 14 September 2009 the applicant's representative wrote to the administration of Tomsk prison no. 2 indicating that she was representing the applicant before the Court and that her correspondence with him should be treated as privileged and confidential. 30. On 5 October 2009 the applicant's representative sent a letter to the applicant by registered mail, indicating on the envelope “from advocate Misakyan”. This letter was returned to her with a note “not required because of the time-limit since 8 December 2009”. 31. In November and December 2009 the applicant submitted for dispatch three letters addressed to Ms Misakyan. The administration of the detention facilities dispatched these letters with notes indicating the number of pages in the correspondence. One of the notes was addressed to the International Protection Centre; the other two notes also indicated that the letters were addressed to “advocate Misakyan”. 32. Article 122 of the RSFSR Code of Criminal Procedure (RSFSR CCrP) allowed the arrest of a suspect (i) at the time of the offence or immediately thereafter; (ii) if eyewitnesses pointed to him as the perpetrator of the crime; or (iii) if the suspect bore or was in possession of evident traces of the crime or if such traces were found on his clothes or at his home. A record of the arrest was to be drawn up with an indication of the legal basis and the reasons for the arrest, its time and place, and a statement by the arrested person. A prosecutor was to be informed within twenty-four hours. After the receipt of the notification the prosecutor had forty-eight hours to authorise the arrested person's placement in custody or to order his release. 33. The arrested or detained suspect should be interviewed immediately or, if this was impossible, within twenty-four hours (Article 124). 34. Article 1069 of the Civil Code provides that damage caused by unlawful actions or inaction on the part of a public authority or a public official should be compensated. Article 1070 § 1 of the Code provided, at the time, that damage caused by unlawful prosecution or unlawful placement in custody should be compensated for in full by the State, irrespective of any fault by public officials. Article 1070 § 2 provides that other damage caused by unlawful activity on the part of the investigative authorities or the prosecutor's office should be compensated for under the rules laid down in Article 1069. 35. Article 23 § 2 of the Russian Constitution protects the confidentiality of correspondence and communications and allows restrictions on them only on the basis of a court order. Article 55 § 3 provides that rights and freedoms may be limited by a federal law in so far as is necessary for protecting the constitutional regime, morals, health, the rights and legitimate interests of others, and for ensuring national defence and security. The Constitutional Court has held that the above limitations could be imposed in relation to the deprivation of liberty of convicted persons and concomitant restrictions (decisions of 16 October 2003 and 17 October 2006). 36. Article 91 of the Code of Execution of Sentences provides that the incoming and outgoing correspondence of a convicted prisoner may be inspected. However, a convicted prisoner's correspondence with a court, a prosecutor's office, a public authority supervising detention facilities, a federal or regional ombudsman and the European Court of Human Rights should not be monitored. Convicted prisoners' correspondence with their defence counsel or other persons providing legal advice on legal grounds should not be monitored, except if the prison administration has confirmed information that the correspondence contains information aimed at criminal activity. In such situations the prison administration should issue a reasoned decision on monitoring the correspondence. In addition, under Rule 50 of the Internal Prison Regulations adopted by the Federal Ministry of Justice on 3 November 2005 (decree no. 205), outgoing correspondence should be put in a mailbox or handed over to the prison staff in an unsealed envelope, except if such correspondence is privileged. 37. The Supreme Court of Russia has examined the legality of the above legislation and held that it was aimed at “protecting the rights and legitimate interests of other persons” and did not violate the requirements of Article 8 § 2 of the Convention, which, in turn, referred to “public safety” and “the protection of the rights and freedoms of others”. The court also held that the censorship rule was “nothing but” a way of exercising the right and thus could not be a violation of the right to correspondence; in any event, the censorship regime was subject to “constant control and supervision” (see decisions of 13 June and 5 September 2006). 38. On 26 December 2006 the Federal Ministry of Justice adopted Administrative Rules on the examination of detainees' complaints to public authorities (decree no. 383). The Rules provide that stationery and postal costs are to be paid in compliance with federal legislation (Rule 11). Correspondence addressed to a prosecutor, a court or a public authority supervising detention facilities, the federal or regional ombudsman or the European Court of Human Rights should not be inspected. Such correspondence should be dispatched to the addressee within one day in a sealed envelope (Rule 17). Correspondence addressed to other public authorities, non-governmental organisations or defence counsel should be dispatched within three days (Rule 18). Replies to “suggestions, applications and complaints” should be handed over to the detainee within three days of their receipt; the detainee should sign the record; and the correspondence may be included in the detainee's prison file (Rule 19). Since May 2009 such incoming correspondence is read out instead of being handed over to the detainee, and is compulsorily included in the prisoner's file; the detainee may purchase a copy of the correspondence for his personal use. Rule 54 of the Rules provides that in order to ensure the right of petition to the Court the prison administration should inform the detainee of the “procedure for making such applications” and provide him with an application form, the instructions for applications and the European Court's postal address. 39. Under section 20 of the Custody Act, persons detained on remand (suspects and accused) can only correspond through the intermediary of the detention facilities; detainees should pay for their own correspondence. The correspondence is inspected. If the correspondence contains information which may obstruct the criminal proceedings or support a criminal activity, such correspondence should not be dispatched or handed over to the detainee to whom it is addressed. The dispatch of outgoing correspondence or the handing over of incoming correspondence should be carried out within three days or as soon as it has been translated into Russian. If the detainee has left the detention facilities, the correspondence should be forwarded to the new address within three days. Under section 21 of the Custody Act, a detainee (suspect or accused) should dispatch his correspondence to State or municipal authorities and non-governmental organisations through the intermediary of detention facilities. Correspondence addressed to a prosecutor, a court, the federal or regional ombudsman or the European Court of Human Rights should not be monitored. Correspondence to other public authorities, non-governmental organisations or defence counsel should be examined by the administration of the detention facility and dispatched within three days. 40. Article 49 of the 2001 Code of Criminal Procedure defines “defence counsel” as a person who represents a suspect or defendant in criminal proceedings and provides him with legal advice. It also specifies that in order to act as defence counsel, an advocate should produce his certificate to practise law and an order from his law firm authorising representation of the person concerned. 41. Section 45 of the 1995 Custody Act provides that handcuffs may be used on a suspect or accused to put an end to his unlawful resistance, and to prevent him from escaping or from causing damage to others or himself. 42. The Council of Europe Committee of Ministers adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, the relevant parts of which read as follows: “23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. 23.3 Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners. 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. 23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security. 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings... 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. 24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.” 43. The 1996 European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights reads as follows: “The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Court. As regards persons under detention, the exercise of this right shall in particular imply that: ... such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Court, or any proceedings resulting therefrom. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health.” The Russian Federation is not a party to this Agreement. 44. The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contained the following reservation: “In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 961, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions...” | 1 |
dev | 001-105234 | ENG | SRB | CHAMBER | 2,011 | CASE OF DOBRIĆ v. SERBIA | 3 | No violation of Art. 6-1 | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | 5. The applicants were born in 1932 and 1934 respectively. The first applicant lives in Mala Moštanica, Serbia, while the second applicant lives in Clamart, France. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 30 January 1986 S.K. filed a real estate claim against the applicants with the Municipal Court in Novi Sad. The value of the dispute (vrednost spora) stated by the plaintiff was 4,000,000 “old dinars”. 8. Following a remittal and a redenomination of the Serbian currency, on 14 December 1998 the Municipal Court ruled in favour of the applicants and noted that the value of the dispute was now 50,000 “new dinars”. 9. Following two remittals, on 28 September 2001 and 17 June 2004 respectively, the Municipal Court twice ruled in favour of the applicants, and on both occasions reaffirmed that the value of the dispute was 50,000 new dinars. 10. On 13 January 2005 the District Court accepted the appeal filed by the plaintiff and, in so doing, ruled partly in his favour. 11. The applicants, who were represented by legal counsel, thereafter filed an appeal on points of law (revizija). 12. On 14 June 2006 the Supreme Court, however, rejected this appeal, stating that the applicants were not entitled to lodge it given that the value of the dispute in question was below 15,000 new dinars, the applicable statutory threshold. In particular, the court acknowledged that the parties had agreed, on 19 November 1998, that the value of the dispute should be 50,000 new dinars, but observed that there was no separate Municipal Court’s decision to this effect in the case file. Therefore, the relevant amount was the 4,000,000 old dinars, as stated in the plaintiff’s original claim, which was clearly less than the 15,000 new dinars threshold under the relevant civil procedure rules (see paragraphs 20 and 21 below). Lastly, implicitly relying on its Opinion of 22 May 2001, the Supreme Court noted that the Government’s Decree of 24 January 1994 had provided that until 22 July 1994 both old and new dinars would be valid legal tender based on the ratio that one new dinar was worth twelve thousand old dinars. The “plaintiff” himself, however, had “not amended the value of the dispute in new dinars” by 22 July 1994 (see paragraph 19 below). 13. The applicants were served with the Supreme Court’s decision on 13 October 2006. 14. Article 382 § 3 provides that an appeal on points of law (revizija) is “not admissible” in pecuniary lawsuits where the value of the dispute, as indicated by the plaintiff in his or her claim, does “not exceed 15,000 ... [new] dinars”, this threshold having been introduced in 1998. 15. However, Article 40 provides, inter alia, that, should the value of the dispute stated by the plaintiff be “obviously too high or too low”, the court itself shall resolve the issue. This must be done, at the latest, at the preliminary hearing or, if one is not held, before the beginning of the main hearing at first instance. 16. Articles 190 §§ 1 and 2 and 191 § 1 provide that a civil claim may, with the consent of the parties, be amended/increased until the conclusion of the main hearing at first instance. 17. Article 392 provides, inter alia, that the Supreme Court shall reject any and all appeals on points of law which it deems inadmissible. 18. Lastly, Articles 383 and 394-397 provide, inter alia, that the Supreme Court shall, should it accept an appeal on points of law lodged by one of the parties concerned, have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts. 19. The Supreme Court opined that where an appeal on points of law would have been available according to the rules in force at the time when the civil claim had been brought, but where, following the redenomination, the value of the dispute in question clearly remained below the threshold of 15,000 new dinars, an appeal on points of law could not be filed. If the parties, however, agreed to amend the value of their dispute so as to raise it above the said threshold by 22 July 1994, at the latest, an appeal on points of law would be admissible (Pravno shvatanje utvrđeno na sednici Građanskog odeljenja Vrhovnog suda Srbije od 22. maja 2001. godine, published in the Supreme Court’s Bulletin no. 1/02). 20. Articles 16 § 3 increased the minimum requirement for an appeal on points of law from 15,000 new dinars to 300,000 new dinars, but specified that, in respect of all suits brought earlier, the applicable amount would still be 15,000 new dinars. 21. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 § 4 of the former, however, provides that in all cases which were brought before that date the applicable legislation, as regards an appeal on points of law, shall be the legislation which was in force prior to 23 February 2005. 22. Article 40 §§ 2 and 3 provides, inter alia, that a meeting of a division (sednica odeljenja) of the Supreme Court shall be held if there is an issue as regards the consistency of its case-law. Any opinions (pravna shvatanja) adopted thereupon shall be binding for all panels (veća) of the division in question. | 0 |
dev | 001-70447 | ENG | FRA | GRANDCHAMBER | 2,005 | CASE OF DRAON v. FRANCE | 2 | Violation of P1-1;No separate issue under Art.14+P1-1;No separate issue under Art. 6-1;No violation of Art. 13;No violation of Art. 8;Costs and expenses partial award - Convention and domestic proceedings;Just satisfaction reserved | David Thór Björgvinsson;Luzius Wildhaber;Nicolas Bratza | 12. The applicants were born in 1961 and 1962 respectively and live in Rosny-sous-Bois. 13. In the spring of 1996 Mrs Draon began her first pregnancy. The second ultrasound scan, carried out in the fifth month of pregnancy, revealed an anomaly in the development of the foetus. 14. On 20 August 1996 an amniocentesis was carried out at SaintAntoine hospital, run by Assistance Publique - Hôpitaux de Paris (APHP). The amniotic fluid sample was sent for analysis to the establishment’s cytogenetics laboratory (headed by Professor T.) with a request for karyotype and digestive enzyme analysis. In September 1996 T. informed the applicants that the amniocentesis showed the foetus had “a male chromosomal pattern with no anomaly detected”. 15. R. was born on 10 December 1996. Very soon, multiple anomalies were observed, particularly defective psychomotor development. The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a “chromosomal anomaly”. 16. When informed of this T. admitted that his service had made the wrong diagnosis, the anomaly having already been entirely detectable at the time of the amniocentesis. He stated: “Concerning the child Draon R., ... we regret to have to say that there was indeed an asymmetry between the foetus’s two copies of chromosome 11; that anomaly or peculiarity escaped our attention”. 17. According to the medical reports, R. presents cerebral malformations causing grave disorders, severe impairment and permanent total invalidity, together with arrested weight gain. This means that it is necessary to make material arrangements for his everyday care, supervision and education, including ongoing specialist and non-specialist treatment. 18. On 10 December 1998 the applicants sent a claim to AP-HP seeking compensation for the damage suffered as a result of R.’s disability. 19. In a letter dated 8 February 1999 AP-HP replied that it “[did] not intend to deny liability in this case” but invited the applicants to “submit an application to the Paris Administrative Court which, in its wisdom, will assess the damage for which compensation should be paid”. 20. On 29 March 1999 the applicants submitted to the Paris Administrative Court a statement of their claim against AP-HP, requesting an assessment of the damage suffered. 21. At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award. 22. In a decision of 10 May 1999 the urgent applications judge of the Paris Administrative Court made a first interim award of FRF 250,000 (EUR 38,112.25) and appointed an expert. He made the following points, among other observations: “[AP-HP] does not deny liability for the failure to diagnose the chromosomal anomaly which the boy R. is suffering from; ... having regard to the non-pecuniary damage, the disruption in the conditions of their lives and the special burdens arising for Mr and Mrs Draon from their child’s infirmity, AP-HP’s liability towards them in the sum of 250,000 francs may be considered, at the current stage of the investigation, not seriously open to challenge”. 23. The expert filed his report on 16 July 1999 and confirmed the seriousness of R.’s state of health. 24. On 14 December 1999, in a supplementary memorial on the merits, the applicants requested the Administrative Court to assess the amount of the compensation which AP-HP should be required to pay. 25. AP-HP’s memorial in reply was registered on 19 July 2000. The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by R.’s state of health. 26. In addition, the applicants again asked the urgent applications judge to make an interim award. In a decision of 11 August 2001 the urgent applications judge of the Paris Administrative Court made an additional interim award of FRF 750,000 (EUR 114,336.76) to the applicants “in view of the severity of the disorders from which the boy R. continues to suffer and the high costs of bringing him up and caring for him since 1996”. 27. After being prompted several times, verbally and in writing, by the applicants, the Paris Administrative Court informed them that the case had been set down for hearing on 19 March 2002. 28. On 5 March 2002 Law no. 2002-303 of 4 March 2002 was published in the Official Gazette of the French Republic. Section 1 of that Law, being applicable to pending proceedings, affected those brought by the applicants. 29. In a letter of 15 March 2002 the Paris Administrative Court informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion, since it applied to their claim by virtue of section 1 of the Law of 4 March 2002. 30. In a judgment of 3 September 2002 the Paris Administrative Court, acting on a proposal made by the Government Commissioner, deferred its decision and submitted to the Conseil d’Etat a request for an opinion on interpretation of the provisions of the Law of 4 March 2002 and their compatibility with international conventions. 31. On 6 December 2002 the Conseil d’Etat gave an opinion in the context of the litigation in progress (avis contentieux) which is reproduced below (see paragraph 51). 32. On the basis of that opinion, the Paris Administrative Court ruled on the merits of the case on 2 September 2003. It began with the following observations: “Liability The provisions of section 1 of the Law of 4 March 2002, in the absence of provisions therein deferring their entry into force, are applicable under the conditions of ordinary law following publication of that Law in the Official Gazette of the French Republic. Since the rules the Law lays down were framed by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, they are not incompatible with the requirements of Article 6 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention] or with those of Article 1 of Protocol No. 1 [to the Convention]. The general-interest grounds which Parliament took into consideration when framing the rules set out in the first three paragraphs of section 1 justify their application to situations which arose prior to the commencement of pending proceedings. It follows that those provisions are applicable to the present action, brought on 29 March 1999; The administrative courts do not have jurisdiction to rule on the constitutionality of legislation; [the applicants’] request that this court review the constitutionality of the Law of 4 March 2002 must therefore be refused; It appears from the investigation that in the fifth month of Mrs Draon’s pregnancy, after an ultrasound scan had shown a manifest problem affecting the growth of the foetus, she and Mr Draon were advised to consider the option of an abortion if karyotype analysis after an amniocentesis revealed a chromosomal abnormality. Mr and Mrs Draon then decided to have that test performed at Saint-Antoine Hospital. They were informed by the hospital on 13 September 1996 that no anomaly of the foetus’s male chromosomal pattern had been detected. However, very soon after the baby’s birth on 10 December 1996 magnetic resonance imaging revealed a serious malformation of the brain due to a karyotypic anomaly; The report of the expert appointed by the court states that this anomaly was entirely detectable; failure to detect it therefore constituted gross negligence on AP-HP’s part which deprived Mr and Mrs Draon of the possibility of seeking an abortion on therapeutic grounds and entitles them to compensation under section 1 of the Law of 4 March 2002”. 33. The court then assessed the damage sustained by the applicants as follows: “... firstly, ... the amounts requested in respect of non-specialist care, the specific costs not borne by social security, the costs of building a house suited to the child’s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and cannot therefore be sums for which [AP-HP] is liable; ... secondly, ... Mr and Mrs Draon are suffering non-pecuniary damage and major disruption in their lives, particularly their work, regard being had to the profound and lasting change to their lives brought about by the birth of a seriously disabled child; ... ... lastly ..., although Mr and Mrs Draon submitted that they could no longer holiday in a property they had purchased in Spain, they are not deprived of the right to use that property; consequently their claim for compensation for loss of enjoyment of real property must be rejected;...” 34. The court concluded by ordering AP-HP to pay the applicants the sum of EUR 180,000, less the amount of the interim awards, interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on 14 December 1998, the interest due being capitalised on 14 December 1999 and subsequently on each anniversary from that date onwards. AP-HP was also ordered to pay the applicants the sum of EUR 3,000 in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court. 35. On 3 September 2003 the applicants appealed against the judgment. Their appeal is currently pending before the Paris Administrative Court of Appeal. 36. Before enactment of the Law of 4 March 2002 the legal position was established by the relevant case-law. 37. An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts, depending on the identity of the defendant. If the defendant is a private doctor or a private medical laboratory, the dispute is referred to the ordinary courts. Where, on the other hand, as in the instant case, a public hospital service is involved, the dispute falls within the jurisdiction of the administrative courts. 38. The Conseil d’Etat gave judgment on 14 February 1997 (C.E., Sect., 14 February 1997, Centre hospitalier de Nice v. Quarez, Rec. p.44). Mrs Quarez, then aged 42 years, had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying. Although the result of that examination revealed no anomaly, she gave birth to a child suffering from trisomy 21, a condition detectable through the chromosome test carried out. The Conseil d’Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence, since Mrs Quarez had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place. 39. Secondly, a distinction was drawn between the disabled child’s entitlement to compensation and that of its parents. With regard to the disabled child’s right to compensation, the Conseil d’Etat ruled: “In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child M. from the trisomy from which he suffers, when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make-up was the consequence of an amniocentesis, the Lyon Administrative Court of Appeal made an error of law”. On the other hand, with regard to the parents’ right to compensation, the Conseil d’Etat noted: “By asking for an amniocentesis, Mrs Quarez had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived, whose probability, given her age at the time, was relatively high.” It went on to say that in those conditions the hospital’s negligence had “wrongly led Mr and Mrs Quarez to the certainty that the child conceived was not trisomic and that Mrs Quarez’s pregnancy could be taken normally to term” and that “this negligence, as a result of which Mrs Quarez had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under Article L.162-12 of the Public Health Code, [should] be regarded as the direct cause of the prejudice caused to Mr and Mrs Quarez by their child’s infirmity”. 40. With regard to compensation, the Conseil d’Etat took into account, under the head of pecuniary damage, the “special burdens, particularly in terms of specialist treatment and education” made necessary by the child’s infirmity, and awarded the parents an annuity to be paid throughout the child’s life. It also ordered the hospital to pay compensation for their nonpecuniary damage and the disruption to their lives. 41. Thus the Conseil d’Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother’s pregnancy. It did accept on the other hand that the parents of the child born with a disability were entitled to compensation and made an award not only in respect of their non-pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage, specifying that the latter included the special burdens which would arise for the parents from their child’s infirmity (expenditure linked to specialist treatment and education, assistance from a helper, removal to a suitable home or conversion of their present home, etc.). 42. The judgment did not attract particular comment and led to a line of case-law followed thereafter by the administrative courts. 43. The case-law of the ordinary courts was laid down by the Court of Cassation on 17 November 2000 (Cass, Ass. Plén., 17 November 2000, Bull. Ass. Plén., no. 9) in a judgment which was widely commented on (the Perruche judgment). In the Perruche case a woman had been taken ill with rubella at the start of her pregnancy. Having decided to terminate the pregnancy if the foetus was affected, she took tests to establish whether she was immunised against the disease. Because of negligence on the part of both her doctor and the laboratory, she was wrongly informed that she was immunised. She therefore decided not to terminate the pregnancy and gave birth to a child which suffered from grave disabilities resulting from infection with rubella in the womb. The Court of Cassation held: “Since the negligence on the part of the doctor and the laboratory in performing the services for which they had contracted with Mrs X. prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child, the child may claim compensation for the damage resulting from that disability and caused by the negligence found.” Thus, contrary to the Conseil d’Etat, the Court of Cassation accepted that a child born disabled could himself claim compensation for the prejudice resulting from his disability. In this case therefore account was taken of the pecuniary and non-pecuniary damage suffered by both the child and the parents, including the special burdens arising from the disability throughout the child’s life. 44. It thus appears that in the same circumstances both the Court of Cassation and the Conseil d’Etat base their approach on a system of liability for negligence. However, the Court of Cassation recognises a direct causal link between the medical negligence and the child’s disability, and the prejudice resulting from that disability for the child itself. The Conseil d’Etat does not recognise that link but considers that the negligence makes the hospital liable vis-à-vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained. Both lines of case-law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child’s life. However, since the Conseil d’Etat considers that damage to have been sustained by the parents, whereas the Court of Cassation considers that it is sustained by the child, there may be significant differences in the nature and amount of such compensation, depending on whether the case-law of the former or the latter court is being followed. 45. The judgment of 17 November 2000 was upheld several times by the Court of Cassation, which reaffirmed the principle of compensation for the child born disabled, subject to proof, where appropriate, that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied (Cass., Ass. plén., three judgments of 13 July 2001, BICC, no. 542, 1 October 2001; see also Cass., Ass. plén., two judgments of 28 November 2001, BICC, 1 February 2002). 46. The Perruche judgment drew numerous reactions from legal theorists, but also from politicians and from associations of disabled persons and practitioners (doctors, obstetrical gynaecologists and echographers). The last-mentioned group interpreted the judgment as obliging them to provide a guarantee, and the insurance companies raised medical insurance premiums. 47. Both the Conseil d’Etat and the Court of Cassation took as their starting point a system of liability for negligence. In French law, under the general rules on the question, the right to compensation for damage can be upheld only if the conditions for liability are first satisfied. That means that there must be prejudice (or damage), negligence and a causal link between the damage and the negligence. More particularly, with regard to the liability of a public authority, for compensation to be payable the prejudice, which it is for the victim to prove, must be certain. Loss of opportunity constitutes certain prejudice, provided that the opportunity was a serious one. In the present case the prejudice resulted from a lack of information, or inadequate or incorrect information, about the results of an examination or analysis. In such a case, before the Law of 4 March 2002 was enacted, negligence falling short of gross negligence was sufficient. As to the relation between cause and effect, a direct causal link was established between the hospital’s negligence and the parents’ prejudice (see the abovementioned Quarez judgment). 48. Still in the sphere of administrative law, the amount of compensation is governed by the general principle of full compensation for damage (neither impoverishment nor enrichment of the victim). Compensation may take the form of a capital sum or an annuity. According to the principle of the equal validity of claims for all heads of damage, both pecuniary damage and non-pecuniary damage confer entitlement to compensation. 49. The Law of 4 March 2002 put an end to the position established by the case-law mentioned above, of both the Conseil d’Etat and the Court of Cassation alike. Its relevant parts provide as follows: “I. No one may claim to have suffered damage by the mere fact of his or her birth. A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it. Where the liability of a health-care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence (faute caractérisée), the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child. Compensation for the latter is a matter for national solidarity. The provisions of the present sub-section I shall be applicable to proceedings in progress, except for those in which an irrevocable decision has been taken on the principle of compensation. II. Every disabled person shall be entitled, whatever the cause of his or her disability, to the solidarity of the national community as a whole. III. The National Advisory Council for Disabled Persons shall be charged, in a manner laid down by decree, with assessing the material, financial and non-material situation of disabled persons in France, and of disabled persons of French nationality living outside France and receiving assistance by virtue of national solidarity, and with presenting all proposals deemed necessary to Parliament, with the aim of ensuring, through an ongoing pluri-annual programme, that assistance is provided to such persons ...” 50. These provisions entered into force “under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic” (see paragraph 51 below). Law no. 2002-303 was published in the Official Gazette on 5 March 2002 and it therefore came into force on 7 March 2002. 51. The Conseil d’Etat observed in particular: “...II. The date of the Law’s entry into force: The liability criteria set out in the second sub-paragraph of paragraph I of section 1 were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability, aggravated it or made it impossible to take steps to attenuate it. They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope. The different liability criteria defined in the third sub-paragraph of paragraph I of section 1 were enacted in favour of the parents of children born with a disability which, on account of gross negligence on the part of a medical practitioner or healthcare establishment, was not detected during pregnancy. They are sufficiently precise to be applied without the need for further legislative provisions or regulations. Admittedly, they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child’s life in the damage for which the parents can obtain compensation, and provide that such damage is to be made good through reliance on national solidarity. But the very terms of the Law, interpreted with the aid of its drafting history, show that Parliament intended to exclude compensation for that head of damage on the ground that, although there was a causal link between negligence and damage, that link was not such as to justify making the person who committed the negligent act liable for the resulting damage. In providing that this type of damage should be made good by reliance on national solidarity, Parliament did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons. It follows that, since the Law does not contain provisions for the deferred entry into force of section 1, and since in addition Parliament’s intention, as revealed by the Law’s drafting history, was to make it applicable immediately, the provisions of section 1 came into force under the conditions of ordinary law following the Law’s publication in the Official Gazette of the French Republic. III. Law no. 2002-303’s compatibility with international law (1) ... The object of section 1 of the Law of 4 March 2002 is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents, differing from the system which had emerged from the case-law of the administrative and ordinary courts. The new system provides for compensation, by means of an award to be assessed by the courts alone, for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of the child born with a disability which, on account of gross medical negligence, was not detected during pregnancy. It prevents children born with a disability which, on account of medical negligence, was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives, whereas such compensation had previously been possible under the case-law of the ordinary courts. It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child’s disability throughout its life, whereas such compensation had previously been possible under the case-law of the administrative courts. Lastly, it makes compensation for other heads of damage suffered by the child’s parents subject to the existence of gross negligence, whereas the case-law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence. This new system, which was put in place by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, is not incompatible with the requirements of Article 6 § 1 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention], with those of Article 1 of Protocol No. 1 [to the Convention] or with those of Articles 14 and 26 of the Covenant on Civil and Political Rights. (2) The last sub-paragraph of paragraph I of section 1 makes the provisions of paragraph I applicable to pending proceedings “except for those in which an irrevocable decision has been taken on the principle of compensation”. The general-interest grounds taken into account by Parliament when it laid down the rules in the first three sub-paragraphs of paragraph I show, in relation to the points raised in the request for an opinion, that the intention behind the last sub-paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings, while rightly reserving final judicial decisions.” 52. French legislation (see Law no. 75-534 of 30 June 1975 on orientation in favour of disabled persons, which set up the basic framework, and later legislation) provides compensatory advantages to disabled persons based on national solidarity in a number of fields (such as the right to education for disabled children and adults, technical and human assistance, financial assistance, etc.). In particular, the families of disabled persons are entitled to a special education allowance (Allocation d’éducation spéciale – “the AES”). This is a family benefit paid from the family allowance funds, provided both the child and its parents are resident in France. The AES is granted by decision of the Special Education Board of the département in which the claimant lives, after the file has been studied by a multidisciplinary technical team. First the Special Education Board takes formal note of the child’s disability and assesses it. For entitlement to the AES, the level of disability found must at least exceed 50%. Where the disability exceeds 80%, entitlement to the AES is automatic; if the disability is assessed at between 50% and 80%, payment of the allowance is not automatic. It is subject to the child’s need for pedagogical, psychological, medical, paramedical and other forms of assistance. The AES is a two-level benefit: the basic allowance plus top-up payments. The first level is automatically payable where the conditions mentioned above are satisfied. The basic rate of AES is EUR 115 per month (the figure supplied by the Government on 16 March 2003). Where the child’s state of health requires substantial expenditure or the assistance of a third person, this may then confer entitlement to one of the six levels of AES top-up payments, which are added to the basic rate. The first five top-up payments depend on the level of expenditure required by the child’s state of health, the time for which the assistance of a third person is necessary, or a combination of both. The sixth level of top-up payment is for the most severe cases, where the child’s state of health requires the assistance of a third person all through the day and the families have to provide constant supervision and treatment. 53. The Law of 11 February 2005 emerged from a legislative process launched as far back as July 2002 with the intention of reforming the system of disability compensation in France. It was pointed out in particular that following the enactment of the Law of 4 March 2002 it was necessary to legislate again “to give effective substance to national solidarity” (see the Information Report produced on behalf of the Senate’s Social Affairs Committee by Senator P. Blanc, containing 75 proposals for amending the Law of 30 June 1975, appended to the record of the Senate’s sitting on 24 July 2002, p. 13). 54. The new law makes a number of substantial changes. In particular, it includes for the first time in French law a definition of disability and introduces a new “compensatory benefit” to be added to existing forms of assistance. 55. To that end, the Law of 11 February 2005 amends the Social Action and Family Code. Its relevant provisions are worded as follows: Title I: General provisions Section 2 “I. ... A disability, within the meaning of the present Law, is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial, lasting or permanent impairment of one or more physical, sensory, mental, cognitive or psychological functions, a multiple disability, or a disabling health disorder. ... Every disabled person shall be entitled to solidarity from the whole national community, which, by virtue of that obligation, shall guarantee him or her access to the fundamental rights of all citizens, and the full exercise of citizenship. The State shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans. ... II. – 1. The first three sub-paragraphs of the first paragraph of section 1 of Law no. 2002-303 of 4 March 2002 on patients’ rights and the quality of the health service shall become Article L. 114-5 of the Social Action and Family Code. 2. The provisions of Article L. 114-5 of the Social Action and Family Code, as amended by sub-paragraph 1 of the present paragraph II, shall be applicable to proceedings in progress on the date of the entry into force of the above-mentioned Law no. 2002-303 of 4 March 2002, except for those in which an irrevocable decision has been taken on the principle of compensation.” ... Title III: Compensation and resources Chapter 1: Compensation for the consequences of disability Section 11 “... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment, or his or her age or lifestyle. That compensation shall consist in meeting his or her needs, including nursery care in early childhood, schooling, teaching, education, vocational insertion, adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy, developing or improving the supply of services, in particular to enable those around the disabled person to enjoy respite breaks, developing mutual support groups or places in special establishments, assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment, or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by Title XI of Book 1 of the Civil Code. The above responses, adapted as required, shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone. The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan, written by himself or herself or, failing that, where he or she is unable to express an opinion, with or for him or her by his or her legal representative.” Section 12 Compensatory benefit “... I. – Every disabled person stably and regularly resident in metropolitan France ... above the age at which entitlement to the disabled child’s education allowance [formerly the AES] begins ..., whose age is below the cut-off point to be laid down by decree and whose disability matches the criteria to be laid down by decree, taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan, shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable, at the wishes of the beneficiary, either in kind or in money. ... III. – The element of the benefit mentioned in point 3 of Article L. 245-3 [of the Social Action and Family Code] may also be claimed, under conditions to be laid down by decree, by beneficiaries of the [disabled child’s education] allowance [formerly the AES], where on account of their child’s disability they are likely to bear burdens of the type covered by that paragraph. ... Article L. 245-3 [of the Social Action and Family Code] – Compensatory benefit may be used, under conditions to be laid down by decree, for 1. burdens arising from the need for human assistance, including, where necessary, the assistance provided by family helpers; 2. burdens arising from the need for technical assistance, particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point 1 of Article 321-1 of the Social Security Code; 3. burdens arising from adaptation of the home or vehicle of the disabled person, and any extra expenditure needed for his or her transport; 4. specific or exceptional burdens, such as those arising from the purchase or maintenance of products needed on account of the disability; ... ... – The element of the benefit mentioned in point 1 of Article L. 245-3 shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence, or requires regular supervision, or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office.” 56. The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the AES (renamed “disabled child’s allowance” by the new legislation – see section 12 above) begins. With regard to children, section 13 of the Law of 11 February 2005 provides: “Within three years from the entry into force of the present Law compensatory benefit shall be extended to disabled children. Within a maximum of five years those provisions of the present Law which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico-social establishments shall be repealed.” 57. The entry into force of the Law of 11 February 2005 is subject to publication of the implementing decrees. Section 101 provides: “The regulations implementing the present Law shall be published within six months of its publication, after being referred for opinion to the National Advisory Council for Disabled Persons. ...” 58. According to the information supplied by the Government, the new compensatory benefit should come into force on 1 January 2006. It is expected that it will be payable in full to disabled children by 12 February 2008. In the meantime, children will apparently receive only part of the benefit: only the costs of adapting a disabled child’s home or vehicle, or his or her additional transport costs, can already be financed by the new system. | 0 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.