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train | 001-106896 | ENG | MLT | ADMISSIBILITY | 2,011 | TRIMEG LIMITED v. MALTA | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Trimeg Limited, is a company registered in Malta as from 1987, which has its registered address in Valletta. It was represented before the Court by Dr I. Refalo, a lawyer practising in Valletta. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 5 January 1988 the applicant company acquired three pieces of land measuring 1,864, 1,124 and 7,993 square metres, respectively, and 10,981 square metres in total, at a price of 60,000 Maltese liras (MTL) – (approximately 140,000 euros (EUR)), with the aim of developing the land for commercial purposes. 4. At the time of purchase, the land situated at the upper reaches of “the valley” was included within the “limits to development” within the meaning of the Temporary Provisions Scheme (18 November 1997) issued by the relevant authority, namely the Works Department. The applicant alleged that the land within the development zone as delineated by the Temporary Development Schemes was at the time considered to have development potential, even though the exact layout and type of development had not yet been determined. The area in which the applicant company’s property was situated was marked as a “white area”, which, according to the applicant, meant that no specific type of development had yet been determined for the site, as opposed to a “green area”, which meant that it was to be conserved and that no development would be allowed. Moreover, the land was situated within the boundaries of development. It followed, according to the applicant, that development of the zone was surely permissible. 5. Between 1992 and 2006 land development in Malta was generally governed by the guidelines set out in the Temporary Provisions Schemes. During this time, the applicant company alleged that various properties in the vicinity of its land, situated within the “white area”, had been developed (mostly for residence purposes) and the Government had built social housing complexes in the area. In 1998 (after the scheduling order referred to in the paragraph below came into effect) permission was given to build a road, giving access to two private hotels situated further in from the applicant company’s land, at the lower reaches of “the valley”. 6. By a notice (no. 583) published in the Government Gazette of 6 September 1996, the site owned by the applicant was declared to be scheduled for conservation purposes in terms of section 46 of the Development Planning Act (1992) (“the Act”). The Malta Environment and Planning Authority (“MEPA”), the successor to the Works Department, considered the site to form part of the valley protection zone and its buffer zone, entailing level-four protection, namely the lowest level of protection for scheduling purposes. In consequence, the use of the land was limited to agricultural purposes. 7. A number of different applications lodged by the applicant company on unspecified dates, asking for permission to develop the land, were dismissed by MEPA. 8. On 25 February 1997 the applicant company filed an appeal with the Planning Appeals Board (“PAB”) against the scheduling of its land. It argued that the area at issue should not have been scheduled in this way since there was no reason to conserve it, apart from the maquis vegetation found at its north eastern edge. Nor could the land be considered to be rural, bearing in mind that it was surrounded by a highly urbanised area. According to its experts’ reports, the applicant company was of the view that the area should be considered suitable for commercial development and not a valley protection zone, a notion which was not mentioned in the Structure Plan. Nor could it be considered to be a rural conservation area, an area of ecological importance or a site of scientific importance. 9. By a judgment of 20 September 2002 the applicant company’s appeal was dismissed and the contested scheduling confirmed. Referring to the findings of the Planning Directorate, the PAB considered that the land at issue served as a buffer zone to the ecologically important “valley” and, therefore, qualified as a level-four protection area of ecological importance, mainly acting as a buffer zone to the more important “valley”. The inclusion of buffer zones had been mentioned in the Structure Plan’s Explanatory Memorandum as falling under the heading of areas of ecological importance and sites of scientific importance. Moreover, the applicant company had acknowledged the existence of the maquis vegetation, and this in itself allowed for the lowest level of protection according to the Structure Plan and Policy RCO 12 and therefore sufficed, according to the applicable law, in order to declare the land to be scheduled for conservation purposes. As to the use of the land for agricultural purposes, although this was not established by MEPA, this was the actual use to which the land was being put at the relevant time. In conclusion, the land was indeed of ecological/scientific importance, and even though the term “valley protection zone” was not a legal term, it was understood as falling under the definition of areas which were to be protected according to Policies RCO 15 and 1. 10. On 7 October 2002 the applicant company appealed to the Court of Appeal. During these proceedings, in 2004, it further complained that the State was infringing its property rights since: (i) MEPA had acted outside the parameters of the law by de facto expropriating the property, as the Act did not provide for the scheduling of property for valley protection or buffer zones; (ii) the scheduling was not required for a public purpose; and (iii) the Act did not provide for payment of compensation upon the scheduling of property, notwithstanding that its property had diminished in value (allegedly from EUR 11,000,000 to EUR 230,000). The applicant company insisted that when it had acquired the land it was already situated in a developed area and, indeed, part of its land had been taken for the purpose of building a road to guarantee access to the built-up entertainment zone. However, as a consequence of the scheduling in question, the land had become worthless and the applicant company’s investment futile. Moreover, since other permits had been issued for development of the area notwithstanding its environmental value, the applicant company had been discriminated against in the dismissal of its requests. 11. On 2 March 2005 the Court of Appeal referred the matter to the constitutional jurisdiction. 12. By a judgment of 16 October 2007 the Civil Court (First Hall), in the exercise of its constitutional jurisdiction, upheld the applicant company’s claims in part. It considered that, although there had not been a de facto expropriation, the State had been controlling the use of the applicant company’s property, thereby limiting the latter’s right of ownership. It was not necessary to go on to consider the legality of the measure, as this was deemed to be within the competence of the ordinary courts. It then considered it relevant that when the applicant company had purchased the land, it had been aware that the land was situated in a “white area”, which meant that only limited development could take place. In the meantime the land had become a “green area”, and development was no longer possible, in order to protect the valley on the periphery of which the applicant’s land was situated. The court held that while it was true and unfortunate that the area surrounding the valley was fully developed, it was legitimate and in the general interest for MEPA to protect what was left of it. However, it considered that there had been a violation of the applicant company’s rights since no compensation had been granted to it following the permanent scheduling of its land. Lastly, it held that the applicant company had not been discriminated against, as the only land in a comparable position, namely land which had been scheduled but on which development had nevertheless been permitted, was the road built by the Government. This constituted a project in the general interest, as opposed to the applicant company’s project, which was solely commercial and in the interest of private parties. Thus, the difference in treatment had been justified. 13. MEPA and the Attorney General appealed and the applicant company cross-appealed. By a decision of 19 January 2009 the Constitutional Court rejected a request by the applicant company for leave to submit new evidence. 14. By a judgment of 14 May 2010 the Constitutional Court upheld in part the first-instance judgment and quashed the rest, dismissing all the applicant company’s original claims. It emphasised that the applicant had purchased the land when it had been designated as a “white area”. Thus, the potential for development of the land was limited and uncertain, since no guidelines or framework had yet been put in place to regulate it. In fact, as happened in the applicant company’s case, its land was eventually scheduled as a level 4 buffer zone to “the valley”, which was highly protected (level 1), being an area of ecological and scientific importance. The scheduling of the applicant company’s land had been in accordance with the relevant policies (namely, RCO 10-12) and the Structure Plan, which provided that “small to medium scale physical developments can be considered, provided no suitable alternatives exist and features of ecological and scientific interest are protected, in so far as a suitable environmental impact assessment is made”. Moreover, at the date of judgment the land had become a green area according to the 2006 Local Plan. 15. In answer to the applicant company’s grounds of appeal, it confirmed that the validity (legality) of the scheduling was a matter for the ordinary courts to decide, and that the site was worth protecting in the general interest. The measure of control over use of the property had further restricted its use in that after the original designation of the land as a white area, which might have permitted full development in the future, the land had subsequently been scheduled so as to limit its use to “small to medium scale physical development”, according to certain conditions. However, bearing in mind the State’s margin of appreciation in imposing planning restrictions, the aim of the measure had been legitimate and it could not be said that every scheduling of property required adequate compensation. In the present case the applicant company had not been certain that it would be granted permission to develop the land in the future, as the land had been designated as a “white area”; thus, the applicant company had in fact engaged in a commercial speculation project. It followed that the applicant company did not have a legitimate expectation that it would be granted such permits and in consequence it could not be said that it had suffered a disproportionate burden. In the light of the foregoing, no right to compensation arose. 16. Lastly, as to the complaint regarding discrimination, it considered that the State could reasonably have dispelled environmental concerns when building a road in the public interest, a matter which was within its margin of appreciation. Similarly, the authority had not used its discretion manifestly without reasonable foundation when it had failed to schedule the housing estate built by the Government in an area closer to the valley than the applicant company’s land, and such a difference in treatment had not been illegitimate or oppressive. 17. Following the constitutional referral mentioned above, on 7 October 2010 proceedings resumed before the Court of Appeal, which by a judgment of 24 February 2011 dismissed the applicant company’s appeal. The Court of Appeal considered that all the grounds raised by the applicant company had been dealt with in the PAB’s decision and any argument relating to the fact that the PAB had based its decisions on reasons which had not been mentioned in the original scheduling order could not be entertained since this matter had never been brought to the attention of the PAB. Moreover, the applicant’s appeal before the PAB only concerned matters of fact and not of law, and therefore no appeal to the Court of Appeal could lie on this ground, such appeals being limited only to points of law in accordance with section 15 (2) of the Act. It further considered that the scheduling had not been done on the basis of the rural character of the land, but for the reasons enunciated by the PAB, which had been acting within the parameters of the law. 18. On 18 May 2006 MEPA adopted the North Harbour Local Plan, setting up a framework upon which the authority would base its decisions on land use and development for the next ten years. The applicant company submitted that, as transpired from this plan and the refusal of its applications, further development was to be carried out in the area surrounding “the valley”. Indeed, the 2006 plan extended the development zone which had been earmarked in the 1996 schedules and 2000 plan. In 2008 the 1996 Notice was amended to remove an area of land from the scheduled property (not owned by the applicant company) and extended the scheduled boundary to cover the entire valley system, delineating the buffer and constraint zone. It further transpired that there was a plan to build a further arterial road which would pass right through the applicant company’s land and, according to evidence given during the domestic proceedings, a further descheduling would take place to accommodate this project. 19. Section 15 (2) of the Development Planning Act, Chapter 356 of the Laws of Malta, reads as follows: “The decisions of the Planning Appeals Board shall be final. An appeal shall lie to the Court of Appeal constituted in terms of article 41(6) of the Code of Organisation and Civil Procedure from such decisions only on points of law decided by the Board in its decision.” 20. Section 46 (1) of the Act, before being repealed in 2010, read as follows: “The Authority shall prepare, and from time to time review, a list of areas, buildings, structures and remains of geological, paleontological, cultural, archaeological, architectural, historical, antiquarian, or artistic or landscape importance, as well as areas of natural beauty, ecological or scientific value (hereinafter referred to as ‘scheduled property’) which are to be scheduled for conservation and may in respect of all or any one or more of the scheduled property make conservation orders to regulate their conservation. ...” | 0 |
train | 001-101197 | ENG | BGR | ADMISSIBILITY | 2,010 | NIKOLOV v. BULGARIA | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen. He was represented before the Court by Ms N. Milanova, a lawyer practising in Shumen. The Government were represented by their agent Mrs M. Dimova, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 November 1995 the applicant, who is a practising lawyer, initiated before the Novi Pazar District Court private criminal proceedings for defamation and aggravated insult, against Mrs N.T., a former client of his. He alleged that because of certain statements of hers his reputation had been undermined and he had lost a large number of his clients. He joined a civil claim seeking 840,000 old Bulgarian levs in damages. The applicant was legally represented throughout the proceedings. On an unspecified date in 1996 all the judges from the Novi Pazar District Court recused themselves and the case was transferred to the Razgrad District Court. By a judgment of 5 May 1998 the Razgrad District Court found Mrs N.T. guilty of defamation and sentenced her to eight months' imprisonment, suspended for a period of three years. It also partly granted the applicant's civil claim. On appeal, on 19 October 1998 the Razgrad Regional Court quashed the judgment and remitted the case for a fresh examination. It found that in violation of the relevant legislation the panel of the District Court had not included lay judges throughout the entire proceedings. On 2 October 2000 the Razgrad District Court discontinued the proceedings as the statutory time limit for prosecuting the offence had expired. On appeal by the applicant, by a decision of 5 January 2001 the Razgrad Regional Court upheld the discontinuation. Upon the applicant's cassation appeal, on 28 May 2001 the Supreme Court of Cassation (SCC) upheld the discontinuation of the criminal proceedings and remitted the case for examination of the civil action. By a judgment of 17 January 2003 the Razgrad Regional Court found that Mrs N.T. had defamed the applicant and partly granted the civil claim awarding him 500 new Bulgarian levs, the equivalent of 250 euros with interest. The judgment stated that it was subject to appeal before the SCC. A notification that the judgment had been delivered was received by the applicant on 5 February 2003. On 10 February 2003 he appealed. On 5 June 2003 the SCC held a hearing. By a judgment of 23 October 2003 the SCC rejected the appeal as inadmissible, finding that the judgment of 17 January 2003 was not amenable to cassation appeal. This was so because under the relevant law judgments of the criminal courts in respect of privately prosecutable offences punishable with less than five years' imprisonment, as in the applicant's case, were not amenable to cassation appeal and, consequently, the civil part of such judgments was likewise not amenable to cassation appeal. Article 349 of the Code of Criminal Procedure 1974 (the CCP), as in force at the relevant time, listed exhaustively the judgments and decisions that were subject to cassation appeal. Decisions of second instance courts discontinuing criminal proceedings were amenable to cassation appeal before the SCC irrespectively of their subject mater. On the other hand, certain second instance judgments, such as those concerning privately prosecutable offences punishable with less than five years' imprisonment, were not amenable to cassation appeal. The SCC has held that where a case falls into one of the categories of cases where second instance judgments are not amenable to cassation appeal, this is also valid in respect of the civil part of the case, where a civil claim has been admitted for examination in the criminal proceedings. Owing to their subsidiary character, civil claims in criminal proceedings fell to be processed under criminal procedure rules (реш. № 358/2003 от 12 юни 2003 г. по н. д. № 145/2003 г., ВКС, I н. о., реш. № 445/2003 от 10 юли 2003 г. по н. д. № 227/2003 г, ВКС, III н. о.). In a judgment of 19 February 1999 (реш. № 118 от 19 февруари 1999 г. по н. д. № 31/99 г., ВКС, II н. о.) the SCC held that where the law did not provide for cassation appeal, the fact that a second instance court may have erroneously indicated in the text of its judgment that an appeal was possible was irrelevant. Cassation appeals submitted in such circumstances were inadmissible as the second instance court judgment was final. | 0 |
train | 001-82812 | ENG | DEU | ADMISSIBILITY | 2,007 | HOFMANN v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The applicants, Mrs Ella-Christina Hofmann and Mr Angelo Hofmann, are German nationals who were born in 1958 and 1986 respectively and live in Schlitz in Germany. They are represented before the Court by Mr V. Ried, a lawyer practising in Bad Hersfeld. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The second applicant is the first applicant’s son, born out of wedlock on 7 June 1986. The first applicant, who had full parental authority, raised the second applicant together with his half-sister J., born in 1977. J left the first applicant’s household in 1995. From 1995 onwards the first applicant experienced difficulties in educating the second applicant, who showed signs of aggressiveness and refused to follow orders. From 18 June to 13 August 1995 the second applicant was placed in a psychiatric institution for children and adolescents. Upon medical advice, the second applicant started ambulant therapy which was discontinued because the first applicant did not agree with the educational methods applied. In the summer of 1997 further major difficulties arose when the second applicant had been caught smoking, lying and stealing from the first applicant. The first applicant considered placing the second applicant into an after-school care centre, but refrained, when the Youth Office (Jugendamt) refused to cover the costs as the first applicant was unwilling to disclose her financial situation. The tensions between the applicants persisted. On 10 January 1998 a serious dispute broke out between the applicants when the second applicant refused to help his mother in gardening. The second applicant absconded and only returned in the evening. On his return, he fell and incurred a laceration on his head which had to be sewn with one stitch. On 11 January 1998 the conflicts resumed. The second applicant absconded and cycled to his half-sister J. That same afternoon, the first applicant and J. called upon the police in order to achieve a settlement on where the boy should stay for the night. Following an exchange of views, the second applicant agreed to return to the first applicant. The conflict between the applicants continued as the second applicant insisted on his wish to stay with J. On 13 January 1998 the first applicant drove the second applicant to J.’s place. Subsequently, she informed the District Youth Office about the second applicant’s whereabouts. On 14 January 1998 J., who felt unable to cope with the situation, requested the District Youth Office’s assistance. On 14 January 1998 the Youth Office requested the Lauterbach District Court (Amtsgericht) to withdraw parental authority from the first applicant. Relying on the statements made by J. and her partner, the Youth Office submitted that the second applicant had been repeatedly beaten by the first applicant. In the course of the arguments which took place on 11 January 1998, the first applicant hit the second applicant on the fresh wound. On 13 January 1998 the first applicant had stated that the second applicant should stay for six weeks with J., while she was leaving on vacation. By interim order of 15 January 1998 the Lauterbach District Court, without hearing either of the applicants, temporarily withdrew the first applicant’s parental authority over the second applicant pursuant to section 1666 of the Civil Code (Bürgerliches Gesetzbuch, see relevant domestic law below) and transferred it to the District Youth Office. The District Court found that the second applicant’s physical well-being was jeopardised by an abuse of parental authority and that the Youth Office had to take the necessary steps to avert this danger, in particular by ensuring medical treatment and accommodation. Due to the urgency of the matter it had not been possible to hear the first applicant before taking this decision. The Youth Office placed the second applicant in a foster family for short-time accommodation. On 10 March 1998 the second applicant was placed with the foster family K. On that same date the District Youth Office issued a certificate to the foster family according to which the second applicant’s placement was planned as a permanent measure (“Der Verbleib des Kindes ist auf Dauer angelegt”). On 19 January 1998 the first applicant, who was represented by counsel, lodged a complaint against the interim order. On 23 January, 29 January and 5 February 1998 the District Court heard both applicants as well as J. and her partner. On 16 February 1998 the District Court transferred the case-file to the Fulda Regional Court (Landgericht) to rule on the first applicant’s appeal against the interim order. On 16 June 1998 the presiding judge of the Regional Court heard the second applicant in the foster family’s household. According to the minutes drafted by the presiding judge, the second applicant declared that he felt at ease with the foster family and that he enjoyed a good relationship to the other foster child and, in particular, to the foster parents’ grown-up son. With regard to the incident which led to the withdrawal of parental authority, the second applicant declared that he did not wish to talk about this and did not quite remember the details. He had left his mother’s household because of the many arguments and beatings he had received. On his return, he had incurred the wound on his head. Some time later he had been beaten again. He further confirmed having given a faithful account of the incident to the District Court judge. When questioned if he had had sufficient time to settle down during the previous months, and if he wished to see his mother, the second applicant replied that he did not wish any personal contact to his mother. Even if his mother should promise that everything would change from now on, he was afraid that she would continue beating him and threatening him with sending him away or placing him in a psychiatric hospital. On 26 June 1998 the Regional Court held a hearing in the presence of the first applicant, the first applicant’s counsel and a representative of the Youth Office. On 2 July 1998 the Fulda Regional Court rejected the first applicant’s appeal. That court found, firstly, that the withdrawal of parental authority had been in accordance with the pertinent provisions of sections 1666 and 1666a of the Civil Code. The events of January 1998, which had been confirmed by both the second applicant himself, his sister J. and her sister’s partner, justified the taking of measures relating to guardianship. There were substantial indications for an abuse of parental authority, which justified the assumption that there was a serious danger for the child’s welfare. With regard to the present situation, the Regional Court found that there was no reason to revoke or to modify the impugned decision. There remained serious indications that the child’s well-being would be jeopardised if he returned to the first applicant’s household. The second applicant had repeatedly stated that he had frequently been slapped by his mother. Even if this was not regarded as a decisive factor, the child’s well-being would be jeopardised by the first applicant’s deficiencies in parenting. The first applicant had conceded that she experienced serious educational difficulties. She had failed to resolve these problems by use of adequate educational measures or by availing herself of public assistance. The basis of confidence between mother and child was seriously disturbed. This had become obvious when the second applicant, during the hearing before the Regional Court, had expressly declared that he presently did not wish any contact to his mother. There was no indication that the applicant had been influenced by third persons when expressing this wish. It was currently not possible to avert the danger by alternative means, such as external assistance, as the second applicant refused any cooperation with the Youth Office. On 28 July 1998 the first applicant lodged a further complaint (weitere Beschwerde) against the Regional Court’s decision, which she withdrew on 20 August 1998. On 2 September 1998 the counsel H., who acted on behalf of the first applicant, was granted access to the case files of the custody and access proceedings. On 3 September 1998 the first applicant lodged a motion for bias against the District Court judge, which was rejected by the Regional Court on 16 September 1998. On 30 September 1998 the applicant lodged a further complaint, which was rejected by the Frankfurt Court of Appeal (Oberlandesgericht) on 8 December 1998. On 26 January 1999 the case-file was returned to the Lauterbach District Court. On 16 July 1999 the applicant lodged a complaint for inactivity (Untätigkeitsbeschwerde) against the Lauterbach District Court. On 10 August 1999 the District Court, in the main proceedings, ordered the preparation of an expert opinion as to whether the second applicant’s physical, mental or psychological well-being was jeopardised by an abuse of parental authority, by neglect or by the mother’s failure through no fault of her own. It further appointed a curator ad litem to represent the second applicant. On 26 August 1999 the first applicant lodged a complaint against the appointment of the curator ad litem. On 3 September 1999 the first applicant requested the court to discharge the court-appointed expert on grounds of bias. On 11 October 1999 the Frankfurt Court of Appeal decided that the applicant’s complaint for inactivity had been disposed of, as the District Court had in the meantime taken measures to promote the proceedings by its decision of 10 August 1999. On 21 October 1999 the applicant lodged a further complaint for inactivity. On 11 February 2000, in a public hearing before the Frankfurt Court of Appeal, the applicant withdrew her complaint against the appointment of a curator ad litem. On 31 March 2000 the case file was returned to the Lauterbach District Court. On 26 April 2000 the District Court informed the parties that it intended to appoint the new expert Dr M. On 30 April 2000 the first applicant informed the District Court that she opposed any further examination. On 12 May 2000 the District Court appointed the expert Dr M. On 2 June 2000 the applicant lodged a motion for bias against the expert Dr M, which was rejected by the District Court on that same day. On 17 June 2000 the applicant lodged a further complaint for inactivity against the District Court judge. On 25 June 2000 the first applicant lodged a further motion for bias against the District Court judge. On 10 August 2000 the applicant lodged a motion for bias against several judges of the Regional Court and of the Court of Appeal. On 4 September 2000 the Frankfurt Court of Appeal rejected the applicant’s further complaint against the rejection of the applicant’s motion for bias against the expert. On 11 September 2000 the Court of Appeal rejected the first applicant’s complaint for inactivity on the grounds that the District Court judge had not been entitled to take any procedural actions – with the exception of those which could not be delayed – as long as the motion for bias brought out against her by the applicant was still pending. On 16 September 2000 the first applicant lodged a further appeal against the Court of Appeal’s decision of 11 September 2000. On 18 October 2000 the Federal Court of Justice (Bundesgerichtshof) rejected the applicant’s further appeal as inadmissible. On 9 November 2000 the Frankfurt Court of Appeal, sitting as a chamber of three judges, rejected the first applicant’s motion for bias against the District Court judge. Having analysed the entire case file, that court considered that there was no indication that the District Court judge had failed in her professional duties. With regard to the allegation that the judge had delayed the proceedings, the Court of Appeal found as follows: “The mother’s allegations, according to which the judge had violated her duties, in that she had, in particular, failed sufficiently to examine the case and that she had stayed inactive, are completely absurd. On the contrary, the judge attempted intensively to promote the proceedings and accurately to examine the facts in order to gain a stable basis for reaching her decision. Conversely, the mother and her counsels have delayed the proceedings by lodging various procedural requests, both admissible and inadmissible appeals and other motions, including rejections on grounds of bias, administrative complaints, criminal informations for perversion of justice and petitions...” On 10 November 2000 the second applicant absconded from the foster family in order to avoid a meeting with a Youth Office official. He returned to his home-town Schlitz were he was seized by the police on 13 November 2000. On 14 November 2000, during a hearing before the District Court, the parties agreed that the second applicant should be allowed to visit the first applicant and subsequently return to the foster family. The following day the second applicant declared that he wished to remain in the first applicant’s household. On 6 December 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the first applicant’s constitutional complaint against the decisions of 15 January and 2 July 1998. On 29 January 2001 the Lauterbach District Court, following a further hearing, revoked its decision of 15 January 1998 and restored parental authority to the first applicant. It noted that the second applicant had declared that he wished to stay with his mother and that both the Youth Office and the child’s curator ad litem had agreed that parental authority should be restored to the applicant. On 5 May 1998 the first applicant requested to be granted by interim order the right to supervised visits on a weekly basis and to oblige the Youth Office to submit regular reports on the second applicant’s personal and school development. She complained that she had been denied access to her son since 13 January 1998. On 27 May 1998 the Lauterbach District Court ordered the preparation of an expert opinion concerning the question if and to what extent the first applicant should be granted visiting rights. On 15 July 1998 the applicant requested the District Court to withdraw the court-appointed expert F, as she appeared to be biased against her. On 6 November 1998 the District Court rejected the applicant’s motion for bias. On 9 November 1998 the psychological expert F submitted her expert opinion. She considered that the second applicant had experienced several times that his mother had threatened to give him away or had indeed given him away, for example by placing him in a psychiatric hospital or with his sister. As the second applicant emotionally and socially depended on his mother, this situation appeared to threaten his existence. This was aggravated by the fact that he did not have any positive memories of his biological father and that the contacts to his sister, as an important confidant, had been restricted by his mother. The second applicant tried to overcome this emotional and existential insecurity by accepting the foster family as the new centre of his life in order to become independent from his mother. When exposed to strong psychological pressure, the second applicant tried to avoid the situation or showed auto-destructive reactions, such as a suicide attempt in 1995. The applicant’s wish not to see his mother had to be regarded as an attempt to distance himself. This wish had to be taken seriously. It was thus not appropriate to impose contacts against the second applicant’s wishes. The expert recommended offering both applicants psychological support in order to enable them to understand the situation and to find solutions to the conflict. On 12 November 1998 the District Court scheduled an oral hearing for 2 December 1998. On 19 November 1998 the applicant informed the District Court that she requested a decision on the further complaint she had lodged on 30 September 1998 against the rejection of her motion for bias against the District Court judge lodged in the custody proceedings. On 24 November 1998 the applicant lodged a complaint against the rejection of her action for bias against the court-appointed expert. On 26 November 1998 the District Court cancelled the hearing on 2 December 1998 with regard to the applicant’s further complaint regarding the motion for bias against the judge. On 8 December 1998 the Frankfurt Court of Appeal rejected the applicant’s complaint against the rejection of the motion for bias against the District Court judge. On 11 March 1999 the District Court heard the expert, both applicants, and the foster mother. According to the District Court’s minutes, the first applicant agreed that a psychological expert be commissioned in order to prepare the ground for contacts between the first applicant and, firstly, the foster family, and, subsequently, the second applicant. On 26 May 1999 the court-appointed psychological expert W informed the District Court that there had been a misunderstanding between the parties. While the first applicant expected to see her son under the expert’s supervision, the foster family expected that the meetings took place between the first applicant and the foster parents, without the child’s direct involvement. The first applicant did not wish to meet the foster parents. When the expert tried to meet the second applicant, the foster parents informed her that the child should be given the chance to settle down and that the child’s psychotherapist considered that meetings should not begin before the end of the summer holidays. On 31 May 1999 the District Court judge requested the Youth Office to assure that the foster parents did not prevent the expert from meeting the child. On 20 June 1999 the expert W informed the District Court that she did not see a possibility to carry out her task, as the foster parents refused her access to the child and were supported by the child’s psychotherapist. On 16 July 1999 the applicant lodged an action for inactivity against the District Court judge. On 10 August 1999 the District Court rejected the first applicant’s request to be granted the right to visit the second applicant. It further ordered the Youth Office to inform the first applicant regularly about the child’s development. The District Court noted that the second applicant had repeatedly declared both before the District Court and before the Court of Appeal that he did not wish to see his mother, as he was afraid of being once again beaten by her. The District Court concluded that the second applicant, who had matured according to his age, seriously and understandably opposed to visits. Under these circumstances, it was impossible to impose visits against his will. Before the background of the family conflicts and the circumstances which led to the withdrawal of parental authority, this would be contrary to the child’s best interests. The District Court further noted that the psychological expert F had found that the second applicant’s wish to distance himself from his mother had to be taken seriously. This finding was confirmed by the District Court’s own impression during the oral hearing of 11 March 1999. As the second applicant did not feel up to meet his mother, there was ground to fear that forced visiting contacts in the near future would lead to serious damages to his psychological stability and development. On 26 August 1999 the first applicant lodged a complaint. On 11 October 1999 the Frankfurt Court of Appeal rejected the first applicant’s complaint against the alleged inactivity of the District Court on the ground that the District Court had promoted the proceedings by its decision of 10 August 1999. On 12 October 1999 the first applicant lodged an administrative complaint against the District Court judge. On 8 November 1999 the first applicant laid a criminal information against the District Court judge. On 11 February 2000 the judge rapporteur of the Frankfurt Court of Appeal heard the first applicant and a representative of the Youth Office. During the hearing, the judge phoned the second applicant’s psychotherapist and arranged a meeting with the applicants for 2 March 2000 in the psychotherapist’s offices. On 2 March and 11 April 2000 the judge rapporteur arranged and attended two meetings between the applicants. On 9 May 2000 the Court of Appeal held another hearing with the aim of arranging further meetings between the applicants. According to the court minutes, the rapporteur explained the second applicant that he had to abide by certain social rules and that he would not suspend the first applicant’s access rights. The second applicant firmly objected to any further meetings with his mother. Upon suggestion of the second applicant’s curator ad litem, a further meeting between the applicants and the judge rapporteur was scheduled for 15 May 2000. The second applicant did not appear at the meeting. On 27 July and 10 August 2000 the curator ad litem informed the Court of Appeal that the second applicant was presently opposed to any personal contacts with his mother. On 20 August 2000 the foster parents informed the Court of Appeal that the second applicant continued to oppose any contact to his mother, in spite of the joint efforts made by themselves, the Youth Office and the psychotherapist to convince him otherwise. It appeared that the second applicant could not stand the psychological pressure, as was demonstrated by the fact that he had absconded before the scheduled meeting and that his problems at school had aggravated since February 2000. On 26 August 2000 the first applicant lodged a constitutional complaint about the length of the proceedings relating to custody and access rights, which was rejected by the Federal Constitutional Court on 6 October 2000. On 4 September 2000 the Frankfurt Court of Appeal rejected the first applicant’s complaint and suspended her access rights until the termination of the main proceedings on parental authority before the Lauterbach District Court, or until 31 December 2001 at the latest. The Court of Appeal observed, at the outset, that a parent’s right of access to his or her child was protected by Article 6 § 1 of the Basic Law. If it was not possible to find an agreement on visiting contacts, the courts were called upon to reach a decision which respected both the constitutionally guaranteed rights of the parent – in the present case the mother – and the child’s welfare. The remainder of the decision reads as follows: “In the course of the instant proceedings, a curator ad litem was appointed pursuant to section 50 of the Law on Non-Contentious Proceedings, and both Angelo and the applicant were repeatedly heard by the rapporteur (see the minutes of the hearings held on 11 February, 2 March, 11 April and 9 May 2000). It became clear during all the personal hearings that Angelo presently does not wish any contacts to his mother and that he only took part in the meetings because these had been ordered by the court. This is not disproved by the fact that Angelo’s second meeting with his mother, which took place on 11 April 2000, was less tense than the previous meeting on 2 March 2000. The child expressed during all the hearings that he felt at ease in the foster family, where he felt understood. Conversely, his attitude demonstrated that he did not have any confidence in his mother, but was sceptical towards her. He frequently declared that his mother was only lying to him. The present rejection of his mother culminated when Angelo absconded on the date of the third scheduled meeting on 15 May 2000. The senate acknowledges that this meeting was scheduled by the rapporteur against Angelo’s will during the hearing on 9 May 2000. The rapporteur, the foster parents and the curator hoped that Angelo would attend that meeting because of the court order. Angelo’s resistance, which was expressed by his running away, induces the senate to fear that it would lead to uncontrollable actions, including auto-aggressiveness, if he was forced to further personal contacts. The mother’s right to personal access has to cede in view of this irrational behaviour. The senate acknowledges that the right to personal access forms part of the natural parental rights and of the parental responsibility. However, this right meets its limit at a point where there exists the danger of the child’s causing damage to himself (see section 1684 § 4 of the Civil Code). The rapporteur has tried to re-establish personal contacts between mother and child and arranged several meetings. [The rapporteur] tried to convince the mother to refrain from raising reproaches against third persons (curators, foster parents, experts, therapists, judge, Angelo’s half-sister), and to try instead to keep these questions away from Angelo and to accept during the conversation with her child that the latter presently lived with the foster family, where he felt at ease. During the hearings held on 2 March and 11 April 2000 this strategy succeeded as long as the rapporteur was present and controlled the course of conversation. The mother’s behaviour during the few minutes she spent alone with Angelo led to defence reactions, he closed himself up and did not see any other resort than running away. Having regard to the above, the mother’s complaint had to be rejected as being unfounded. It is presently only possible to stabilise the child if Angelo is not forced to any personal contact with his mother and if he is given the opportunity to stabilise himself in an environment which he considers as safe. The senate considers that access rights have to be suspended for a longer period of time, as the pressure the child is exposed to in the course of the proceedings on parental authority requires protecting him for further months. Taking into account that Angelo’s individual rights are limited by the parental rights and that he is obliged to respect his mother’s right of access to him, it appears appropriate to limit the suspension of access rights until the end of custody proceedings, or at the latest until December 2001.” This decision was served on the applicant’s counsel on 10 September 2000. By telefax of 9 October 2000 the first applicant lodged a constitutional complaint. On 23 October 2000 an administrative officer of the Federal Constitutional Court informed the applicant that her constitutional complaint appeared to have been lodged out of the statutory time-limit of one month, as the original version and annexes reached the constitutional court only on 12 October 2000. On 6 December 2000 the Federal Constitutional Court refused to admit this constitutional complaint for adjudication without giving any reasons. Since July 2002 the second applicant stayed with his natural father. On 26 September 2002 the Alsfeld District Court transferred parental authority from the first applicant to the second applicant’s father. On 10 January 2003, following the first applicant’s complaint, the Frankfurt Court of Appeal decreed that parental authority remained with the first applicant and ordered the father to return the child. “... (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.” Section 1666 § 1 of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers. Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities. 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.” According to section 1684 of the Civil Code, a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right 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 otherwise the child’s well-being would be jeopardised (section 1684 § 4). | 0 |
train | 001-5828 | ENG | CYP | ADMISSIBILITY | 2,001 | KOLARIDES v. CYPRUS | 4 | Inadmissible | Nicolas Bratza | The applicant is a Cypriot national, born in 1940 and living in Nicosia. He is represented before the Court by Mr K. Adamides, Mr A. Demetriades and Mrs E. Nathanael, lawyers practising in Nicosia. The facts of the case, as submitted by the applicant, may be summarised as follows. By a judgment of 30 March 1998 the Family Court of Nicosia pronounced the divorce between the applicant and his wife. On 6 May 1998 the wife of the applicant applied to the Family Court for the applicant to disclose, within 15 days, in accordance with Sections 14A and 14B of Law 232/1991 regulating property relations between spouses (“the Law”), as amended by Law 25(1)/98, any assets in his possession on 22 May 1996. On 18 June 1998 the applicant lodged an objection to this application. As a result, the Family Court submitted to the Supreme Court a question of law reserved (no.332) on whether Section 14A of the Law was compatible with the provisions of Articles 23 § 1 (right to property) and 30 §§ 2 and 3 (right to a fair trial) of the Constitution. In the meantime, as another question of law reserved (no. 330), directly related to question no. 332, was submitted to the Supreme Court in another case, the latter decided to join the two questions. In its judgment of 11 May 2000, the Supreme Court found that Sections 14A and 14B of the Law were not contrary to these constitutional provisions. As regards Article 30 of the Constitution, the Supreme Court held that the obligation to disclose under Section 14A was imposed on both parties to the proceedings and established complete procedural equality between them. No party was disadvantaged vis-à-vis the other. Information concerning the assets of the parties constituted a precondition for the effectiveness of the substantive provisions of the Law. Section 14A aimed at establishing a factual situation, without which justice according to the provisions of the Law could not be done. The proceedings before the family Court were still pending at the time of the introduction of the application before the Court. The relevant provisions of the Constitution read as follows: “Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right ...” “No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. Judgment shall be reasoned and pronounced in public session, but the press and the public may be excluded from all or any part of the trial upon a decision of the court where it is in the interests of the security of the Republic or the constitutional order or public order or public safety or public morals, or where the interests of juveniles or the protection of the private life of the parties so require or, in special circumstances where, in the opinion of the court, publicity would prejudice the interests of justice. Every person has the right – to be informed of the reasons why he is required to appear before the court; – to present his case before the court and to have the time necessary for its preparation; – to adduce or cause to be adduced his evidence and to examine witnesses according to law; – to have a lawyer of his own choice and to have free legal assistance where the interests of justice so require and as provided by law; – to have free assistance of an interpreter if he cannot understand or speak the language used in court.” Sections 14A and 14B of Law 232/1991 regulating property relations between spouses read as follows: “14.A.-(1) For the purposes of the better implementation of section 14, the Court may on the application of any of the parties issue an order, by virtue of which the respondent will be obliged, within 15 days from the issue of such order, or within any other period that the Court may fix, to submit to the Court an affidavit, in which he will describe completely, clearly and in a precise manner the property in respect of which he had any direct or indirect interest on the date of the interruption of the cohabitation or on any other date that the Court may fix in the order. (2) If the interest that the applicant had on the date fixed by the Court in property or part of it, ceased to belong to him on the date of the examination of the petition for divorce or any other date fixed by the Court, the respondent is obliged, on the application of any of the parties, to give complete, precise and convincing proof of the alienation or the disposal of the property or part of it by means of a supplementary affidavit, and if it is considered necessary the Court may order the respondent to give instructions to a banking institution or financing organisation, with notice to the Court, as regards the alienation, movement, transfer or restitution of the property or part of it, as the Court may decide. 14.-B(1) Any person who provides false, inaccurate or incomplete information in relation to a matter referred to in section 14 A is guilty of an offence and in case of conviction he is liable to imprisonment for a period not exceeding 2 years or to a fine not exceeding two thousand pounds and or to both penalties. (2) Any person who refuses, omits or delays to comply with the order of the Court issued under section 14 A is guilty of an offence and, in case of conviction, is liable to be punished as provided in section 44 of the Courts of Justice Laws of 1960-1997 for contempt of court. In a case where this person is the petitioner for the divorce, the Court may in addition suspend further proceedings until this person complies with the Court’s order.” | 0 |
train | 001-61365 | ENG | POL | CHAMBER | 2,003 | CASE OF MALASIEWICZ v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1966 and lives in Częstochowa, Poland. 5. In June 1995, on his way to work, the applicant bought a bottle of sparkling mineral water. While he was opening it, the bottle exploded and its metal cap hit the applicant’s left eye. The accident, despite the subsequent surgeries and medical treatment, resulted in the applicant’s loss of vision in his left eye. He was declared an invalid and was granted a disability pension by the Social Security Board (Zakład Ubezpieczeń Społecznych). 6. In August 1997 the applicant instituted civil proceedings for compensation and pension against the producer of the mineral water. He submitted medical certificates issued by the Częstochowa and Katowice Hospitals which treated his injury. 7. On 23 October 1997 the Częstochowa Regional Court (Sąd Wojewódzki w Częstochowie) exempted the applicant from the court fees. 8. On 15 November and 15 December 1997 the trial court held hearings. 9. In December 1997 the “S” assurance company joined the proceedings as an intervener. 10. In 1998 the trial court held four hearings at which it heard witnesses. 11. On 8 December 1998 the court, sitting in camera, ordered a medical expert opinion. 12. On 18 May 1999 the court received the opinion. 13. On 25 May 1999 the court, sitting in camera, ordered the Social Security Board to provide a copy of the applicant’s file. 14. Between 24 November 1998 and 7 September 1999 no hearings were held. 15. At the subsequent hearings held on 8 September 1999, 12 January and 14 June 2000 the court heard witnesses and ordered the preparation of new expert opinions. 16. On 13 December 2000 the trial court held a hearing at which it asked for another expert medical opinion to be prepared. 17. On 10 April 2001 the court received the expert opinion. The intervener challenged it. 18. At the hearing held on 20 June 2001 the court requested an expert opinion concerning the applicant’s pension. 19. The expert submitted the opinion on 31 January 2002. Again, the intervener challenged the opinion. 20. The next hearing, which was held on 20 March 2002, was adjourned sine die. The court ordered another expert opinion. 21. On 24 May 2002 the opinion was submitted to the court. Subsequently, the intervener challenged it. 22. On 27 September 2002 the trial court held a hearing. 23. On 30 September 2002 the Częstochowa Regional Court gave judgment. The defendant was found liable for the damage sustained by the applicant. The court awarded the applicant PLN 85,000 in compensation but dismissed his claim for pension. 24. Both parties appealed against this judgment. 25. On 4 April 2003 the applicant was exempted from the court-fees in the appeal procedure. The proceedings are pending before the Court of Appeal. | 1 |
train | 001-119688 | ENG | UKR | CHAMBER | 2,013 | CASE OF MAKSYMENKO AND GERASYMENKO v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych | 5. The first applicant was born in 1958 and lives in Malyn. The second applicant was born in 1963 and died in 2009. 6. By decision no. 492 of 16 November 1995, the Zhytomyr Regional Department of the State Property Fund (регіональне відділення Фонду державного майна України в Житомирській області) transformed a State enterprise, M., into a joint-stock company, which resulted in its privatisation. An audit of M.’s assets carried out on 1 October 1995 revealed that the company’s immovable property included several hostels. 7. On 31 January 2000 M. was reorganised into four companies including S., to which ownership of the hostels was transferred. 8. On 19 June 2003 the Zhytomyrskyy Regional Commercial Court declared S. insolvent. 9. By letter of 9 July 2003, the liquidator in the S. insolvency proceedings informed the mayor of Malyn and the Head of the Malyn District Administration that S. had been declared insolvent. As the sale of the hostels owned by S. would, according to the liquidator, create social tensions in the town, it was proposed that the town would take over their ownership. 10. By letter of 30 January 2004 the mayor informed the liquidator that the hostels were not owned by the State and it was for the board of creditors to decide what to do with them. 11. On 20 July 2004 the board of creditors agreed to sell one of the hostels to the applicants. 12. On 21 August 2004 a contract of sale was signed. The applicants paid 41,160 Ukrainian hryvnias (UAH) (at the material time around 6,127 euros (EUR)) for the hostel and became owners of a half share each. 13. On 11 January 2005 the applicants informed a local electricity supply company that they were the new owners of the hostel. They requested the company to cut off the electricity supply until a new contract had been signed with them. The applicants discovered that the power cables and electricity meters serving the property needed to be replaced, and that the hostel occupants had not been paying rent. 14. On 19 January 2005 the electricity supply company informed the hostel occupants that the electricity would be cut off on 25 January 2005. 15. On 21 January 2005 a prosecutor ordered the electricity in the hostel not to be cut off since he had been preparing to institute legal proceedings on behalf of the hostel occupants. 16. By letter of 21 January 2005, the applicants informed the Malyn District Prosecutor’s Office, the mayor, the company S., at that time allegedly in liquidation, and the hostel occupants, that they had bought the hostel in order to live there themselves. The applicants stated that when the hostel was being sold, the occupants had refused to participate in the sale process. Despite the hostel’s change of ownership and need for refurbishment, its occupants had not been paying rent or communal charges for six months. The applicants requested S. to provide new housing to those occupants, who were requested to vacate the hostel by 30 March 2005. 17. On 26 January 2005, G., a nineteen-year-old hostel occupant, sought the assistance of the Malyn District Prosecutor’s Office as she had a young child and had been requested to leave the hostel. 18. On 18 February 2005 a prosecutor instituted proceedings at the Malynsky District Court on behalf of G., requesting that the decision of 16 November 1995 and all subsequent transfers of ownership be declared invalid. The prosecutor noted that in January 2005 the hostel occupants had lodged previous complaints with his office. After examining the case the prosecutor concluded that the hostel’s privatisation in 1995 had been unlawful. He argued that section 2(2) of the State Housing Stock Privatisation Act (Закон «Про приватизацію державного житлового фонду») prohibited the privatisation of rooms in hostels. The transfer of ownership of the hostel and its subsequent sale breached the Act, other legal provisions and the “moral principles of society”, since the occupants’ constitutional rights to housing had been violated. It also adversely affected the economic interests of the State and the housing rights of G., who was a single mother with a young child and was therefore unable to lodge a claim herself. Lastly, the prosecutor requested that ownership of the hostel be transferred to Malyn Town Council (“the Council”). 19. On 1 April 2005 the applicants lodged a counterclaim. They reiterated that the hostel occupants had refused to participate in the hostel sale process and had not been paying rent and communal charges which had resulted in S.’s insolvency. The applicants submitted that they had informed the prosecutor’s office of the matter and requested S. to provide housing to the hostel occupants. The prosecutor’s office had failed to protect the rights of the new owners despite the fact that the hostel was in an alarming state, the drainage and water supply systems were not functioning and the rooms were being heated by stoves. Moreover, the premises could no longer be classed as a hostel as it had become a normal multi-family apartment building. Its occupants were no longer employed by the company which had provided them with housing. Lastly, the applicants requested the court, in the event of finding against them, to award them UAH 52,748 in compensation, to be paid by the Council, representing the hostel’s value and the administrative costs relating to the contract of sale. 20. On 11 April 2005 the Malyn District Court returned the counterclaim to the applicants and provided them with a deadline of 1 May 2005 to correct errors in their application. In particular, the court noted that the counterclaim “lacked logical consistency”, in that there was no clear evidence of causation and loss. The decision was posted to the applicants on 23 April 2005. It is unclear when they received it. It appears that the applicants did not re-lodge their claim. 21. On 20 December 2005 the second applicant sent the Malyn District Court a copy of a decision of 26 May 2005 taken by the Zhytomyr Regional Court of Appeal in which it had rejected a prosecutor’s application to declare as invalid decisions taken in 1994 and 1999 by the Zhytomyr Regional State Property Fund to privatise a certain hostel. The court found that there were no legal provisions prohibiting the privatisation of hostels, as section 2(2) of the State Housing Stock Privatisation Act prohibited the privatisation of rooms within hostels but not hostels per se. The court did not refer to section 3 of the State Property Privatisation Act, which prohibited the privatisation of State housing stock. 22. On 23 January 2006, in the applicants’ case, the court rejected the prosecutor’s request as unsubstantiated. Again, the court did not refer to section 3 of the State Property Privatisation Act. In reply to the applicants’ objection that the prosecutor had missed the three-year time-limit for lodging his claim, the court noted that the prosecutor had only learned about the situation in question following G.’s complaint. 23. On 8 June 2006 the Zhytomyr Regional Court of Appeal quashed that decision and declared the decision of 16 November 1995 and all subsequent transfers of ownership invalid. The court held that section 3 of the State Property Privatisation Act provided that State housing stock, including hostels, was not amenable to privatisation. Since, at the material time, the hostel in question was owned by the State, it had been privatised unlawfully. Referring to Article 216 of the Civil Code of Ukraine, the court awarded the applicants UAH 41,160, to be paid by S. It further held that ownership of the hostel should be transferred to the Council. 24. The applicants appealed on the grounds that the court’s decision of 8 June 2006 contradicted another decision taken in an analogous case by the Zhytomyr Court of Appeal, that the court had disregarded the time-limits for lodging claims and that S. had been declared insolvent. 25. On 21 May 2007 the Vinnytsya Regional Court of Appeal, acting as a court of cassation, rejected the applicants’ appeal on points of law by finding, without any further explanation, that there had been no breaches of law. 26. On 19 July 2007 the Council agreed to take over ownership of the hostel. 27. On 25 September 2007, in the case of T. and G. v. State Property Fund of Ukraine, S., and Malyn Town Council, the Zhytomyr Regional Court of Appeal found, referring to decision no. 891 of 6 November 1995 of the Cabinet of Ministers of Ukraine, that a transfer of ownership of another hostel in 1995 had been lawful, since hostels did not form part of State housing stock. 28. The applicants submitted that S. had failed to comply with the court decision of 8 June 2006 requiring it to pay them compensation. 29. Between November and December 2008, twelve out of the fourteen apartments at the hostel were privatised by their occupants pursuant to the amended State Housing Stock Privatisation Act (see paragraph 34 below). 30. Article 216 of the Code provided, in so far as relevant, as following: “... In the event of a transaction being declared null and void, each party shall return to the other party the proceeds received for the transaction in question. In the event of such restitution being impossible, ... it shall return to the other party its current value. If a party or a third party has suffered pecuniary or non-pecuniary damage as a result of a transaction being declared null and void, the liable party shall pay compensation.” 31. Articles 257 and 261 of the Code provide that the time-limit for lodging a civil claim is three years. The calculation of the relevant time-limit starts from the day a person learns, or could have learned, of a breach of his or her rights. 32. Section 3 of the State Property Privatisation Act provides that State housing stock cannot be privatised. 33. Article 4 of the Code provides that the State housing stock includes dwelling houses and residences in other buildings belonging to the State. 34. Sections 2 and 3 of the Act provide that, as regards privatisation of apartments (or houses), at least 21 square metres of living space per person and an additional 10 square metres per household should be transferred to tenants free of charge. The remaining living space should be available for purchase. In September 2008 the Act was amended so as to allow the privatisation of rooms within hostels. 35. The decision, which entered into force on 7 December 1995, provided that, in the event of insolvency, liquidation or the transfer of ownership of a company, any properties belonging to State housing stock but being managed by the said company were to be given to a municipality. Before being amended in 2004, the provision did not apply to hostels. 36. Section 35 provides that the prosecutor can join proceedings at any given time if it is in the interests of the State or for the protection of citizens’ constitutional rights. | 1 |
train | 001-106214 | ENG | MDA | CHAMBER | 2,011 | CASE OF DRAGOSTEA COPIILOR - PETROVSCHI - NAGORNII v. MOLDOVA | 4 | Violation of Art. 6-1+P1-1;Just satisfaction reserved | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 5. The applicant company, which runs a primary school in Chişinău, was party to civil proceedings in 2001. By a judgment of the Rascani District Court of 25 July 2001 the applicant company was ordered to pay Mr M. 78,400 United States dollars. 6. On an unspecified date in 2006 Mr M. applied to the Department for the Execution of Judgments for the enforcement of the judgment of 25 July 2001. However, his application was dismissed on the ground that it had been time-barred. In a letter dated 4 May 2006 Mr M. was informed that no enforcement warrant in respect of the judgment of 25 July 2001 had been lodged between 2001 and 2006. 7. On 22 May 2006 Mr M. lodged a request with the Rascani District Court asking for an extension of the three-year time-limit for requesting enforcement of the judgment in his favour. He argued, inter alia, that he had submitted a request for enforcement sometime in 2001 together with the enforcement warrant, but that it had allegedly been lost by the Department for the Execution of Judgments. 8. On 18 July 2007 the Chişinău Court of Appeal finally dismissed Mr M’s request. It found, inter alia, that the enforcement of a judgment may be requested by an interested party to the proceedings within three years from the date when the judgment became final and enforceable. Since Mr M. had made such a formal request only some five years after the judgment of 25 July 2001 had become final, he had missed the deadline. The court found that Mr M. could not produce any plausible evidence justifying his missing the time-limit and could not prove his contention that he had submitted a request which had subsequently been lost by the Department for the Execution of Judgments. 9. On 20 July 2007 Mr M. lodged a request for review of the final judgment of 18 July 2007. He relied on Article 449 (c) of the Code of Civil Procedure (see paragraph 14 below) and argued that according to a letter dated 13 July 2007 sent to him by the Department for the Execution of Judgments in reply to a letter from him, an enforcement warrant had been registered with the Department on 31 July 2001 but had been returned to the Rascani District Court two days later. 10. On 22 August 2007 the Chişinău Court of Appeal refused Mr M.’s request for review because the ground relied on by him did not fall under Article 449 (c) of the Code of Civil Procedure, namely the letter from the Department for the Execution of Judgments had become known to him before the pronouncement of the judgment of 18 July 2007. Moreover, the enforcement warrant referred to in the letter of 13 July 2007 did not concern the enforcement of the judgment of 25 July 2001 but the enforcement of a surety ordered by the first-instance court several months before the date on which the judgment of 25 July 2001 became enforceable. On 28 September 2007 Mr M. lodged an appeal on points of law against this decision. 11. On 24 October 2007 a Judge S.N. was appointed rapporteur in the case. 12. On 14 November 2007, a panel of three judges of the Supreme Court of Justice allowed Mr M.’s appeal, quashed the decision of 22 August 2007, granted Mr M.’s request for review and ordered a fresh examination of the case. The Supreme Court considered the letter of 13 July 2007 as a new document within the meaning of Article 449 (c) of the Civil Procedure Code and argued that Mr M. could have obtained it later than 13 July 2007. The court did not dispute the lower court’s findings to the effect that the enforcement warrant referred to in the letter of 13 July 2007 did not concern the enforcement of the judgment of 25 July 2001 but the enforcement of a surety ordered by the first-instance court. Judge S.N., appointed rapporteur on 24 October 2007, did not participate in the examination of the appeal. 13. The reopened proceedings ended with a final judgment of the Supreme Court of Justice of 28 October 2008 in favour of Mr M. resulting in the enforcement of the judgment of the Rascani District Court of 25 July 2001 against the applicant company. 14. The relevant provisions of the Code of Civil Procedure concerning the review of final judgments read as follows: “A request for review shall be granted when: (c) after a judgment has been adopted, new documents have been discovered which were withheld by one of the parties to the proceedings or which could not have been submitted to the court during the proceedings because of circumstances beyond the control of the interested party; A request for review may be lodged: ... (d) within three months from the date on which the document was discovered – in cases concerning Article 449 (c);” The relevant provisions of the Law on the Supreme Court of Justice read: “(1) The Civil and Administrative Division, and the Criminal and Commercial Divisions of the Supreme Court of Justice shall be headed by a president and a vice-president who shall have the following responsibilities: (b) ... distribute cases among the members of the Division...” The relevant part of the Code of Civil Procedure reads as follows: “The participation of the judge rapporteur in the examination of an appeal on points of law is obligatory. If the rapporteur is unable to participate, a new rapporteur should be appointed not later than three days before the date of the examination of the appeal.” The relevant part of the Law on Judicial Organisation reads: “(1) The work of the judiciary must be carried out in accordance with the principle of random distribution of cases, except when a particular judge is prevented from participating in the examination of a case on objective grounds.” (2) Cases assigned to one panel cannot be assigned to another panel except within the limits of the law. | 1 |
train | 001-81229 | ENG | RUS | ADMISSIBILITY | 2,007 | ANOKHIN v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Sergey Danilovich Anokhin, is a Russian national who was born in 1949 and lives in the town of Krasnyy Sulin of the Rostov Region. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation before the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a former employee of various coal mines of OAO Rostovugol, a joint-stock limited liability company. It was established as a result of restructuring of one of the major Soviet coal producers in the early 1990s. In 1993 a number of production units were incorporated under the private law rules as a joint-stock company with limited liability. According to the Government, the federal and regional authorities owned stakes in the company of 66.9 and 20 per cent respectively. It appears that the remaining stock was held by private shareholders, including the company’s employees. It appears that in the late 1990s the company ran into trouble and subsequently experienced difficulties in managing its debt, the greater part of which represented salary arrears owed to the company’s numerous employees. In 2001-2002, having faced social tensions in the respective region, the federal authority intervened by adopting a special programme according to which OAO was to be liquidated, its assets auctioned and the company’s debt financed, in part, by the authorities. In 2001-2002, shortly after his dismissal, the applicant brought five court actions against his former employer claiming salary arrears and unpaid social benefits. By a judgment of 17 September 2001 the Justice of the Peace of the 4th circuit of the town of Novoshakhtinsk of the Rostov Region recovered the applicant’s unpaid salary totalling 10,513 Russian roubles (RUR) from the defendant company for the period between July to December 2000 and January 2001. The judgment came into force on 28 September 2001. According to the Government, the money owed to the applicant was transferred to his bank account in full on 30 January 2002, which is slightly over four months after the judgment of 17 September 2001 had been given. On 19 September 2001 the Krasnosulinsk Town Court of the Rostov Region ordered the defendant company to pay the applicant work-related sickness benefits of RUR 30,627.96. This judgment came into force on 28 September 2001. The Government submitted that the judgment at issue had been executed in full by bank transfer dated 22 December 2003, which is two years, two months and twenty-four days after the judgment of 19 September 2001 became enforceable. By a judgment of 12 November 2001 the Novoshakhtinsk Town Court of the Rostov Region ordered the defendant company to pay the applicant non-pecuniary damages of RUR 5,000 for the delays in payment of the salary. This judgment became enforceable on 14 February 2002. According to the Government, this judgment was enforced in full by bank transfer to the applicant’s account on 20 December 2002. The transfer was made ten months and five days after the judgment in question became enforceable. By a judgment of 18 April 2002 the Justice of the Peace of the 4th circuit of the town of Novoshakhtinsk of the Rostov Region ordered the defendant to pay the applicant a compensation of RUR 2,838.51 for delays in payment of his salary between 2000 and 2001. The judgment became enforceable on 29 April 2002. The Government submitted that the execution writ in respect of the judgment of 18 April 2002 had been accepted by the winding-up committee of the company and joined to the list of the company’s priority 2 creditors. It would be complied with after the additional sale of the company’s assets and after the debts towards the priority 1 creditors had been honoured. On 31 May 2002 the Justice of the Peace of the 1st circuit of the town of Novoshakhtinsk of the Rostov Region awarded the applicant damages for being kept out of his money through the delays in payment of his salary for the period between August and September 1999, ordering the defendant company to pay RUR 29,850.98. The judgment came into force on 11 June 2002. The Government submitted that the applicant had received a copy of the writ in respect of this judgment from the registry of the first-instance court on 14 June 2002, but had not sent it to the company until three years later. As a result, the writ was received on 5 May 2005. The winding-up committee was still waiting for the applicant to submit a second copy of the writ and a copy of the judgment of 31 May 2002. Upon receipt of the said documents, the applicant’s claim would be recorded in the list of the company’s priority 2 creditors. On 6 December 2001 the bailiffs of the town of Shakhty seized the assets of OAO Rostovugol; of which the estimated value was RUR 709,000,000. By letters of 18 March and 24 April 2002 the Deputy Governor of the Rostov Region in charge of fuel, energy and natural resources informed the applicant that OAO Rostovugol was an unprofitable company, that the question of its restructuring had been long debated by the authorities at various levels, that on 31 January 2002 the Federal Interdepartmental Commission on the Socio-Economic Problems of Coil-Producing Industries adopted a plan under which the company was to be wound-up, that on 12 March 2002 the meeting of OAO Rostovugol shareholders had adopted that decision, that the debts of OAO Rostovugol would be honoured through the sale of its assets and also with the financial assistance of the authorities and that the existing salary debts would be honoured during the year 2002. By letter of 13 May 2002 the State Institution Sotsugol, a State agency set up to solve problems arising out of restructuring of the coal-mining industry, informed the applicant that his previous complaints about the prolonged failure to execute the judgments had been forwarded to OAO Rostovugol and that the president of its winding-up committee had been asked to repay the debts as soon as possible. Section 2 of the Joint-Stock Companies Act (Law no. 208-FZ of 26 December 1995) provides, among other things, that a joint-stock company is a commercial organisation whose capital is divided into a definite number of shares of stock certifying the rights and obligations of the members (shareholders) vis-à-vis the company. Shareholders are not liable for obligations of the company and bear the risk of losses associated with its activity only to the extent of the value of the shares owned by them. Under the Insolvency Act (Law no. 27-FZ of 6 October 2002) bankruptcy creditors are creditors of monetary obligations, except for authorised bodies, citizens to whom a debtor is liable for harm to life or health or for moral harm or to whom royalties are owed under copyright contracts, and stakeholders of the debtor in so far as the liabilities in respect of such participation are concerned. They are among the parties to a bankruptcy case and may complain to the court about action or failure to act breaching their rights. By virtue of the above decree, the Ministry of Energy was to finance the debt of OAO Rostovugol in so far as the salary debts and related social payments prior to the decision to wind up the company were concerned. The State institution Sotsugol was established by Decree of the Federal Government of 20 November 1997 as a principal coordinator of the programmes of local development introduced to solve social problems arising out of restructuring of the coal-mining industry. | 0 |
train | 001-60510 | ENG | TUR | CHAMBER | 2,002 | CASE OF ÖNERYILDIZ v. TURKEY | 2 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Procedural aspect);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Gaukur Jörundsson | 8. The applicant, who is a Turkish national, was born in 1955 and is now living in Çobançeşme (Alibeyköy, Istanbul). At the material time he and the twelve members of his family were living in the slum quarter (gecekondu mahallesi) of Kazım Karabekir in Ümraniye (Istanbul). 9. Since the beginning of the 1970s a household-refuse tip had been in operation in Hekimbaşı, a slum area adjoining Kazım Karabekir. On 22 January 1960 an easement had been created de facto over the site in question, which belonged to the Forestry Commission (and therefore to the Treasury), in favour of Istanbul City Council (“the city council”) for a term of ninety-nine years. Situated on a slope overlooking a valley, the site spread out over a surface area of approximately 350,000 square metres and was used as a rubbish tip by the districts of Beykoz, Üsküdar, Kadıköy and Ümraniye under the authority and responsibility of the city council and, ultimately, the ministerial authorities. When the rubbish tip started being used, the area was uninhabited and the closest built-up area was approximately 3.5 km away. However, as the years passed, rudimentary dwellings were illegally built in the zone surrounding the rubbish tip, which ultimately developed into the slums of Ümraniye. 10. Following the local elections of 26 March 1989 and from 4 December of that year Ümraniye District Council began dumping heaps of earth and rubbish onto the land surrounding the Ümraniye slums in order to redevelop the site of the rubbish tip. However, on 15 December 1989 M.C. and A.C. – two inhabitants of the Hekimbaşı area – brought proceedings against the district council in the Fourth Division of the Üsküdar District Court to establish title to land. They complained of damage to their plantations and requested the works to be halted. In support of their request, they produced documents showing that M.C. and A.C. had been liable for council tax and property tax since 1977 under tax no. 168900. In 1983 the authorities had asked them to fill in a standard form for the declaration of illegal buildings so that their title to the property and land could be validated (see paragraph 50 below). Following their request, on 21 August 1989, the city council water and mains authority had ordered a water meter to be installed in their house. Furthermore, copies of electricity bills show that M.C. and A.C., as consumers, regularly paid for the water they had used on the basis of the readings taken from a meter installed for that purpose. 11. In the District Court the defendant district council based its defence on the fact that the land claimed by M.C. and A.C. was situated on the waste-collection site; that residence there was contrary to the health regulations; and that their application for validation of their title to the property conferred no rights on them. In a judgment delivered on 2 May 1991 under case no. 1989/1088, the District Court found for M.C. and A.C., holding that there had been interference with the exercise of their right over the land in question. However, the Court of Cassation set the judgment aside on 2 March 1992. On 22 October 1992 the District Court followed the Court of Cassation's judgment and dismissed M.C. and A.C.'s claims. 12. On 9 April 1991 Ümraniye District Council applied to the Third Division of the Üsküdar District Court for experts to be instructed to determine whether the rubbish tip complied with the relevant regulations, in particular Regulation no. 20814 of 14 March 1991 on solid-waste control. A committee was set up for that purpose, composed of a professor of environmental engineering, a land-registry official and a forensic doctor. According to their report, drawn up on 7 May 1991, the rubbish tip in question did not conform to the technical requirements set forth in Articles 24 to 27, 30 and 38 of Regulation no. 20814 and, accordingly, presented a certain number of dangers liable to give rise to a major health risk for the inhabitants of the valley, particularly those living in the slum areas: no wall or fencing separated the tip from the dwellings situated fifty metres from the mountain of refuse, and the tip was not equipped with collection, composting, recycling or combustion systems; nor had drainage or drainage-water purification systems been installed. The experts concluded from this that the Ümraniye tip “exposed humans and animals and the environment to every form of danger”. In that connection the report, drawing attention first to the fact that some twenty contagious diseases might spread, underlined the following: “... In any waste-collection site methane, carbon-dioxide and hydrogen-sulphide gases, among others, form. These substances must be collected under supervision and ... burnt. The tip in question is not equipped with such a system, however. If methane is mixed with air in a particular proportion, it can explode. This installation contains no means of preventing an explosion of methane occurring as a result of the decomposition [of the waste]. May God preserve us, as the damage could be very substantial given the neighbouring dwellings. ...” On 27 May 1991 the city council was made aware of that report and on 7 June 1991 the governor was informed of it and asked to brief the Ministry of Health and the Prime Minister's Environmental Office (“the Environmental Office”). 13. On 9 June 1991 Nurettin Sözen, the mayor of Istanbul, requested the report to be ruled inadmissible on the ground that it had been ordered and prepared without his knowing about it. 14. However, the Environment Council, which had been advised of the same report on 18 June 1991, made a recommendation (no. 09513) urging the Istanbul Governor's Office, the city council and Ümraniye District Council to remedy the problems identified in the present case: “... The report prepared by the committee of experts indicates that the waste-collection site in question breaches the Environment Act and the Regulation on Solid-Waste Control and consequently poses a health hazard to men and animals. The measures provided for in Articles 24, 25, 26, 27, 30 and 38 of the Regulation on Solid-Waste Control must be implemented at the site of the tip ... I therefore ask for the necessary measures to be implemented ... and for our council to be informed of the outcome.” 15. On 27 August 1992 Şinasi Öktem, the mayor of Ümraniye, applied to the First Division of the Üsküdar District Court for the implementation of temporary measures to prevent the city council and the neighbouring district councils from using the waste-collection site. He requested, inter alia, that no further waste be dumped, that the tip be closed and the damage repaired. On 3 November 1992 the mayors of Istanbul and Beykoz opposed that request. To that end Mr Sözen submitted, in particular, that a plan to redevelop the site of the tip had been put out to tender and would be implemented during the year 1993. 16. While those proceedings were still pending before the Fourth Civil Division of the Court of Cassation, Ümraniye District Council informed the mayor of Istanbul that from 15 May 1993 no dumping of waste would be authorised. 17. Prior to that date, however, at about 11 a.m. on 28 April 1993 a methane explosion occurred at the site. Following a landslide caused by mounting pressure, the refuse erupted from the mountain of waste and buried some ten slum dwellings situated below it, including the one belonging to the applicant. Thirty-nine people died, including nine members of the Öneryıldız family. 18. Immediately after the accident two members of the municipal police force attempted to establish the facts. After taking evidence from the victims, including the applicant, who explained that he had built his house in 1988, they reported that thirteen huts had been engulfed. On the same day a crisis committee, set up by the Istanbul Governor's Office, also went to the site and found that the landslide had indeed been caused by a methane-gas explosion. 19. The next day, on 29 April 1993, the Ministry of the Interior (“the Ministry”) ordered the circumstances in which the catastrophe had occurred to be examined by the administrative investigation department (“the investigation department”) in order to determine whether proceedings should be instituted against the two mayors, Mr Sözen and Mr Öktem. 20. While those administrative proceedings were under way, on 30 April 1993 the Üsküdar public prosecutor (“the public prosecutor”) went to the scene of the accident, accompanied by a committee of experts composed of three civil-engineering professors from three different universities. In the light of his preliminary observations, he instructed the committee to determine the share of responsibility for the accident attributable to the public authorities and that attributable to the victims. 21. On 6 May 1993 the applicant lodged a complaint with the local police station. He stated that “if it was the authorities that, through their negligence, caused my house to be engulfed and caused my wives' and children's death, I hereby lodge a criminal complaint against the authority or authorities concerned”. The applicant's complaint was added to the investigation file (no. 1993/6102) which had already been opened by the public prosecutor of his own motion. 22. On 14 May 1993 the public prosecutor heard evidence from a number of witnesses and victims of the accident in question. On 18 May 1993 the committee of experts submitted the report ordered by the public prosecutor. The experts confirmed that the landslide – affecting land which had been unstable as it was – could be explained both by the mounting pressure of the gas inside the tip and by the explosion of the tip. Reiterating the obligations and duties on the public authorities under the relevant regulations, the experts concluded that liability for the accident should be attributed as follows: (i) 2/8 to the Istanbul City Council, which failed to act sufficiently early to prevent the technical problems which already existed when the tip was first created in 1970 and had continued to deteriorate since then, or to indicate to the district councils concerned an alternative waste-collection site, as it was obliged to do under Law no. 3030; (ii) 2/8 to Ümraniye District Council for implementing a development plan for the area while omitting, contrary to Regulation no. 20814, to provide for a 1,000 metre-wide buffer zone to remain uninhabited, and for attracting illegal dwellings to the region and taking no steps to prevent them from being built, despite the experts' report of 7 May 1991; (iii) 2/8 to the inhabitants of the slum for endangering the members of their families by settling near a mountain of waste; (iv) 1/8 to the Ministry of the Environment for failing to monitor the tip effectively in accordance with Regulation no. 20814 on solid-waste control; (v) 1/8 to the Government for encouraging the spread of this type of illegal dwelling by granting an amnesty on a number of occasions and property titles to the occupants. 23. On 21 May 1993 the public prosecutor declined jurisdiction ratione personae and referred the case to the Governor of Istanbul, considering that it fell within the Prosecution of Civil Servants Act, the application of which was a matter for the administrative council of the province of Istanbul (“the administrative council”). The public prosecutor stated, in his order, that in respect of Istanbul City Council and Ümraniye District Council, the applicable provisions were Articles 230 and 455 § 2 of the Criminal Code. On 27 May 1993, when the investigative department had completed the preliminary inquiry, the public prosecutor's file was transmitted to the Ministry. 24. On 27 May 1993, having regard to the conclusions of its own inquiry, the investigative department sought authorisation from the Ministry to commence a criminal investigation in respect of the two mayors implicated in the case. 25. The day after that request was made Ümraniye District Council made the following announcement to the press: “The sole waste-collection site on the Anatolian side stood in the middle of our district of Ümraniye like an object of silent horror. It has broken its silence and caused death. We knew it and were expecting it. As a district council, we had been hammering at all possible doors for four years to have this waste-collection site removed. We were met with indifference by Istanbul City Council. It abandoned the decontamination works ... after laying two spades of concrete at the inauguration. The ministries and the Government were aware of the facts, but failed to take much notice. We had submitted the matter to the courts and they had found in our favour, but the judicial machinery could not be put into action. ... We are now faced with a responsibility and will all account for this to the inhabitants of Ümraniye...” 26. The authorisation sought by the investigative department was granted on 17 June 1993 and a chief inspector from the Ministry (“the chief inspector”) was accordingly put in charge of the case. In the light of the investigation file compiled in the present case, the chief inspector took down Mr Sözen and Mr Öktem's defence. The latter stated, among other things, that in December 1989 his district council had begun decontamination works in the Hekimbaşı slum area, but that these had been suspended at the request of two inhabitants of the area (see paragraph 10 above). 27. The chief inspector finalised his report on 9 July 1993. It confirmed the conclusions reached by all the experts instructed hitherto and took account of all the evidence gathered by the public prosecutor. It also mentioned two other scientific opinions sent to the Istanbul Governor's Office in May 1993, one by the Ministry of the Environment and the other by a professor of civil engineering at Boğaziçi University. These two opinions confirmed that the fatal landslide had been caused by the methane explosion. The report also indicated that on 4 May 1993 the inspection department had requested the city council to inform it of the measures actually taken in the light of the expert report of 7 May 1991, and it reproduced Mr Sözen's reply: “Our city council has both taken the measures necessary to ensure that the old sites can be used in the least harmful way possible until the end of 1993 and completed all the preparatory steps for the construction of one of the biggest and most modern installations ... ever undertaken in our country. We are also installing a temporary waste-collection site satisfying the requisite conditions. Alongside that, rehabilitation works are continuing at former sites [which have run their course]. In short, over the past three years our city council has been studying the problem of waste very seriously... [and], currently, the works are continuing...” 28. The chief inspector concluded, lastly, that the death of twenty-six people and the injuries to eleven others (figures available at the material time) on 28 April 1993 had been caused by the two mayors' failure to take appropriate steps in the exercise of their duties and that they should account for their negligence under Article 230 of the Criminal Code. In spite of, inter alia, the expert report and the recommendation of the Environment Office, they had knowingly breached their respective duties: Mr Öktem because he had failed to comply with his obligation to order the destruction of the illegal huts situated around the rubbish tip, as he was empowered to do under section 18 of Law no. 775, and Mr Sözen because he had refused to comply with the above-mentioned recommendation, had failed to rehabilitate the rubbish tip or order its closure, and had not complied with any of the provisions of section 10 of Law no. 3030, which required him to order the destruction of the slum dwellings in question, if necessary by his own means. 29. In the meantime, the Department of Housing and Rudimentary Dwellings asked the applicant to attend its offices, informing him that, by an order (no. 1739) of 25 May 1993, the city council had allocated him a flat in the subsidised housing complex of Çobançeşme (Eyüp, Alibeyköy). On 18 June 1993 the applicant signed for possession of flat no. 7 in building C-1 of that complex. That transaction was officialised by an order (no. 3927) of 17 September 1993 of the city council. On 13 November 1993 the applicant signed a notarised declaration in lieu of a contract stipulating that the flat in question had been “sold” to him for 125,000,000 Turkish liras (TRL), a quarter of which was payable immediately and the remainder in monthly instalments of TRL 732,844. The applicant paid the first monthly instalment on 9 November 1993. Since then he has been living in the flat in question. 30. In an order of 15 July 1993, the administrative council decided, by a majority, on the basis of the chief inspector's report, to institute proceedings against Mr Sözen and Mr Öktem for breach of Article 230 of the Criminal Code. Mr Sözen and Mr Öktem appealed against that decision to the Supreme Administrative Court, which dismissed their appeal on 18 January 1995. The case file was consequently sent back to the public prosecutor, who, on 30 March 1995, committed both mayors for trial in the Fifth Division of the Istanbul Criminal Court (“the Division”). 31. The proceedings began before the Division on 29 May 1995. At the hearing Mr Sözen stated, among other things, that he could not be expected to have complied with duties which were not incumbent on him or be held solely responsible for a situation which had endured since 1970. Nor could he be blamed for not having rehabilitated the Ümraniye tip when none of the 2,000 sites in Turkey had been rehabilitated; in that connection, relying on a number of measures which had nonetheless been taken by the city council, he argued that the tip could not have been fully redeveloped as long as waste continued to be dumped on it. Lastly, he submitted: “the elements of the offence of negligence in the exercise of duties have not been made out because I did not act with the intention of showing myself to be negligent (sic) and because no causal link can be established” between the incident and any negligence on his part. Mr Öktem submitted that the groups of dwellings which had been buried dated back to before his election on 26 March 1989 and that since then he had never allowed slum areas to develop. Accusing the Istanbul City Council and Governor's Office of indifference to the problems, Mr Öktem alleged that responsibility for preventing the construction of illegal dwellings lay with the forestry officials and that, in any event, his district council lacked the staff necessary to undertake the destruction of these huts. 32. In a judgment of 4 April 1996, the Division found the two mayors guilty as charged, considering their defence to be unfounded. In reaching that conclusion, the judges held as follows: “... although they were aware of the [experts'] report, the two defendants took no proper preventive measures. Just as a person who shoots into a crowd should know that people will die and, accordingly, cannot then claim to have acted without intending to kill, the defendants cannot allege in the present case that they did not intend to neglect their duties. They do not bear the entire responsibility, however. ... They were negligent, as were others. In the instant case the main error consists in building dwellings beneath a refuse tip situated on a hillside and it is the inhabitants of these slum dwellings who are responsible. They should have had regard to the risk that the mountain of rubbish would one day collapse on their heads and that they would suffer damage. They should not have built dwellings fifty metres from the tip. They have paid for that lack of foresight with their lives...” 33. The Division sentenced Mr Sözen and Mr Öktem to the minimum prison sentence provided for in Article 230 of the Criminal Code, namely three months, and to fines of TRL 160,000. Under section 4(1) of Law no. 647, the Division commuted the prison sentences to fines, so the penalties ultimately imposed were fines of TRL 610,000. Satisfied that the defendants would not reoffend, the Division also decided to suspend enforcement of the penalties in accordance with section 6 of the same Law. 34. Both mayors appealed on points of law. They submitted, inter alia, that the Division had exceeded the scope of Article 230 of the Criminal Code in assessing the facts, and had treated the case as one of unintentional homicide within the meaning of Article 455 of that Code. In a judgment of 10 November 1997 the Court of Cassation upheld the Division's judgment. 35. The applicant has apparently never been informed of those proceedings or given evidence to any of the administrative bodies of investigation or the criminal courts; nor does any court decision appear to have been served on him. 36. On 3 September 1993 the applicant sued the mayors of Ümraniye and Istanbul and the Ministries of the Interior and the Environment for both pecuniary and non-pecuniary damages. The amount claimed by the applicant was broken down as follows: TRL 150,000,000 in damages for the loss of his dwelling and household goods; TRL 2,550,000,000, 10,000,000, 15,000,000 and 20,000,000 in compensation for the loss of financial support incurred by himself and his three surviving sons, Hüsameddin, Aydın and Halef respectively; and TRL 900,000,000 in non-pecuniary damages for himself and TRL 300,000,000 for each of his three sons. 37. In letters of 16 September and 2 November 1993 respectively, the mayor of Ümraniye and the Minister for the Environment rejected the applicant's claims. The other authorities did not reply. 38. The applicant then sued the four authorities for damages in his own name and on behalf of his three children in the Istanbul Administrative Court (“the court”). He complained that their negligent omissions had resulted in the death of his relatives and the destruction of his house and household goods, and claimed the aforementioned amounts again. On 4 January 1994 the applicant was granted legal aid. 39. The court gave judgment on 30 November 1995. Basing its decision on the experts' report of 18 May 1993 (see paragraph 22 above), it found a direct causal link between the accident of 28 April 1993 and the contributory negligence of the four authorities in question. Accordingly, it ordered them to pay the applicant and his children TRL 100,000,000 in non-pecuniary damages and TRL 10,000,000 in pecuniary damages (at the material time those sums amounted to approximately 2,077 and 208 euros respectively). The latter amount, determined on an equitable basis, was limited to the destruction of household goods, save the domestic electrical appliances, which the applicant was not supposed to own. On that point the court appears to have confined its assessment to the authorities' submissions that “these dwellings had neither water nor electricity”. The court dismissed the remainder of the claim; in its view, the applicant could not claim to have been deprived of financial support because he had been partly responsible for the damage incurred and the victims had been young children or housewives who had not been in paid employment such as to contribute to the family's living expenses. The court held that it also ill befitted the applicant to claim compensation for the destruction of his slum dwelling given that, following the accident, he had been allocated a subsidised flat and that, even if the Ümraniye District Council had not exercised its power to destroy the dwelling, nothing could have prevented it from doing so at any time. The court decided, lastly, not to apply default interest to the damages awarded for non-pecuniary damage. 40. The parties appealed against that judgment to the Supreme Administrative Court, which dismissed their appeal in a judgment of 21 April 1998. An application for rectification of the judgment, lodged by the City Council, was not successful either, whereupon the judgment became final and was served on the applicant on 10 August 1998. The damages in question have still not been paid to date. 41. The Ümraniye tip no longer exists today. The local council had it covered with earth and installed air ducts on it. Furthermore, land-use plans are currently being prepared for the areas of Hekimbaşı and Kazım Karabekir. The city council has planted trees on a large area of the former site of the tip and has had sports grounds laid. Two monuments have also been erected there in memory of the victims of the accident of 28 April 1993. 42. The relevant provisions of the Criminal Code read as follows: “Any agent of the State who, in the exercise of his public duties ... acts negligently and delays or who, for no valid reason, refuses to comply with the lawful orders ... of his superiors shall be sentenced to a term of imprisonment of between three months and one year and to a fine of between 6,000 and 30,000 Turkish liras. ... In every ... case, if third parties have suffered any damage on account of the negligence or delay by the civil servant in question, the latter shall also be required to compensate for such damage.” “Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be sentenced to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras. If the act has caused the death of more than one person or has been the cause of the death of one person and the injuries of one or more others ... the perpetrator shall be sentenced to a term of imprisonment of between four and ten years and to a heavy fine of a minimum of 60,000 Turkish liras.” “The judge has full discretion to determine the principal sentence, which can vary between a minimum and maximum, taking account of factors such as the circumstances in which the offence was committed, the means used to commit it, the importance and seriousness of the offence, the time and place at which it was committed, the various special features of the offence, the seriousness of the damage caused and the risk [incurred], the degree of [criminal] intent ... the reasons and motives for the offence, the aim, the criminal record, the personal and social status of the perpetrator and his conduct following the act [committed]. Even where the minimum penalty is imposed, the reasons for the choice of sentence must be mentioned in the judgment.” “If the court considers that, other than the statutory mitigating circumstances, there are other circumstances favourable to reducing the penalty [imposed] on the perpetrator, capital punishment shall be commuted to life imprisonment and life imprisonment to a term of imprisonment of thirty years. Other penalties shall be reduced by a maximum of one-sixth.” 43. Sections 4(1) and (6) of Law no. 647 on the Execution of Sentences read as follows: “Apart from imprisonment, short custodial sentences may, having regard to the personality and state of the defendant and to the circumstances in which the offence was committed, be commuted by the court: (1) to a heavy fine ... of 5,000 to 10,000 Turkish liras per day; ...” “Anyone who has never been sentenced ... to a penalty other than a fine and is sentenced to ... a fine ... and/or a [maximum] term of one year's imprisonment may have his sentence suspended if the court is satisfied that [the offender], having regard to his criminal record and criminal tendencies, will not reoffend if his sentence is thus suspended ...” 44. Under the Turkish Code of Criminal Procedure a public prosecutor who – in any way whatsoever – is informed of a situation which gives rise to a suspicion that an offence has been committed must investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, if the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Prosecution of Civil Servants Act of 1914, which restricts the public prosecutor's jurisdiction ratione personae with regard to that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, decide whether to prosecute. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 45. With regard to civil and administrative liability arising out of criminal offences, section 13 of Law no. 2577 on administrative procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. If this claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 46. With regard to the status and organisation of the administrative courts, the status of the court judges and the organisation of the courts are governed by Law no. 2576 of 6 January 1982 on the powers and constitution of the administrative courts and by Law no. 2575 on the Supreme Administrative Court. Under these Laws, it is in theory the law faculties which recruit judges to the administrative-court benches. Civil servants who are not trained lawyers but have graduated from a law faculty can be recruited on the basis of relevant experience. Under the Turkish Constitution all administrative judges enjoy, while in service, constitutional safeguards identical to those of civilian judges (Article 140); they may not be removed from office or made to retire early without their consent (Article 139); they sit as individuals (Article 140); and their independence is enshrined in the Constitution, which prohibits any public authority from giving them instructions concerning their judicial activities or influencing them in the performance of their duties (Article 138 § 2). 47. Under the Code of Obligations, anyone who suffers damage as a result of an illegal act, be it a crime or a tort, may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts as to a defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in theory, only bring an action against the public authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. Where an act is found to be tortious or criminal and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). 48. Article 138 (4) of the Constitution of 1982 provides: “The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.” Article 28 § 2 of the Code of Administrative Procedure provides: “2. Decisions determining appeals on matters of both law and fact and concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law.” Under section 82(1) of Law no. 2004 on enforcement and bankruptcies, State property and property which, according to the appropriate law, is not subject to seizure cannot be seized. Section 19(7) of Law no. 1580 of 3 April 1930 on municipalities provides that municipal property can be seized only if it is not being used for a public service. According to Turkish legal theory in this field, the effect of the above provisions is that if the authorities do not themselves comply with a final and enforceable court decision ordering compensation, the interested party can bring enforcement proceedings under the ordinary law. In that event the appropriate authority has power to impose on the administration the measures provided for by Law no. 2004, although seizure remains exceptional. 49. The information and documents in the Court's possession show that, since 1960, when inhabitants of underprivileged areas started migrating in their masses to the larger rich provinces, Turkey has been confronted with the problem of slums, consisting in most cases of permanent structures to which further floors were soon added. It would appear that currently more than one-third of the population live in such dwellings. Researchers who have looked into the problem maintain that these built-up areas have not sprung up merely as a result of deficiencies in urban planning or shortcomings on the part of the municipal police. They point to the existence of more than eighteen amnesty laws which have been passed over the years in order to regularise the slum areas and, they believe, satisfy potential voters living in these dwellings. 50. Regarding the fight against slum development, the following are the main provisions of Turkish law: Section 18 of Law no. 775 of 20 July 1966 provides that, after the Law enters into force, any illegal building, whether it is in the process of being built or is inhabited, must be immediately destroyed without any prior decision being necessary. Implementation of these measures is the responsibility of the administrative authorities, which may have recourse to the security forces and other means available to the State. With regard to dwellings built before the Law entered into force, section 21 provides that, under certain conditions, slum inhabitants can purchase the land they occupy and take out low-interest loans in order to finance the construction of buildings which conform to the regulations and urban-development plans. The built-up areas to which the provisions of section 21 apply are declared to be “slum rehabilitation and clearance zones” and are treated in accordance with a plan of action. Under Law no. 1990 of 6 May 1976, amending Law no. 775, illegal constructions built before 1 November 1976 were also considered to be covered by the above-mentioned section 21. Law no. 2981 of 24 February 1984 concerning buildings which do not conform to the slum and town-planning legislation also provided for measures to be taken for the conservation, regularisation, rehabilitation and destruction of illegal buildings erected prior to that date. Lastly, Law no. 4706 was passed on 29 June 2001. This Law, which is designed to strengthen the Turkish economy, lays down the terms and conditions of sale to third parties of real estate belonging to the Treasury. 51. Pursuant to section 6-E, paragraph (j) of Law no. 3030 and Regulation 22 of the Public Administration Regulations implementing that Law, the city councils have a duty to designate waste sites for the deposit of household and industrial waste and to install or have installed systems for recycling and destroying the waste from such sites. Pursuant to Articles 5 and 22 of Regulation no. 20814 of 14 March 1991 on solid-waste control, district councils are responsible for organising the use of waste-collection sites and implementing all measures necessary to prevent rubbish tips from damaging the environment and the health of man and animals. Accordingly, no dwelling can be built at a distance of less than 1,000 metres from a rubbish tip. Regulation 31 empowers city councils to issue permits for the operation of district waste-collection sites. 52. The general information which the Court has been able to procure as to the risk of a methane explosion at such sites can be summarised as follows: methane (CH4) and carbon dioxide (CO2) are the two main products of methanogenesis, which is the final and longest stage of the anaerobic process. These substances are generated, inter alia, by the biological and chemical decomposition of waste. The risks of explosion and fire are mainly due to the large proportion of methane in the bio-gas. The risk of an explosion occurs when there is between 5% and 15% of CH4 in the air. Above 15% methane will catch fire, but not explode. 53. Concerning the various texts adopted by the Council of Europe in the field of the environment and the industrial activities of the public authorities, mention should be made, among the work of the Parliamentary Assembly, of Resolution 587 (1975) on problems connected with the disposal of urban and industrial waste, Resolution 1087 (1996) on the consequences of the Chernobyl disaster, and Recommendation 1225 (1993) on the management, treatment, recycling and marketing of waste and, among the work of the Committee of Ministers, Recommendation R (96) 12 on the distribution of powers and responsibilities between central authorities and local and regional authorities with regard to the environment. Mention should also be made of the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (ETS no. 150 – Lugano, 21 June 1993) and the Convention on the Protection of the Environment through Criminal Law (ETS no. 172 – Strasbourg, 4 November 1998), which have to date been signed by nine and thirteen States respectively. 54. It can be seen from these documents that primary responsibility for the treatment of urban waste falls on local authorities, which the Governments are obliged to provide with financial and technical assistance. The operation by the public authorities of a site for the storage of waste is described as a “dangerous activity” and a “death” resulting from the deposit of waste on a site for the permanent deposit of waste is considered to be “damage” incurring the liability of the public authorities (see, inter alia, the Lugano Convention, Articles 2 §§ 1 (c)-(d) and 7 (a)-(b)). 55. In that connection the Strasbourg Convention calls on the Parties to adopt such appropriate measures as may be necessary to establish as criminal offences the unlawful storage of hazardous waste which causes or is likely to cause death or serious injury to any person, specifying that this offence can also be committed with “negligence” (Articles 2 to 4). Article 6 of that Convention requires further that such appropriate measures as may be necessary also be taken to make those offences punishable by criminal sanctions which take into account the serious nature of those offences and include imprisonment of the perpetrators. 56. With regard to such hazardous activities, public access to clear and full information is deemed to be a basic human right, it being the case that under, inter alia, Resolution 1087 (1996) cited above, that right must not be deemed to be limited to the risks associated with the use of nuclear energy in the civil sector. | 1 |
train | 001-57898 | ENG | FRA | CHAMBER | 1,994 | CASE OF BEAUMARTIN v. FRANCE | 2 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | John Freeland | 6. Mr Pierre Beaumartin, a retired industrialist of French nationality, lives in Léognan (Gironde). His sisters, Mrs Jeanne Droin and Mrs Paule Thibout, live respectively in Bordeaux and Paris. 7. The applicants held between them ten shares in the Société immobilière du Karmat El Hadj, a company under Moroccan law whose sole asset was an agricultural estate of more than 400 hectares in the Moroccan province of Kenitra and whose share capital comprised 6,000 shares. They further owned almost all of the share capital of the Société foncière du Quartier de l’Europe, a non-trading company (société civile) under French law, which itself owned 5,959 shares in the Moroccan company in addition to a building in Paris. 8. Under a dahir (royal decree) of 2 March 1973 the Moroccan Government nationalised agricultural land belonging to foreigners. 9. On 2 August 1974, following negotiations, the Moroccan and French Governments concluded a Protocol with a view to making provision for the financial consequences of the nationalisation of French citizens’ assets. The following provisions are relevant to the instant case: "The Moroccan Government shall pay the French Government compensation in a single lump sum and the French Government shall be responsible for apportioning that sum among the beneficiaries of this Protocol. The beneficiaries shall be natural persons of French nationality who are individual or joint landowners or members of partnerships or companies, or who suffered the consequences of the dahir of 2 March 1973 in any other capacity." "The French Government shall be responsible for apportioning the compensation provided for in this Protocol. ..." "With effect from the signature of this Protocol, each Government undertakes, subject to the other Government’s compliance with their obligations under the Protocol, to refrain from submitting to the other Government or to an arbitral tribunal or a court any claims made by their nationals in respect of the assets, rights and interests referred to in Articles 1, 2 and 5 of this Protocol or from supporting such claims." A decree of 3 January 1975 promulgated the text of the agreement and charged the Prime Minister and the Minister for Foreign Affairs with implementing it. 10. Under a decree of 6 November 1979 a committee responsible for apportioning the Moroccan indemnity was set up. Article 3 of the decree provided: "The committee shall comprise (a) a representative of the Ministry of Foreign Affairs, who shall chair the committee; (b) a representative of the Ministry of Justice; (c) a representative of the Ministry of the Interior; and (d) a representative of the Ministry of the Economy. The Chairman and members of the committee shall be appointed by order of the Minister for Foreign Affairs. ... Decisions shall be taken by a majority. The Chairman shall have a casting vote." 11. In a decision of 23 June 1980, notified on 31 July 1980, the committee awarded the applicants, as natural persons, compensation solely in respect of the shares they owned directly in the Société immobilière du Karmat El Hadj, i.e. four shares in Mr Beaumartin’s case and three shares in the case of each of his sisters. On the other hand, pursuant to the second paragraph of Article 1 of the Protocol, it refused to pay them compensation in their capacity as majority shareholders of the Société foncière du Quartier de l’Europe. 12. On 26 September 1980 the applicants challenged this decision in the Paris Administrative Court. The grounds for their application were set out in a memorial filed on 9 February 1981. They complained that the committee had determined the compensation to be awarded in respect of the Moroccan property company’s agricultural estate solely on the basis of the shares they held in that company in their own names, without taking into consideration the shares they owned in the French property company. The Minister for Foreign Affairs, the respondent in the proceedings, submitted his observations in reply on 2 April 1981. 13. In an order of 15 June 1981 the Vice-President of the Administrative Court held that the dispute fell outside that court’s jurisdiction and forwarded the application and the file to the Conseil d’Etat. 14. The Minister for Foreign Affairs filed observations on 25 February 1983. 15. On 3 October 1986 the Conseil d’Etat deferred its decision on the application until the authority empowered to interpret the Protocol had given its opinion. It gave the following reasons: "The outcome of this dispute depends on whether, under this Article [1 of the Franco-Moroccan Protocol], natural persons are entitled to claim compensation solely as members of partnerships or companies that were the direct owners of assets conferring a right to compensation under the above-mentioned Protocol or whether they are also entitled to do so as shareholders of companies themselves members of the partnerships or companies which owned such assets. The outcome of the dispute is accordingly contingent on the interpretation of the Protocol. The Protocol is an international agreement and its meaning is unclear. Consequently, only the Minister for Foreign Affairs is competent to interpret it." 16. In a note of 2 July 1987 the Minister replied that the Protocol in question "was not ... intended to cover natural persons holding shares in companies which themselves were members of the partnerships or companies that owned the assets conferring a right to compensation", with the result that the applicants were not entitled to compensation under the Protocol. 17. On 13 October 1987 the applicants filed further submissions, in which they argued that, if the Conseil d’Etat considered itself bound by the minister’s interpretation, such a decision would entail a violation of Article 6 para. 1 (art. 6-1) of the Convention. The respondent filed submissions on 10 November 1988. 18. In a judgment of 27 January 1989 the Conseil d’Etat dismissed the application on the following ground: "The interpretation given by the Minister for Foreign Affairs is binding on the Conseil d’Etat which can only draw the legal conclusions which follow from it." 19. Since 1823 (see the Veuve Murat, Comtesse de Lipona, judgment of 23 July 1823, Recueil des arrêts du Conseil d’Etat [Reports of the judgments of the Conseil d’Etat], p. 545) the Conseil d’Etat had held that the interpretation of international treaties fell outside the scope of its judicial functions. When confronted with provisions that it considered insufficiently clear - except for Community legislation, the interpretation of which is governed by Article 177 of the Treaty of Rome - it relied on the official interpretation given by the Minister for Foreign Affairs. It deemed that interpretation to be a prerogative act that could not be dissociated from international relations, had binding force and was not open to challenge in the courts (see the full court’s judgment of 3 July 1931 in the case of Karl and Toto Samé, Recueil des arrêts du Conseil d’Etat, p. 722, Sirey 1932, III, p. 129). 20. On 29 June 1990 the Conseil d’Etat, sitting as a full court and endorsing the submissions of the Commissaire du gouvernement, Mr Ronny Abraham, delivered a judgment relating to the conditions of circulation, residence and employment of Algerian nationals and their families in France (G.I.S.T.I. judgment, Recueil des arrêts du Conseil d’Etat, p. 171; Actualité juridique. Droit administratif 1990, p. 621; Revue générale de droit international public 1990, p. 879; Revue française de droit administratif 1990, p. 923, with a note by Mr Jean-François Lachaume; Revue critique de droit international public 1991, p. 61). It discontinued the practice - which had no equivalent in the other member States of the Council of Europe - of referring a preliminary question to the minister on the construction of an international treaty containing ambiguous or unclear provisions. It now interprets international agreements itself and, if it seeks the opinion of the executive, it does not regard itself as bound thereby. 21. Since a judgment of 24 June 1839 (Dalloz 1839, part one, p. 257), the Civil Divisions of the Court of Cassation have held that the ordinary courts are entitled to interpret clauses of a treaty "provided that they do not raise issues liable to jeopardise good international relations" (l’ordre public international). Otherwise, if an instrument is unclear they still require the question to be referred to the Minister for Foreign Affairs (judgment of 7 June 1989, First Civil Division, Juris-classeur périodique 1990, part two, no. 21448). In the Criminal Division the principle of a lack of jurisdiction entailing an obligation to seek a preliminary interpretation continues to apply. With the exception of the European Convention on Human Rights, "international treaties are measures taken by the highest administrative authorities which can only be interpreted, if necessary, by the authorities which concluded them" (judgment of 3 June 1985, Bulletin des arrêts de la Cour de cassation [Court of Cassation law reports], no. 212, p. 542). The official interpretation is of general application and is binding on the courts (judgment of 7 June 1988, Bulletin des arrêts de la Cour de cassation, no. 257, p. 683). On the other hand, the Social Division recently abandoned the approach of distinguishing between international treaties and now interprets them without seeking to establish whether issues liable to jeopardise good international relations are raised (Caisse autonome mutuelle de retraite des agents des chemins de fer judgment of 29 April 1993 and submissions filed by the Advocate-General, Mr Chauvy, Gazette du Palais, 11-12 March 1994, p. 13). | 1 |
train | 001-75337 | ENG | FIN | CHAMBER | 2,006 | CASE OF C. v. FINLAND | 3 | Violation of Art. 8 (refusal of custody);No violation of art. 8 (access visits);No separate issue under 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 | 9. The applicant was born in 1955 and lives in Cartigny, Switzerland. 10. The applicant and his wife, B., who was of Finnish origin, had two children, a boy T. born on 2 June 1987 and a girl A. born on 28 September 1989. The family lived together in Switzerland until 1993 when B. took the children to Finland where she took up residence with L. as her female partner. 11. On 10 June 1994, B. applied for divorce and for custody of the children. 12. On 10 October 1994 the parents reached an interim agreement whereby the children would stay in Finland with their mother for the moment and the applicant have the right to three supervised visits. 13. The applicant states that on 13 October 1994 he became aware that the children’s maternal grandmother had made a complaint to the social services against B.’s female partner, L., alleging that she had sexually abused A. There is some indication in the documents that the applicant may also have lodged a complaint on this ground. The criminal charges lodged against L. were later dismissed by the courts. 14. Meanwhile, it appears that the applicant took proceedings with a view to having the children returned to Switzerland under the Hague Convention. However, by decisions of the Court of Appeal dated 7 December 1994 and by the Supreme Court dated 15 June 1995, the applicant’s application for return was refused, principally on the ground that he had voluntarily entered into an interim agreement that the children remain in Finland with their mother. 15. On 20 August 1996, the District Court awarded sole custody of the children to the mother, finding that the children had lived with their mother in Finland since 1993 and that it was in their best interests to remain with her. On 8 July 1997, the Court of Appeal upheld this decision, as did the Supreme Court on 14 November 1997. 16. The applicant was however granted visiting rights. It appears that the children visited him in Switzerland during Easter and the summer of 1997 and met with him in Finland in 1998 (twice) and 1999 (three times). 17. On 30 August 1999, B., the mother, died. The children were then aged twelve and nine years respectively. 18. The applicant returned immediately to Finland. On 23 September 1999, he lodged a request that the children, still living with L., be placed in a foster home and that he be accorded visiting rights. 19. Applications for custody of the children were lodged by both L. and by the applicant. During October 1999, the children were interviewed twice by a team consisting of a child psychiatrist and two psychologists. They expressed their wish to stay with L. because they felt safe and were used to living with her. A. was reported as stating that she would like to meet the applicant occasionally but only when she wished, while T. was reported as stating that the applicant was not part of his family and that he neither wanted to meet him or live in Switzerland. 20. The applicant saw the children three times during September 1999 in supervised contact visits. There was another meeting outside the social workers’ premises. 21. In a Social Welfare Board report dated 26 October 1999, it was stated that, following the mother’s death, L.’s influence on the children had increased and the children turned to her for support. It was noted that the children were not able to act against L.’s will, because they were dependent on her at that time. Consequently, the children were in a state of conflict, as they were not allowed to like the applicant. The report considered that the lack of contact with their close relatives endangered the development of their identity. 22. On 21 December 1999, after oral hearings at which the applicant, L. and another 18 witnesses, including a number of social workers involved in the case, were heard, the District Court awarded custody to the applicant. It observed inter alia, that according to the evidence, L. had been involved in bringing up the children since their return to Finland. According to a number of social workers involved in the case, the applicant was considered fit to be a custodial parent as, for example, in dealing with conflicts he had always put the children’s best interests first. The meetings between the children had also gone well. It concluded that in fact both L. and the applicant were fit as custodians. 23. As regarded the views of the children, the District Court recalled that according to a statement of 23 February 1998 given by a social worker during previous proceedings, T.’s wishes were not entirely his own; he had been influenced by B., his mother. His wishes were in contradiction with what he had told the social worker about the meetings with the applicant which had taken place. The social worker had noted that the fact that B. did not want T. to travel to see the applicant was significant and pointed out that it would be very important for the children’s psychological development that they develop a more constructive view of the applicant. It recalled the evidence of a friend of B. and L., who had given evidence before the court, had stated that the children’s attitude towards the applicant had begun to be more positive from the summer of 1998, but that no meetings had taken place as from March 1999, apparently due to the fact that the children’s activities were given priority and the meetings with the applicant tended to be proposed at short notice. T. had told her that it would be alright to meet with the applicant if he could decide when. A. had told her that she would like to meet with the applicant some day, but not at that time. T.’s attitude towards meeting the applicant was therefore fairly positive. Following B.’s death, everything had changed when the applicant came to see his children. As he allegedly had said that the law would make the children move to live in Switzerland, they did not want to meet with him anymore. According to this witness, the children feared moving to Switzerland. 24. The District Court considered that T.’s attitude during the recent interviews was in contradiction with what had happened during the meetings with the applicant, which had all gone well. It found that none of the persons heard before the court had said that the children feared the applicant and concluded that, as the atmosphere in which the children had been living had obviously affected their wishes and hopes, it was not possible to analyse what their true views really were. Therefore, their expressed wishes could not be decisive when deciding the case. Noting that the case should be decided in accordance with the children’s best interests, it decided that, given the strained relations between L. and the applicant, custody should be awarded to the latter. It was evident that L. would not be able to encourage the relationship between the children and the applicant enabling them to stay in contact. Therefore, the District Court ordered that custody be awarded to the applicant. 25. Pending L.’s appeal against the decision, the enforcement of the order was suspended by the Court of Appeal on 22 December 1999. According to the evidence of various social workers, the children had reacted to his expressed intention of taking them to Switzerland by refusing to meet with him unless L. was present. The applicant allegedly refused to meet with the children under these terms. The applicant’s attempts to enforce contact visits also apparently failed due to the children’s refusal to see him. 26. On 3 April 2000, the Court of Appeal overturned the decision concerning the suspension and requested the Social Welfare Board and its Swiss counterpart to report on the case. During the period June-September 2000, pursuant to the court’s request, the children were interviewed five times by social workers, three times in the presence of L. and twice alone. The social workers’ efforts to arrange a meeting between the children and the applicant were unsuccessful due to the children’s opposition. It was reported by the social worker in later oral evidence that the children continued to express their wish to live with L. During the interviews, the children had turned to L. for support and been dependent on her. The children’s memories of the applicant were, however, good. Nothing suggested that the children would have had any reason to feel unsafe in the applicant’s company. According to one of the social workers at the meetings, the wishes that the children expressed were more dependent on the wishes of L. than their own will. According to the evidence given by other witnesses in the Court of Appeal, including other social workers, the children expressed their wish to be left alone and that they wanted to stay in Finland every time the applicant was brought up for discussion. They seemed to fear moving to Switzerland. 27. Meanwhile, it appears that the applicant applied to the District Court for its original order to be enforced. This request was refused on 31 August 2000. His appeal to the Court of Appeal was later rejected on 28 June 2001 as meanwhile it had reached a fresh decision in the case. An application by the applicant to have the children placed in a foster home away from L. was also dismissed by the Social Welfare Board on 5 April 2000 and his appeal rejected by the Administrative Court of Helsinki on 19 December 2000. 28. On 23 March 2001, after an oral hearing over four days during February and at which the applicant and L. were heard as well as eleven other witnesses from the District Court proceedings and four new witnesses, the Court of Appeal upheld the District Court’s judgment. It ordered that the children move to live with the applicant on 16 August 2001, after a transitional period during which the children could meet with the applicant one weekend per month and one week during the summer. 29. In its judgment, the Court of Appeal agreed that both L. and the applicant were fit to have custody: nothing suggested that they would not be fit. Given the ages of the children, it considered that their view had to be taken into account, but it was also evident that the strained relationship and litigation between the applicant and B., and later on L., had had influence on their view. It considered that the negative attitude towards meeting with the applicant was based on the fear of having to move to Switzerland. Nothing suggested that the children feared the applicant as such. Although the children were as mature as other children their age, they could not however be given the absolute right to decide on their future, particularly in light of their extremely difficult situation at that time. Notwithstanding the law on enforcement, the court did not consider that in deciding on custody it was bound to follow the opinion even of a child aged 12 or more. Concluding that the decision should be based on what was in their best interests, it found that the relationship between the children and the applicant was very important for a well-balanced development. It furthermore found that the fact that the applicant had said that he would allow the children to keep in touch with L. was in the best interests of the children. While it was true that the children appeared closer to L. and their environment (including their home, school, hobbies and close personal relations) would stay the same if custody was awarded to L., the Court of Appeal concluded, nonetheless, that the children’s views did not correspond to their best interests. A situation which would lead the children and the applicant drift further apart was not in their best interests. Accordingly, it ordered that the applicant be awarded custody from 16 August 2001 after a transitional period of increased contact with the children. 30. The applicant visited Finland in March, April and May 2001, requesting visits with his children. On 30 March 2001, the applicant arrived in Helsinki and requested to see the children the same day. The social worker contacted L. to inform her of this and reported that the children refused. They allegedly wanted L. or another person to be present whereas the applicant refused any third party involvement. On only one occasion, in May 2001, did a visit take place when it was agreed between the parties that the children see the applicant at their maternal grandmother’s. However, only T. appeared, accompanied by a friend and one of L.’s lawyers. On this occasion, an incident occurred, the accounts of which vary but to which the police were called. T. subsequently informed his social worker that he was afraid of his father, who had tried, T. alleged, to keep him in the grandmother’s apartment by force and stated that he did not wish to see him again. The children did not appear at the next meeting in May 2001. They had already informed him that it would serve no purpose for him to come to Helsinki as they did not wish to see him. The social workers had several meetings with the children during this period and also made contact with their school seeking to persuade the children to attend therapy sessions. The children were recorded as stating that the applicant only made critical comments and demands and held strong views that they did not wish to live their friends and the environment they knew and that they did not trust their father. T. stated that he feared that his father would attempt to force them to leave Finland. 31. L. applied for leave to appeal. On 20 June 2001, the Supreme Court granted L. leave to appeal and suspended the enforcement of the Court of Appeal’s order. L. applied for an oral hearing, requesting that the parties, and possibly also the children, be heard. In his submissions to the Supreme Court in reply, the applicant applied for interim visiting rights and for the current psychological state of the children to be examined. He also requested that if L.’s request for an oral hearing was granted the Supreme Court should rehear the evidence presented before the lower courts. 32. On 19 October 2001, the Supreme Court gave judgment on the outstanding issues (Supreme Court Reports 2001:110). It re-iterated that it had rejected the request for an interim order as being purposeless and the request for a psychological examination as being unnecessary. It also rejected the request for an oral hearing as unnecessary in the circumstances and for the reasons set out in its judgment. 33. The Supreme Court recalled that, according to the Custody Act, the issue of custody had to be decided with regard to the child’s best interests and that if the custodial parent of the children died, custody could be given either to the other parent or to another person, depending on where the best interests of the child lay. It agreed with both the lower courts that the applicant and L. were both fit to act as custodians. Both children however had said that they wanted to stay in the environment which they knew and with L. Their views had been thoroughly examined before both the District Court and the Court of Appeal and although the conflict between the adults had apparently disturbed the relationship between the children and the applicant, there was nothing to suggest that their wish to remain with L. was not their own independent opinion, in particular given their age and maturity. 34. The Supreme Court referred to section 2 of the Act on the Enforcement of Decisions concerning Custody and Access Rights and recalling that T. was 14 and A. was 12, found that a custody decision which required the children to move would not be possible to enforce. Having regard to the purpose of awarding custody, it would not be in the children’s best interests to issue a custody order to a parent to whom they could not be transferred against their will. As the relations between the applicant and L. were bad, there was no reason to consider that it would be possible for the applicant to have custody while they continued to live with L. as that would render it impossible to take practical decisions concerning the children’s lives. In the circumstances of this case, it was therefore not in the best interests of the children to transfer custody to the applicant against their will but custody should be awarded instead to the person with whom they were currently living. 35. The Supreme Court went on to remark that future contact visits could be carried out under agreement or court order but that given the age of the children it would be dependent on their willingness to see the applicant. It underlined that according to the Custody Act, the custodian of children was under an obligation to co-operate in order to promote and maintain relationships between children and a parent. It did not make any order on the point. The applicant had not made any application in that regard. 36. The Supreme Court therefore overturned the decisions of the lower courts and awarded custody to L. 37. On 16 April 2002, the Administrative Court of Helsinki dismissed the applicant’s renewed request for the children to be placed in a foster home. 38. Custody of children is governed by the 1983 Act on Child Custody and Right of Access with regard to Children (laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag 361/83 ang. vårdnad om barn och umgängesrätt – “the 1983 Act”). Section 1 provides that the aim of such custody is to ensure the child’s balanced development and well-being, regard being had to the latter’s special needs and wishes, as well as to encourage a close relationship between the child and the parents. 39. The court may order that custody of a child be entrusted to one or more persons together with, or instead of, the parents (section 9 § 1). It may transfer custody from the parents to other persons only if, from the child’s point of view, there are particularly strong reasons for doing so (section 9 § 2). It is also empowered to decide on access (section 9). The aim of access is to secure a child’s right to maintain contacts with a parent with whom he or she is not living (section 2). 40. In deciding on matters of custody and access the competent court must take into account the wishes and interests of the child in accordance with the following considerations: primary emphasis must be placed on the interests of the child and particular regard should be had to the most effective means of implementing custody and access rights in the future (section 9 § 4 and section 10 § 1); the child’s views and wishes must, if possible and depending on its age and maturity, be obtained if the parents are unable to agree on the matter or if the child is being cared for by a person other than its custodian or if it is deemed necessary in the latter’s interests; the consultation must be carried out in a tactful manner, taking into account the child’s maturity and without causing harm to its relations with the parents (section 11). 41. Section 2 of the Act on the Enforcement of Decisions concerning Custody and Access Rights (laki 619/1996 lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta, lag 619/1996 om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt), which entered into force on 1 December 1996, provides that if a child has reached the age of twelve, enforcement must not take place against the child’s will. Enforcement must not take place against the will of a younger child, if the child is sufficiently mature for its wish to be taken into account. | 1 |
train | 001-60596 | ENG | GBR | GRANDCHAMBER | 2,002 | CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM | 1 | Violation of Art. 8;Violation of Art. 12;No separate issue under Art. 14;No violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 12. The applicant is a United Kingdom citizen born in 1937 and is a post-operative male to female transsexual. 13. The applicant had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-1960s, she was diagnosed as a transsexual. Though she married a woman and they had four children, her conviction was that her “brain sex” did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January 1985, the applicant began treatment in earnest, attending appointments once every three months at the Gender Identity Clinic at the Charing Cross Hospital, which included regular consultations with a psychiatrist as well as on occasion a psychologist. She was prescribed hormone therapy, began attending grooming classes and voice training. Since this time, she has lived fully as a woman. In October 1986, she underwent surgery to shorten her vocal chords. In August 1987, she was accepted on the waiting list for gender re-assignment surgery. In 1990, she underwent gender re-assignment surgery at a National Health Service hospital. Her treatment and surgery was provided for and paid for by the National Health Service. 14. The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children. 15. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. She did not challenge this decision by appealing to the Employment Appeal Tribunal. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual. 16. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (“NI”) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (“DSS”), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work. Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back. 17. The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the age of entitlement for women in the United Kingdom. In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men, namely April 2002. On 23 April 1997, she therefore entered into an undertaking with the DSS to pay direct the NI contributions which would otherwise be deducted by her employer as for all male employees. In the light of this undertaking, on 2 May 1997, the DSS Contributions Agency issued the applicant with a Form CF 384 Age Exemption Certificate (see Relevant domestic law and practice below). 18. The applicant's files at the DSS were marked “sensitive” to ensure that only an employee of a particular grade had access to her files. This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone. Her record continues to state her sex as male and despite the “special procedures” she has received letters from the DSS addressed to the male name which she was given at birth. 19. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft of 200 pounds sterling to the police, for fear that the investigation would require her to reveal her identity. 20. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for the purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll. 21. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen's Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy. 22. Under section 11(b) of the Matrimonial Causes Act 1973, any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse (obiter per Mr Justice Ormrod). This decision was reinforced by Section 12(a) of the Matrimonial Causes Act 1973, according to which a marriage that has not been consummated owing to the incapacity of either party to consummate may be voidable. Section 13(1) of the Act provides that the court must not grant a decree of nullity if it is satisfied that the petitioner knew the marriage was voidable, but led the respondent to believe that she would not seek a decree of nullity, and that it would be unjust to grant the decree. 23. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts. 24. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett. 25. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person's life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified, or where the biological criteria were not congruent, can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex. 26. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation. 27. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. 28. The DSS registers every British citizen for National Insurance purposes (“NI”) on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable. 29. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder's sex or of any other personal information. The NI number is used to identify each person with a NI account (there are at present approximately 60 million individual NI accounts). The DSS are thereby able to record details of all NI contributions paid into the account during the NI account holder's life and to monitor each person's liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons e.g. under the witness protection schemes or to protect the identity of child offenders. 30. Under Regulation 44 of the Social Security (Contributions) Regulations 1979, made under powers conferred by paragraph 8(1)(p) of Schedule 1 to the Social Security Contributions and Benefits Act 1992, specified individuals are placed under an obligation to apply for a NI number unless one has already been allocated to them. 31. Under Regulation 45 of the 1979 Regulations, an employee is under an obligation to supply his NI number to his employer on request. 32. Section 112(1) of the Social Security Administration Act 1992 provides: “(1) If a person for the purpose of obtaining any benefit or other payment under the legislation ...[as defined in section 110 of the Act]... whether for himself or some other person, or for any other purpose connected with that legislation - (a) makes a statement or representation which he knows to be false; or (b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular, he shall be guilty of an offence.” 33. It would therefore be an offence under this section for any person to make a false statement in order to obtain a NI number. 34. Any person may adopt such first name, surname or style of address (e.g. Mr, Mrs, Miss, Ms) that he or she wishes for the purposes of the name used for NI registration. The DSS will record any such amendments on the person's computer records, manual records and NI number card. But, the DSS operates a policy of only issuing one NI number for each person regardless of any changes that occur to that person's sexual identity through procedures such as gender re-assignment surgery. A renewed application for leave to apply for judicial review of the legality of this policy brought by a male-to-female transsexual was dismissed by the Court of Appeal in the case of R v. Secretary of State for Social Services ex parte Hooker (1993) (unreported). McCowan LJ giving the judgment of the Court stated (at page 3 of the transcript): “...since it will not make the slightest practical difference, far from the Secretary of State's decision being an irrational one, I consider it a perfectly rational decision. I would further reject the suggestion that the applicant had a legitimate expectation that a new number would be given to her for psychological purposes when, in fact, its practical effect would be nil.” 35. Information held in the DSS NI records is confidential and will not normally be disclosed to third parties without the consent of the person concerned. Exceptions are possible in cases where the public interest is at stake or the disclosure is necessary to protect public funds. By virtue of Section 123 of the Social Security Administration Act 1992, it is an offence for any person employed in social security administration to disclose without lawful authority information acquired in the course of his or her employment. 36. The DSS operates a policy of normally marking records belonging to persons known to be transsexual as nationally sensitive. Access to these records is controlled by DSS management. Any computer printer output from these records will normally be referred to a special section within the DSS to ensure that identity details conform with those requested by the relevant person. 37. NI contributions are made by way of deduction from an employee's pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). Employers at present will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee. 38. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA4180 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS. 39. A male-to-female transsexual is currently entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. A full pension will be payable only if she has made contributions for 44 years as opposed to the 39 years required of women. 40. A person's sex for the purposes of pensionable age is determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases: In the case entitled R(P) 2/80, a male-to-female transsexual claimed entitlement to a pensionable age of 60. The Commissioner dismissed the claimant's appeal and stated at paragraph 9 of his decision: “(a) In my view, the word “woman” in section 27 of the Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman. (b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his national insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted. ... (d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.” 41. The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to State pensions. Equalisation of the pension age is to begin in 2010 and it is anticipated that by 2020 the transition will be complete. As regards the issue of free bus passes in London, which also differentiated between men and women concerning age of eligibility (65 and 60 respectively), the Government have also announced plans to introduce a uniform age. 42. Under section 16(1) of the Theft Act 1968, it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception. Pecuniary advantage includes, under section 16(2)(c), being given the opportunity to earn remuneration in employment. Should a post-operative transsexual be asked by a prospective employer to disclose all their previous names, but fail to make full disclosure before entering into a contract of employment, an offence might be committed. Furthermore, should the employer discover the lack of full disclosure, there might also be a risk of dismissal or an action by the employer for damages. 43. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and, accordingly, Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that “... where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22) 44. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 (Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports). 45. The Sexual Discrimination (Gender Re-assignment) Regulations 1999 were issued to comply with the ruling of the European Court of Justice in P. v. S. and Cornwall County Council (30 April 1996). This provides generally that transsexual persons should not be treated less favourably in employment because they are transsexual (whether pre- or post-operative). 46. Prior to 1994, for the purposes of the law of rape, a male-to-female transsexual would have been regarded as a male. Pursuant to section 142 of the Criminal Justice and Public Order Act 1994, for rape to be established there has to be “vaginal or anal intercourse with a person”. In a judgment of 28 October 1996, the Reading Crown Court found that penile penetration of a male to female transsexual's artificially constructed vagina amounted to rape: R. v. Matthews (unreported). 47. Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex (Rules 12(1) and 41(3) of the Prison Rules 1999 respectively). 48. According to the Report of the Working Group on Transsexual People (Home Office April 2000, see further below, paragraphs 49-50), which conducted a review of law and practice, post-operative transsexuals where possible were allocated to an establishment for prisoners of their new gender. Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post-operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women (see paragraphs 2.75-2.76). 49. On 14 April 1999, the Secretary of State for the Home Department announced the establishment of an Interdepartmental Working Group on Transsexual People with the following terms of reference: “to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue.” 50. The Working Group produced a report in April 2000 in which it examined the current position of transsexuals in the United Kingdom, with particular reference to their status under national law and the changes which might be made. It concluded: “5.1. Transsexual people deal with their condition in different ways. Some live in the opposite sex without any treatment to acquire its physical attributes. Others take hormones so as to obtain some of the secondary characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by individual choice, or by other factors such as health or financial resources. Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change. 5.2. Measures have already been taken in a number of areas to assist transsexual people. For example, discrimination in employment against people on the basis of their transsexuality has been prohibited by the Sex Discrimination (Gender Reassignment) Regulations 1999 which, with few exceptions, provide that a transsexual person (whether pre- or post-operative) should not be treated less favourably because they are transsexual. The criminal justice system (i.e. the police, prisons, courts, etc.) try to accommodate the needs of transsexual people so far as is possible within operational constraints. A transsexual offender will normally be charged in their acquired gender, and a post-operative prisoner will usually be sent to a prison appropriate to their new status. Transsexual victims and witnesses will, in most circumstances, similarly be treated as belonging to their acquired gender. 5.3. In addition, official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status. Thus, a transsexual person may obtain a passport, driving licence, medical card etc, in their new gender. We understand that many non-governmental bodies, such as examination authorities, will often re-issue examination certificates etc. (or otherwise provide evidence of qualifications) showing the required gender. We also found that at least one insurance company will issue policies to transsexual people in their acquired gender. 5.4. Notwithstanding such provisions, transsexual people are conscious of certain problems which do not have to be faced by the majority of the population. Submissions to the Group suggested that the principal areas where the transsexual community is seeking change are birth certificates, the right to marry and full recognition of their new gender for all legal purposes. 5.5. We have identified three options for the future; – to leave the current situation unchanged; – to issue birth certificates showing the new name and, possibly, the new gender; – to grant full legal recognition of the new gender subject to certain criteria and procedures. We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation.” 51. The report was presented to Parliament in July 2000. Copies were placed in the libraries of both Houses of Parliament and sent to 280 recipients, including Working Group members, Government officials, Members of Parliament, individuals and organisations. It was publicised by a Home Office press notice and made available to members of the public through application to the Home Office in writing, E-mail, by telephone or the Home Office web site. 52. In the case of Bellinger v. Bellinger, EWCA Civ 1140 [2001], 3 FCR 1, the appellant who had been classified at birth as a man had undergone gender re-assignment surgery and in 1981 had gone through a form of marriage with a man who was aware of her background. She sought a declaration under the Family Law Act 1986 that the marriage was valid. The Court of Appeal held, by a majority, that the appellant's marriage was invalid as the parties were not respectively male and female, which terms were to be determined by biological criteria as set out in the decision of Corbett v. Corbett [1971]. Although it was noted that there was an increasing emphasis upon the impact of psychological factors on gender, there was no clear point at which such factors could be said to have effected a change of gender. A person correctly registered as male at birth, who had undergone gender reassignment surgery and was now living as a woman was biologically a male and therefore could not be defined as female for the purposes of marriage. It was for Parliament, not for the courts, to decide at what point it would be appropriate to recognise that a person who had been assigned to one sex at birth had changed gender for the purposes of marriage. Dame Elizabeth Butler-Sloss, President of the Family Division noted the warnings of the European Court of Human Rights about continued lack of response to the situation of transsexuals and observed that largely as a result of these criticisms an interdepartmental working group had been set up, which had in April 2000 issued a careful and comprehensive review of the medical condition, current practice in other countries and the state of English law in relevant aspects of the life of an individual: “[95.] ... We inquired of Mr Moylan on behalf of the Attorney-General, what steps were being taken by any government department, to take forward any of the recommendations of the Report, or to prepare a consultation paper for public discussion. [96.] To our dismay, we were informed that no steps whatsoever have been, or to the knowledge of Mr Moylan, were intended to be, taken to carry this matter forward. It appears, therefore, that the commissioning and completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference, and by the conclusions of the members of the working group. That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across western Europe which have been set out so clearly and strongly in judgments of Members of the European Court at Strasbourg, and which in our view need to be addressed by the UK... [109.] We would add however, with the strictures of the European Court of Human Rights well in mind, that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration. The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues. The problems will not go away and may well come again before the European Court sooner rather than later.” 53. In his dissenting judgment, Lord Justice Thorpe considered that the foundations of the judgment in Corbett v. Corbett were no longer secure, taking the view that an approach restricted to biological criteria was no longer permissible in the light of scientific, medical and social change. “[155.] To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth... [160.] The present claim lies most evidently in the territory of the family justice system. That system must always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual's private life. One of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an objective of the judges in this field in the construction of existing statutory provisions. I am strongly of the opinion that there are not sufficiently compelling reasons, having regard to the interests of others affected or, more relevantly, the interests of society as a whole, to deny this appellant legal recognition of her marriage. I would have allowed this appeal.” He also noted the lack of progress in domestic reforms: “[151.] ...although the [interdepartmental] report has been made available by publication, Mr Moylan said that there has since been no public consultation. Furthermore when asked whether the Government had any present intention of initiating public consultation or any other process in preparation for a parliamentary Bill, Mr Moylan said that he had no instructions. Nor did he have any instructions as to whether the Government intended to legislate. My experience over the last 10 years suggests how hard it is for any department to gain a slot for family law reform by primary legislation. These circumstances reinforce my view that it is not only open to the court but it is its duty to construe s 11(c) either strictly, alternatively liberally as the evidence and the submissions in this case justify.” 54. In January 2002, the Government presented to Parliament the document “Civil Registration: Vital Change (Birth, Marriage and Death Registration in the 21st Century)” which set out plans for creating a central database of registration records which moves away from a traditional snapshot of life events towards the concept of a living record or single “through life” record: “In time, updating the information in a birth record will mean that changes to a person's names, and potentially, sex will be able to be recorded.” (para. 5.1) “5.5 Making changes There is strong support for some relaxation to the rules that govern corrections to the records. Currently, once a record has been created, the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established. Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence. The final records contains the full original and corrected information which is shown on subsequently issued certificates. The Government recognises that this can act as a disincentive. In future, changes (to reflect developments after the original record was made) will be made and formally recorded. Documents issued from the records will contain only the information as amended, though all the information will be retained. ...” 55. Liberty updated the written observations submitted in the case of Sheffield and Horsham concerning the legal recognition of transsexuals in comparative law (Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 2021, § 35). In its 1998 study, it had found that over the previous decade there had been an unmistakable trend in the member States of the Council of Europe towards giving full legal recognition to gender re-assignment. In particular, it noted that out of thirty seven countries analysed only four (including the United Kingdom) did not permit a change to be made to a person's birth certificate in one form or another to reflect the re-assigned sex of that person. In cases where gender re-assignment was legal and publicly funded, only the United Kingdom and Ireland did not give full legal recognition to the new gender identity. 56. In its follow up study submitted on 17 January 2002, Liberty noted that while there had not been a statistical increase in States giving full legal recognition of gender re-assignment within Europe, information from outside Europe showed developments in this direction. For example, there had been statutory recognition of gender re-assignment in Singapore, and a similar pattern of recognition in Canada, South Africa, Israel, Australia, New Zealand and all except two of the States of the United States of America. It cited in particular the cases of Attorney-General v. Otahuhu Family Court [1995] 1 NZLR 60 and Re Kevin [2001] FamCA 1074 where in New Zealand and Australia transsexual persons' assigned sex was recognised for the purposes of validating their marriages: In the latter case, Mr Justice Chisholm held: “I see no basis in legal principle or policy why Australian law should follow the decision in Corbett. To do so would, I think, create indefensible inconsistencies between Australian marriage law and other Australian laws. It would take the law in a direction that is generally contrary to development in other countries. It would perpetuate a view that flies in the face of current medical understanding and practice. Most of all, it would impose indefensible suffering on people who have already had more than their share of difficulty, with no benefit to society... ...Because the words 'man' and 'woman' have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage. That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's 'brain sex'. To determine a person's sex for the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she was brought up and the person's attitude to it; the person's self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage... For the purpose of ascertaining the validity of a marriage under Australian law the question whether a person is a man or a woman is to be determined as of the date of marriage...” 57. As regarded the eligibility of post-operative transsexuals to marry a person of sex opposite to their acquired gender, Liberty's survey indicated that 54% of Contracting States permitted such marriage (Annex 6 listed Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden, Switzerland, Turkey and Ukraine), while 14% did not (Ireland and the United Kingdom did not permit marriage, while no legislation existed in Moldova, Poland, Romania and Russia). The legal position in the remaining 32% was unclear. 58. Article 9 of the Charter of Fundamental Rights of the European Union, signed on 7 December 2000, provides: “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” | 1 |
train | 001-88888 | ENG | RUS | CHAMBER | 2,008 | CASE OF TIMERGALIYEV v. RUSSIA | 2 | Violation of Art. 6-1 and 6-3-c;Remainder inadmissible | Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | 6. The applicant was born in 1968. He is currently serving a prison sentence in the Sverdlovskiy Region. 7. Late on the night of 11 May 2001 the applicant was arrested by the police at the scene of a crime on suspicion of having set fire to his mother's flat. His mother died in the fire and another person, M., received serious injuries. The applicant was taken to the police department of the village of Dinas in the Sverdlovskiy Region. 8. According to the applicant, while he was at the police department one of the policemen kicked him twice in the chest. 9. On 12 May 2001 the applicant was examined by a doctor, who noted a bruise on his head. The applicant stated that he had also complained of pain in the chest but that his chest had not been examined. 10. After the examination the applicant was transferred to the police department of the town of Pervouralsk. According to the applicant, while he was at the police department he was kicked in the legs, kidneys, chest and ribs by two policemen. 11. On the same day the applicant was questioned by the investigator. He denied involvement in the arson attack and stated that he had been attacked by three strangers who had assaulted him and set fire to the flat. He was subsequently put in a cell in the temporary detention unit of Pervouralsk. 12. On 15 May 2001 Mr L. was appointed as legal aid counsel for the applicant. The applicant asked the investigator and Mr L. to arrange a medical examination. The investigator refused his request. 13. On 16 May 2001 the applicant was escorted to detention facility no. 1 in Yekaterinburg. However, he was not admitted to the detention facility because he did not have a medical certificate. He was brought back to Pervouralsk. 14. On 18 May 2001 he was again escorted to detention facility no. 1 in Yekaterinburg, where – for the second time – he was refused admittance without a medical certificate. On his return to Pervouralsk, he was examined by a doctor, who noted a bruise on his chest. On the same day a chest X-ray was performed. On 18 November 2004 all the X-ray photographs revealing no injuries, including the X-ray photograph of the applicant's chest, were destroyed by the medical staff of Hospital No. 1. A certificate issued by the chief physician of Pervouralsk Hospital No. 1 on 16 February 2005 confirmed that the X-ray had revealed no injury to the applicant's chest. 15. On 21 May 2001 the applicant was admitted to detention facility no. 1 in Yekaterinburg, where he was examined by a doctor. The doctor noted two bruises on the applicant's forehead and a bruise on his chest. When asked by the doctor about the origin of the bruises, the applicant replied that they had been received outside detention facility no. 1. He signed a statement that he had no complaints and that there was no need for an investigation. 16. On 27 June 2001 the applicant complained to the prosecutor, alleging ill-treatment. 17. On 2 July 2001 the Pervouralsk town prosecutor refused to open criminal proceedings. Having reviewed the reports on the applicant's arrest and questioning, he found that the applicant's head had already been injured when the police arrived at the crime scene. The applicant had himself stated to the investigator that he had been assaulted by strangers before the arrest, which provided sufficient explanation for his injuries. There was no evidence that he had been ill-treated by the police. 18. Following communication of the application, an internal inquiry was conducted in January 2005. On 26 January 2005 the head of the Criminal Investigations Unit of the Sverdlovskiy Regional Department of Internal Affairs found that the applicant had himself affirmed that he had been beaten by strangers prior to the arrest. The strangers had been identified and questioned. They were the applicant's neighbours, who had come running to put out the fire in his flat. They had tried to rescue the applicant's mother from the burning flat, but the applicant had attempted to stop them and subsequently attacked them with an axe. They had had to use force to disarm him. A fight had followed, in the course of which the applicant had been injured. Those facts had been taken into account by the prosecutor, who had refused to open criminal proceedings, finding that the allegations of ill-treatment by the police had been unsubstantiated. 19. On an unspecified date the case was referred for trial to the Sverdlovskiy Regional Court, where Mr R. was appointed as legal aid counsel for the applicant. 20. The applicant stated that on 21 November 2001 he had asked the court to provide him with a hearing aid and arrange a meeting with counsel. No response had been received. The Government claimed that no such requests had been made. 21. On 5 December 2001 the Sverdlovskiy Regional Court, in one hearing, found the applicant guilty of aggravated murder, causing bodily harm and intentional destruction of another's property and sentenced him – taking account of his previous criminal record – to eighteen years' imprisonment in a high-security colony. 22. On 19 December 2001 the applicant lodged an appeal, challenging statements by witnesses and the accuracy of their transcription in the trial record. He advanced the defence of irresistible impulse and asked the court to adopt a different legal characterisation of the imputed offence. He also asked to be given an opportunity to be present at the appeal hearing. On 14 January 2002 he lodged annex no. 1 to his grounds of appeal, concerning the interpretation of the facts. 23. On 26 February 2002 the Supreme Court of the Russian Federation held, in an interim decision, that the applicant should be present at the hearing. 24. On 5 April 2002 the applicant asked the Supreme Court to appoint legal aid counsel for him. 25. On 22 April 2002 the applicant submitted annex no. 2 to his grounds of appeal, in which he complained of procedural shortcomings of the trial, including ineffective representation by counsel L. and R., who had never backed his requests and applications. He further complained that the trial court had refused to provide him with a hearing aid and that counsel R. had failed to support his request to that effect. He also submitted that he had been ill-treated on the day of the arrest and alleged that the investigator had withdrawn the medical certificate of 21 May 2001 and his X-ray photograph from the case file. Finally, he asked the Supreme Court to inform lawyers from Moscow bar association no. 10, the International Protection Centre and the Human Rights Centre Memorial of the date of the appeal hearing. 26. On 29 April 2002 the applicant lodged annex no. 3 to his grounds of appeal, in which he asked, in particular, for legal representation before the appeal court, indicating that he had no legal training and was “half deaf”. 27. On 13 May 2002 the Supreme Court sent telegrams to Pervouralsk bar association no. 1, Moscow Bar Association no. 10, the International Protection Centre and the Human Rights Centre Memorial, informing them that the appeal hearing in the applicant's case would be held on 27 May 2002 at 10 a.m. The telegrams indicated that attendance was not mandatory. 28. On 27 May 2002 the Supreme Court of the Russian Federation held the appeal hearing and upheld the judgment of 5 December 2001. The applicant was present but not represented. The appeal judgment was silent on the issue of providing the applicant with a hearing aid. As regards the applicant's right to a defence, the judgment read as follows: “It can be seen from the case materials that [the applicant] was represented by Counsel Mr L. during the pre-trial investigation and Counsel Mr R. during the trial. He did not refuse the services of these counsel. There are no reasons to believe that they defended his interests improperly, nor do the grounds of appeal indicate any such reasons.” 29. On 29 May 2002 the applicant complained to the Presidium of the Supreme Court of the Russian Federation about, in particular, the appeal court's refusal to provide him with legal representation. On 9 August 2002 Judge Galiullin responded that there were no grounds on which to institute supervisory review proceedings in respect of the judgments in his case. 30. A certificate of 6 June 2003 issued by a doctor of the medical unit of facility no. I-299 indicates that the applicant suffers from chronic bilateral sensorineural hearing impairment. 31. The RSFSR Code of Criminal Procedure (in force until 1 July 2002) establishes that the investigator or the court shall provide the suspect or the accused with legal aid counsel at his request. In cases where counsel chosen by the accused is not available for a long period of time, the investigator or the court may suggest that the accused choose another counsel or, alternatively, appoint another counsel for the accused (Article 48). 32. Counsel must imperatively be appointed by the investigator or the court if, in particular, the accused is mute, deaf or blind or if he cannot defend himself on account of a physical or mental impairment (Article 49). 33. The Supreme Court notifies participants in criminal proceedings of the dates of appeal hearings at their request. The non-appearance by participants who have been notified of the date of the appeal hearing does not preclude the examination of the case (Article 336). | 1 |
train | 001-105378 | ENG | FRA | GRANDCHAMBER | 2,011 | CASE OF SABEH EL LEIL v. FRANCE | 2 | Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award | Angelika Nußberger;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Françoise Tulkens;George Nicolaou;Isabelle Berro-Lefèvre;Jean-Paul Costa;Julia Laffranque;Karel Jungwiert;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 7. Under a contract of indefinite duration dated 25 August 1980, the applicant was appointed by the State of Kuwait as accountant in the Kuwaiti embassy in Paris. He became head accountant on 17 April 1985, when a note by the Ambassador entitled “Organisation of Accounts Department at Kuwaiti Embassy in Paris” set out the applicant’s duties as follows: “(a) To oversee all the work of the accounts department. (b) To supervise the staff working in that department in respect of the tasks assigned to them, and to ensure compliance with the rules governing working hours and the volume and distribution of work. (c) The above-mentioned accountant must sign all payment orders, accounting invoices and everything connected with that activity. (d) In addition the accountant is entrusted with the management of administrative tasks. (e) The accountant shall be accountable to his superiors for any shortcomings in respect of everything connected with the work of his department.” 8. On 3 December 1999 some twenty employees of the Embassy signed a statement to the effect that the applicant had, since his appointment, unofficially assumed the role of staff representative, with the result that he had resolved all disputes between the staff and the diplomatic mission for the past nineteen years. 9. A certificate of employment dated 19 January 2000 indicates that the applicant “is employed by the Embassy as Head Accountant”. 10. On 27 March 2000 the applicant’s contract was terminated on the following economic grounds: “The restructuring of all the Embassy’s departments, in accordance with general instructions from the Ministry of Foreign Affairs of the State of Kuwait. The Embassy is obliged to abolish your post as a result of the new regulations of the Ministry of Foreign Affairs of the State of Kuwait.” 11. Disagreeing with the reasons given for the termination, the applicant brought proceedings in the Paris Employment Tribunal (conseil de prud’hommes) seeking various sums in compensation for dismissal without genuine or serious cause. 12. In a judgment of 29 November 2000, the Employment Tribunal began by refusing to allow the objection to admissibility raised by the State of Kuwait, finding as follows: “A plea of inadmissibility has been raised on grounds of jurisdictional immunity. Whilst Article 31 of the Vienna Convention provides that diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State, and also from its civil and administrative jurisdiction, the latter immunity does not cover actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Mr Farouk Sabeh El Leil was recruited and employed in France, under a contract of indefinite duration signed in Paris and performing [sic] in French territory. His pay statements bear a SIRET [registration] number. The letter summoning him to a preliminary meeting fully satisfies the provisions of Article L.122-14-4 of the Labour Code, indicating that Mr Farouk Sabeh El Leil was entitled to be assisted by a third party from the list kept by the préfecture. In the present case, the duties of head accountant entrusted to Mr Farouk Sabeh El Leil in an internal management context fell within the framework of an expressly private-law activity and the jurisdiction of the ordinary French courts, as the employer has acknowledged through the above-mentioned elements.” 13. On the merits, the Employment Tribunal found that the termination of the applicant’s employment “which was decided abruptly after twenty years of irreproachable work without punishment or criticism”, had not been based on a genuine and serious cause. It awarded the applicant a sum representing twelve months of salary by way of compensation for dismissal without a genuine and serious cause, plus compensation in lieu of notice, together with sums in respect of unpaid overtime, time off in lieu that he had not been able to take, annual leave, and his inability to register with the ASSEDIC (“Association for employment in industry and commerce”) from which he was entitled to receive unemployment benefit, amounting to a total of 539,358 francs (equivalent to 82,224.60 euros). Moreover, the Employment Tribunal ordered the employer to issue the applicant with a certificate of employment and two pay statements, failing which it would be fined 1,000 francs per day. 14. Disagreeing with the amount of the award, the applicant lodged an appeal against the judgment. 15. In a judgment of 22 October 2002 the Paris Court of Appeal set aside that judgment, finding as follows: “Admissibility of the claims The State of Kuwait argued that Mr Sabeh El Leil’s claims were inadmissible on account of its jurisdictional immunity. Mr Sabeh El Leil challenged the plea of inadmissibility, arguing that such immunity did not extend to proceedings concerning contracts of employment. He considers that his duties as head accountant fell expressly within the framework of a private-law activity rather than an activity of governmental authority. Mr Sabeh El Leil’s claims are directed against the State of Kuwait, represented by its embassy and its Ambassador in Paris and not against the embassy’s director himself. It must therefore be ascertained whether, in the present case, the State of Kuwait enjoys the jurisdictional immunity afforded to foreign States. Mr Sabeh El Leil’s last post was that of head accountant in the embassy’s accounts department. He also assumed certain additional responsibilities: responsibility for administrative matters, responsibility for legal affairs, responsibility for the payment and follow-up of financial contributions concerning the Kuwait Boundary Demarcation Commission, and responsibility for supervising the bank accounts of the Council of Arab Embassies [sic]. Mr Sabeh El Leil, in view of his level of responsibility and the nature of his duties as a whole, did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service. He thus participated in acts of governmental authority of the State of Kuwait through its diplomatic representation in France. His claims against the State of Kuwait are thus inadmissible by virtue of the principle of jurisdictional immunity of foreign States.” 16. The applicant appealed against that judgment to the Court of Cassation. In his full pleadings he challenged the finding that his claims against the State of Kuwait were inadmissible. He invoked a breach of Article 455 of the New Code of Civil Procedure, on the ground that the judgment had not given sufficient reasons, since the inadmissibility had been based: “on the mere assertion that outside his accounting duties [he] assumed responsibilities in administrative matters, legal affairs ..., leading to the conclusion that in view of his level of responsibility and the nature of his duties as a whole, he did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of the State of Kuwait ...” He developed his arguments as follows: “The judgment appealed against purportedly applied the principle whereby ‘foreign States and bodies acting for them or on their behalf enjoy jurisdictional immunity not only for acts of governmental authority but also for acts performed in the interest of a public service’ ... This principle implies, conversely, that the immunity of the foreign State from jurisdiction does not apply, in matters of employment contracts, where the employee had ‘no particular responsibility in the performance of public service, such that his dismissal constituted an act of administration’ ... That was precisely the situation of [the applicant], who performed accountancy duties only.” 17. On 23 March 2005 the Court of Cassation, ruling in the context of the preliminary admissibility procedure for appeals on points of law, as provided for by Article L. 131-6 of the Code of Judicial Organisation, held that the ground of appeal was “not such as to warrant admitting the appeal on points of law”. 18. 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 (acte jure imperii) and acts of commerce or administration (acte jure gestionis). 19. Article 11 (Contracts of employment) of the 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.” 20. 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.” 21. In the commentary on that Article the Commission indicated as follows: “Paragraph 2 (b) is designed to confirm the existing practice of States in support of the rule of immunity in the exercise of the discretionary power of appointment or non-appointment by the State of an individual to any official post or employment position. ... So also are the acts of ‘dismissal’ or ‘removal’ of a government employee by the State, which normally take place after the conclusion of an inquiry or investigation as part of supervisory or disciplinary jurisdiction exercised by the employer State. This subparagraph also covers cases where the employee seeks the renewal of his employment or reinstatement after untimely termination of his engagement. The rule of immunity applies to proceedings for recruitment, renewal of employment and reinstatement of an individual only. It is without prejudice to the possible recourse which may still be available in the State of the forum for compensation or damages for ‘wrongful dismissal’ or for breaches of obligation to recruit or to renew employment.” 22. The 2004 Convention on Jurisdictional Immunities of States and their Property was signed by France on 17 January 2007. The Bill authorising its ratification is currently being examined by the National Assembly, the Senate having approved the following text at First Reading on 22 December 2010: “Single Article The ratification of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004 and signed by France on 17 January 2007 is hereby authorised.” 23. For a more comprehensive overview see Cudak v. Lithuania ([GC], no. 15869/02, §§ 25 et seq., ECHR 2010...). 24. The Court of Cassation considers that a foreign State only enjoys jurisdictional immunity when the act giving rise to the dispute is an act of governmental authority or has been performed in the exercise of a public service (Court of Cassation, First Civil Division, 25 February 1969, no. 67-10243, Bull. I, no. 86). In other words it verifies, on a case-by-case basis, whether the act, by its nature or purpose, has contributed to the exercise of the foreign State’s sovereignty, as opposed to an act of administration (Court of Cassation, Combined Divisions, 20 June 2003, appeals nos. 00-45629 and 00-45630, Bull. Ch. M. no. 4). 25. Applying this criterion, the Court of Cassation found that jurisdictional immunity could not be granted in a dispute concerning an embassy employee who had no particular responsibility in the exercise of the public diplomatic service (Court of Cassation, First Civil Division, 11 February 1997, appeal no. 94-41871, Bull. I no. 49, for a caretaker; Court of Cassation, Employment Division, 10 November 1998, appeal no. 96-41534, Bull. V no. 479, concerning a nurse-medical secretary; and Court of Cassation, Employment Division, 14 December 2005, appeal no. 03-45973, in respect of a senior clerk in the national section of a consulate). The same principle applies where a State decides to close a consular mission: whilst it enjoys jurisdictional immunity as regards the assessment of the reasons for the closure decision, the French courts retain the power to verify the reality of the closure and to rule on the consequences of any redundancy caused thereby (Court of Cassation, Employment Division, 31 March 2009, appeal no. 07-45618, Bull. V no. 92). 26. The assessment of that criterion, however, falls within the unfettered discretion of the Court of Appeal for the final decision on the facts and evidence (Court of Cassation, Employment Division, 9 October 2001, appeal no. 98-46214, concerning a translator in the passport office). 27. The relevant provision of the Code of Civil Procedure reads as follows: “Judgments shall set forth succinctly the respective claims of the parties and their grounds. Such presentation may take the form of a reference to the pleadings of the parties with an indication of their date. Judgments shall be reasoned. They shall state the decision in an operative paragraph.” | 1 |
train | 001-58287 | ENG | FRA | GRANDCHAMBER | 1,999 | CASE OF SELMOUNI v. FRANCE | 1 | Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Luzius Wildhaber | 7. Mr Selmouni, a Netherlands and Moroccan national, was born in 1942 and is currently in prison in Montmédy (France). 8. On 20 November 1991 the police arrested Géray Tarek, Dominique Keledjian and Mr Keledjian’s girlfriend in connection with a drug-trafficking investigation, on the instructions of Mr de Larosière, an investigating judge at the Bobigny tribunal de grande instance. Dominique Keledjian made a voluntary statement, telling the police that he had bought his heroin in Amsterdam from a certain “Gaby”, who had helped him conceal it in order to bring it into France over a number of trips. He gave the police a telephone number in Amsterdam which enabled them to identify the applicant. 9. On 25 November 1991 Mr Selmouni was arrested following surveillance of a hotel in Paris. After being identified by Dominique Keledjian and his girlfriend, Mr Selmouni explained that he had had business dealings with Dominique Keledjian in the clothes trade. He denied any involvement in drug trafficking. 10. Mr Selmouni was held in police custody from 8.30 p.m. on 25 November 1991 until 7 p.m. on 28 November 1991. He was questioned by police officers from the Seine-Saint-Denis Criminal Investigation Department (“SDPJ 93”) in Bobigny. 11. Mr Selmouni was first questioned from 12.40 a.m. to 1.30 a.m. on 26 November 1991 by the police officers against whom he later made a complaint. Having been questioned and taken back to the court cells, Mr Selmouni had a dizzy spell. The court cell officers took him to the casualty department at Jean Verdier Hospital in Bondy at 3.15 a.m. The medical observations made by the casualty department read as follows: “Date of examination: 26 November 1991. 3.15 a.m. Attends casualty complaining of assault. On examination, several superficial bruises and injuries found on both arms. Bruises on outer left side of face. Bruise on left hypochondrium. Marks of bruising on top of head. Chest pains increase with deep respiration. Neurological examination shows no abnormalities.” 12. On 26 November 1991 the investigating judge extended police custody by forty-eight hours. Mr Selmouni was questioned from 4.40 p.m. to 5.10 p.m., at 7 p.m., from 8 p.m. to 8.15 p.m. and from 10.25 p.m. to 11.30 p.m. On the same day Mr Selmouni was examined by a Dr Aoustin, who made the following observations: “Bruising to the left eyelid, left arm, lower back. Scalp painful.” 13. On 27 November 1991 Mr Selmouni was questioned from 11 a.m. to 11.40 a.m. On examining him again, Dr Aoustin made the following notes: “Substantial bruising to the left eyelid, left arm, lower back. Bruising to the scalp. Ate nothing yesterday … Complaints forwarded.” 14. After being questioned from 9.30 a.m. to 10.15 a.m. on 28 November 1991, Mr Selmouni was again examined by Dr Aoustin, who noted on his medical certificate: “Bruising to the left eyelid, left arm, lower back. Bruising to the scalp. No current treatment.” 15. At 11.30 a.m. on 29 November 1991 the applicant was examined by Dr Edery, a general practitioner. He drew up a certificate, at Mr Selmouni’s request, to the effect that Mr Selmouni claimed to have been assaulted. The certificate stated: “Headaches, bruises under left and right eyes, on left and right arms, back, thorax, left and right thighs and left knee. All areas painful.” 16. On the same day the applicant was brought before the investigating judge, who charged him with offences against the dangerous drugs legislation and remanded him in custody. On Mr Selmouni’s first appearance before the investigating judge, the latter, on his own initiative, appointed Dr Garnier, an expert in forensic medicine on the Paris Court of Appeal’s panel, to examine Mr Selmouni, “who claim[ed] to have been illtreated while in police custody”, and another person, Mr Abdelmajid Madi, arrested on 26 November 1991 and charged with the same offences. 17. On 2 December 1991 the applicant was examined by Dr Nicot from the medical department of Fleury-Mérogis Prison. In a medical certificate drawn up at Mr Selmouni’s request the doctor made the following observations: “… extensive bruising to the trunk and thighs and substantial bruising round the eyes. Presents conjunctival bruises. Says sight impaired in left eye.” 18. On 7 December 1991 Dr Garnier, the expert appointed by the investigating judge, examined the applicant at the prison. Mr Selmouni made the following statement to the doctor: “I was stopped in the street on 25 November 1991 at about 9 a.m. There were no problems at that stage. I was taken to the hotel where I was living. One of the six plain-clothes policemen then hit me in the area of my left temple. I was then taken to Bobigny police station. At about 10 a.m. I was taken up to the first floor, where about eight people started hitting me. I had to kneel down. One police officer pulled me up by my hair. Another policeman hit me repeatedly on the head with an instrument resembling a baseball bat. Another one kept kicking and punching me in the back. The interrogation continued non-stop for about an hour. In the night I asked to be examined. I was taken to hospital, where I had head and chest X-rays. I was hit again at about 9 p.m. the following day during a further interrogation and this went on until 2 a.m. When I arrived at Fleury, I underwent a medical examination.” 19. The doctor noted in his report: – “sub-orbital haematoma extending 2 cm below the left lower eyelid, purplish, almost completely healed, – thin linear scar, approximately 1 cm long, continuing the line of the left eyebrow, – one right sub-orbital haematoma, almost completely healed, – multiple skin abrasions (six of which are large), almost completely healed, on the left arm, – two 5 cm linear skin abrasions – possibly scratches – on the right arm, – 0.5 cm skin lesion on the back of the right hand, – haematoma on the back of the thorax, over the right shoulder blade, – one haematoma on the right side, – severe (10 cm by 5 cm) haematoma on the left side of the thorax, – three haematomas on the left side, – severe (5 cm by 3 cm) haematoma on the front of the thorax, purplish, in the epigastric region, – haematoma in the right prehepatic region, – haematoma on the left of the ribcage 5 cm below the nipple, – 5 cm by 3 cm haematoma on the left side on the axillary line, – haematoma in the right subclavian region, – haematoma on the right buttock, – 10 cm by 5 cm haematoma on the left buttock, – 5 cm by 1 cm linear haematoma on the outer front part of the left thigh, – skin abrasion corresponding to a wound, now healing, on the front of the right ankle, – swelling on the back of the right foot and a skin abrasion on the back of the foot, – five superficial wounds, now healing, on the lower front part of the right leg, – skin abrasions and bruised swelling on the back of the first two metacarpals of the left hand. The patient states that on his arrival at Fleury he was treated with skin cream and given painkillers. No injuries to the scalp or left eyeball …” 20. The conclusion of the report is as follows: “CONCLUSION Mr Selmouni states that he was subjected to ill-treatment while in policy custody. He presents lesions of traumatic origin on his skin that were sustained at a time which corresponds to the period of police custody. These injuries are healing well.” 21. That report was attached to the investigation file opened in respect of the applicant. On 11 December 1991 the investigating judge sent it to the public prosecutor’s office. 22. In an order of 8 September 1992 the investigating judge committed the applicant for trial at the Criminal Court and ordered him to be kept in detention on remand. 23. On 17 February 1992 the public prosecutor’s office at the Bobigny tribunal de grande instance instructed the National Police Inspectorate to question the police officers concerned. 24. When questioned at Fleury-Mérogis Prison by an officer of the National Police Inspectorate on 1 December 1992, the applicant confirmed his earlier statement as follows: “… At about 8.30 p.m. on 25 November 1991 I was arrested in the vicinity of my hotel, the Terminus Nord, near the Gare du Nord in Paris by two or three plain-clothes policemen. They pushed me against a wall while pressing the barrels of two guns against my neck. I offered no resistance to my arrest and did not struggle. You remind me that during questioning on 27 November 1992 I admitted that I had attempted to escape arrest. I dispute that. First of all, I maintain that I did not make such a statement to the police officer who questioned me and, moreover, I signed the records of interview without having read them. The policeman told me on my release from police custody that he had got me to sign that I had resisted arrest and that they were covered. I was alone when I was arrested and immediately afterwards I was taken to my hotel room, which was searched in my presence. Two other policemen were already there. While they were searching my room, the youngest police officer of the group punched me on the left temple. When they had finished searching my room I was taken to the Drugs Squad station in Bobigny and to an office on the first or second floor. After I had been subjected to a body search, during which everything in my possession was taken, my interrogation by five police officers began. One of them, who appeared to be in charge, made me kneel on the floor and began pulling my hair while another one hit me in the ribs with a stick resembling a baseball bat. He then kept tapping me on the head with the bat. The three other police officers were also actively involved, punching me and some of them standing on my feet and crushing them. I seem to recall arriving at Bobigny police station at about 10 p.m. The treatment I have described continued until 1 a.m. Following that first interrogation I was handed over to uniformed policemen on the ground floor of the building in which I was detained. As my ribs and head were hurting from the blows I had received, I informed these policemen and was taken in the night to a hospital in the area, but cannot say which one. There I underwent several examinations, including X-rays, and was later taken to a police station, but not the one to which I had first been taken. The uniformed police officers treated me decently. The following morning, before being questioned a second time, I was examined on the premises of the Drugs Squad by a doctor, who was able to see the marks on my body caused by the policemen’s brutality. On 26 November 1992 I was questioned again by several police officers – three or four – at some point in the day. I believe it was at about 10 a.m. On that occasion they pulled my hair, punched me and hit me with a stick. In the evening of the same day, when there were fewer staff on the first floor, I was questioned again by six police officers, who were particularly brutal to me. I was punched, and beaten with a truncheon and a baseball bat. They all carried on assaulting me until 1 a.m. I think that this session of ill-treatment had begun at about 7 p.m. At one point they made me go out into a long office corridor where the officer I presumed was in charge grabbed me by the hair and made me run along the corridor while the others positioned themselves on either side, tripping me up. They then took me into an office where a woman was sitting and made me kneel down. They pulled my hair, saying to this woman ‘Look, you’re going to hear somebody sing’. I remained there for about ten minutes. I cannot describe this woman to you, but she looked young. I was then taken back out into the corridor, where one of the police officers took out his penis and came up to me saying ‘Here, suck this’; at that point I was on my knees. I refused, keeping my mouth closed because he had brought his penis up to my lips. When I refused, that officer urinated over me at the suggestion of one of his colleagues. After that, I was taken to an office and threatened with burns if I did not talk. When I refused, they lit two blowlamps which were connected to two small blue gas-bottles. They made me sit down and placed the blowlamps about one metre away from my feet, on which I no longer had shoes. At the same time they were hitting me. Following that ill-treatment, they brandished a syringe, threatening to inject me with it. When I saw that, I ripped open my shirt-sleeve, saying ‘Go on, you won’t dare’; as I had predicted, they did not carry out their threat. My reaction prompted a fresh outburst of violence from the policemen and I was illtreated again. The police officers left me in peace for about fifteen minutes, then one of them said ‘You Arabs enjoy being screwed’. They took hold of me, made me undress and one of them inserted a small black truncheon into my anus. NB. When Mr Selmouni relates that scene, he starts crying. I am aware that what I have just told you is serious, but it is the whole truth, I really did suffer that ill-treatment. After the sexual assault, I was put into a cell again. The next day I was examined by a doctor, who was able to observe my condition. I had informed the doctor that the policemen had been assaulting me and I had even asked him to tell them to stop torturing me. The violence I have just described was committed during the nights of 25 to 26 and 26 to 27 November 1991. Thereafter, until I was brought before the investigating judge, I was occasionally punched. Before bringing me before the investigating judge, the policemen were very kind, even going so far as to offer me coffee. When I signed the papers concerning my belongings, I noticed that 2,800 guilders and a Dupont lighter had disappeared. I informed a policeman about this – the one I thought was in charge – who replied ‘Shit, again’, and the matter was left at that. The lighter bears the initials A.Z. I can identify the six policemen who hit me. I can also describe the part played by each one. The officer in charge is slightly balding. The one who showed me his penis and then sodomised me with a truncheon is of medium height, fairly thickset, aged 30 to 35, and fair-haired. As soon as I was brought before the investigating judge, I told him that I had been assaulted, and a few days later I was examined at the prison. However, on the actual day I was brought before the investigating judge I had seen a doctor at the Bobigny law courts. I have had a lawyer for one month and have informed him of the manner in which I was treated while in police custody. When I arrived at the prison, the marks left by the assault were all over my body. I now have trouble with my eyes. I am lodging a complaint against the policemen.” 25. The record of the interview was sent to the Bobigny public prosecutor on 2 December 1992 as part of the proceedings numbered B.92.016.5118/4. 26. In a judgment of 7 December 1992 the Thirteenth Division of the Bobigny Criminal Court sentenced the applicant to fifteen years’ imprisonment and permanent exclusion from French territory and, as to the civil action by the customs authorities, ordered him to pay, jointly and severally with his co-accused, an aggregate sum of twenty-four million French francs. In a judgment of 16 September 1993 the Paris Court of Appeal reduced the prison sentence to thirteen years and upheld the remainder of the judgment. On 27 June 1994 the Court of Cassation dismissed the applicant’s appeal. 27. Mr Selmouni attended Hôtel-Dieu Hospital for treatment at regular intervals during his detention. 28. On 1 February 1993 the applicant lodged a criminal complaint together with an application to join the criminal proceedings as a civil party with the senior investigating judge at the Bobigny tribunal de grande instance for “assault occasioning actual bodily harm resulting in total unfitness for work for more than eight days; assault and wounding with a weapon (namely a baseball bat); indecent assault; assault occasioning permanent disability (namely the loss of an eye); and rape aided and abetted by two or more accomplices, all of which offences were committed between 25 and 29 November 1991 by police officers in the performance of their duties”. 29. On 22 February 1993, in the proceedings numbered B.92.016.5118/4, the Bobigny public prosecutor requested that an investigation be opened into the complaint lodged by Mr Selmouni and a similar complaint lodged by a co-defendant, Mr Madi, concerning offences committed by a person or persons unknown of assault and wounding, with a weapon, of a defenceless person and indecent assault. The complaint lodged by the applicant on 1 February 1993 was registered on 15 March 1993. These new proceedings were given the reference number B.93.074.6000/9. 30. On 27 April 1993 Mrs Mary, the investigating judge at the Bobigny tribunal de grande instance to whom the case had been allocated, issued formal instructions to the Director of the National Police Inspectorate to take all necessary steps to establish the truth. She set 15 June 1993 as the date for filing his reports. 31. On 9 June 1993 Dr Garnier re-examined Mr Selmouni, at Mrs Mary’s request. In his report, which he filed on 21 June 1993, he made the following observations: “When I first examined Mr Selmouni, he stated that he had been assaulted while in police custody. He has told me today that he did not mention the sexual assault on that occasion because he felt ashamed of it. An examination of the anal sphincter does not reveal any lesion such as to corroborate or invalidate the patient’s statements, mainly owing to the amount of time which has elapsed since the alleged acts. The somatic lesions recorded in the previous medical certificate are healing well with no complications. As regards the alleged sexual assault, in the absence of any functional repercussion or visible injury, no sick-leave on grounds of total unfitness for work [‘ITTP’] is necessary as a direct result of the alleged acts. TOTAL UNFITNESS FOR WORK The lesions recorded in the first medical certificate and observed when I prepared my first expert report are traumatic lesions with no serious features (haematomas and bruises) and necessitate an ITTP of 5 days. CONCLUSION Mr Selmouni states that he was sexually assaulted and beaten while in police custody. The traumatic lesions necessitated an ITTP of 5 days. The patient states that his sight in his left eye is impaired. An examination by an eye specialist is necessary if a causal link with the alleged acts is to be established. As regards the sexual assault, in the absence of any visible injury and any functional repercussions, an ITTP is not necessary.” 32. In an order of 15 June 1993 the investigating judge decided to join the two complaints relating to the same offences under the single reference B.92.016.5118/4. 33. She interviewed the applicant on 14 May 1993, instructed an expert on 9 June 1993 and served the parties with the expert’s medical report on 15 September 1993. 34. On 7 July 1993 the applicant sent the investigating judge a copy of the medical certificates of 29 November and 2 December 1991 and reiterated the terms of his complaint. 35. In a letter of 3 September 1993 to the President of the Tenth Division of the Paris Court of Appeal, which was to hear the applicant’s appeal against his conviction for offences against the dangerous drugs legislation, the applicant said that he had been raped with the baseball bat and added that a police officer had urinated over him. The applicant stated that, before sending that letter, he had also informed the President of the thirteenth division of the Bobigny Criminal Court of the ill-treatment inflicted on him while he was in police custody. 36. In a formal instruction of 8 October 1993 the investigating judge reiterated her request of 27 April 1993 as the 15 June 1993 time-limit for sending in the police inspectorate’s reports had not been complied with. She also ordered Mr Selmouni’s medical files to be seized at Fresnes Prison Hospital, Fleury-Mérogis Prison and Hôtel-Dieu Hospital. 37. The investigating judge interviewed the civil parties again on 6 December 1993, after receiving on 2 December 1993 the evidence taken by the police inspectorate on her instructions. On 26 January 1994 a lawyer was officially appointed to represent the applicant under the legal aid scheme. In letters of 23 June and 27 October 1994 the lawyer in question told the applicant that she was having difficulties obtaining a visiting permit. 38. The civil parties were interviewed again on 10 February 1994, on which date an identity parade was organised in order to identify the police officers against whom the allegations had been made. Mr Selmouni picked out four police officers from the ten who took part in the identity parade. They were Mr Jean-Bernard Hervé, Mr Christophe Staebler, Mr Bruno Gautier and Mr Patrice Hurault. 39. With a view to charging the police officers identified by the civil parties, the investigating judge sent the case file to the public prosecutor’s office on 1 March 1994. 40. The Bobigny public prosecutor referred the case to the Paris Principal Public Prosecutor who, in turn, referred it to the Court of Cassation. 41. In a judgment of 27 April 1994 the Court of Cassation decided to remove the case from the Bobigny investigating judge and transfer it to a judge of the Versailles tribunal de grande instance, in the interests of the proper administration of justice. On 21 June 1994 the public prosecutor at the Versailles tribunal de grande instance reopened the investigation, under the reference V.94.172.0178/3, into offences of “assault by public servants occasioning total unfitness for work for more than eight days and sexual assault by several assailants or accomplices, against any persons identified as a result of the investigation”. 42. On 22 June 1994 the case was allocated to Mrs Françoise Carlier-Prigent, the Vice-President of the Versailles tribunal de grande instance in overall charge of judicial investigations. 43. On 8 August 1994 the investigating judge requested that both of Mr Selmouni’s medical files that had been placed under seal by the National Police Inspectorate be sent to her. The sealed documents were sent to her on 12 April 1995. 44. On 19 September 1995 Mr Selmouni underwent an operation on his left eye at Hôtel-Dieu Hospital. 45. In an order of 22 September 1995 the investigating judge appointed an eye specialist, Dr Biard, to examine Mr Selmouni. 46. On 5 January 1996 the medical expert was granted an extension of time in which to file his report. He filed it on 18 January 1996. In it he made the following findings: “1. Mr Selmouni’s eyesight has deteriorated since he was operated on in September 1995. It cannot be said with certainty that it really deteriorated between 25 November 1991 and the end of September 1995. 2. The assault of which he complains, namely the blows to the left periorbital region of his face, could have caused eye injuries, but apart from subjective symptoms of metamorphopsia, or even reduced vision, and of an isolated problem with the epiretinal membrane, no mark on the eye, in particular the anterior chamber, has ever been found, nor has any sign of haemorrhaging in the retina occurring contemporaneously with the blows complained of and enabling a link to be established between them. However, signs of degeneration were found in relation to a constitutional disorder (short-sightedness in both eyes).” 47. On 6 February 1996 the medical report was served on Mr Selmouni, who also gave evidence. He maintained his allegations against the four police officers he had named. On 7 March 1996 evidence was also heard from the other civil party, Mr Madi. Mr Madi named a fifth police officer, Mr Alexis Leclercq. 48. In a letter of 2 May 1996 the investigating judge asked the Director of the Criminal Investigation Department (“CID”) for the names and addresses of the police officers against whom the complaints had been filed. He replied on 23 May 1996. 49. On 21 October 1996 the investigating judge officially informed the five police officers implicated by the applicant that they were being placed under investigation. 50. The five police officers against whom Mr Selmouni and Mr Madi had lodged their complaints, namely Mr Hervé, Mr Staebler, Mr Gautier, Mr Leclercq and Mr Hurault, were questioned on their first appearance on 10, 24 and 31 January, 28 February and 7 March 1997. They were placed under investigation for assault by public servants occasioning total unfitness for work for more than eight days. Mr Hervé, Mr Staebler, Mr Gautier and Mr Hurault were also placed under investigation for sexual assault committed by a number of assailants or accomplices. 51. On 24 April 1998, in view of the denials by the police officers, who maintained that a “struggle” had ensued when Mr Selmouni was arrested, the investigating judge appointed Dr Garnier as expert again, instructing him to examine all Mr Selmouni’s medical files and certificates and give his opinion as to whether the injuries found could have been caused in a “struggle” when he was arrested at approximately 8.30 p.m. on 25 November 1991 or whether they supported the applicant’s allegations. 52. On the same day the applicant requested that a number of investigative measures be carried out, including a further confrontation between witnesses and further medical reports in order to determine the damage he had suffered, and an inspection by the judge of the premises on which he had been held in police custody. In an order of 7 May 1998 the investigating judge dismissed the requests, on the ground that some of them had been partly satisfied. 53. On 4 June 1998 a confrontation was held between the applicant and the four police officers. He described the part each of them had played while he had been in their custody. 54. Dr Garnier’s report was filed on 3 July 1998. The expert concluded his report in the following terms: “An examination of the medical file shows that doctors found a progression of injury marks on the patient’s body during the period in police custody. A number of them could certainly have been caused during a ‘struggle’ when the patient was arrested at approximately 8.30 p.m. on 25 November 1991, as described by the CID officers in question. The injuries, particularly those on the lower limbs and buttocks, which were not seen on the first examination, would certainly have been sustained after that arrest and support the patient’s statements. As regards the acts of sodomy described by the patient, the negative result of the test carried out on 9 June 1993, that is one and a half years after the initial facts, neither disproves nor proves that they occurred.” 55. On 25 August 1998 the investigating judge served notice on Mr Selmouni that the investigation was complete. The investigation file was sent to the public prosecutor’s office on 15 September 1998. 56. On 19 October 1998 the public prosecutor submitted his written statement of how he wished the investigating judge to proceed with the case. He submitted, inter alia: “ … the denials by the police officers concerned do not stand up to examination any more than does their reference to a ‘struggle’ when effecting the arrest or to forceful resistance during questioning. The absence of any variation or inconsistency in the statements made by Ahmed Selmouni and Abdelmajid Madi justifies taking them into consideration. They are, moreover, corroborated by medical findings and therefore amount to sufficient evidence against the five persons in question for the allegations to be examined by the trial court …” 57. In an order of 21 October 1998 the investigating judge committed the five police officers in question for trial at the Versailles Criminal Court. In respect of Mr Selmouni’s allegations, the judge committed the four police officers concerned for trial at that court on charges of assault occasioning total unfitness for work for less than eight days and indecent assault committed collectively and with violence and coercion. 58. The trial was held at the Versailles Criminal Court on 5 February 1999. The applicant filed pleadings in support of an objection that the court had no jurisdiction to try the case and that it should be transferred to the Assize Court. He submitted that the sexual assault had in fact been rape; that he had been the victim of assault occasioning permanent disability, namely loss of visual acuity, committed by public servants; and, lastly, that the illtreatment he had suffered should be classified as acts of torture inflicted before or during the commission of a crime. The court joined that objection to the merits. At the end of the trial the public prosecutor requested that Mr Hervé be sentenced to four years’ imprisonment and Mr Staebler, Mr Hurault and Mr Gautier to three years’ imprisonment. The Criminal Court reserved judgment until 25 March 1999. 59. In a judgment of 25 March 1999 the Versailles Criminal Court dismissed the objection to jurisdiction raised by Mr Selmouni, on the following grounds in particular: (a) as to classification of the sex offence as rape: “ … The Court must, however, conclude that neither the medical certificates nor the expert reports support the allegation of anal penetration. Furthermore, Selmouni was unable to identify the police officer who had allegedly raped him. Accordingly, the offence cannot be classified as rape.” (b) as to classification of the assault as assault occasioning permanent disability: “ … The Court observes that the expert report prepared by Dr Biard does not allow a causal link to be established between Mr Selmouni’s loss of visual acuity and the blows he received. This point of his objection therefore cannot be allowed.” (c) as to classification of the ill-treatment as acts of torture inflicted before or during the commission of a crime: “Apart from the fact that those acts were not so classified in the former Criminal Code applicable at the material time, in the instant case the acts of violence inflicted on Ahmed Selmouni which he alleges should be classified as acts of torture or barbarism were not inflicted before or during the commission of a crime. The Court therefore considers that the acts in question cannot be classified as a crime …” 60. In determining whether or not the police officers were guilty, the Criminal Court noted that “two completely contradictory arguments [had been] submitted to it” and decided to examine “in turn” “a number of explanations” given by the police officers. Assuming that “it [had been] established … that [the applicant’s] injuries [had been] caused during – or within a very short time before or after – police custody”, the court considered that the attempts made by the civil parties to resist arrest did not suffice to explain the extent of the injuries found; that the “inconsistencies”, if any, in the civil parties’ statements were not decisive and that, in general, “the civil parties had been consistent in their account of events and the timing of them”; that even where there is strong evidence, “any police officer knows well that a confession is preferable and very difficult for a defendant to contest later”; and that “there [was] ample evidence to disprove the allegation that the civil parties [had] conferred when filing their complaints against the police officers”. 61. The Versailles Criminal Court found that “the evidence gathered during the investigation and produced at the trial show[ed] that events [had] indeed occur[red] in the manner described by the victims” and convicted the police officers of the offences charged. The court considered itself bound to “apply the criminal law in a way that [would] serve as an example to others” and sentenced Mr Hurault, Mr Gautier and Mr Staebler to three years’ imprisonment. With regard to the fourth police officer, the court held: “ … in his capacity as Detective Chief Inspector in charge of the group of police officers, Bernard Hervé was responsible for the methods used to conduct the investigation under his control and direction. In addition, he had been directly involved in the assault since he had pulled the civil parties’ hair. The civil parties had unequivocally identified him as the officer in charge. The Court therefore deems it necessary to punish Bernard Hervé more severely for his actions and sentences him to four years’ imprisonment. As Mr Hervé is still in a position of responsibility, it is necessary, as a matter of public policy, that sentence be executed immediately. The Court issues a warrant for Bernard Hervé’s arrest.” 62. The Versailles Criminal Court declared admissible Mr Selmouni’s application to join the proceedings as a civil party. It noted that he had not quantified his claims for damages and that he had reserved the right to apply to the civil courts. 63. The police officers appealed. 64. In a judgment of 8 April 1999 the Versailles Court of Appeal dismissed an application for release made by Mr Hervé, on the following grounds: “… the offences in question, because of their exceptionally serious nature having regard to the status of senior police officer [officier de police judiciaire], responsible for enforcing the laws of the Republic, possessed by the accused, who was convicted at first instance, have resulted in serious and continuing prejudice to public order …” 65. In a judgment of 1 July 1999, following hearings on 20 and 21 May 1999, after which Mr Hervé was released, the Versailles Court of Appeal acquitted the policemen for lack of evidence on the charge of indecent assault, but held them to be guilty of “assault and wounding with or under the threat of the use of a weapon, occasioning total unfitness for work for less than eight days in the case of Selmouni and more than eight days in the case of Madi, by police officers in the course of their duty and without legitimate reason”. It sentenced Mr Hervé to eighteen months’ imprisonment, of which fifteen months were suspended, Mr Gautier and Mr Staebler to fifteen months’ imprisonment suspended and Mr Hurault to twelve months’ imprisonment suspended. The Court of Appeal gave, inter alia, the following reasons for its decision: “As to guilt As to the assaults In absolute terms the word of a policeman, a fortiori that of a senior one [officier de police judiciaire] is more credible than that of a drug trafficker. That premiss, however, is weakened, and even made unsound, where statements by offenders are supported by external evidence such as medical findings. It is put even more in doubt where the explanations provided by the policemen vary significantly during the course of the proceedings; and the presumption in favour of the police is destroyed if it is shown, as in the instant case, that the police reports do not reflect the truth. As to the medical findings The accusations made by the civil parties are supported by unequivocal medical findings. In the first place, as regards Selmouni, the expert Professor Garnier noted in his report of 5 May 1998 that all the doctors who had examined him while he was in police custody had found lesions of traumatic origin on the left arm, in the left orbital region, on the scalp and on the back. On 29 November 1991 further lesions were seen on the lower limbs. He added that during his examination on 7 December 1991 he had again found lesions that had been described earlier and that he found others on the buttocks and on the right ankle. The extent of the injuries on Selmouni’s person increased as the uninterrupted police custody continued. The bruising to the left eyelid, the thin linear scar one centimetre long continuing the line of the left eyebrow, the left and right sub-orbital haematomas found on 29 November 1991 by Dr Edery, and then described on 2 December 1991 by Dr Nicot as being ‘round the eyes’, are consistent with the punching mentioned by Selmouni. The various haematomas found on the thorax, the left and right sides and the abdomen are consistent with the punching and kicking in his statement of 7 December 1991. The pain in the scalp and the headaches mentioned by Drs Aoustin and Edery are likewise of a kind to support Selmouni’s statements, according to which his hair was pulled and he was repeatedly tapped on the head with an instrument which could have been a baseball bat. The haematomas found on the buttocks and the thighs could only have come from blows from a blunt instrument. Similarly, the lesions apparent on the legs, ankles and feet are consistent with the blows or crushing that Selmouni complained of. It follows from the foregoing that the objective injuries, as recorded in successive examinations, match the blows described by Selmouni. As regards Madi, the medical certificates and the expert medical opinions attest to the reality and intensity of the blows he sustained. Further, as set out by the expert, the time that elapsed between the appearance of the objective injuries and the events in issue strongly suggests repeated small injuries. The scalp abrasions are absolutely consistent with his statement that on numerous occasions he was repeatedly struck on the head with a blunt instrument. The rectangular shape of the large haematoma on the right thigh and of the three haematomas on the left thigh corresponds exactly to blows struck with a blunt instrument, as described by the complainant. As to the accounts given by the defendants The defendants’ explanations of how the injuries found came about totally lack credibility. Moreover, on these points as on others, their explanations varied. JeanBernard Hervé, for instance, initially stated that he had acted as a reinforcement to arrest Selmouni (D57) but subsequently said that he was not in the street where the arrest took place but inside the hotel. The defendants maintain that the accusations against them are the result of orchestrated, concerted action. It should be noted at this point that throughout the seven years of inquiries and judicial investigation no evidence was found to substantiate that allegation. The complainants’ interests differed appreciably. The successive descriptions of the ill-treatment they alleged that they had suffered do not disclose any connivance, and it should be pointed out that Selmouni himself was hardly ever assisted by a lawyer in the proceedings concerning drug trafficking. It is not without relevance to note that Madi and Selmouni, who had never been in police custody before, could not have made use of previous experience of it to fabricate a completely false story. The mere fact of Selmouni’s arrest near his hotel, even if it is assumed to have entailed something of a struggle, cannot explain either the seriousness of the injuries or their gradual onset as confirmed by the photographs in the file, seeing that, immediately afterwards, the policemen concerned did not record any suspicious signs either on their own persons or on that of Selmouni, signs that would have warranted a thorough medical examination, which would have been in their own interest. As regards Madi, the policemen’s account, according to which he had deliberately banged his head against a wall and a cupboard, is not consistent with the findings of the medical examinations. The expert noted that in this type of occurrence it is normal to find, at the time of the events, unequivocal injuries and even bleeding wounds, which was not the case here. Taken as a whole, these factors persuade the Court that the alleged resistance to arrest was invented by the accused to justify the seriousness and location of the haematomas and the lesions found on the detainee. As to the reliability of the police reports The policemen from SDPJ 93, in particular Jean-Bernard Hervé, admitted in court that several reports drawn up during the detention of Selmouni and Madi in police custody contained inaccurate statements both as to times and as to the identity of those who had written them. No persuasive logical explanation of this was given to the Court. Hurault, for example, drew up a report (D114) on the search which he made at Gonesse from 5.30 p.m. to 6.55 p.m. on 26 November, and ‘recorded’ at 6.45 p.m. – that is to say at the same time – in another report (D158) that Madi had resisted arrest, and also told the Court that he had intervened to calm him. The complete unreliability of the documents drawn up by the investigators is extremely serious in that the entire functioning of the criminal justice system rests on the reliance that may be placed on the reports of senior police officers and their assistants [officiers et agents de police judiciaire]. In view of all the foregoing, the brutality of which the defendants are accused is patent and the trial court rightly held that during the proceedings they had done nothing but conceal the truth about their behaviour. … As to the sentence The offences of which the defendants are guilty are exceptionally serious ones, and that precludes their benefiting from the provisions of the amnesty of 3 August 1995. They must be regarded as instances of particularly degrading treatment. Having been committed by senior officials responsible for enforcing the laws of the Republic, they must be punished firmly as such conduct cannot be justified, irrespective of the personality of the offenders in their charge and the degree of their corruption and dangerousness. The seriousness of the offences, however, cannot be compared with what it would have been if the sexual assaults had been made out against the defendants. Nor do the offences appear to have been the result of a concerted plan. In view of the part played by each, the absence of any previous criminal record and the administrative files on the defendants, the Court considers that it must accordingly reduce the length of the prison sentences as indicated in the operative provisions of the judgment and leave it to the discretion of the defendants’ superiors to determine what disciplinary consequences are necessary in the case, the prison sentences being suspended, only in part as regards Hervé, whose responsibility appears greater, regard being had to his being the officer in charge. ...” | 1 |
train | 001-88687 | ENG | RUS | CHAMBER | 2,008 | CASE OF ZUBAREV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1937 and lives in Obninsk, a town in the Kaluga Region. 5. As a victim of Chernobyl, the applicant was entitled to benefits. Considering himself underpaid, he sued the local welfare authority. 6. On 19 March 2004 the Obninsk Town Court awarded the applicant arrears and fixed new amounts of periodic payments. This judgment became binding on 30 March 2004 but was not fully enforced. 7. On the applicant’s request, on 9 March 2006 the Town Court set the judgment aside due to newly-discovered circumstances. 8. On 17 April 2006 the Town Court awarded the applicant arrears (including sums outstanding after the judgment of 19 March 2004) and fixed new amounts of periodic benefits. 9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. | 1 |
train | 001-87624 | ENG | HUN | CHAMBER | 2,008 | CASE OF MUITY v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1966 and lives in Baja. 5. On 27 January 1997 the applicant’s wife filed for divorce. 6. After several hearings, on 5 October 1999 the Pest Central District Court pronounced the parties’ divorce, placed the couple’s daughter with the mother, ordered the applicant to pay maintenance and suspended his right of access to his child, as he suffered from paranoid psychosis and, in the court’s view, his conduct was unpredictable. 7. On 25 May 2000 the Budapest Regional Court upheld part of this decision but remitted certain questions, in particular those concerning maintenance and the applicant’s visiting rights, to the District Court. 8. The first-instance proceedings were resumed on 23 April 2001. The applicant was subjected to an examination by an expert psychiatrist, in whose opinion his access to the child was feasible only under supervision, given his mental state. 9. On 17 October 2001 the court held a hearing and issued an order concerning the applicant’s access rights. This decision was quashed on appeal on 16 May 2002. 10. After several hearings, on 27 June 2003 the District Court issued an order allowing the applicant to meet his daughter once a month for two hours on the premises of a specialised foundation. Relying on the opinion of the expert psychiatrist, it observed that the applicant’s ailment prevented him from having greater access to his daughter, then eight years old. On 4 December 2003 the Budapest Regional Court upheld this decision. 11. On 25 February 2004 the Pest Central District Court determined the remainder of the action concerning maintenance. In application of section 92(1) of the Family Code, the court also recapitulated the applicant’s access rights, in that he was entitled to meet his daughter every fourth Tuesday, on the premises of the foundation, supervised by a professional. 12. During these proceedings, the applicant modified his claims on many occasions and filed numerous submissions. 13. On 9 December 2004 the Regional Court dismissed the applicant’s appeal. | 1 |
train | 001-58516 | ENG | AUT | CHAMBER | 2,000 | CASE OF ANDREAS WABL v. AUSTRIA | 3 | No violation of Art. 10 | null | 6. In June 1988 the applicant participated in a protest campaign against the stationing of interceptor fighter planes (Abfangjäger) near Graz airport. In the course of a police action, Police Officer Fellner charged the applicant with having scratched his right arm, and he subsequently requested that the applicant be prosecuted for having caused grievous bodily harm (schwere Körperverletzung). In July 1988 the Graz Public Prosecutor's Office (Staatsanwaltschaft) informed the applicant that the investigation proceedings against him had been discontinued. 7. On 14 August 1988 the “Neue Kronen-Zeitung - Steirerkrone”, issued in Graz, published the following article, under the title “Styrian Green politician and member of Parliament injured civil servant/Request for him to be handed over on account of the risk of infection” and with the headline “Police Officer claims: AIDS test for Wabl!”. The article read as follows: “Dramatic contribution to the debate on the privilege of members of Parliament: Police Officer Walter Fellner (34) from Aflenz not only requests that Styrian Green politician and member of Parliament Andreas Wabl be handed over, but also that the member of Parliament - who is immune because of privileges, be subjected to an AIDS-test. Reason: Wabl scratched Fellner and drew blood. 'I don't dare to touch my wife and I can't even kiss my children' - Since he has been involved in a police action against the opponents of the [planes] the family life of Police Officer Walter Fellner is ruined. The fear of the immune deficiency syndrome paralyses the social relations and the sexual life of the father of three. The explosive background: On 10 June, shortly after the [planes] had been stationed, the Police Officer, a senior Police Inspector, participated in a police action in the area of a camp of opponents of the [planes] at Graz-Thalerhof airport. On this occasion, 'friction' developed between the demonstrators and the police. The result of an altercation between Fellner and the Green politician Andreas Wabl was two bleeding scratches, one five, the other ten, centimetres long, to Fellner's right lower arm. Two witnesses and the local medical officer confirmed the injuries. Fellner does not claim that the immune member of Parliament is suffering from the immune deficiency syndrome, but, as the Inspector told the 'Steirerkrone': 'The member of Parliament had been in contact with the other demonstrators and they were not particularly clean.' Criminal proceedings against Wabl on a charge of causing bodily injury have been discontinued on the ground of the triviality of the injury. Fellner nevertheless requests that the member of Parliament be handed over. 'Mr. Wabl has to undergo an AIDS-test, as he might have infected me', states Fellner and thereby asks the Green 'scratcher' to have a blood sample taken for the purposes of an immune deficiency syndrome test. Wabl's victim also intends to claim compensation for moral damages. As regards his claims for compensation, Fellner is represented by the Graz lawyer Candidus Cortolezis, who is known to be close to the opponents of the [planes] and not to the authorities who guard the [planes].” 8. This article, reproduced on pages 8 and 9 of the newspaper, was accompanied by a photograph showing the applicant and two police officers with the sub-title “AIDS-test for the privileged member of Parliament? Wabl (centre) in an altercation with the police.” 9. The article was announced on the front page as follows: “Green politician Wabl should have an AIDS test. The Police Officer Walter Fellner from Aflenz asks Green member of Parliament Andreas Wabl to undergo an AIDS-test. Wabl scratched Fellner and drew blood in the course of an altercation (pages 8/9).” 10. The applicant requested the author of the article in question, who had not contacted him prior to its publication, to publish a rectification as well as a statement drafted by the applicant. 11. The text of this statement, published in the "Steirerkrone" on 17 August 1988, read as follows: “In the context of the report on Fellner's request for an AIDS-test, the 'Steirerkrone' wishes to clarify that, when mentioning the disease AIDS, it never intended to defame, for personal or political reasons, the member of Parliament Andreas Wabl. We wish to apologise for any gross claims which were not appropriate to our standards of fairness and our reputation as journalists.” 12. This statement was printed as an annex to an article with the headline "Defamation of Green politician not intended/hygiene expert Möse reassures: 'No AIDS-infection from scratches!'", with the following text: “On Tuesday, the Graz 'hygiene-king', university professor Josef Möse, reassured the Police Officer Walter Fellner from Aflenz, who feared an infection with AIDS from scratches which were allegedly inflicted on him by Green member of Parliament Andreas Wabl. Möse: 'AIDS cannot be caught from scratches.' Möse, President of the Austrian AIDS Committee, informed the 'Steirerkrone': 'Nobody has anything to fear from a simple scratch. Infection is impossible.' The Head of the Graz Institute for Hygiene declared his immediate willingness to 'hold at any time an explanatory talk' with the senior Police Inspector and his family. As reported Fellner feared that he had been infected with the AIDS virus by two scratches to his right lower arm, which were inflicted on him in the course of an altercation with the Green member of Parliament Andreas Wabl. Criminal proceedings on a charges of causing bodily harm (superficial reddening) have been discontinued by the Graz Public Prosecutor's Office on the ground that the factual elements of the offence were not present.” 13. The article further referred to the applicant's claims that the matter was a political campaign intending to bring him into disrepute. 14. Also on 17 August 1988 the applicant, on the occasion of a press conference, commented on the events of 10 June 1988 and in particular the above articles of 14 and 17 August 1988. He informed the press of his opinion regarding the background to the events which he considered to be a "political character assassination" ("politischer Rufmord"). When asked by a journalist how he felt about the above events, the applicant replied as follows: “This is Nazi-journalism.” 15. This statement was quoted in the Austrian media. 16. On 29 August 1988 the company publishing the newspaper “Kronen-Zeitung” brought injunction proceedings under section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant with the Graz Regional Civil Court (Landesgericht für Zivilrechtssachen). It requested that the applicant be prohibited from repeating the statement according to which the contents of the “Kronen-Zeitung” were “Nazi-journalism” and to arrange for a rectification. 17. In the context of private prosecution proceedings instituted by the applicant in respect of the article of 14 August 1988, the Vienna Regional Criminal Court (Landesgericht für Strafsachen), as confirmed by the Vienna Court of Appeal (Oberlandesgericht) on 5 February 1990, convicted the company publishing the “Kronen-Zeitung” of defamation, pursuant to the Media Act (Mediengesetz), and ordered it to pay compensation to the applicant. 18. On 5 February 1993 the Graz Regional Civil Court dismissed the injunction claim. The Court observed that section 1330 of the Civil Code envisaged an injunction in respect of any statement of facts which jeopardised someone's reputation, income or livelihood, the untruth of which was known or must have been known. Considering all circumstances, and in particular the background of the press conference and the impugned statement, the Court found that the applicant had used the expression “Nazi-journalism” as a value-judgment. The Court based its decision on the statements made by the applicant and various witnesses, as well as on an expert opinion regarding the interpretation of the expression “Nazi-journalism”. 19. On 30 June 1993 the Graz Court of Appeal dismissed the plaintiff's appeal (Berufung). The Court of Appeal confirmed the findings of the first instance court that the impugned statement was a value-judgment. Furthermore, even assuming that the impugned statement was an untrue statement of fact, the plaintiff had failed to show that the applicant had known or should have known that this statement was untrue. In this respect, the Court of Appeal referred to the expert opinion according to which the defamation of political opponents with an alleged illness was an essential element of the journalism under the Nazi regime. Furthermore, even assuming that the impugned statement amounted to an insult, it was justified as a reaction to the plaintiff's previous publication on the applicant. 20. On 14 December 1993 the Austrian Supreme Court (Oberster Gerichtshof), upon the plaintiff's further appeal (außerordentliche Revision), reversed the Appeal Court's decision and issued an injunction against the applicant prohibiting him from repeating the statement that the article of 14 August 1988 amounted to “Nazi-journalism”, and similar statements. 21. According to the Supreme Court, section 1330 § 2 of the Civil Code presupposed facts, i.e. circumstances, the existence of which could be demonstrated. If a value-judgment was based on particular facts it comprised a statement of facts. The question whether or not “facts” had been disseminated had to be examined against the general context of the impugned statement, as understood by the man in the street. In this respect the interpretation least favourable to the offender had to be placed on the statement. Objective criticism presupposed that the value-judgment corresponded to unchallenged or proven facts. The Supreme Court further observed that, under section 1330 § 2 of the Civil Code, the plaintiff had to prove that the discrediting statement was untrue, unless the statement also amounted to an insult; in the latter case, the offender had to prove the truth of the statement concerned. The question whether or not a statement constituted an unlawful interference with a person's reputation could only be assessed by balancing all relevant circumstances. 22. The Supreme Court found that the applicant's reproach of “Nazi-journalism” had concerned an article published by the plaintiff, and had arisen on the occasion of a press conference concerning the plaintiff's defamatory report about the applicant. The impugned statement had been an answer to a question put by one of the journalists, and, in the circumstances, the Court had no doubt that this statement only related to the particular article of 14 August 1988. In this context, the applicant's statement was a value-judgment. In any event, there was no indication as to how the journalist had understood the applicant's reproach “Nazi-journalism”. 23. The Supreme Court considered further whether this value-judgment fell within the scope of section 1330 § 1 of the Civil Code. The plaintiff could claim an injunction under this provision if, considering all circumstances, the plaintiff's interests were not less important than the applicant's. The Supreme Court found that the plaintiff had an interest not to be associated with National Socialism. The reproach “Nazi-journalism” was close to a charge of criminal behaviour under the National Socialism Prohibition Act (Verbotsgesetz). The Supreme Court also noted that the applicant's statement was a reaction to an article published by the plaintiff which contained the assumption that the applicant was suffering from the immune deficiency syndrome, i.e. a contagious disease, which provokes fear and antipathy amongst the majority of the population. His indignation about the defamatory reporting might appear understandable but could not justify the reproach that the plaintiff's way of reporting came close to criminal behaviour, in particular as he himself could have brought proceedings under section 1330 of the Civil Code against the plaintiff. Balancing all circumstances, the Supreme Court concluded that the applicant's interests did not outweigh the plaintiff's. The right to freedom of expression could not justify such a serious attack on the plaintiff's reputation. For the same reasons, the impugned statement could not be regarded as permissible political criticism, which is supposed to provoke or shock. The Supreme Court also noted that, having regard to the applicant's submissions in the course of the proceedings, there was a risk that he would repeat the statement in question. 24. This decision was served on the applicant's counsel on 8 February 1994. 25. Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “(1) Anybody who, due to defamation, suffers real damage or loss of profit, may claim compensation. (2) The same applies if anyone is disseminating facts which jeopardise someone's reputation, income or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...” 26. After the Second World War, Austria introduced legislation penalising activities inspired by National Socialist ideas, i.e. the National Socialism Prohibition Act (Verbotsgesetz). In the State Treaty (Staatsvertrag) of 1955, Austria confirmed its undertaking to prohibit any such activities. 27. The applicant applied to the Commission on 7 July 1994. He alleged that the Supreme Court’s judgment of 14 December 1993 prohibiting him from repeating the reproach with “Nazi-journalism” constituted a violation of Article 10 of the Convention. 28. The Commission declared the application (no. 24773/94) admissible on 10 April 1997. In its report of 4 March 1998 (former Article 31 of the Convention), it expressed by a majority the opinion that there had been no violation of Article 10 of the Convention. | 0 |
train | 001-91584 | ENG | RUS | ADMISSIBILITY | 2,009 | PODRUGINA AND YEDINOV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicants, Ms Lidiya Aleksandrovna Podrugina and Mr Anatoliy Aleksandrovich Yedinov, are Russian nationals who were born in 1937 and 1933 respectively and live in the town of Petrozavodsk in the Kareliya Republic. They were represented before the Court by Mr S. Dickmann, a lawyer practising in Moscow. The respondent Government were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants sought judicial recognition of the fact that they had been prisoners of war during World War II. Such a declaration was a precondition for claiming a statutory monthly allowance from the State. The State was represented by a local Social Assistance Centre in those proceedings. By judgment of 1 July 1998, the Petrozavodsk Town Court of the Kareliya Republic granted the applicants’ claim. The court found that at the time the applicants had been forced to work and had not been allowed to leave the territory of the village. On an unspecified date, the President of the Supreme Court of the Kareliya Republic lodged a request for supervisory review of the above judgment. On 22 May 2002 the Presidium of the Supreme Court granted his request, quashed the judgment and rejected the applicants’ claims. The Presidium court found that in the absence of documentary evidence, including archive sources, or other evidence the above circumstances were insufficient for concluding that the village had served as a concentration camp. The court concluded that the applicants could not be considered as prisoners of war. The applicants were not present at the supervisory review hearing. From July 1998 to 1 July 2002 the applicants received the allowance, varying from 500 to 1,000 Russian roubles per month. After the annulment of the judgment in their favour, they were not required to reimburse the monies received during that period. On 1 January 2005 the Pensions Authority (the “Authority”), a specialised State agency, took over responsibility for making allowance payments. In 2005 the applicants brought new proceedings before the Town Court asking for a judicial confirmation of the fact that between 1941 and 1944 they had been living in a village occupied by the Finnish Army and thus indeed been prisoners of war. The State was represented by the Social Assistance Centre in those proceedings. By judgments of 24 February and 16 March 2005, the Town Court granted the second and first applicants’ claims respectively. In Mr Yedinov’s case, the court heard two persons who had resided at the time in the same village, and had regard to an expert opinion. No appeal was lodged and the above judgments became final. On the basis of those judgments, on unspecified dates the applicants applied to the Pensions Authority for a statutory allowance, which they subsequently received until March and January 2007 respectively. In July 2006 the Pensions Authority applied for supervisory review of the judgments of 24 February and 16 March 2005, contending that it had not been aware of them in good time and thus could not request their supervisory review within the statutory period of one year. The Authority contended that the above judgments concerned the same matter that had already been determined in the 2002 proceedings. By a decision of 26 September 2006, the Town Court extended the timelimit for lodging of the Authority’s request for supervisory review. The court accepted the Authority’s argument that it had learnt about the 2002 proceedings on 25 April 2006, when the Social Assistance Centre had provided it with the lists of persons no longer entitled to an allowance. The Social Assistance Centre and not the Authority had been involved in the 2002 proceedings. On 29 November 2006 the Presidium of the Supreme Court of the Kareliya Republic quashed the judgment of 16 March 2005 and discontinued the proceedings. The court found that the matter had already been examined in 1998 and had been finally determined by the judgment of 22 May 2002. Apparently, the first applicant was not present at the supervisory-instance hearing and obtained a copy of its ruling on an unspecified date. According to the Government, a copy of the supervisory review ruling was dispatched to her on 5 December 2006. The applicant was not required to reimburse the monies received in 2005 and 2006. By a decision of 15 August 2006, the Town Court refused to extend the time-limit for bringing supervisory review proceedings. The court found that the Authority should have been aware of the judgment of 24 February 2005 since it had been making regular payments to the applicant on that basis; a copy of that judgment had been in the applicant’s pension file since March 2005. Hence, the Authority could have challenged the judgment by way of supervisory review within the one-year time-limit. On 22 September 2006 the Supreme Court of the Kareliya Republic quashed the decision of 15 August 2006 and remitted the matter to the Town Court. It held that the Authority had learnt about the relevant fact, namely the existence of two contradictory judgments (dated 22 May 2002 and 24 February 2005), only in April 2006. On 17 October 2006 the Town Court extended the time-limit for lodging of the Authority’s’ request for supervisory review. The applicant did not appeal. On 14 February 2007 the Presidium of the Supreme Court quashed the judgment of 24 February 2005 and discontinued the proceedings. The court found that the matter had already been examined in 1998 and had been finally determined by the judgment of 22 May 2002. The applicant was not required to reimburse the monies received in 2005 and 2006. Article 134 § 1 of the Code of Civil Procedure provides that a judge should refuse to deal with a claim if there is a final judgment between the same parties on the same subject-matter and on the same legal grounds (по тем же основаниям). In such a situation, a claimant cannot bring new proceedings against the same respondent in relation to the same subject-matter and on the same legal grounds. Under Article 376 of the Code, judicial decisions that have become legally binding, with the exception of judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned (§ 1). Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding (§ 2). By its ruling of 5 February 2007, the Constitutional Court interpreted Article 376 § 1 as allowing the above-mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals. | 0 |
train | 001-86552 | ENG | UKR | CHAMBER | 2,008 | CASE OF SOLOMATINA v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy | Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva | 4. The applicant was born in 1937 and lives in Dnipropetrovsk. 5. On 26 February 1988 the applicant sustained grievous bodily injuries as a result of a traffic accident. On 3 March 1989 the Pavlograd Court (Павлоградський районний суд Дніпропетровської області) found Mr K. responsible for the accident and sentenced him to three years’ imprisonment. The sentence was conditionally suspended. By the same judgment, the court left the applicant’s claim for compensation without consideration on the ground that the defendant had paid her the claimed amount of his own accord. 6. On 9 March 1992 the applicant instituted civil proceedings in the Pershotravensk Court (Першотравенський районний суд Дніпропетровської області) against Mr K., seeking compensation for the damage caused to her health as a result of the accident. Subsequently the applicant modified the amount of her claim for compensation on several occasions. In the course of the proceedings five expert assessments were ordered by the courts to assess the damage sustained by the applicant. 7. The Pershotravensk Court considered the case on three occasions and delivered judgments on 8 September 1992, 11 July 1994 and 26 February 1999, which were overturned by the decisions of the Dnipropetrovsk Regional Court (Дніпропетровський обласний суд) of 19 May 1993, 26 September 1994 and 17 May 1999, respectively. 8. In its decision of 17 May 1999 the Regional Court decided to transfer the case to the Pavlograd Court for a fresh examination. 9. On 4 February 2000 the Pavlograd Court found in part for the applicant and awarded her a lump sum of 4,129.50 Ukrainian hryvnias (UAH) and a monthly allowance of UAH 55.06 for an unlimited period of time in compensation for loss of earnings. The court also awarded her UAH 24 in compensation for travel expenses and rejected the applicant’s claim for compensation for medical expenses. 10. On 17 April 2000 the latter judgment was quashed by the decision of the Regional Court. It held that the first-instance court had made wrong calculations and had failed to establish whether the applicant’s injuries could have resulted in any recognised degree of disability. It decided to remit the case to the Industrialny District Court of Dnipropetrovsk (Індустріальний районний суд м. Дніпропетровська) for a fresh examination. 11. On 21 December 2000 the latter court found in part for the applicant and ordered Mr K. to pay her a lump sum of UAH 2,946.83 and a monthly allowance of UAH 61.32 for an unlimited period of time in compensation for loss of earnings. The court also awarded the applicant UAH 744 in compensation for medical and travel expenses. 12. On 5 February 2001 the Regional Court, following the defendant’s appeal in cassation, quashed the judgment of 21 December 2000 and remitted the case for a fresh consideration to the same court. The regional court held that the first-instance court had failed to take into account the conclusions contained in its decision of 17 April 2000. 13. On 28 December 2004 the Industrialny Court awarded the applicant a lump sum of UAH 7,502.32 and a monthly allowance of UAH 161.60 in compensation for the damage to her health and loss of earnings; UAH 5,000 for non-pecuniary damage; and UAH 1,653.64 in compensation for medical, travel, and legal costs and expenses. 14. On 28 January 2005 Mr K. appealed against the judgment of 28 December 2004. 15. By separate decisions of 30 March and 13 July 2005, the same court awarded the applicant additionally UAH 306. 16. On 8 June 2006 the Regional Court quashed the decisions of 28 December 2004, 30 March and 13 July 2005 and adopted a new judgment on the merits of the case. The court awarded the applicant a lump sum of UAH 14,398.35 and a monthly allowance of UAH 178.12. The court further rejected the applicant’s claims for non-pecuniary damage and costs and expenses. 17. The parties did not appeal in cassation. | 1 |
train | 001-61053 | ENG | FRA | CHAMBER | 2,003 | CASE OF YVON v. FRANCE | 1 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings | Georg Ress | 8. The applicant was born in 1931 and lives in Saintes (Charente-Maritime). He is a winegrower. 9. On 19 May 1993 plans for improving a major road on the edge of the Saintes urban area were declared to be in the public interest. Completion of this operation required the expropriation of various plots of land, including twenty-one hectares belonging to the applicant. The expropriation liability order was issued on 5 September 1994. 10. On 12 September 1994 the expropriations judge for the département of Charente-Maritime issued an expropriation order giving rise to a transfer of ownership. On 28 September 1994, in the absence of an agreement between the applicant and the State as the expropriating authority (represented by Mr H., an inspector from the Charente-Maritime Revenue Department) on the amount of compensation to be paid, the latter applied to the expropriations judge. In an order of the same day the expropriations judge for the département of Charente-Maritime set 4 November 1994 as the date for the site inspection and stated that the public hearing would be held immediately afterwards. On 3 November 1994 Mr P., Deputy Director of the Charente-Maritime Revenue Department, filed submissions in his capacity as Government Commissioner. The applicant’s lawyer then requested an adjournment because of the lateness of these submissions. The hearing was accordingly fixed for 18 November 1994. In a judgment of 9 December 1994, having heard the applicant, Mr H., the State’s representative in the proceedings, and Mr P., the Government Commissioner, the expropriations judge assessed the compensation payable by the State at 1,441,517 French francs (FRF). 11. On 5 January 1995 the applicant appealed against this decison and filed a memorial with the Expropriations Division of the Poitiers Court of Appeal, in which he assessed the amount of compensation due at FRF 3,763,698. On 13 April 1995 the Charente-Maritime Revenue Department filed a memorial in reply, signed by Mr H., in which it asked that the decision be upheld; a sheet of paper entitled “Study of the local property market”, listing thirteen contracts of sale and one judgment, was appended. On 24 April 1995 the applicant’s representative wrote to the signee of the memorial, requesting that he send a full copy of the contracts and decisions cited. In a letter of 18 July 1995 the Deputy Director of the Charente-Maritime Revenue Department, Mr P., refused to produce the documents on the ground that tax officials were bound by a duty of professional confidentiality. On 17 August 1995 the applicant’s counsel replied to the Deputy Director of the Revenue Department as follows: “... it is regrettable that almost three months were required to send a brief reply to a standard request for production of documents, dated 24 April 1995, even though the case is due to be heard on 22 September. This aside, you are mistaken in failing to distinguish between your roles as Director of the Revenue Department and as representative of the expropriating authority in legal proceedings brought in application of the Decree of 11 December 1973 – Article R. 179 of the Code of State Property. In this latter capacity, you are obliged to respect the fundamental principle of adversarial proceedings and the provisions of the new Code of Civil Procedure which impose a basic obligation on the parties to produce the evidence to which they refer. This principle also applies when you are acting in your capacity as Government Commissioner, which for the moment poses no further difficulties. I might add that had your memorial contained, as a minimum, sufficient indications to enable me to order the contracts from the land registry, I would have refrained from asking you to produce these documents. I am therefore obliged to ask the court ... to order discovery of the documents which you refer to, unless the court prefers purely and simply to discount this evidence, which would mean that it would rule only on the basis of my own terms of comparison ...” On 4 September 1995 Mr P., standing in for the Director of the Vienne Revenue Department in his capacity as Government Commissioner, lodged submissions in support of a cross-appeal with a view to the hearing before the Expropriations Division of the Court of Appeal (initially set for 22 September 1995, the hearing was subsequently postponed at the applicant’s request until 24 May 1996); he assessed the compensation in issue at FRF 1,396,267. The applicant filed a memorial in reply, referring in particular to an infringement of his right to a fair trial in the following terms: “... In the present case, the Director of the Revenue Department representing the expropriating authority and the Director of the Revenue Department acting as Government Commissioner are one and the same person, even if, for form’s sake, the Director of the Revenue Department is represented by two separate individuals, which is a fiction, since, as we have seen, the same person replied to the expropriated party’s counsel on behalf of the expropriating authority and also signed the Government’s Commissioner’s submissions. It follows that the Director of the Revenue Department may take part in the present proceedings only in his capacity as the State’s representative or in his capacity as Government Commissioner, and may not combine the two roles. Otherwise, the parties do not enjoy a fair trial within the meaning of Article 6 of the European Convention on Human Rights ...” According to the Government, the registry of the Expropriations Division informed the applicant and the Director of the Revenue Department within the Property Department, in letters dated 9 May 1996, of further grounds of appeal lodged on the same day by the Government Commissioner. 12. In a judgment of 21 June 1996 the Expropriations Division of the Poitiers Court of Appeal established the compensation amount at FRF 1,542,867. It held that the applicant’s request that the court dismiss the intervention by the Director of the Revenue Department in his capacity as Government Commissioner was ill-founded. The judgment stated: “... The [applicant’s] criticisms of the Director of the Revenue Department’s activities and of the dual nature of his functions are unfounded because: (i) The Director of the Revenue Department’s twofold status as Government Commissioner and ... representative of the expropriating authority does not amount to a defect; despite the strangeness of this situation, there is nothing to prevent the Director of the Revenue Department representing the expropriating authority and simultaneously assuming the functions of Government Commissioner. (ii) The Director of the Revenue Department’s joint role as Government Commissioner and representative of the expropriating authority does not deny the expropriated party a fair trial provided that the Government Commissioner does not participate in the decision-making process within the expropriations court. (iii) In any event, in the specific case of this appeal, two Directors of Revenue Departments intervened, namely the Director of the Charente-Maritime Revenue Department, representing the State, and the Director of the Vienne Revenue Department as the Government Commissioner (see the appointments of substitutes dated 25 August 1995 and 2 May 1996 in the case file). Consequently, the [applicant’s] claims on the basis of Article 6 of the Convention ... must be rejected. ... As regards the [applicant’s] request that the State provide him with a copy of the contracts and judgments referred to as terms of comparison, and in the light of the adversarial principle, it seems initially that this request is admissible since it is not ‘a new ground which was not raised at first instance’ but new claims intended to secure dismissal of the other party’s claims (Article 654 of the New Code of Civil Procedure); However, this request [by the applicant] ... must be rejected since the information provided is sufficient to allow identification of the property sold and the price agreed upon together with free discussion of their value as evidence; ...” 13. The applicant appealed on points of law, alleging in particular that there had been a violation of his right to a fair trial. He submitted that it was not necessary for a party to participate in the decision-making process for its intervention to be considered a violation of Article 6 of the Convention, and complained that the Government Commissioner had been the last to speak, after the expropriated party, and that the latter had had no opportunity to reply. The applicant also complained that the Court of Appeal had dismissed his request for production of copies of the terms of comparison cited by the Government Commissioner. On 8 April 1998 the Court of Cassation dismissed this appeal on the following grounds: “... Firstly, the judgment correctly accepts that, since Article 6 of the Convention ... is not applicable, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process, it is not necessary to find his intervention inadmissible. Secondly, there is no text prohibiting the parties from replying to the submissions made by the Government Commissioner at the hearing. ... The Court of Appeal justified its decision in law ... by accepting in the exercise of its unfettered discretion that the information provided had been sufficient to enable identification of the property sold and the price agreed upon together with free discussion of their value as evidence. ...” 14. In a number of départements, including Charente-Maritime, the Revenue Department is the sole authority empowered to carry out purchases of real property, real-property rights or businesses, by agreement or through compulsory purchase orders, on behalf of all the State’s public, civil or military bodies (Article R. 176 of the Code of State Property). In the expropriation proceedings for which it is consequently responsible, it carries out, on behalf of the expropriating authority, “all the acts incumbent on the latter” (Article R. 178 of the same Code). Article 179 of the Code of State Property, in the version applicable at the material time, further provides: “In determining compensation for expropriation, the officials of the Revenue Department appointed by order of the General Director of Revenue shall act before the Expropriations Divisions on behalf of the State’s expropriating bodies. ... The appointments provided for in this Article shall not apply to the officials mentioned in [Article 13-7 of the Expropriations Code].” 15. The relevant provisions of the Expropriations Code are worded as follows: “Failing agreement between the parties, compensation shall be determined by an expropriations judge appointed for each département from among the judges who are members of a tribunal de grande instance.” “No objection may be filed against judgments given at first instance. An appeal lies to the court of appeal within a period of fifteen days from service of judgments given in application of Chapter III.” “An extract of the judgment shall be notified at the request of the most diligent party. It may be referred to the Court of Cassation. Appeals on points of law shall be brought, investigated and tried in accordance with the procedure provided for in Section II of Title II of Law no. 47-1366 of 23 July 1947.” “The Director of the Revenue Department (Property) of the département in which the Expropriations Division is based shall exercise the function of Government Commissioner before this Division. The Director of the Revenue Department (Property) may appoint officials from his Department as his substitute in the role of Government Commissioner before the court mentioned in Article R.13-1. Before the Chamber dealing with the appeal, he may be substituted either by Directors of Revenue Departments (Property) from other départements within the court of appeal’s territorial jurisdiction, or by officials from the Revenue Department (Property) whom he shall appoint specifically for this purpose.” “Cases brought before the courts cited in Articles L. 13-1 and L. 13-22 shall not be transmitted to State Counsel’s Office if the latter’s presence is not required at the hearing.” “Before the Chamber dealing with the appeal, State Counsel may nevertheless ask to see the file in all cases where he believes that his Office should be represented. In such an event, he may attend the hearing in order to lodge those submissions which he considers necessary, without prejudice to those of the Government Commissioner.” “Failing agreement between the parties within one month of receiving notification of the expropriating authority’s offers ... the case may be referred to the expropriations judge by the more diligent party under the conditions set out in Article L. 13-4. ...” “A copy of the order fixing the date and time for inspection of the site shall be sent to the expropriating authority by the registrar of the court, with a view to its communication to the interested parties and to the Government Commissioner. If the case is referred to the judge by the expropriated party, the parties shall be notified directly by the registrar of the date of the site inspection. The registrar shall append a copy of the memorials and other documents in his possession to the notification sent to the Government Commissioner. The parties and the Government Commissioner must be informed at least fifteen days in advance of the date of the site inspection. The visit to the site shall be conducted in their presence. A report shall be produced on the inspection.” “The judge may not appoint experts. In order to assess the value of non-transferable real property and immovable property which present particular valuation difficulties, he may exceptionally be assisted during the inspection of the site by a notary or retired notary appointed from a list drawn up for the whole area within the court of appeal’s territorial jurisdiction by its president, on the basis of proposals from the regional Chamber of Notaries. Exceptionally, he may also appoint a person whom he considers suitably qualified to provide advice in the event of technical problems concerning the assessment of compensation sums other than those referred to in the preceding paragraph.” “The public hearing shall be held on completion of the inspection of the site. At the latest during this inspection, the judge shall inform the parties or their representative, as well as the Government Commissioner, of the place and time of the hearing, which may take place outside the premises in which the court sits.” “The judge shall hear the representative of the expropriating authority and the expropriated parties ... The parties may discuss only points covered in the memorials which they have submitted. ...” “The Government Commissioner shall present oral observations and file submissions. The Government Commissioner’s submissions shall contain the elements needed for the court to be informed of the situation. In particular, they shall include a reasoned valuation of the main compensation and, as appropriate, of the subsidiary compensation due to each owner of rights and, where necessary, information that would allow for automatic application of the provisions of Articles L. 13-14 to L. 13-19.” “Where one of the parties is unable to produce certain documents in support of its memorials, the judge may, where he considers this necessary for the resolution of the case, authorise the party, at its request, to produce these documents at the hearing.” “The judge shall rule within the limits of the parties’ submissions as they appear in their memorials and of the Government Commissioner’s submissions where the latter proposes a valuation that is lower than that of the expropriating party. In such a case, the Government Commissioner’s written submissions must be appended to the case file. If the respondent has not lodged a memorial in reply to the applicant within the period of one month provided for in Article R. 13-23, he shall be deemed to abide by his offers if the respondent is the expropriating authority, and by his reply to the offers if the respondent is the expropriated party. Where the expropriated party has failed to reply to the authority’s offers and to produce a memorial in reply, the judge shall determine the compensation on the basis of the evidence available to him.” “The judgment shall set out, inter alia, the reasons in point of law or of fact for which all awards of main or subsidiary compensation are granted. Where the judgment rejects the Government Commissioner’s submissions proposing a valuation that is lower than that of the expropriating authority, it must specifically state the reasons for such a rejection. The judgment may be delivered by the judge without the Government Commissioner being present. The judgment shall be notified by the most diligent party to the other party and to the Government Commissioner.” “Appeals may be lodged by the parties or by the Government Commissioner within fifteen days from notification of the judgment ... ...” “On pain of having his appeal dismissed, an appellant must lodge with or send to the registry of the Chamber, within two months of the date of the appeal, his memorial and the documents which he intends to produce. The respondent must lodge with or send to the registry of the Chamber, within a month following notification of the appellant’s memorial, his memorial in reply and the documents which he intends to produce. The memorials and documents must be produced in as many copies are there are parties, plus one additional copy. The registrar shall serve each party and the Government Commissioner with a copy of the documents filed with the registry as soon as these are received. A cross-appeal may be brought by the parties in their memorial in reply or by a declaration made at the registry of the Chamber. If brought by the Government Commissioner, it must take the second form.” “The Division [of Appeal] shall rule on the basis of memorials. However, the parties may present argument briefly on aspects of the memorials they have submitted. Exceptionally, an expert opinion may be prepared on the basis of a reasoned order from the court. In such a case, if the expropriating authority and the expropriated parties cannot agree on the choice of a single expert, he shall be appointed by the President of the Chamber.” “The provisions of Articles R. 13-33, R. 13-35, R. 13-36 (first paragraph) and R. 13-38 shall be applicable to the appeal procedure.” 16. The Government Commissioner has the “role of party to the proceedings” (Conseil d’Etat, Assembly, 13 December 1968, Association syndicale des propriétaires de Champigny-sur-Marne et Musso). 17. Intervention by the State official responsible for property as representative of the expropriating authority, under the Decree of 12 July 1967, and simultaneously as Government Commissioner, in application of Article R. 13-7, paragraphs 1 and 3, of the Expropriations Code, does not constitute a ground for alleging procedural impropriety (Paris Court of Appeal, Expropriations Chamber, judgment of 30 January 1981). In addition, the Court of Cassation has ruled that the fact that the Government Commissioner’s role was assumed by the inspector of property who drew up the preliminary opinion assessing the compensation offers on behalf of the expropriating authority does not contravene Article 6 of the Convention, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process (Third Civil Division, judgment of 21 October 1992, Sté Rivom c. Département de la Côte-d’Or, Bulletin civil (Bull. civ.) III, no. 279). 18. Emphasising that no document may be lawfully submitted to the court without the parties having an opportunity to discuss it in adversarial proceedings and that “this rule applies to all the courts, even in the absence of a specific text to this effect”, the Court of Cassation has ruled that, where the Government Commissioner’s submissions propose a valuation lower than that of the expropriating authority or contains new elements, the expropriations judge is obliged to ensure that these have been brought to the attention of the parties and that the latter have an opportunity to discuss them freely before the end of the hearing (Third Civil Division, two judgments of 10 July 1969: Prudhomme c. ville de Rennes and Consorts Josso c. ville de Saint-Nazaire, Bull. civ. III, judgments nos. 1 and 3, no. 566, pp. 423-24). 19. The report in question contained the following suggestion: “FOURTH SUGGESTION: Proposal to amend Articles R. 13-32, R. 13-35, R. 13-47 et seq. of the Expropriations Code as regards the role of the Government Commissioner before the Expropriations Divisions. Under Article R. 13-7 of the Expropriations Code, the Director of Revenue (Property) of the département in which the Expropriations Division is based exercises the functions of Government Commissioner before this Division during proceedings to establish the compensation due to expropriated parties. Although no text sets out the exact nature of his role, it is clear from the provisions of the Expropriations Code that the Government Commissioner’s main task is to provide the court, which cannot, in principle, appoint an expert, with the information it requires and in particular with a reasoned assessment of the main and subsidiary compensation due to each owner whose property is subject to expropriation. For this purpose, the Government Commissioner has access to information on tax statements and assessments held by the tax authorities and, in particular, to the land charges register constituted by all property transfers which must be formally registered. However, doubts have been cast on the compatibility of certain aspects of the Government Commissioner’s role with the principles derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, it has been noted that the Government Commissioner may propose a valuation of the expropriated assets that is lower than the valuation suggested by the expropriating authority (Article R. 13-35 of the Expropriations Code); he may lodge an appeal or cross-appeal against the judgment determining the level of compensation (Article R. 13-47 et seq. of the Code), although he may not appeal on points of law, except as regards costs imposed on him for the proceedings; and, where he is not the appellant, the Government Commissioner’s submissions are not served on the parties but simply included in the case file (Article R. 13-32). Expropriated parties have also indicated that they have experienced difficulties in obtaining information contained in the land charges register, to which the Government Commissioner has unimpeded access by virtue of his official functions. Finally, it has been observed that, whilst the Government Commissioner is not the State’s representative before the Expropriations Division, there may be, at least in appearance, a certain ambiguity where the State itself is the expropriating authority, particularly when, under Article R. 176 of the Code of State Property, the State is represented before the Expropriations Divisions in a number of départements by the Revenue Department. As long ago as 1992, the Ombudsman included in his annual report a letter, dated 28 January 1992, in which he drew the Minister of Justice’s attention to the Government Commissioner’s role. Whilst it is unnecessary to state that the Commissioner does not participate in the decision-making process within the Expropriations Division, which is by no means obliged to follow his submissions, and although the Court of Cassation ensures that expropriated parties’ rights are respected and the adversarial principle as defined in the new Code of Civil Procedure is effectively complied with, it would nonetheless appear desirable, in order to put an end to possible doubts regarding the conformity of certain aspects of the Government Commissioner’s current role with the requirements of the European Convention and particularly Article 6 § 1, to redefine his functions, limiting them to those of a specialist entrusted with providing the judge and the parties to the compensation proceedings with the information held by the Revenue Department on the state of the property market, so that this situation is improved.” 20. Decree no. 55-22 of 4 January 1955 reforming land registration provides, inter alia: “For each municipality, a land charges register shall be maintained by the land registrars, in which, as information is submitted, extracts from published documents shall be registered under the name of each owner and by building, with a reference to their classification in the archives. The land charges register shall present an up-to-date profile of the legal status of buildings as indicated by the published documents.” “No changes to the legal status of a building may be the subject of a cadastral transfer if the deed or judicial decision recording this change has not previously been published in the land charges register.” 21. Article 39 of Decree no. 55-1350 of 14 October 1955 is worded as follows (version as amended by Decree no. 98-553 of 3 July 1998): “Any request for information shall be drawn up in two typed or printed copies on a form supplied by the authorities or on one copied in accordance with the conditions established by an instruction published in the Official Journal of the Revenue Department, the second copy being obtained by duplication. Subject to the application of paragraph 1 of Article 40, such requests must include: (1) All items of information provided for in Article 9 of the Decree of 4 January 1955 which are necessary to identify the natural persons or legal entities on whose behalf the information is requested; The individual designation of the buildings referred to in the request, i.e. indications regarding the municipality in question, the section and identification number on the cadastral map and, for parts of buildings, an indication of the lot number. Surnames and non-personal names indicated in the applications must appear in capital letters. First names shall be written in small letters. The applications shall be signed and dated by those submitting them.” | 1 |
train | 001-109868 | ENG | RUS | GRANDCHAMBER | 2,012 | CASE OF KONSTANTIN MARKIN v. RUSSIA | 1 | Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 37-1-b - Matter resolved);Remainder inadmissible;Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Angelika Nußberger;Ann Power-Forde;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Luzius Wildhaber;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Paulo Pinto De Albuquerque;Renate Jaeger;Sverre Erik Jebens;Zdravka Kalaydjieva | 9. The applicant was born in 1976 and lives in Velikiy Novgorod. 10. On 27 March 2004 he signed a military service contract. The contract signed by the applicant was a standard two-page form stating, in particular, that he “undertook to serve under the conditions provided for by law”. 11. At the material time the applicant was serving as a radio intelligence operator (оперативный дежурный группы боевого управления в составе оперативной группы радиоэлектронной разведки) in military unit no. 41480. Equivalent posts in his unit were held by servicewomen and he was often replaced in his duties by female personnel. 12. On 30 September 2005 the applicant’s wife, Ms Z., gave birth to their third child. On the same day a court granted her petition for divorce. 13. On 6 October 2005 the applicant and Ms Z. entered into an agreement under which their three children would live with the applicant and Ms Z. would pay maintenance for them. The agreement was certified by a notary. 14. According to the applicant, several days later Ms Z. left for St Petersburg. 15. On 11 October 2005 the applicant asked the head of his military unit for three years’ parental leave. On 12 October 2005 the head of the military unit rejected his request because three years’ parental leave could be granted only to female military personnel. The applicant was allowed to take three months’ leave. However, on 23 November 2005 he was recalled to duty. 16. The applicant challenged the decision of 23 November 2005 before a court. On 9 March 2006 the Military Court of the Pushkin Garrison annulled the decision and upheld the applicant’s right to the remaining 39 working days of his three months’ leave. On 17 April 2006 the Military Court of the Leningradskiy Command quashed the judgment and rejected the applicant’s claims. 17. Meanwhile, on 30 November 2005, the applicant brought proceedings against his military unit claiming three years’ parental leave. He submitted that he was the sole carer for his three children. He referred, in particular, to section 10(9) of the Military Service Act (see paragraph 47 below). 18. During the hearing before the Military Court of the Pushkin Garrison the representatives of the military unit submitted that the applicant had not proved that he was the sole carer for his children. It was impossible for the applicant, who was serving in the army, studying at a University and participating in several sets of judicial proceedings, to take care of his children alone. There was evidence that Ms Z. and other people were helping him. The children were therefore not left without maternal care. The military unit’s representatives also drew the court’s attention to some inconsistencies in the applicant’s submissions and the documents produced by him. For example, the children’s address indicated in the notarial agreement was incorrect, Ms Z.’s employment contract was not registered as required by law, there was no divorce stamp in Ms Z.’s passport, and the applicant had not applied for child allowances or sued Ms Z. for her failure to pay child maintenance. In their opinion, the applicant’s divorce was a sham with the aim of evading military service and receiving additional benefits from his military unit. 19. The court examined Ms Z.’s petition for divorce in which she stated that she had been living separately from the applicant since September 2005 and that she considered any further marital relationship impossible. It also examined the judicial decision confirming the divorce, the notarial agreement according to which the children were to live with the applicant and Ms Z.’s employment contract signed in St Petersburg. It also studied the record of a hearing held on 27 February 2006 in an unrelated civil case, from which it appeared that Ms Z. had represented the applicant. 20. The applicant stated that he and his children lived in Novgorod together with Ms Z.’s parents. Although Ms Z. helped him occasionally with the children (for example she had done babysitting for the youngest child on 31 January 2006 while he attended a hearing), it was he who took everyday care of them. Ms Z. did not pay child maintenance because her income was too low. Ms Z. had indeed represented him at the hearing of 27 February 2006, which concerned a claim lodged jointly by the couple before the divorce. Ms Z. had agreed to continue her assistance until the end of the proceedings. 21. Ms Z. testified that she lived in St Petersburg, while the children lived with the applicant in Novgorod. She did not participate in the care of the children. She did not pay child maintenance because her salary was minimal. 22. Ms Z.’s father stated that after the divorce his daughter had left for St Petersburg, while the applicant and the children continued to live together with him and his wife in the flat belonging to them. Although his daughter occasionally talked to the children over the phone, she did not participate in their care. The applicant was the sole carer for the children. He took them to school and to the doctor’s, cooked for them, took them for walks and supervised their education. 23. Ms Z.’s employer testified that Ms Z. worked for her in St Petersburg. She knew that employment contracts had to be registered. She had attempted to register Ms Z.’s employment contract with the Tax Authority. The Tax Authority had refused to register the contract, informing her that she had to register it with the Town Administration. However, at the Town Administration she had been told that it was the Tax Authority which was responsible for registering employment contracts. As she had found herself in a vicious circle, she had stopped her fruitless attempts to register the contract. Ms Z. had returned to work two weeks after the childbirth. She knew that Ms Z.’s children lived with their father in Novgorod, but she did not know further details about Ms Z.’s relations with her ex-husband or her children. A couple of times she had heard Ms Z. talking to her eldest child over the phone. 24. The teacher of the applicant’s second child stated that in September 2005 both the applicant and Ms Z. would take the child to school. However, after the birth of the third child and the divorce it was always the applicant who had brought the child to school in the morning and picked him up in the evening. It was the applicant who had come to the school parties. In reply to her questions about his mother, the child had said that his mother had left for St Petersburg where she was working. She thought that the applicant was a good father; the child evidently loved him. At the same time, he never spoke about his mother. 25. The children’s doctor testified that on 6 October 2005 Ms Z. had brought the youngest child for an examination. From 1 November 2005 onwards it was always the applicant who had taken the children to the doctor’s. The children were healthy and good care was taken of them. 26. On 14 March 2006 the Military Court of the Pushkin Garrison dismissed the applicant’s claim for three years’ parental leave as having no basis in domestic law. The court held that only female military personnel were entitled to three years’ parental leave, while male military personnel had no such entitlement even in those cases where their children were left without maternal care. In such cases a serviceman was entitled either to an early termination of his service for family reasons, or to three months’ leave. The applicant had made use of the second opportunity. 27. The court further held that, in any event, the applicant had failed to prove that he was the sole carer for his children and that they lacked maternal care. It followed from the evidence examined at the hearing that even after the divorce the applicant and Ms Z. had continued their marital relationship. They lived together, both took care of their children and defended the interests of their family. The applicant’s allegations to the contrary were therefore false and aimed at misleading the court. It was essential that Ms Z. had not been deprived of parental authority. She was not in any other way prevented from taking care of her children and it was irrelevant whether they lived with her or not. 28. The applicant appealed, alleging that the refusal to grant him three years’ parental leave had violated the principle of equality between men and women guaranteed by the Constitution. He further submitted that the factual findings made by the first-instance court were irreconcilable with the evidence examined at the hearing. 29. On 27 April 2006 the Military Court of the Leningradskiy Command upheld the judgment on appeal. It did not examine the applicant’s allegation that the factual findings made by the first-instance court had been incorrect. Instead it held that under domestic law “male military personnel were not in any circumstances entitled to parental leave”. It further added that the applicant’s “reflections on equality between men and women ... [could] not serve as a basis for quashing the first-instance judgment, which [was] correct in substance”. 30. While the court proceedings were pending the applicant was disciplined several times for systematic absences from his place of work. 31. By order of 24 October 2006 the head of military unit no. 41480 granted parental leave to the applicant until 30 September 2008, the third birthday of his youngest son. On 25 October 2006 the applicant received financial aid in the amount of 200,000 Russian roubles (RUB), equivalent to approximately 5,900 euros (EUR). In a letter of 9 November 2006 the head of military unit no. 41480 informed the applicant that the financial aid was granted to him “in view of [his] difficult family situation, the necessity of taking care of three minor children and the absence of other sources of income”. 32. On 8 December 2006 the Military Court of the Pushkin Garrison issued a decision in which it criticised the head of military unit no. 41480 for granting the applicant three years’ parental leave and thereby disregarding the judgment of 27 April 2006 in which it had been found that the applicant was not entitled to such leave. The court drew the attention of the head of the military unit to the unlawfulness of his order. 33. On 11 August 2008 the applicant applied to the Constitutional Court, claiming that the provisions of the Military Service Act concerning the three-year parental leave were incompatible with the equality clause in the Constitution. 34. On 15 January 2009 the Constitutional Court rejected his application. The relevant parts of its judgment read as follows: “2.1 ... military service is a special type of public service which ensures the defence of the country and the security of the State, it is therefore performed in the public interest. Persons engaged in military service exercise constitutionally important functions and therefore possess a special legal status which is based on the necessity for a citizen of the Russian Federation to perform his duty and obligation in order to protect the Fatherland. When establishing a special legal status for military personnel, the federal legislature is entitled, within its discretionary powers, to set up limitations on their civil rights and freedoms and to assign special duties... ... by signing a military service contract a citizen ... voluntarily chooses a professional activity which entails, firstly, limitations on his civil rights and freedoms inherent in this type of public service, and, secondly, performance of duties to ensure the defence of the country and the security of the State. Accordingly, military personnel undertake to abide by the statutory requirements limiting their rights and freedoms and imposing on them special public obligations. ... by voluntarily choosing this type of service citizens agree to the conditions and limitations related to the acquired legal status. Therefore, the imposition by the federal legislature of limitations on the rights and freedoms of such citizens is not in itself incompatible with [the Constitution] and is in accordance with ILO Discrimination (Employment and Occupation) Convention no. 111 of 25 June 1958, which provides that any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination (Article 1 § 2). 2.2 Under section 11(13) of [the Military Service Act] parental leave is granted to female military personnel in accordance with the procedure specified in federal laws and regulations of the Russian Federation. A similar provision is contained in Article 32 § 5 of the Regulations on military service, which also provides that during parental leave a servicewoman retains her position and military rank. A serviceman under contract is entitled to leave of up to three months if his wife dies in delivery or if he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care). The purpose of such leave is to give the serviceman a reasonable opportunity to arrange for the care of his child and, depending on the outcome, to decide whether he wishes to continue the military service. If the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons... The law in force does not give a serviceman the right to three years’ parental leave. Accordingly, servicemen under contract are prohibited from combining the performance of their military duties with parental leave. This prohibition is based, firstly, on the special legal status of the military, and, secondly, on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for efficient professional activity of servicemen who are fulfilling their duty to defend the Fatherland. Owing to the specific demands of military service, non-performance of military duties by military personnel en masse must be excluded as it might cause detriment to the public interests protected by law. Therefore, the fact that servicemen under contract are not entitled to parental leave cannot be regarded as a breach of their constitutional rights or freedoms, including their right to take care of, and bring up, children guaranteed by Article 38 § 2 of the Constitution of the Russian Federation. Moreover, this limitation is justified by the voluntary nature of the military service contract. By granting, on an exceptional basis, the right to parental leave to servicewomen only, the legislature took into account, firstly, the limited participation of women in military service and, secondly, the special social role of women associated with motherhood. [Those considerations] are compatible with Article 38 § 1 of the Constitution of the Russian Federation. Therefore, the legislature’s decision cannot be regarded as breaching the principles of equality of human rights and freedoms or equality of rights of men and women, as guaranteed by Article 19 §§ 2 and 3 of the Constitution of the Russian Federation. It follows from the above that section 11(13) of [the Military Service Act], granting the right to parental leave to female military personnel only, does not breach the applicant’s constitutional rights ... 2.4 As servicemen having minor children are not entitled to parental leave, they are also not entitled to receive monthly child-care allowances payable to those who take care of children under the age of a year and a half...” The Constitutional Court concluded that the provisions challenged by the applicant were compatible with the Constitution. 35. On an unspecified date in March 2011 the Representative of Russia at the European Court of Human Rights asked the local military prosecutor’s office to conduct an inquiry into the applicant’s family situation. In particular, he asked the prosecutor to find out where the applicant, Ms Z. and their children were currently living and whether Ms Z. paid child maintenance. 36. According to the Government, the applicant was summoned to the prosecutor’s office for 30 or 31 March 2011. The applicant stated that he had not received any summons. 37. As the applicant had failed to be present at the appointed time, the prosecutor decided to visit him at home. According to the applicant, the prosecutor arrived at his flat at 10 p.m. on 31 March 2011, waking up and frightening his children. The Government submitted that the prosecutor had visited the applicant at 9 p.m. and had remained for an hour. 38. The prosecutor informed the applicant that he was conducting an inquiry at the request of the Representative of Russia at the European Court of Human Rights. He noted the residents of the flat. He then requested the applicant to produce a court judgment concerning child maintenance in respect of his youngest son. After the applicant had explained that the child maintenance had been fixed by a notarial agreement, the prosecutor requested a copy of that agreement. He warned the applicant that if he refused to produce the requested documents, his neighbours would be questioned. 39. The applicant called his representative before the Court and, following her advice, refused to comply with the prosecutor’s orders or answer his further questions. He signed a written statement to that effect. The prosecutor immediately left. 40. The prosecutor also questioned the applicant’s neighbours, who testified that the applicant and Ms Z. were living together. 41. According to the Government, the inquiry established that the applicant and Ms Z. had remarried on 1 April 2008 and had had a fourth child on 5 August 2010. In December 2008 the applicant had terminated his military service for health reasons. The applicant and Ms Z. were currently living together with their four children and Ms Z.’s parents. 42. The Russian Constitution guarantees equality of rights and freedoms of everyone regardless of, in particular, sex, social status or employment position. Men and women have equal rights and freedoms and equal opportunities (Article 19 §§ 2-3). 43. The Constitution also guarantees protection of motherhood and the family by the State. The care and upbringing of children is an equal right and obligation of both parents (Article 38 §§ 1-2). 44. The Labour Code of 30 December 2001 provides that women are entitled to a so-called “pregnancy and delivery leave” (maternity leave) of 70 days before the childbirth and 70 days after it (Article 255). Further, women are entitled to a three-year “child-care leave” (parental leave). Parental leave may also be taken in full or in part by the father of the child, his/her grandmother, grandfather, a guardian or any relative who is actually taking care of the child. The person on parental leave retains his/her employment position. The period of parental leave is counted for seniority purposes (Article 256). 45. The Federal Law on Obligatory Social Insurance of Sick Leave or Maternity Leave (no. 255-FZ of 29 December 2006) provides that during maternity leave the woman receives a maternity allowance, payable by the State Social Insurance Fund, amounting to 100% of her salary (section 11). During the first year and a half of the parental leave the person who is taking care of the child receives monthly child-care allowances, payable by the State Social Insurance Fund, amounting to 40% of the salary, but no less than RUB 1,500 (approximately EUR 37.5) for the first child and RUB 3,000 (approximately EUR 75) for each of the subsequent children (section 11(2)). During the second year and a half of the parental leave no social-insurance payments or allowances are available. 46. The Federal Law on the Status of Military Personnel (no. 76-FZ of 27 May 1998, “the Military Service Act”) provides that female military personnel are entitled to maternity leave and to parental leave in accordance with the Labour Code (section 11(13)). There is no similar provision in respect of male personnel. 47. The Act also provides that female military personnel, as well as military personnel bringing up children left without maternal/paternal care, are entitled to social benefits in accordance with federal laws and other legal acts concerning protection of family, motherhood and childhood (section 10(9)). 48. Under the Regulations on military service, enacted by Presidential Decree no. 1237 of 16 September 1999, a servicewoman is entitled to maternity leave, to three years’ parental leave, and to all related social benefits and allowances. A serviceman under contract is entitled to three months’ leave in one of the following cases: (a) his wife has died in childbirth, or (b) he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care) (Article 32). 49. Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly and ratified by Russia in 1981, provides as follows: “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” 50. Its Article 16 § 1 provides, as far as relevant, as follows: “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: ... (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;...” 51. In its Concluding Observations on the periodic reports submitted by the Russian Federation, adopted on 30 July 2010, the CEDAW Committee stated, in particular, as follows: “20. The Committee reiterates its concern at the persistence of practices, traditions, patriarchal attitudes and deep-rooted stereotypes regarding the roles, responsibilities and identities of women and men in all spheres of life. In this respect, the Committee is concerned at the State party’s repeated emphasis on the role of women as mothers and caregivers. The Committee is concerned ... that, thus far, the State party has not taken effective and systematic action to modify or eliminate stereotypes and negative traditional values and practices. 21. The Committee urges the State party to put in place without delay a comprehensive strategy, including the review and formulation of legislation and the establishment of goals and timetables, to modify or eliminate traditional practices and stereotypes that discriminate against women... The Committee notes that a shift from a focus on women primarily as wives and mothers to individuals and actors equal to men in society is required for the full implementation of the Convention and the achievement of equality of women and men...” 52. Article 1 of International Labour Organisation (ILO) Convention No. C111 concerning Discrimination in Respect of Employment and Occupation, adopted in 1958 and ratified by the Russian Federation in 1961, reads as follows: “1. For the purpose of this Convention the term discrimination includes-- (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies. 2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination...” 53. Article 3 § 1 of ILO Convention No. 156 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, adopted in 1981 and ratified by the Russian Federation in 1998, reads as follows: “With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.” 54. Article 22 of Recommendation No. 165 supplementing that Convention provides as follows: “(1) Either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded. (2) The length of the period following maternity leave and the duration and conditions of the leave of absence referred to in subparagraph (1) of this Paragraph should be determined in each country by one of the means referred to in Paragraph 3 of this Recommendation. (3) The leave of absence referred to in subparagraph (1) of this Paragraph may be introduced gradually.” 55. The revised European Social Charter was ratified by the Russian Federation in 2009. The Russian Federation declared that it considered itself bound, among others, by Article 27 which reads as follows: “With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake: ... 2. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice.” 56. In its Resolution 1274(2002) on Parental leave, the Parliamentary Assembly stated as follows: “1. Parental leave was first introduced in Europe more than a century ago as a key element of social and employment policies for women in work at the time of childbirth. Its purpose was to protect the health of mothers and to enable them to look after their children. 2. Parental leave has since been adapted to meet the needs not only of women but also of men who wish to balance work and family life and ensure their children’s well-being. 3. The issue of parental leave is closely linked to that of the role of men in family life, since it permits a genuine partnership in the sharing of responsibilities between women and men in both the private and public sphere...” 57. The Parliamentary Assembly further noted that parental leave was not applied equally in all member States. It therefore urged the Member States, in particular: “i. to take the necessary steps to ensure that their legislation recognises different types of family structures, if they have not already done so, and, accordingly, to introduce the principle of paid parental leave including adoption leave; ii. to set up suitable structures for the implementation of parental leave, including adoption leave...” 58. In its Recommendation 1769(2006) on the need to reconcile work and family life the Parliamentary Assembly noted that the aim of reconciling work and family life was far from being achieved in many Council of Europe member States and that this situation primarily penalised women, since they still carried most of the responsibility for running the home, bringing up young children and very often looking after their dependent parents or other elderly dependants. It therefore invited the Committee of Ministers to address a recommendation to the member States asking them, in particular: “8.3. to take measures making it easier to reconcile work and family life which target women and men, including: ... 8.3.5. providing adequate remuneration/compensation during maternity leave; 8.3.6. introducing, if they have not yet done so, paid paternity leave and encouraging men to take it; ... 8.3.8. introducing paid, socially-covered parental leave, which may be used flexibly by the father and mother, taking special care to ensure that men are actually able to use it”. 59. In its Recommendation No. R (96) 5 on reconciling work and family life, the Committee of Ministers, acknowledging the need for innovative measures to reconcile working life and family life, recommended that member States “I. Take action, within the framework of a general policy promoting equal opportunities and equal treatment, to enable women and men, without discrimination, to better reconcile their working and family lives; II. Adopt and implement the measures and general principles described in the appendix to this recommendation in the manner they consider the most appropriate to achieve this goal in the light of national circumstances and preferences.” 60. In respect of maternity, paternity and parental leave the appendix to the aforementioned Recommendation explains as follows: “12. Women should be entitled to legal protection in the event of pregnancy, and, in particular, an adequate period of maternity leave, adequate pay or allowance during this period and job protection. 13. The fathers of newly born children should also be allowed a short period of leave to be with their families. In addition, both the father and the mother should have the right to take parental leave during a period to be determined by the national authorities without losing either their employment or any related rights provided for in social protection or employment regulations. The possibility should exist for such parental leave to be taken part-time and to be shared between parents. 14. The measures described in paragraph 13 should apply equally for the benefit of persons adopting a child. 15. The return to work at the end of a period of parental leave should be facilitated by, for example, vocational guidance and training facilities”. 61. Recommendation Rec(2007)17 of the Committee of Ministers to member States on gender equality standards and mechanisms recommended, in particular, that “...the governments of member states take or reinforce necessary measures to implement gender equality in practice, taking fully into account the following principles and standards: ... B. Standards in specific areas: ... 5. Reconciliation of private/family life and professional/public life 34. Gender stereotypes and a strong division of gender roles influence social models that tend to see women as mainly responsible for family and private life (in the area of unpaid work) and men in the public sphere and professional work (in the area of paid work). Such division leads to the persistence of unequally shared domestic and family responsibilities, being one of the major reasons for discrimination against women in the labour market and for their limited social and political participation. 35. The balanced participation of women and men in professional/public life and in private/family life is, therefore, a key area for gender equality and is essential for the development of society. On the other hand, reconciliation of work and public life with family and private life, promoting self-fulfilment in public, professional, social and family life, is a precondition for a meaningful quality of life for all, women and men, girls and boys, and for the full enjoyment of human rights in the political, economic, cultural and social spheres. 36. Elements indicating states’ political will and commitment to gender equality in this regard include the following: ... iii. Adoption/existence and enforcement of legislation on maternity and paternity protection, including provisions on paid maternity leave, paid parental leave equally accessible to both parents, and paid non-transferable paternity leave, as well as specific measures addressed equally to women and men workers, to allow the fulfilment of family responsibilities, including care and assistance to sick or disabled children or dependants”. 62. Finally, in Recommendation Rec(2010)4 on the human rights of members of the armed forces, the Committee of Ministers recommended that the Governments of the member States should ensure, in particular, that “the principles set out in the appendix to this recommendation [were] complied with in national legislation and practice relating to members of the armed forces”. Principle 39 of the appendix to that Recommendation provides that “members of the armed forces who are parents of young children should enjoy maternity or paternity leave, appropriate childcare benefits, access to nursery schools and to adequate children’s health and education systems”. 63. Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave concluded by UNICE [Union of Industrial and Employers’ Confederations of Europe], CEEP [European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest] and the ETUC [European Trade Union Confederation] gave effect to that agreement, which had been entered into on 14 December 1995 between those cross-industry representative organisations and which provided, in particular, as follows: “Clause 2: Parental leave 1. This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour. 2. To promote equal opportunities and equal treatment between men and women, the parties to this agreement consider that the right to parental leave provided for under clause 2.1 should, in principle, be granted on a non-transferable basis...” 64. Council Directive 2010/18/EU of 8 March 2010 on the application of the revised Framework Agreement on parental leave between BUSINESSEUROPE, UEAPME, CEEP and the ETUC replaced Directive 96/34/EC. The revised Framework Agreement provides as follows: “Clause 2: Parental leave 1. This agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until a given age up to eight years to be defined by Member States and/or social partners. 2. The leave shall be granted for at least a period of four months and, to promote equal opportunities and equal treatment between men and women, should, in principle, be provided on a non-transferable basis. To encourage a more equal take-up of leave by both parents, at least one of the four months shall be provided on a non-transferable basis. The modalities of application of the non-transferable period shall be set down at national level through legislation and/or collective agreements taking into account existing leave arrangements in the Member States.” 65. The case of Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie, Ministre de la Fonction publique, de la Réforme de l’Etat et de la Démocratisation, deals with the issue of service credit for children being awarded only to female civil servants in accordance with the French civil and military retirement pension scheme. In its judgment of 29 November 2001 the European Court of Justice (ECJ) observed that the grant of that credit was not linked to maternity leave or to the disadvantages which a female civil servant incurred in her career as a result of being absent from work during the period following the birth of a child. This credit was linked to a separate period, namely that devoted to bringing up the children. In this connection, the ECJ found that the situations of a male civil servant and a female civil servant were comparable as regard the bringing-up of children. In particular, the fact that female civil servants were more affected by the occupational disadvantages entailed in bringing up children, because this was a task generally carried out by women, did not prevent their situation from being comparable to that of a male civil servant who had assumed the task of bringing up his children and had thereby been exposed to the same career-related disadvantages. 66. Further, the ECJ noted that French legislation introduced a difference in treatment on grounds of sex in regard to male civil servants who had in fact assumed the task of bringing up their children. That measure was not justified because it was not of a nature such as to offset the disadvantages to which the careers of female civil servants were exposed by helping those women conduct their professional life on an equal footing with men. On the contrary, that measure was limited to granting female civil servants who were mothers a service credit at the date of their retirement, without providing a remedy for the problems which they might encounter in the course of their professional career. The French legislation therefore infringed the principle of equal pay inasmuch as it excluded male civil servants who were able to prove that they had assumed the task of bringing up their children from entitlement to the credit. 67. The judgment adopted by the ECJ on 30 September 2010 in the case of Roca Álvarez v. Sesa Start España ETT deals with the question whether the denial of “breast-feeding leave” (a half-hour reduction in the working day for the purpose of feeding a baby) to employed fathers, while employed mothers were entitled to such leave, amounted to discrimination on grounds of sex. The ECJ found that the positions of a male and a female worker, father and mother of a young child, were comparable with regard to their possible need to reduce their daily working time in order to look after their child. The Spanish legislation established a difference on grounds of sex, as between mothers whose status was that of an employed person and fathers with the same status. 68. As concerns justification for such a difference in treatment, the ECJ considered, firstly, that the leave at issue had been detached from the biological fact of breastfeeding, entitlement to it being granted even in cases of bottle feeding. It could be therefore considered as time purely devoted to the child and as a measure which reconciled family life and work following maternity leave. Feeding and devoting time to the child could be carried out just as well by the father as by the mother. Therefore that leave seemed to be accorded to workers in their capacity as parents of the child. It could not therefore be regarded as ensuring the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child. 69. Secondly, the measure at issue did not constitute a permissible advantage given to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men. On the contrary, the fact that only a woman whose status was that of an employed person could take that leave, whereas a man with the same status could not, was liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties. To refuse entitlement to the leave at issue to fathers whose status was that of an employed person, on the sole ground that the child’s mother did not have that status, could have as its effect that the mother would have to limit her self-employed activity and bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden. Consequently, a measure at issue could not be considered to be a measure eliminating or reducing existing inequalities in society, nor as a measure seeking to achieve substantive as opposed to formal equality by reducing the real inequalities that could arise in society and thus to prevent or compensate for disadvantages in the professional careers of the relevant persons. 70. The ECJ concluded that the relevant provisions of Spanish law were incompatible with EU law. 71. The Court conducted a comparative study of the legislation of thirty-three member States of the Council of Europe (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, the “Former Yugoslav Republic of Macedonia”, France, Georgia, Germany, Greece, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Poland, Portugal, Romania, Serbia, Spain, Sweden, Switzerland, Turkey and the United Kingdom). 72. The comparative study suggests that as far as civilians are concerned, in two States (Armenia and Switzerland) entitlement to parental leave is limited to women. In one State (Turkey) men working in the private sector are not entitled to parental leave, while male civil servants are entitled to such leave. In one State (Bosnia and Herzegovina) men may take parental leave under certain conditions only (for example, absence of maternal care of the child). In one State (Albania) no parental leave entitlement is provided by law. In the remaining twenty-eight States both men and women are equally entitled to parental leave in civilian life. 73. In some countries parental leave is a family entitlement to be divided between parents as they choose (for example in Azerbaijan, Georgia and Romania). In other countries it is an individual entitlement, with each parent entitled to a certain portion of parental leave (for example in Belgium, Croatia, the Czech Republic, Luxembourg and Italy). In Sweden the entitlement is partly family, partly individual, with 60 days reserved for each parent and the rest divided between them as they choose. In some countries parental leave is unpaid (for example Austria, Belgium, Cyprus, Malta, the Netherlands, Spain and the United Kingdom). In others parental leave is paid either in part or in full (for example Azerbaijan, the Czech Republic, Luxembourg, Serbia and Portugal). There are also varied approaches to the length of parental leave, ranging from three months (Belgium) to three years (Spain). 74. As regards military personnel, it appears that in one State (Albania) military personnel are not expressly entitled to parental leave. In six States (Armenia, Azerbaijan, Georgia, Moldova, Switzerland and Turkey) only servicewomen are entitled to such leave. In three States (Bosnia, Herzegovina, Bulgaria and Serbia) all servicewomen are entitled to parental leave, while servicemen are entitled to such leave only in exceptional cases, for example if the mother has died, has abandoned the child, is seriously ill or is unable to take care of the child for any other justified reason. In the remaining twenty-three States both servicemen and servicewomen are equally entitled to parental leave. 75. In some countries (for example Austria, Croatia, Cyprus, Estonia, Finland, Italy, Luxembourg, Malta, Poland, Portugal, Serbia and Sweden) parental leave for military personnel seems to be governed by the same general provisions as those applicable to civilians. In other countries (for example the Czech Republic, Latvia, Greece, Lithuania, Romania and France) parental leave is regulated by specific provisions which do not, however, contain any significant differences as compared to the rules applicable to civilians. In five countries (Spain, Germany, the Netherlands, Belgium and the United Kingdom) the specific provisions governing parental leave for military personnel contain certain differences or restrictions not applicable to civilians. For example, legislation in the Netherlands provides that parental leave may be postponed where “important interests of the service” so require. In Germany military personnel benefit from the same statutory entitlements as civilians in terms of parental leave. However, the Ministry of Defence may oppose the attribution of parental leave to a serviceperson or recall a serviceperson on parental leave to duty on grounds of imperative needs of national defence. Similarly, in the United Kingdom, service personnel, who in principle have the same entitlement to parental leave as civilians, may not be able to take parental leave at their convenience if it is considered to affect the combat effectiveness of the armed forces. | 1 |
train | 001-85707 | ENG | CZE | ADMISSIBILITY | 2,008 | KRIZANOVA AND OTHERS v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | The applicants, Ms Dagmar Křižanová, Jiří Křižan and Jan Křižan, are Czech nationals who were born in 1919, 1941 and 1940 respectively, and live in Branky and Ontario (Canada) respectively. They were represented before the Court by Mr P. Ondra, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 March 1992 the applicants brought proceedings for the restitution of their property which had been nationalised by the former communist regime. It appears that the proceedings are still pending. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-60853 | ENG | HRV | CHAMBER | 2,002 | CASE OF CULJAK AND OTHERS v. CROATIA | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 7. The first and the second applicants were born in 1958 and 1959, respectively, and live in Požega. The third applicant, “Mesoprodukt”, is a meat production company. 8. In 1991 the first and second applicants founded the company “Mesoprodukt”, a personal private company in Požega. The company is entirely owned by the first and second applicants and they are liable for the company's obligations with all their assets. The present case concerns several proceedings in respect of “Mesoprodukt”. 9. By virtue of the Požega County Veterinary Inspection (veterinarski inspektor Ureda za gospodarstvo Županije požeško-slavonske) decision of 26 May 1994, the applicant company was prohibited from slaughtering animals and producing meat for human consumption. 10. Upon the applicant company's appeal the Appeal Commission of the Ministry of Agriculture and Forestry (Uprava za veterinarstvo poljoprivrede i šumarstva) quashed the first instance decision on 14 June 1994. 11. On 14 November 1994 the applicant company filed a suit with the Požega Municipal Court (Općinski sud u Požegi) seeking payment of damages from the Požega and Slavonija County (Županija Požeško-Slavonska), due to the fact that it had been prohibited from producing meat from 26 May 1994 until 14 June 1994. 12. Prior to 5 November 1997 the Požega Municipal Court ordered that a financial expertise be carried out and invited the applicant company to pay an advance for expenses related to the expert opinion. The applicant company paid the advance in part. 13. On 3 April 1998 the court invited the applicant company to pay the remainder of the advance. 14. On 4 May 1999 the appointed expert informed the court that the applicant company had not paid the remainder of the advance for the expenses. 15. At the hearing on 7 May 1999 the court invited the Požega Tax Revenue Service to submit documentation about the applicant company's income in 1993 and 1994 in order to carry out a complete financial expertise. In January 2000 the requested documents were submitted. On 10 April 2000 the court sent this documentation to the appointed expert. The applicant company was invited to pay an advance for the expenses related to a new expertise. 16. The next hearing scheduled for 23 January 2001 was adjourned at the request of the applicants' counsel. 17. At the hearing on 1 March 2001 the court stayed the proceedings because the first and second applicants, although they received the notice of the hearing date, did not appear. 18. On 12 June 2001 the applicants' counsel asked the court to resume the proceedings. The court then ordered that additional expertise be carried out and invited the defendant to pay an advance for the expenses of the expertise. 19. On 5 December 2001 the defendant informed the court that it did not wish to pay the expenses. 20. On 4 January 2002 the court requested the Slavonski Brod Commercial Court (Trgovački sud u Slavonskom Brodu) to provide documentation concerning the applicant company's registration. On 17 January the requested documentation was submitted. 21. At the hearing on 18 February 2002 one witness was heard and the defendant filed further written submissions. The applicants' counsel was asked to file a written reply and to specify their claim within fifteen days. 22. It appears that the proceedings are pending before the court of first instance. 23. On 18 March 1994 the police seized a vehicle owned by the first applicant's wife. The vehicle had been used for transportation of goods related to “Mesoprodukt”. On 21 April 1994 the vehicle was returned. 24. On 14 November 1994 the applicant company filed a suit with the Požega Municipal Court against the Ministry of Interior (Ministarstvo unutarnjih poslova) and the Ministry of Finance (Ministarstvo financija), seeking payment of damages for the profits lost due to its inability to transport goods with the vehicle. 25. On 14 August 1996 the Požega Municipal Court pronounced judgment granting the applicant company's claim. Both parties appealed against the judgment. 26. On 19 November 1997 the Požega County Court (Županijski sud u Požegi) quashed the first instance judgment and remitted the case for re-trial. 27. The hearing scheduled for 16 June 1998 was adjourned due to the illness of the expert who was to be heard. 28. The hearing scheduled for 4 June 1999 was adjourned due to the expert's absence. 29. On 29 October 1999 the Act on Changes of the Civil Obligations Act was introduced providing that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed pending the enactment of new legislation on the subject. 30. On 22 January 2002 the proceedings were stayed pursuant to the above Act. 31. The applicants' counsel appealed against that decision. The appeal was rejected on 27 March 2002 by the Požega County Court. 32. The proceedings are accordingly pending before the first instance court. 33. On 9 December 1993 the the Požega County Finance Police Office (Postaja financijske policije za Požeško-slavonsku županiju) ordered the applicant company to pay a transfer and sale of goods tax (porez na promet proizvoda i usluga) in the amount of 179,837.52 Croatian Kunas (HRK) and HRK 363,600.87 in interest. As the applicant company refused to pay those sums, its bank account was blocked. 34. The applicant company's ensuing appeals were successful and on 13 January 1997 the Ministry re-assessed the amount of tax to be paid to HRK 64,955.00 and HRK 64,381,52 in interest. The applicant company paid those sums immediately after receiving this decision. 35. Subsequently, on 19 November 1997 the applicant company filed a suit with the Požega Municipal Court seeking payment of damages from the Ministry of Finance due to the fact that the authorities' miscalculation of the tax had caused an unwarranted blocking of the bank account of the company. 36. On 9 December 1997 the defendant filed its submissions objecting to the applicant company's claim. 37. The preliminary hearing scheduled for 10 December 1997 was adjourned due to the defendant's absence. 38. On 15 October 1998 the defendant submitted a detailed reply denying the applicant company's claim. 39. The next hearing was held on 29 October 1998. 40. On 15 October 1999 the court invited the applicant company to pay the court fees. The applicant company failed to do so. 41. On 2 March 2000 the court informed the Tax Revenue Service that the applicant company had not paid the court fees. 42. At the hearing on 17 January 2001 the defendant asked the court to stay the proceedings until the applicant company had paid the court fees. The court invited the Tax Revenue Service to inform it whether the applicant company had paid the fees. It also invited the Požega Commercial Court (Trgovački sud u Požegi) to submit documentation concerning the assets of the applicant company. 43. On 6 March 2001 the Požega Commercial Court submitted the requested documentation. 44. It appears that the proceedings are presently pending before the court of first instance. 45. In respect of the above-mentioned three sets of civil proceedings the applicant company lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the excessive length of the three above sets of proceedings and requesting the speeding up of those proceedings. 46. By decision of 4 May 2000 the Constitutional Court rejected the applicant company's complaint finding that the proceedings did not exceed the reasonable time requirement. | 1 |
train | 001-100737 | ENG | TUR | ADMISSIBILITY | 2,010 | DOGRU v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicant, Mr Galip Doğru, is a Turkish national who was born in 1983 and lives in İstanbul. He is represented before the Court by Mr İ. Akmeşe, a lawyer practising in İstanbul. On 15 February 2003 the applicant was caught red-handed while throwing a Molotov cocktail into a bank during an illegal demonstration in support of the PKK (the Workers' Party of Kurdistan). According to the arrest record signed by the applicant, while escaping from the police the applicant entered an empty building under construction, where he fell on the staircase and was subsequently caught by the police. According to the same document, the police used force to counteract the applicant's resistance. The applicant was examined by a number of doctors on 15 February 2003. According to two medical reports issued following these examinations, the applicant sustained a cut and a haematoma on his right eyebrow, a bruise and oedema on his nose and a graze on his chin. In his statement to the doctor, the applicant maintained that the injuries had occurred during his arrest. According to the medical report issued on 19 February 2003 at the end of the applicant's detention in police custody, the applicant had a sutured injury on his right eyebrow, a 2 x 2 cm bruise under his right eye and a 1.5 cm graze on his chin. In his medical examination, the applicant declared to the doctor that he was beaten during his arrest but that no such treatment had occurred in police custody. On 19 February 2003 the applicant was taken before the public prosecutor, where he submitted that police officers had caused his injuries during his arrest. On the same day the applicant's lawyer complained before the investigating judge that the applicant had been illtreated and forced to sign self-incriminating statements in police custody. The applicant was detained pending trial by the investigating judge. On 21 February 2003 the public prosecutor at the Istanbul State Security Court lodged a bill of indictment charging the applicant with membership of the PKK and with throwing explosives. On 16 May 2003 the applicant complained before the trial court that he had been ill-treated during his arrest and his detention in police custody. Following the abolition of State Security Courts, on 30 June 2004 the criminal proceedings against the applicant were transferred to the Fourteenth Division of the Istanbul Assize Court. On 26 May 2006 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation and of possession of and throwing explosives. In its decision, the court found that the applicant's injuries had occurred at the time of his arrest, as he had claimed in his initial statements to the authorities. The Court relied, inter alia, on the applicant's police statement, the arrest record, on-site inspection records, medical reports and the statements it took from the accused and witnesses. On 12 December 2006 the Court of Cassation quashed the judgment on procedural grounds due to the absence of the trial judges' signatures on the verdict. Following the remittal of the case to the first-instance court, on 25 July 2007 the applicant was released pending trial. On 31 October 2007 the Istanbul Assize Court convicted the applicant once again of the same offences. On 29 September 2009 the Court of Cassation upheld the applicant's conviction for membership of the PKK and possession of explosives. On 24 March 2003 the Sultanbeyli public prosecutor brought criminal proceedings against three police officers before the Sultanbeyli Criminal Court for the alleged ill-treatment of the applicant. The applicant took part in the proceedings. On 18 December 2003 the first-instance court acquitted the accused police officers during the hearing when the applicant was present. The court found that the applicant's injuries had happened as a result of his fall whilst running away from the police and due to his resistance to the arrest by the police officers. The judgment became final, in the absence of any appeal request. | 0 |
train | 001-71250 | ENG | POL | ADMISSIBILITY | 2,005 | WIKTOROWICZ v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mrs Genowefa Wiktorowicz, is a Polish national who was born in 1949 and lives in Łask-Kolumna. On 24 November 1994 the applicant lodged a civil action with the Łask District Court (Sąd Rejonowy) asking for discontinuation of the construction works carried out on an adjacent plot of land. On 12 August 1998 the Łask District Court gave judgment. On 30 September 1998 the applicant lodged an appeal against this judgment with the Sieradz Regional Court (Sąd Okręgowy). On 11 August 1999 the Sieradz Regional Court gave judgment and upheld the first-instance judgment. On 25 October 2000 the applicant’s lawyer lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). On 6 July 2001 the Supreme Court refused to examine the cassation appeal, considering that it had been manifestly ill-founded. That decision was served on the applicant on 23 July 2001. On 18 November 1999, the date on which the application was lodged with the Court, the proceedings were pending before the Supreme Court. 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: 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 |
train | 001-91780 | ENG | FIN | ADMISSIBILITY | 2,009 | RANINEN v. FINLAND | 4 | Inadmissible | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Janne Raninen, is a Finnish national who was born in 1977 and lives in Helsinki. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. An acquaintance of the applicant disappeared in October 2003 while visiting the applicant in Helsinki. On 21 November 2003 the police questioned the applicant, as a witness, about this disappearance. On 21 January 2004 the applicant was apprehended and arrested on suspicion of murdering his acquaintance. On 21 and 22 January 2004 he was interrogated by the police. At the latter interrogation the applicant's counsel was present for the first time. On 24 January 2004 the District Court (käräjäoikeus, tingsrätten) ordered in camera that the applicant be detained and that the deadline for bringing the charges was 17 June 2004. This decision was not subject to appeal. On 29 January 2004, opposing the detention, the applicant lodged, in accordance with Chapter 1, section 27, subsection 2, of the Coercive Measures Act, a complaint (kantelu, klagan) with the Appeal Court (hovioikeus, hovrätten). He claimed that there was no probable cause to believe that his acquaintance was dead, that he had been killed or that the applicant had killed him either acting alone or in concert with others. He also referred to Article 5 § 4 of the Convention. On 5 February 2004 the Appeal Court found that the complaint did not give cause to lift the applicant's detention. By application dated 26 February 2004 the applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen), repeating the arguments already put forward before the Appeal Court. On 20 April 2004 the court refused leave to appeal. On 3 June 2004, having heard that the public prosecutor was planning to request an extension of the time-limit for bringing the charges, the applicant's counsel informed the police that the applicant would oppose this and that he would also request a re-examination of his detention. For this reason, the counsel requested, on the basis of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet; Act no. 621/1999), that the following documents be submitted to him by the police in good time before the re-examination of the applicant's detention: In general, the applicant's counsel wished to obtain clarification concerning the matters which had arisen in the course of the investigation, as referred to in the Criminal Investigations Act (esitutkintalaki, förundersökningslag; Act no. 449/1987). He wished to obtain for example the preliminary introduction to the forthcoming investigation records, if such an introduction had been drafted. On 11 June 2004 the applicant's counsel received from the police the investigation records and the records drawn up of the investigation conducted by the police dogs. He was told that the transcriptions of the wiretapping and of the monitoring of telecommunications were included in the investigation records. On 17 June 2004 the chief of police confirmed this by a decision which was subject to appeal. According to the said decision, the applicant was denied access to the other documents on the basis of sections 11 and 24, subsection 3, of the Openness of Government Activities Act as the investigation was pending and access to such documents would have compromised the investigation of the matter. In addition, the applicant was denied access, on the basis of section 11 of the Criminal Investigations Act, to an overall report on the state of the criminal investigation on the same grounds. Finally, according to the decision, there were no documents speaking against the applicant's guilt. On 15 June 2004 the public prosecutor requested an extension of the time-limit for bringing the charges. In this connection the applicant's counsel found out that another person who was under suspicion for the same crime had been detained by the same District Court on 13 June 2004. The applicant's counsel requested copies of the detention order and the application for it. On 16 June 2004 the public prosecutor denied access to these documents by referring to the fact that the District Court had examined the matter in camera. Moreover, the District Court had declared the application for detention and its appendices, and most parts of the detention order confidential. Due to the denial, these documents were consequently withdrawn, in the applicant's case, from the documents submitted to the court by the public prosecutor. Moreover, the prosecutor stated that the police investigation of the matter was still pending and the matter had not yet been referred to the prosecutor for the consideration of charges. Consequently, any information concerning the investigation was to be given by the police, not by the prosecutor. The applicant's counsel was given directions on how to appeal, should the public prosecutor's refusal be considered as a decision against which an appeal lay. On 16 June 2004 the applicant requested the District Court, when examining the request for extension of the time-limit, also to re-examine the matter of his detention. On 17 June 2004 the matter was examined before the District Court. The applicant opposed the extension of the time-limit and claimed that the public prosecutor and the court had had greater access to the files than he. He denied the existence of a probable cause. The District Court decided to extend the time-limit for bringing the charges until 30 September 2004 and to hold the applicant in pre-trial detention. By way of reasoning, it stated that, according to the information received from the police and the public prosecutor, nothing in the criminal investigation had lessened the degree of probable cause which had formed the basis of the applicant's initial detention. This decision was not subject to appeal. The applicant was subsequently convicted of murder. According to Chapter 1, section 22, subsections 1 and 3, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslag; Act no. 450/1987, as amended by Act no. 646/2003 entering into force on 1 January 2004), if a suspect of a crime has been detained, the court deciding on the charges as the first instance must re-examine the detention matter promptly, and at the latest within four days from the request, if a detainee makes such a request. The issue of detention does not need to be re-examined earlier than two weeks after the previous examination. Moreover, when re-examining the detention matter, the detainee or his or her counsel must be provided with an opportunity to be heard, unless it is deemed unnecessary. A detainee must be heard in person if he or she so requests or if the court deems it necessary. Chapter 1, section 24, of the same Act provides that a court must release a detainee immediately if it considers that the conditions for the detention no longer exist. Under Chapter 1, section 27, subsections 1 and 2, of the same Act, there is no ordinary appeal against a decision given in a detention matter but it is nevertheless possible for a detainee to challenge the detention by lodging a complaint (kantelu, klagan) with the competent court. The Turku Appeal Court released, for example, in the case KKO 2000:115, a detainee who had lodged a complaint, as the conditions for the detention no longer existed. | 0 |
train | 001-58784 | ENG | FIN | CHAMBER | 2,000 | CASE OF KUOPILA v. FINLAND | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress | 8. The applicant is a Finnish national, born in 1927 and living in Uusikaupunki. She is an art dealer. At the beginning of November 1990, she obtained through a transfer of a sales commission a painting that was to be sold by the end of November. A statement of 1955, according to which the painting was an authentic work of Helene Schjerfbeck (a famous Finnish artist), was attached on the back of the painting. 9. On 9 April 1991, the original owner of the painting reported to the police that the applicant had refused to return the painting despite the expiry of the sales commission and his repeated requests. He considered that a crime had been committed. Subsequently, a police investigation was initiated. The police questioned the applicant and the original owner of the painting. As it appeared that the applicant had sold the painting to a third person, the police questioned him, too. Furthermore, the painting was seized. 10. The applicant was charged with aggravated fraud and aggravated embezzlement, committed concurrently, contrary to chapter 28, section 5 (1), and chapter 36, section 2 (1), of the Criminal Code (rikoslaki, strafflag). According to the indictment, the applicant had on 14 April 1991 stolen the painting, worth at least 250,000 Finnish marks (FIM), entrusted to her, by selling it to a third person, deceitfully as her own, for FIM 250,000. Her intention had been to obtain an unjust pecuniary advantage, and the action had caused financial loss to the buyer. The Prosecutor considered that both the embezzlement and the fraud were aggravated in particular since the property in question was very valuable and since considerable benefit had been sought. 11. On 26 September 1991 the court proceedings in the District Court (kihlakunnanoikeus, häradsrätten) of Hyvinkää commenced. The court ordered that the painting remain seized. The court heard the applicant, the original owner and the buyer. The applicant pleaded not guilty to the above-mentioned charges, claiming that there was only a dispute over the ownership and payment of the painting. Furthermore, three witnesses were questioned relating to the circumstances of the sales commission and the applicant's business activities. Later, the applicant was accused of four additional counts of embezzlement and fraud. 12. On 20 February 1992, the applicant, who now had doubts as to whether the painting was authentic, requested the court to authorise and order the examination of its authenticity. The District Court ruled, as far as relevant, as follows: (Translation) "... the examination of the authenticity of the painting at this stage does not concern [the applicant's] interests and rights and thus the request concerning such an interlocutory decision cannot be complied with. ..." 13. On 7 May 1992, the District Court convicted the applicant on all five charges brought against her, i.e. also on the charge of aggravated embezzlement and aggravated fraud now at issue. The court sentenced her to imprisonment totalling two years and six months. The seizure of the painting was lifted, and the court ordered that it be returned to the estate of the buyer. 14. On 5 June 1992, the applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki requesting that she be acquitted or her sentence be reduced. She submitted that the first charge had led to the other four charges. She stated that she would attempt to obtain new evidence concerning the authenticity of the painting and requested that an oral hearing be held or that the case be returned to the District Court in case such new evidence appeared. 15. On 13 July 1992, the applicant, represented by counsel, requested the Prosecutor to order an investigation into the authenticity of the painting. Following her request an investigation was initiated. The police obtained from the National Gallery of Finland a statement, dated 15 September 1992, according to which the painting was not authentic. On 21 October 1992, the police questioned the original owner of the painting. The applicant was not questioned. 16. On 2 August 1993, the Prosecutor submitted a supplementary police report, including the National Gallery’s statement, to the Court of Appeal. In the accompanying letter the Prosecutor asked the Court of Appeal to take the report into account by virtue of chapter 26, section 5, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk). The Prosecutor found that, from the angle of criminal law, the non-authenticity of the painting did not essentially affect the assessment of the case. He stated further that the police had made attempts in order to question the applicant but they had not been able to reach her. The Prosecutor did not specify these attempts any further. 17. On 14 September 1993, the Court of Appeal upheld the judgment of the District Court without inviting the applicant to submit comments or holding an oral hearing. Furthermore, neither the original owner nor the estate of the buyer were heard. The court did not make any separate decision as to whether the supplementary police report had been taken into account as evidence or not. The Court of Appeal approved the District Court’s reasoning without making any changes to it and, consequently, in its own reasoning it did not in any way mention the content of the supplementary police report or of the National Gallery’s statement. 18. The applicant found out about the above-mentioned National Gallery’s statement in the autumn of 1993. Following her request, the Prosecutor sent it to her on 12 November 1993. 19. On 14 November 1993, the applicant, assisted by counsel, requested leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). She referred to the fresh statement and maintained that if this information had been available in the lower courts the outcome of the case would have been a different one. She invoked the concept of a fair trial guaranteed by human rights conventions. 20. In his comments to the Supreme Court the Prosecutor stated that the authenticity of the painting was not relevant for the assessment of the criminal case at issue. 21. On 24 May 1994, the Supreme Court on 24 May 1994 refused the applicant leave to appeal. 22. On 14 April 1995, the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) concerning the Prosecutor's failure to communicate to her the police report concerning the authenticity of the painting. 23. On 22 July 1996, the Deputy Parliamentary Ombudsman (apulaisoikeusasiamies, biträdande justitieombudsman) found that the Prosecutor, by failing to communicate the supplementary police report to the applicant or her representative, had shown negligence in respect of his official duties. The Deputy Parliamentary Ombudsman took into account that the supplementary police investigation concerned the value of the painting, this being an important element when considering the nature of the offence and the punishment thereupon. As a result, the Deputy Ombudsman addressed a critical remark (huomautus, anmärkning) to the Prosecutor. 24. The applicant served two thirds of the total thirty months imprisonment, which means that she spent one year and eight months in prison. 25. According to chapter 26, section 5, of the Code of Judicial Procedure, the court of appeal may take into account a written pleading or other documents submitted to it after a time-limit has expired if special grounds therefor exist. If the pleading or document can affect the outcome of the case the court of appeal is obliged, under section 6, to request the parties to give written comments, if such a measure is not considered to be manifestly unnecessary. | 1 |
train | 001-95605 | ENG | MLT | ADMISSIBILITY | 2,009 | DAVID AQUILINA v. MALTA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr David Reuben Aquilina, is a Maltese national who lives in Fgura. He was represented before the Court by Dr A. MifsudBonnici, a lawyer practising in Valletta. In September 2005 the applicant was sued for an amount of money which he allegedly owed the plaintiffs in respect of a purchase he made from them. He thus became a party to civil proceedings before the Small Claims Tribunal (“SCT”). On 12 December 2007 the SCT found against the applicant. It noted that the contractual agreements undertaken were not ideal. However, it was not competent to decide whether such agreements could have been made or not. It was solely competent to decide whether the applicant owed the sum of 1,500 Maltese Liras (MTL) to the plaintiffs. Finding that the versions of the parties were diametrically opposed the court considered that it had to base itself on the credibility of their testimonies. It found that, on the one hand, the plaintiffs had been coherent in their submissions throughout the three separate hearings. On the other hand, the applicant’s testimony had been contradictory and in its view false. It noted, inter alia, that the applicant claimed that on signing the initial agreements he had not understood what he was signing and that he would consequently have to make payment. This notwithstanding, he had started making regular payments by means of a standing order. When asked about the latter he had replied that he did not know what such a thing was, notwithstanding that it was general knowledge that such an order could only be made at the request of the account holder. The court was of the view that his claim that he was illiterate and that he did not understand what had been going on was only an excuse to avoid the obvious. On 14 July 2006, the applicant instituted constitutional proceedings claiming a violation of Article 6 of the Convention. He complained that the SCT was not an impartial tribunal in view of its composition, namely an adjudicator, who was a lawyer appointed on a part-time basis for a term of office of five years, and who could in the meantime continue to practise as a lawyer before the ordinary courts. This system left room for prejudice against lawyers who might have been the adjudicator’s opponents in previous or future litigation, or advantages for clients represented by the same firm as that of the adjudicator, together with any other likes and dislikes among colleagues of the same profession acting in the same courts of law, as was the case in Malta. The fact that the adjudicators were not obliged to take the oath administered to judges and magistrates sitting in the ordinary courts was a matter of further concern. On 31 May 2007 the Civil Court (First Hall) rejected the applicant’s claim as the system was safeguarded by the possibility of challenging adjudicators or of their withdrawing ex officio. The applicant appealed. On 13 June 2007 the Constitutional Court upheld the first-instance judgment. Noting that the guarantees of impartiality were best respected by the ordinary courts having full-time judges, it considered that although it would have been preferable that such adjudicators did not continue to practise their profession, the fact that they did so did not mean that the SCT lacked objective impartiality. Although it could be envisaged that in certain circumstances, as mentioned by the applicant, an issue could arise, the applicant’s complaint in the present case was in the abstract. Section 4 of the Small Claims Tribunal Act, Chapter 380 of the Laws of Malta, reads as follows: (1) The Tribunal shall be presided over by an adjudicator sitting alone: Provided that more than one adjudicator may be appointed to sit in any of the said Tribunals, but only one adjudicator shall sit in any one case. (2) Adjudicators shall be appointed by the President acting in accordance with the advice of the Prime Minister. A person shall not be qualified to be appointed as Adjudicator unless he has practised as an advocate in Malta for a period or periods amounting in the aggregate to not less than seven years. (3) A person shall be disqualified from being appointed an adjudicator if such person - (a) is a member of the House of Representatives; or (b) is a member of a Local Council; or (c) is an undischarged bankrupt; or (d) has been sentenced by any court to imprisonment for any term or has been found guilty by any court of any of the crimes in Titles III, V or VI of Part II of Book First of the Criminal Code. (4) (a) Adjudicators shall receive such remuneration as the Prime Minister may by notice in the Gazette determine and such remuneration shall be a charge on the Consolidated Fund; such remuneration shall not during the tenure of office of an Adjudicator be altered to his disadvantage. (b) During the term of their appointment, Adjudicators shall be precluded from the exercise of their profession in cases before the Tribunal. (5) Adjudicators shall be appointed for a term of five years and, on the lapse of their term, they shall not be eligible for reappointment: Provided that if the office of Adjudicator is vacant or if the Adjudicator is unable to perform the functions of his office, then, until a person has been appointed and has assumed the functions of that office, those functions shall be performed by any other Adjudicator in office or by such other person qualified for appointment as Adjudicator as may be appointed to act as Adjudicator by the President acting in accordance with the advice of the Prime Minister. Such person shall continue to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the President acting in accordance with the advice of the Prime Minister. (6) In the exercise of his functions under this Act, an Adjudicator shall not be subject to the control or direction of any other person or authority. An Adjudicator may not be removed from office except in the manner and for the reasons provided for in article 97(2) of the Constitution, and any law or regulation made pursuant to article 97(3) of the Constitution for the purposes of article 97(2) thereof shall apply mutatis mutandis to the procedure for the presentation of an address and for the investigation and proof of the inability or misbehaviour of an Adjudicator under the provisions of this article. In so far as relevant, section 7 of the Act reads as follows: “The Tribunal shall determine any claim or counterclaim before it principally in accordance with equity”. | 0 |
train | 001-66924 | ENG | RUS | CHAMBER | 2,004 | CASE OF VATAN v. RUSSIA | 3 | Preliminary objection allowed (lack of victim status);Inadmissible | Georg Ress | 8. On 29 April 1994 Vatan was registered as a political party with the Ministry of Justice of the Russian Federation. 9. According to Vatan’s constitutional charter, it was founded “to support the renascence of the Tartar nation, to enhance the latter’s political activity and to protect Tartars’ political, socio-economic and cultural rights”. The name “Tartar” applies to the peoples of Turkic origin who speak a language which belongs to the Ural-Altaic language family. Four-fifths of the Tartars (about 5.5 million people) live in the Russian Federation: the majority live in the Republic of Tatarstan and the Republic of Bashkortostan, and the rest are dispersed across the Ural Mountains and in the Volga region. The Tartars are Muslims. 10. On 12 August 1994 the Simbirsk (Ulyanovsk) Regional Organisation of the People’s Democratic Party Vatan (“the Regional Organisation”) was registered with the Ulyanovsk Regional Department of Justice. Vatan claims that this was a branch of its party. 11. On 12 October 1997 the Regional Organisation made an appeal (“the appeal”) to the “peoples of the Volga region, to all oppressed peoples of the empire, to the Ulyanovsk Regional and City authorities, to historians, students of local lore, archaeologists and scientists”, entitled “Prevention and cancellation of the forthcoming witches’ Sabbath arranged by reactionary forces – ‘the war party’- the so-called ‘350th anniversary of the founding of the town of Simbirsk’ which is in fact an approximate date of the colonisation of Shekhry Sember”. 12. The appeal contained, inter alia, the following statements: “To the indigenous population of the Volga Region: tartars, chuvash, erzya, moksha, mari, bashkir. 1. Never allow desecration or mockery of the memory of your ancestors; do not allow the reactionary Nazi forces to celebrate the date of colonisation of Sember. Shekhry Sember is a thousand-year-old town of your glorious ancestors. In the town centre, on Simbirskaya Hill and in the outskirts lie their graves – do not allow them to be defiled. Be prepared for the anniversary of the colonisation of Shekhry Sember. On the ancestors’ Memorial Day, 31 May 1998 at 9 a.m., all come out to our sacred Sember Hill – to the ancestors’ graves – between the Memorial and Lenin square. A trip to the ancestors’ graves and the ruins of the Shekhry Kalman will also be on offer and everyone who wishes will have an opportunity to turn to Islam. Let us stand up for the honour and dignity of our peoples. Let us celebrate the 1350th Anniversary of Shekhry Sember in a dignified manner, inshallah. Strive for decolonisation of the peoples who are prisoners of Moscow-Shaitan Kala, the Russian empire. 2. Who knows how much loss, humiliation, suffering, deprivation and sacrifice our peoples have endured: racial discrimination, employment discrimination, the ban on education in our native language, forced service in the occupiers’ army? 3. Strive for legitimisation of indigenous languages. Strive for the holding of fair municipal elections on the basis of national communities. Strive for education for every child in the national language from primary level to higher education. Strive for satellite channels broadcasting from Kazan, Ufa, Cheboksary, Saransk, Yoshkar-Ola, Tashkent, Bishkek, Alma-Aty, Ankara, Istanbul, Teheran, Riyadh and Mecca. 4. Indigenous peoples idel-uras-seber-krym iort, and in particular semberile and even American Indians – you are the heirs of the great Islamic culture. Come back to Islam. There will be more than a thousand million of us. To the Ulyanovsk Regional administration, to Mr Goryachev and Mr Marusin personally, to historians, students of local lore, archaeologists and scientists of the region: 1. Mr Goryachev, Mr Marusin and their subordinates, Do not fall under the influence of pseudo-historians, the “war party” from Moscow, the local liberal democratic party, pseudo-scientists and Nazis. Stop the witches’ Sabbath in celebration of the 350th anniversary of the colonisation of Simbirsk. Even the colonisation date is intentionally confusing. The real colonisation date is the end of May 1666 - 1999 is a good round figure of colonisation, i.e. 333 years. Do not stir up the Russian population against the indigenous peoples of the Volga Region – you will not succeed. God be with us, inshallah. 2. Mr Goryachev, Mr Marusin and local governors, Stop wasting our regional budget on the creation of monuments to an apostate and traitor of his peoples, the converted Christian Tartar Bogdan Khitrovo ..., in accordance with the directions of the “war party” in Moscow. The money saved on the witches’ Sabbath should be invested in founding a Volga peoples’ University and introducing TV broadcasting in the local languages. Bring back education in the national language for every child. 3. On the sacred Sember Hill between the Memorial and Lenin Square, on the burial place of our sacred ancestors, restore the remembrance tombstone destroyed by your administration ... Restore or allow to be restored the main temple Shekhry Sember on Sember Hill. 4. Mr Goryachev, have the courage to apologise on behalf of all your predecessors to the peoples of the Region for the centuries of humiliation, suffering, deprivation and sacrifices, since you are their successor. Someone must put an end to it. 5. ... There is no point in hiding, and it is common knowledge that there are only 10 million Russians, with the remaining 130 million being Russian speakers who do not remember their ancestors and historical-ethnic origin. Deprivation of historical and ethnic roots, of memory and the motherland is the sad result of the violence imposed in order to create a mono-ethnic and monolingual empire. We, the peoples of the Volga region, were, are, and always will be, inshallah. Given his 30 years of experience in the national liberation movement, his courage, his knowledge of the region and his understanding of people, the Ulyanovsk Regional Branch of Vatan empowers Iskhan Nailbek Mikey to be at the head of the national liberation fight and to form a brigade of trustworthy, courageous, consecrated and resistant people. Let us shorten the arms of the “war party” in Moscow! Free the empire’s peoples! Decolonise Russia! Bring Islamic education in the national language to all children! These are the common slogans of all peoples - prisoners of Moscow.” 13. On 19 May 1998 the Regional Organisation asked the mayor of Ulyanovsk to authorise a ceremony dedicated to the 1350th anniversary of the founding of Sember. On 22 May 1998 the mayor gave permission for the ceremony to be held in places of worship belonging to religious organisations and in cemeteries. 14. On 31 May 1998 the Regional Organisation held a memorial ceremony in the city centre, where, according to Vatan, an ancient Muslim cemetery was formerly located. 15. On 3 June 1998 the prosecutor of the Ulyanovsk Region applied to the Ulyanovsk Regional Court to have the Regional Organisation’s activities suspended on the ground that it had called for violence, contrary to the federal legislation and the Constitution. 16. On 13 July 1998 the Ulyanovsk Regional Court examined the prosecutor’s claim. 17. Firstly, the court considered various statements made by the Regional Organisation in the light of their conformity with the Constitution, in particular, the appeal of 12 October 1997 and noted that the Regional Organisation: - referred to the State institutions responsible for the public celebration of the 350th anniversary of Simbirsk as “Nazis”; - called for “decolonisation of the peoples who are prisoners of Moscow–Shaitan Kala, the Russian empire”; - referred to the Russian Federation as “the enemy of humankind”; - referred to Russian citizens as “Russian speakers who do not remember their ancestors and historical-ethnic origin”; - urged the authorities “to stop the witches’ Sabbath in celebration of the 350th anniversary of the colonisation of Simbirsk” and “to stop wasting [the] regional budget”; - empowered the Regional Organisation’s secretary, Mr Mikeyev, “to be at the head of the national liberation fight and to form a brigade of trustworthy, courageous, consecrated and resistant people”. 18. The court also found that the Regional Organisation had called for recognition of the independence of the Republic of Chechnya and for a return by the peoples of the Volga region to Islam (conference minutes of 26 May 1996), and that it had called on the Sember peoples to join the Tartar Muslims in their national liberation fight (minutes of the Regional Organisation General Meeting of 12 October 1997). A reference was also made to the Annual Report of the Regional Organisation’s activities, where the court found calls to “decolonise Russia”, to form military forces “on the basis of religious confessions” and to “abolish the neo-imperialistic emblem depicting crosses and passports which gave no indication of ethnic origin”. 19. The court held that all of the above statements were incompatible with the Constitution. The court stated, inter alia, the following: “...the Ulyanovsk Regional Organisation of the People’s Democratic Party Vatan openly calls for violation of the integrity of Russia, for violent alteration of the foundations of constitutional governance and for the creation of an Islamic State in the Volga Region. The Regional Organisation proclaims the idea of a national liberation fight and calls for the formation of a brigade of trustworthy, courageous and resistant people. The activities and opinions of the Regional Organisation’s leaders and members are of an extreme nationalist nature, inciting people to national and religious discord and denigrating the Russian speaking population and non-adherents of Islam.” 20. Secondly, the court found that the memorial ceremony of 31 May 1998 held by the Regional Organisation in the centre of Ulyanovsk was in breach of the mayor’s permit. 21. The court concluded that the activities of the Regional Organisation did not correspond to the purposes declared in its Charter and violated Section 16 of the Federal Law on Public Associations, which prohibits the establishment and activities of public associations whose aims and actions are directed at the violent alteration of the foundations of constitutional governance, violation of the integrity of the Russian Federation and the undermining of state security, the forming of armed units and incitement to social, racial, national and religious strife. The court allowed the prosecutor’s appeal and suspended the Regional Organisation’s activities for 6 months. 22. Ipso jure, the Regional Organisation was prohibited from holding meetings, demonstrations and other public actions, taking part in elections and disposing of its bank accounts other than for the payment of expenses incurred in the course of normal activities, payment of labour contracts, damages and fines. 23. The Regional Organisation challenged the judgment of 13 July 1998 before the Supreme Court of Russia, contending that the Ulyanovsk Regional Court had misinterpreted the meaning of the appeal, which reflected the Tartars’ history and that there had been no incitement to national or religious strife or anything which might insult the dignity of Russians. The Regional Organisation insisted that the ceremony of 31 May 1998 had been held at the site of the ancient Muslim cemetery. 24. On 3 September 1998 the Supreme Court upheld the first instance judgment. An application for supervisory review was dismissed by the same court on 13 October 1998. 25. On 12 January 2000 the Ulyanovsk Regional Court allowed a claim by the Department of Justice of the Ulyanovsk Regional Administration to dissolve the Regional Organisation on account of its failure to bring its Charter in compliance with new legislation. This decision has not been appealed against. 26. The relevant provisions of Vatan’s constitutional charter read as follows: “The Charter of the People’s Democratic Party Vatan ... 1.1 The People’s Democratic Party Vatan is a political party ... 1.2 Vatan carries out its activities on the territory of the Russian Federation, where regional organisations are created (Omsk, Ulyanovsk, Nizhniy Novgorod Regions, Moscow, the Republics of Bashkortostan and Mordovia and the Chuvash Republic) ... 1.5 The seat of Vatan’s headquarters, the Central Co-ordination Board, is in Moscow. ... 3.4 All party organisations shall be autonomous in taking decisions concerning local matters in so far as these do not conflict with the party’s Charter or its Programme. ... 4.1 Vatan has been set up for the protection of citizens of Tartar origin, citizens of other origin and of their political, economic, social and cultural rights and freedoms, in order to promote their active participation in the governing of the state and social affairs. 4.2 To achieve its goals Vatan shall pursue the following objectives: - participating as prescribed by law in the state legislative and executive bodies, by nominating its candidates to express the political will of its members; - promoting the creation of ethnic districts, circuits and country councils in those places where Tartars are concentrated within the Russian Federation; - carrying out organisational activities, campaigns, propaganda and other information activities for educational and pedagogical purposes, promoting the return of the Arabic script; - organising lectures, seminars, talks, round-table discussions, mass and collective actions and other events, in accordance with the law and the party’s goals and objectives; ... - representing its members’ interests before state bodies and public institutions; ... 5.1 The party shall be organised on a territorial basis. The primary party units, namely the district, town, circuit and regional organisations, shall form the party’s base. 5.2 Regional organisations shall be set in accordance with the administrative and territorial division of the Russian Federation and shall draw up their action programmes in accordance with local circumstances and shall elect delegates to the party’s Congress (Kurultay); in accordance with the law, they shall participate in local government structures. The regional organisations shall establish themselves as legal persons in accordance with the procedure prescribed by law. Where this is done, they shall adopt their own Charter, which may not be contrary to the party’s Charter and its Programme, and shall register it in accordance with the law. ... 6.7 The party’s President shall be in charge of the party’s general management between the meetings of the party’s Congress ... he shall speak on the party’s behalf ... and represent the party without power of attorney in any state bodies and public institutions ...” 27. The relevant provisions of the Regional Organisation’s constitutional charter read as follows: “Charter of the Simbirsk (Ulyanovsk) Regional Organisation of the People’s Democratic Party Vatan ... 1.1 The Simbirsk Regional Organisation of the People’s Democratic Party Vatan is a party political organisation ... 2.5 Membership of the party may be terminated by the Simbirsk Regional Committee... for non-compliance with the party’s Charter and its Programme; this decision is subject to appeal to the party’s higher organs, including the Central Co-ordination Board. ... 4.1 The Simbirsk Regional Organisation of the People’s Democratic Party Vatan has been set up for the protection of citizens of Tartar origin, citizens of other origin and their political, economic, social and cultural rights and freedoms, in order to promote their active participation in the governing of the state and social affairs. 4.2 To achieve its goals the Simbirsk Regional Organisation of the People’s Democratic Party Vatan sets the following objectives: - participating as prescribed by law in the structures of state legislative and executive bodies, by nominating its candidates to express the political will of its members; - promoting the creation of ethnic districts, circuits and country councils in those places where Tartars are concentrated within the Russian Federation; - carrying out organisational activities, campaigns, propaganda and other information activities for educational and pedagogical purposes, promoting the return of the Arabic script; - organising lectures, seminars, talks, round-table discussions, mass and collective actions and other events, in accordance with the law and the party’s goals and objectives; - representing its members’ interests before state bodies and public institutions. ... 6.6 During the intervals between the [Regional Organisation’s] conferences the Regional Committee of the People’s Democratic Party Vatan shall be in charge of the [Regional Organisation’s] activities.” 28. The relevant provisions of the Constitution read as follows: “The creation and activity of public associations shall be prohibited if their aims and actions seek to alter the foundations of the constitutional system by violence, to breach the integrity of the Russian Federation, to undermine the security of the state, to create paramilitary units, or to rouse social, racial, national and religious strife.” “Every person shall be guaranteed the right to freedom of conscience, freedom of religion, including the right to profess, either alone or in community with others, any or no religion, to freely choose, have and disseminate religious or other convictions and to act according to them.” “Every person shall have the right to freedom of thought and speech.” “Propaganda and campaigning to instigate social, racial, national or religious hatred and strife shall not be allowed. The propaganda of social, racial, national, religious or language exclusiveness shall be banned.” “Every person shall have the right to freedom of association, including the right to establish trade unions to protect his interests. Free activity of public associations shall be guaranteed.” “Citizens of the Russian Federation shall have the right to meet peacefully, without arms, and to organise discussions, meetings and demonstrations, as well as processions and pickets.” 29. At the material time, the relevant provisions of the Federal Law on Public Associations read as follows: “The creation and activity of public associations shall be prohibited if their aims and actions seek to alter the foundations of the constitutional system by violence, to breach the integrity of the Russian Federation, to undermine the security of the state, to create paramilitary units, or to rouse social, racial, national and religious strife.” “An association’s activity may be suspended by a court decision where infringement of the Constitution of the Russian Federation, the constitutions (statutes) of the constituent entities of the Russian Federation, or the laws of the Russian Federation is found.” “A court’s decision to suspend the activities of a public association for a certain period shall entail the suspension of its right of assembly, its right to hold meetings, rallies, demonstrations and (or) other public actions, to participate in elections and to access funds on its bank accounts other than for payment of expenses incurred in the course of normal activities, payment of labour contracts, damages and fines ...” 30. Article 48 of the Civil Code of 30 November 1994 provides that a legal person is autonomous in exercising its rights and carrying out its obligations, and that it has standing as a party to proceedings before a court. | 0 |
train | 001-102445 | ENG | UKR | CHAMBER | 2,010 | CASE OF ANDRIY RUDENKO v. UKRAINE | 3 | Violation of P1-1 | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1941 and lives in Kyiv. 5. On 30 July 2003 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against his former wife and mother-in-law, Ms R. and Ms I., seeking division of their jointly owned property, a three-room flat. In particular, the applicant requested the court to rule that one room be separated from the flat and to grant him title to that room. He submitted that the defendants did not allow him to enter the flat and that he had been forced to reside elsewhere. 6. The defendants lodged a counterclaim, asking the court to grant them joint title to the applicant's part of the flat and to fix the amount of compensation they would have to pay the applicant. They argued that, due to personal conflicts with the applicant, they could not all live together in one flat. 7. On 28 May 2004 the court ruled in favour of the defendants. It found, relying on an expert's report, that it was not technically possible to separate a single room from the flat. Relying on Article 115 of the Civil Code of 1963, the court granted the defendants title to the entire flat and ordered them to pay the applicant 121,747.60 Ukrainian hryvnias (UAH) in compensation. 8. The applicant appealed, stating in particular that he had been deprived of his property against his will and in violation of the law, and that the defendants had failed to transfer the money to the deposit account of the court in order to prove their ability to pay the amount awarded to him in compensation. 9. On 14 September 2004 the Kyiv City Court of Appeal partially changed the judgment of the first-instance court. It ruled that the latter court had wrongly relied on Article 115 of the Civil Code of 1963, instead of Articles 364 and 365 of the Civil Code of 2003, which were applicable in the case. The Court of Appeal rejected the applicant's appeal, holding, inter alia, that the defendants' ability to pay the award had been confirmed by a bank statement, according to which the applicant's former wife had a balance of 23,000 United States dollars (USD) on her deposit account. 10. The applicant appealed in cassation, alleging that the lower courts had misinterpreted the law. According to him, the courts had failed to take into account the fact that he had not given his consent for compensation pursuant to Article 364 of the Civil Code of 2003 and that they had failed to ensure that the requirement laid down in paragraph 2 of Article 365 of the Civil Code of 2003 had been fulfilled by the defendants. 11. On 16 June 2005 a panel of three judges of the Supreme Court dismissed the applicant's appeal, finding no grounds on which to transfer the case for consideration by the chamber of the Supreme Court. 12. The applicant did not institute enforcement proceedings in order to recover the sum awarded to him by the courts. According to the applicant, he did not receive the compensation awarded in the judgment of 28 May 2004 because the debtors refused to pay it as they did not have sufficient funds. 13. By a judgment of 11 July 2006, the Shevchenkivskyy District Court ruled to discontinue the applicant's registration at the flat. On 23 August 2006 an appeal by the applicant against that judgment was rejected as lodged out of time. The applicant did not appeal in cassation. 14. Relevant extracts from the Constitution read as follows: “Everyone has the right to own, use and dispose of his property ... No one shall be unlawfully deprived of the right of property. The right of private property is inviolable. The expropriation of objects of the right of private property may be applied only as an exception for reasons of public necessity, on the grounds and through the procedure established by law, and on the condition of advance and full compensation of their value. The expropriation with subsequent full compensation of their value is permitted only in the conditions of martial law or a state of emergency. ...” 15. The relevant provisions of the Civil Code of 2003 read as follows: “1. An individual co-owner is entitled to the physical separation of a part of a jointly owned property with determined shares [of each co-owner]. 2. If [such] a separation ... is not permitted by the law or is impossible (paragraph 2 of Article 183 of this Code), the individual co-owner ... is entitled to receive monetary or other pecuniary compensation for his part from the other co-owners. Compensation may only be provided with his consent ...” “1. The right to a part of a jointly owned property may cease to exist pursuant to a court decision [taken] further to a claim by other co-owners, if: 1) the part is minor and cannot be physically detached; 2) the object is indivisible; 3) joint possession and use of the property is impossible; 4) the cessation of the right will not cause substantial damage to the interests of the co-owner or members of his or her family. 2. The court shall take a decision terminating a person's title to a part of a joint property on the condition that the claimant makes an advance payment of the cost of that part to the court's deposit account.” 16. By decision of 23 May 2007, the Supreme Court quashed the judgment of the lower court in a dispute between private persons concerning division of their jointly owned flat and remitted the case for fresh consideration for the following reasons: “... The Court of Appeal terminating the right of [a party] to part of the flat did not comply with the condition set in paragraph 2 of Article 365 of the Civil Code which led to the incorrect determination [of the dispute]. [The opposing party] was not present at the hearing before the Appeal Court and that court did not check the conditions of payment of compensation... Given the above breach of the law, the judgment of the Court of Appeal concerning the division of the flat shall be quashed ...” 17. The Supreme Court's decision of 17 February 2010, by which it quashed the lower courts' decisions in a dispute concerning division of the property jointly owned by private individuals, was inter alia based on the similar ground. In particular, the relevant parts of the Supreme Court's decision read as follows: “... By the decision of the Court of Appeal, [a party's] title to part of joint property was terminated, though in the case material there is no information concerning advance payment by [the opposing party] of the cost of that part into the court's deposit account. In such circumstances the challenged court decisions do not comply with the requirements of lawfulness and reasonableness ... and must be quashed with the referral of the case for new consideration...” 18. In that decision the Supreme Court also noted that: “... The legal nature of the provisions [of Articles 364 and 365] of the Civil Code of Ukraine differs; each of the provisions is a separate ground for lodging a claim; the first provides for the right of a owner, who withdraws [from joint ownership], to a part of a joint property, whereas the second provides for the possibility of terminating the right of a person to a part of a joint property upon a claim of other co-owners. In this context, monetary or other type of pecuniary compensation under Article 364 of the Civil Code of Ukraine may be paid to a co-owner, who withdraws [from joint ownership], only with his consent. Whereas, under Article 365 of the Civil Code of Ukraine no consent to obtain compensation ... by a person whose right to a part of a joint property is being terminated is necessary (the claimant is only required to pay the cost of the part of property, the right to which is being terminated, to the court's deposit account). ... [Articles 364 and 365 of the Civil Code] are mutually exclusive and cannot be applied at the same time ...” | 0 |
train | 001-59347 | ENG | AUT | CHAMBER | 2,001 | CASE OF TELFNER v. AUSTRIA | 3 | Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 7. On 8 April 1995, in the early hours, an accident took place in Obsteig, a small village in the Tyrol. Mr K. was struck by a car and suffered a slight injury to his arm. Mr K. reported the incident to the police and identified the type and registration number of the car involved. He had, however, not been in a position to identify the driver of the car. 8. On the same morning, officers of the local police station started investigations. They found the car, registered in the name of the applicant’s mother, Mrs G., parked in front of the house where the applicant was living with his family. The applicant’s mother stated that she had not been driving. As regards the applicant, she stated that he was not home yet and showed the police officers the applicant’s room in which his bed was untouched. Further, she stated that the car was regularly used by several family members. She was requested to send the applicant to the police station as soon as he came in. When asked later that day, the applicant’s mother stated that he still had not come home. In its investigation report the police referred to the applicant as the suspect and stated that, according to the police officers’ general observations, he was the main user of the car. 9. On 20 December 1995 and on 2 February 1996 the Silz District Court (Bezirksgericht) tried the applicant on charges of causing injury by negligence (fahrlässige Körperverletzung). The applicant pleaded “not guilty”. He stated that he had not been driving the car at the relevant time and that he did not wish to make any further submissions. Mr K., heard as a witness, confirmed his statements to the police, in particular that he had not been able to identify the driver of the car, nor to state whether the driver had been male or female. The applicant’s mother and his sister exercised their right not to testify. The minutes state that they were cautioned as to this right, but do not mention the ground on which the caution was based. Pursuant to section 152 § 1 of the Code of Criminal Procedure (Strafprozessordnung), so far as relevant in the present context, a witness may refuse to give evidence if the statement would expose him or her to the danger of criminal prosecution; a witness may equally refuse to give evidence in proceedings against a close relative. 10. On 2 February 1996 the Silz District Court convicted the applicant of causing injury by negligence. It sentenced him to a fine of 24,000 Austrian schillings (ATS), half of which was suspended on probation, and ordered him to pay ATS 1,000 as a partial amount for damages to the victim. In establishing the facts, the court relied on the investigation report of the police, the statement of Mr K. and the applicant’s defence. Its reasoning was as follows: “The accused stated in his evidence at trial that he had not been driving the vehicle at the time of the accident and denied every other point in the statement of facts. Both the accused’s mother, who is the legal owner of the vehicle, and his sister, [M.G.], whom the accused called as a witness, refused to give evidence at the trial. As the injured party, [Mr K.], could not determine at the time of the accident who had been driving the vehicle, the only evidence which remained in connection with this point were the observations of the Obermieming police station, according to which it was common knowledge that the vehicle in question was mainly driven by the accused, ... On the basis of those observations the court is also satisfied that [the applicant] was driving the vehicle at the material time and caused the accident. The additional circumstance that, according to the observations of the Obermieming police station, the accused was not at home after the accident and had evidently still not returned by 8 p.m. that day and, moreover, that no one knew where he was, leads to the sole, unequivocal conclusion that only the accused could have committed the offence; presumably he refused to make a statement because he was under the influence of alcohol, but there is no evidence for that finding. The remaining findings as to the circumstances of the accident or the subsequent course of events are based solely on the consistent and fully credible statements of the witness [Mr K.].” 11. On 23 July 1996 the Innsbruck Regional Court (Landesgericht), after having supplemented the proceedings by inspecting a file concerning administrative criminal proceedings against the applicant’s sister relating to a traffic offence, and having found that the car at issue was also used by the applicant’s sister, dismissed the applicant’s appeal and confirmed the first instance judgment. In particular, as regards the District Court’s evaluation of evidence, the Regional Court found as follows: “The impugned assessment of the evidence is consistent, complete and convincing, so that the appellate court can adopt it as well as the findings based thereon. It is the case that the person claiming damages in criminal proceedings was only able to identify the car and could not describe the occupant or occupants of the vehicle. From the evidence it is established, however, that the car, registered in the name of the accused’s mother, is mainly used by the accused, even if it is also occasionally used by others, such as the accused’s sister. It would have been open to the accused to give a contrary version of events which conflicted with the charges and to put in relevant evidence without thereby at the same time having to name another person as the driver. That was evidently impossible, however, because having spent the night away from his parents’ house and possibly consuming alcohol he had on 8 April 1995 driven his mother’s car through Obsteig. The court of first instance correctly referred to the observations of the police officers to the effect that immediately after the accident the car was indeed in front of the parents’ house, yet the accused’s bed had not been slept in and he could not be found. Nor could it be ascertained where the accused, who refused to make a written statement to the police, was staying. On the basis of the available evidence before it the court of first instance made a realistic assessment of the facts, especially as there was no evidence that anyone else, such as the accused’s sister, had been driving the car at the time of the accident.” | 1 |
train | 001-82909 | ENG | FIN | CHAMBER | 2,007 | CASE OF KARI UOTI v. FINLAND | 4 | No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Nicolas Bratza | 6. The applicant was born in 1962 and lives in Helsinki. 7. On 7 September 1995 the applicant was questioned by the police about suspected fraud. In autumn 1997 he was charged with several offences. The trial before the Helsinki District Court (käräjäoikeus, tingsrätten) involved 47 days of hearings. The applicant was represented by the same counsel throughout the District Court proceedings and at all subsequent court levels. The court received testimony from the defendants, the complainants and over 40 witnesses. On 29 May and 10 June 1998 the prosecution presented documentary evidence, including some documents drawn up by a Mr G., who was working off-shore for a bank and who, in answer to a letter rogatory sent by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) to the Guernsey authorities, had produced documents (including “notes for archives” pertaining to meetings on 3 and 22 June 1993 and charts) related to a plan to transfer funds. 8. On 29 January 1999 the applicant was convicted of three counts of dishonesty as a debtor and four counts of aggravated tax fraud. He was sentenced to four years' imprisonment. The District Court judgment ran to 163 pages. In short and in so far as relevant, the court found on the basis of, inter alia, the testimonies of J.S., S., the applicant and his brother and the documentary material, including the documents obtained from the Guernsey authorities, that the applicant and his brother had discussed the planned transfers of assets with G. It also found that the documentary evidence pertaining to the off-shore companies and the transfer of moneys proved that the assets acquired from the sale of the “bank group I.” had been transferred via companies specified in G.'s charts to trusts, the beneficiaries of which the brothers had appointed. As both brothers had been present during the negotiations with G. on 3 June 1993 and the plan to transfer funds had been proved to have materialised, the court found that they had acted together in, inter alia, removing the funds from Finland. 9. The public prosecutor appealed insofar as the charges had been dismissed and introduced alternative charges of aiding and abetting accounting offences. The applicant appealed against the conviction and requested an oral hearing. In particular, he requested that G., resident in Guernsey, be heard as a witness either in the Helsinki Court of Appeal (hovioikeus, hovrätten) or by executive assistance abroad if the court was not satisfied that the account of a witness S. was sufficient evidence as regards the value and content of the documents drawn up by G. In the Court of Appeal the applicant's case was open for review in respect of all counts. In the applicant's view, G.'s testimony was relevant to several counts. 10. On 11 October 2000 the applicant renewed his request that the court hear evidence from G. In its decisions of 23 and 24 October 2000 the Court of Appeal refused, as being unnecessary, to receive oral evidence from G. It stated that it would provide further reasons in its judgment. 11. On 31 October 2000 the court held a preparatory hearing. The applicant unsuccessfully renewed his submission that it was necessary to hear G. as a witness. 12. The first hearing took place on 8 November 2000. The parties and altogether 22 witnesses gave oral evidence, of whom three were fresh witnesses. The hearing of 27 other proposed witnesses had been rejected. 13. On 30 March 2001 the Court of Appeal pronounced judgment. In addition to the convictions imposed by the District Court, it convicted the applicant of four counts of dishonesty as a debtor and of five counts of aiding and abetting an accounting offence. He was sentenced to six years' imprisonment and ordered to be detained immediately. He also lost his military rank. 14. As regarded the reasons for not hearing G. as a witness, the court held, inter alia, that: “The Court of Appeal notes that no request to hear G. as a witness was made in the District Court although the documents relating to the plan to transfer moneys from the “bank group I.” had been presented at the hearings of 29 May and 10 June 1998 ... Also [the applicant] relied as written evidence on [some] documents drawn up by G. without requesting that G. be heard as a witness ... The documents allegedly drawn up by G. have not been drawn up for the purposes of the pending proceedings. The import of the documents can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information. In assessing this question the Court of Appeal takes into account the fact that in the District Court G. was not proposed as a witness and the fact that the parties have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents during the trial. The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents were drawn up by someone other than G. ... The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I.” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant and his co-accused brother]. The question of whether G. himself thought that he was involved only in legal investment activities is therefore not relevant. The documents drawn up by G. are however relevant in assessing ... [the applicant's and his co-accused brother's] possible guilt of the offence of dishonesty as a debtor ... As becomes manifest in the reasons given in considering the charges, the Court of Appeal has however not decided the matter basing itself entirely on the documents in question. The court has instead assessed the value of the documents in an overall context, [in Finnish kokonaisyhteydessä] in which G. cannot have anything relevant to say. The Court of Appeal has heard witness S., as requested ... about the events relating to the documents. The testimony of S., which in [the applicant's] opinion proves the content of the discussions with G., has thus been taken into account ... The Court of Appeal holds that the requirements of a fair trial do not require that G. be heard as a witness either.” 15. The Court of Appeal judgment ran to 325 pages. In so far as relevant, the court principally endorsed the District Court's evaluation of the evidence. 16. The applicant sought leave to appeal. On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 17. If an item of evidence that a party wishes to present pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may refuse to admit it (Chapter 17, Article 7 (as amended by Act no. 571/1948) of the Code of Judicial Procedure). 18. Chapter 17, Article 11 of the Code of Judicial Procedure, as in force at the relevant time, provided that a written statement drawn up for a pending or imminent trial, could not be used as evidence, unless specifically provided for by law or unless the court so decided for particular reasons. 19. Chapter 26, Article 7 of the Code of Judicial Procedure (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal was to hold an oral hearing when necessary. Chapter 26, Article 8 (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal could not change a lower court's conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant's need for legal protection. 20. The provisions concerning the Court of Appeal's duty to hold an oral hearing were amended (Act no. 165/1998) with effect from 1 May 1998. The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997; in force from 1 October 1997). The afore-mentioned former provisions applied therefore to the instant case. The new Chapter 26, Article 15 (Act no. 165/1998) provides that the Court of Appeal is to hold a hearing, regardless of whether one has been requested, if the decision in the matter turns on the credibility of the testimony received in the District Court or on new testimony to be received in the Court of Appeal. In this event, the evidence admitted in the District Court proceedings is to be readmitted in the principal hearing, unless there is an impediment to this. | 0 |
train | 001-4804 | ENG | FIN | ADMISSIBILITY | 1,999 | A.T. v. FINLAND | 4 | Inadmissible | Georg Ress | The applicant is a Finnish national, born in 1961 and living in the Helsinki area. A. In 1987 a daughter, J., was born to the applicant and M. In 1989 the parents divorced. In 1990 the applicant was awarded sole custody of J. During the court proceedings J. was occasionally placed in a children’s home and with substitute parents, following the applicant’s consent. In 1994 a second daughter, A., was born to the applicant, the father being P. In 1994 P. brought proceedings before the Turku District Court, seeking to obtain sole custody of A. The applicant also requested sole custody. On 30 May 1995 an official acting on behalf of the Turku Social Welfare Board (sosiaalilautakunta, socialnämnden) placed both children in immediate public care in a children’s home in pursuance of Section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 as amended by Act 13/1990). The applicant had left the children on the premises of the Turku District Court, objecting to its processing of P.’s action for sole custody of A. The applicant had told J. she no longer had the strength to care for the children and that they “no longer had a mother”. After the incident the applicant could not be reached. A few days later she had telephoned a social welfare official to say she had “bid farewell to her children” and “had stopped being a mother”. By decisions of 28 June 1995 the Social Welfare Board, in pursuance of Section 16 of the Child Welfare Act, maintained the public care of the children after having heard the applicant and the respective fathers. The applicant had opposed the public care. On 31 August 1995 the Turku and Pori County Administrative Court (lääninoikeus, länsrätten) heard the applicant, a social welfare official, the applicant’s psychologist and a nurse of the children’s home. In its decisions of 21 September 1995 the County Administrative Court upheld the care orders, essentially considering that the applicant’s uncontrolled and unforeseeable behaviour had seriously jeopardised the children’s health and development. Although the applicant had previously availed herself of support measures for herself and the children, she was no longer willing to co-operate with the social welfare officials, being of the opinion that there was no need for such measures. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). On 23 February 1996, however, she withdrew her appeals, considering that the she could not expect an impartial examination thereof. On 9 May 1996 the cases were struck out. For the follow-up of its care orders the Social Welfare Board, on 21 July 1995, requested the Tampere University Hospital to disclose information of significance to the applicant’s children’s growth and development. The request was made pursuant to Section 56 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982). On 16 June 1995 the District Court refused the applicant’s request for the appointment of a guardian ad litem for herself and her children. The applicant had argued that a guardian was needed to protect them “against the arbitrary acts of the Social Welfare Office” until the custody proceedings had come to an end. The applicant’s extraordinary appeal was rejected by the Turku Court of Appeal (hovioikeus, hovrätten; “the Court of Appeal”) on 28 February 1996. Her extraordinary appeal to the Supreme Court (korkein oikeus, högsta domstolen) was rejected on 19 June 1996. On 24 August 1995 the District Court, at P.’s request, appointed a guardian ad litem for A. for the purposes of the custody proceedings. The applicant’s appeal was rejected by the Court of Appeal on 28 February 1996. Leave to appeal was refused by the Supreme Court on 19 June 1996. On 27 October 1995 the District Court granted P. sole custody of A. The applicant had not requested access to A. in the event of her not being awarded sole custody. Her request for an order regarding access arrangements solely between her two daughters was refused as not being based on law. The applicant’s appeal was refused by the Court of Appeal on 11 March 1996 after a re-hearing. On 12 September 1996 she was refused leave to appeal to the Supreme Court. On 1 November 1995 P. requested that the public care of A. be revoked. On 13 December 1995 the Social Welfare Board considered that although the original grounds for the public care of A. were no longer at hand, its termination at that moment would run counter to the child’s best interest. The Board decided to revert to the matter within three months but allowed the public care to be implemented in P.’s home. On 12 January 1996 the County Administrative Court declined to examine the applicant’s various petitions in which she objected, inter alia, to the implementation of the public care in P.’s home. The applicant’s respective appeals were rejected by the Supreme Administrative Court on 12 February 1997. Her extraordinary appeals were rejected on 30 December 1997. On 20 December 1995 an official of the Social Welfare Board refused to disclose to the applicant an assessment of P.’s parental abilities which she had requested for the purpose of the pending custody and public care proceedings concerning A. The refusal was upheld by the Social Welfare Board on 17 January 1996. On 29 February 1996 the County Administrative Court quashed the Board’s decision, referred the matter back to the Board and directed it to disclose the assessment to the applicant. On 6 June 1996 P.’s appeal was rejected by the Supreme Administrative Court. On 27 March 1996 the Social Welfare Board terminated the public care of A. pursuant to Section 20 of the Child Welfare Act. The Board noted that P. had now been awarded sole custody of A. and had assumed and organised her care in an adequate manner. The applicant appealed, requesting that she and A. immediately be reunited or, in the alternative, that the public care be continued but implemented in her home until she had again been awarded custody of her children. The applicant’s appeal was rejected by the County Administrative Court on 12 July 1996 and her further appeal was rejected by the Supreme Administrative Court on 12 February 1997. On 13 December 1995 an official of the Social Welfare Board authorised the implementation of J.’s public care in M.’s home in Austria, where he had founded a new family. On 19 June 1996 the Social Welfare Board decided to maintain the public care of J. but directed that she should continue to live with the father M. The applicant had requested that the public care be terminated and that J. be returned to her. Her appeal was rejected by the County Administrative Court on 12 November 1996. On 13 May 1996 the Helsinki Court of Appeal rejected the applicant’s application to have J. returned to Finland in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. The Helsinki Court of Appeal noted, inter alia, that J. had not been removed from Finland in contravention of the Hague Convention, given the Social Welfare Board’s competence to order the implementation of her public care in Austria. On 5 September 1996 the Supreme Court rejected the applicant’s appeal. The Social Welfare Board and the administrative courts declined to examine the applicant’s requests and appeals related to J.’s placement in M.’s home in Austria. On 15 August 1995 M. filed a civil action seeking sole custody of J. The applicant opposed the action but stated, on 31 October 1995, that she would not participate in the further proceedings, considering that the District Court would not be independent and impartial in the case. On 2 November 1995 the District Court, without holding an oral hearing, awarded M. custody of J., as the applicant could no longer be considered opposed to the action. On the applicant’s appeal the Court of Appeal on 26 January 1996 returned the case to the District Court, directing it to hold an oral hearing and to ascertain the child’s best interest in the matter. The applicant was refused leave to appeal to the Supreme Court on 23 May 1996. In the ensuing proceedings before the District Court the Social Welfare Board stated that the applicant had consistently declined to attend meetings whereby her current conditions for assuming custody of J. could be assessed. In its fresh decision of 11 September 1997 the District Court again awarded M. sole custody of J., considering, inter alia, the opinions of the Social Welfare Board and the social welfare authorities in Austria. On 24 July 1996 the Social Welfare Board refused various requests made by the applicant, inter alia to the effect that J. be returned to Finland, where the applicant should be entitled to see her every night and weekend. The applicant appealed, requesting, inter alia, that the results of a lie detector test of the judges and referendary of the County Administrative Court be attached to its decision. On 12 November 1996 the applicant’s appeals were rejected except in so far as her access request had been refused. As this refusal had amounted to an access restriction, the Social Welfare Board was directed to issue a formal decision to this end. The applicant’s further appeals were rejected by the Supreme Administrative Court on 9 May 1997. On 8 January 1997 the Social Welfare Board refused the applicant’s request for access to J. but granted the applicant the right to visit J. in the children’s home in Turku up to three times a year when J. would visit Finland at the Board’s expense. No restriction was issued in respect of correspondence and telephone calls. The applicant’s appeal was rejected by the County Administrative Court on 13 March 1997. The said court noted that since J. was living in Austria the access as requested by the applicant could not be implemented already for practical reasons and would in any case manifestly jeopardise the child’s development and safety. On 9 May 1997 the Supreme Administrative Court declined to examine the applicant’s further appeal as no such appeal was allowed. The applicant was invited to meet J. in August 1997 but did not show up. On 4 February 1998 the Social Welfare Board revoked the public care of J. The applicant’s appeal was rejected by the County Administrative Court on 22 May 1998. Her further appeal was rejected by the Supreme Administrative Court on 3 December 1998. In decisions of 18, 19 and 20 October 1995 the Public Prosecutor of Turku declined to bring charges against P. or any official of the Social Welfare Board or the Tampere University Hospital. In contrast with the applicant’s accusations the Prosecutor found no evidence showing that P. or any of the officials had committed a criminal offence during their involvement in the applicant’s matters. Moreover, the University Hospital had certified not having received any written request for disclosure of the applicant’s medical records. Moreover, any such request would have had to include the applicant’s consent. On 26 August 1997 the Häme County Administrative Board (lääninhallitus, länsstyrelsen) found that the Deputy Chief Physician of the Tampere University Hospital had failed to ensure, in response to the Social Welfare Board’s request of 21 July 1995, that only relevant parts of the applicant’s care records were disclosed to the Board. In decisions of 9 and 10 July 1997 the Public Prosecutor, for want of evidence, declined to bring charges against the lawyer of the Social Welfare Board or A.’s guardian ad litem, whom the applicant had accused of offences in office. On 27 November 1998 the Deputy Chancellor of Justice (apulaisoikeuskansleri, justitiekanslersadjointen) found no grounds for taking action against any of the judges whom the applicant had accused of offences in office. On 28 March 1997 the applicant gave birth to a third child, whose father has apparently not been identified. It appears that the applicant and this child continue to live together. B. Relevant domestic law 1. Access to documents Section 40 of the Social Welfare Act provides for the right of a social welfare client and the client’s guardian to obtain information concerning the client. According to Section 40 (3), a social welfare client shall have access to documented information and other data which relate to the matter concerned and are in the possession of social welfare personnel or a Social Welfare Board. The Act on Publicity of Official Documents (laki yleisten asiakirjain julkisuudesta, lag om allmänna handlingars offentlighet 83/1951) stipulates that even information in a non-public document shall be disclosed to an applicant, appellant or other person whose interest, right or obligation the matter concerns, if the information may influence or may have influenced the consideration of the case (Section 19 (1)). In accordance with Section 56 of the Social Welfare Act social welfare authorities are entitled to obtain the necessary information from other authorities in the performance of their work, without prejudice to the obligation of confidentiality. 2. Remedies against public officials According to the Penal Code (rikoslaki, strafflag 1889), a civil servant who, by intent or neglect or carelessness, acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment, if the act or omission is not insignificant, having regard to the damage caused and other circumstances (chapter 40, sections 10 and 11). In accordance with Section 57 of the Social Welfare Act public officials and members of, for instance, a municipal board must maintain secrecy in respect of information of a confidential nature which has been disclosed to them for the performance of their duties. Various provisions in the Penal Code may become applicable if this obligation of secrecy is not respected (Section 58 of the Social Welfare Act). Under the Constitution (Suomen Hallitusmuoto, Regeringsform för Finland) anyone whose rights have been infringed and who has suffered damage as a result of an illegal act, or by the negligence of a civil servant, is entitled to prosecute the civil servant, or demand that he or she be prosecuted, and to claim damages (Article 93). Under the Damage Compensation Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings may also be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (chapters 3 and 4). | 0 |
train | 001-100265 | ENG | BGR | CHAMBER | 2,010 | CASE OF BEKIRSKI v. BULGARIA | 3 | Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);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);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Renate Jaeger | 8. Mr Petar Hristov Bekirski (“the first applicant”) and Mrs Kate Dimitrova Bekirska (“the second applicant”) are the parents of Mr Bekirski, while Mrs Krasimira Petrova Bekirska (“the third applicant”) is his sister. Mr Bekirski was born in 1972 and was twenty-four years old at the time of the events. 9. In May 1996 a criminal investigation was opened into the activities of the so-called Komatevska gang, of which Mr Bekirski and five other individuals, including the first applicant, were allegedly members. The investigation was carried out in connection with several murders and armed robberies. 10. On 13 May 1996 Mr Bekirski was charged with premeditated murder (Article 115 of the Criminal Code of 1968) and placed in pre-trial detention. 11. Mr Bekirski was held at the detention facility of the Plovdiv Regional Investigation Service (“the detention facility”) located on the sixth and seventh floors of a building it shared with the Plovdiv Fourth District Police Station. Accordingly, there were two sets of guards – one stationed on the sixth or seventh floor for the detention facility and another on the ground floor for the entire police station. In addition, a metal door barred access to the floors of the detention facility. 12. Initially, Mr Bekirski was held in cell no. 5 on the seventh floor together with another detainee, whose help he tried to enlist in an attempted escape. As a result, on 7 August 1996 Mr Bekirski was moved and placed alone in cell no. 14 on the same floor. 13. Meanwhile, on 9 July 1996 the first applicant had been detained in the course of the same criminal proceedings. He was also being held at the detention facility on 30 August 1996 when the events outlined below took place. 14. At around 7 p.m. on 30 August 1996, while the detainees were being served dinner, Mr Bekirski allegedly tried to escape. 15. Using the sharpened handle of a wooden spoon as a makeshift weapon, Mr Bekirski attacked and apparently wounded two duty officers – first S.G. and then G.G. S.G. was injured and received several cuts in the area of his left eye while G.G. was stabbed in the left eye. The latter subsequently lost the sight in his left eye. Taking G.G. as a hostage and threatening to stab him in the neck with the makeshift weapon Mr Bekirski allegedly tried to leave the detention facility. 16. Taking advantage of Mr Bekirski being briefly distracted, G.G. knocked the makeshift weapon out of Mr Bekirski's hand and moved away. A fight then ensued between Mr Bekirski and approximately three or four duty officers, among which were duty officers G.P., N.S. and B.Z. The duty officers kicked, punched and used a truncheon in the course of the encounter, which continued for five to ten minutes. During the fight, Mr Bekirski and some or all of the duty officers fell down the stairs between the seventh and sixth floors. Eventually, Mr Bekirski was subdued and handcuffed. 17. The first applicant maintains that he and the other detainees heard the screams and cries which accompanied the subduing of his son. Some of those witnesses later gave testimony before the investigators (see part D below). 18. At around 9 p.m. on the same day Mr Bekirski was examined by doctor I.D. who was head of the Department of Forensic Medicine at the Medical University of Plovdiv (“the University”). 19. In medical report no. 1220/96 (“the first medical report”) he described the incident of that evening and Mr Bekirski's overall condition as follows: “[Mr Bekirski] injured two persons from the detention facility using a sharpened handle of a wooden spoon[.] A brawl ensued between him and officers from the detention facility [where] force was used to pacify [him]. During the scuffle they fell down a flight of stairs. [Mr Bekirski] indicates that he does not remember anything. ... [Mr Bekirski is] responsive, correctly answers the questions asked (name, address, age), but does not remember what happened to him. [He] does not make any specific complaints.” 20. The injuries sustained by Mr Bekirski were described as follows: “Head – ... [next to the left eyelid there is] a 3 cm by 3 cm oval area with skin swelling and a blue-reddish coloured bruise ... [on the forehead above the nose there is] a 3-cm-long wound [showing signs of] fresh bleeding ... [on the right side of the face there is] a 10 cm by 3 cm area with slight skin swelling and a reddish coloured bruise ... [below the left eyelid there is] a 4 cm by 2 cm reddish coloured bruise... in the right corner of the mouth ... there is a 4 cm by 4 cm area where there are numerous ... 1-cm-long cuts ... Neck and chest – ... there is a 4 cm by 4 cm oval reddish coloured bruise ... a 4 cm by 3 cm reddish coloured bruise ... on the [upper left side of the] back [there is] a 30 cm by 25 cm oval bruise of [varying] colouration ... in the middle [of which there are] two dark red coloured strips [measuring] 8 cm by 3 cm ... on the [upper right side of the] back [there is] a 25 cm by 15 cm oval bruise also of [varying] colouration ... in the middle [of which there are] also two dark red coloured strips [measuring] 10 cm by 3 cm ... Abdomen – ... [on the right side there is] a 5 cm by 4 cm oval darker reddish coloured bruise ... [on the left side there is] a 12 cm by 8 cm blue-reddish coloured bruise ... [and under it] a 5 cm by 8 cm oval darker reddish coloured bruise ... Limbs – ... [on the right shoulder blade there is] a 10 cm by 6 cm oval red coloured bruise ... [on the right armpit there are] three 1.5 cm by 1.5 cm oval blue-reddish coloured bruises surrounded by a 5 cm by 5 cm lighter blue-reddish coloured area ... [on the left armpit there are] two 1.5 cm by 1.5 cm oval blue-reddish coloured bruises surrounded by a 4 cm by 4 cm lighter blue-reddish coloured area ... a 12 cm by 8 cm darker red coloured bruise ... [and] a 6 cm by 6 cm oval blue-reddish coloured bruise ... [on the right armpit area there are three] oval blue-reddish coloured bruises [measuring] ... 4 cm by 4 cm, 4 cm by 3 cm [and] 4 cm by 3 cm ... [and] a 6 cm by 1.5 cm abrasion ... [on the right shoulder and armpit area there is] a 10 cm by 6 cm oval dark reddish coloured bruise ... [on the left shoulder and armpit area there is] a 10 cm by 8 cm oval blue-reddish coloured bruise ... [on the left thigh there is] an 8 cm by 8 cm oval blue-reddish coloured bruise ... a 12 cm by 12 cm light blue-reddish coloured bruise ... in the middle [of which there are] two dark red coloured [strips measuring] 8 cm by 3 cm ... [and] an 8 cm by 8 cm oval blue-reddish coloured bruise ... [on the right thigh there is] a 6 cm by 6 cm oval red coloured bruise ... [and] an 18 cm by 18 cm oval lighter blue-reddish coloured bruise ... [below the right knee there is] a 5 cm by 5 cm oval blue-reddish coloured bruise ... [on the right thigh there is] a 10 cm by 10 cm oval blue-reddish coloured bruise ... a 6 cm by 8 cm oval blue-reddish coloured bruise ... [and] an 8 cm by 8 cm oval blue-reddish coloured bruise ... [on the left thigh there is] a 6 cm by 8 cm oval blue-reddish coloured bruise ...” 21. The first medical report concluded as follows: “During the examination of Mr Bekirski [I] discovered a cut on [his] forehead, numerous skin bruising in the area of his head, chest, stomach, arms and legs, a skin abrasion on the front part of [his] right armpit. These injuries were caused by a solid blunt object and it is possible that they were inflicted at the time indicated [by the investigators]. The affected deterioration of [his] health does not represent [grievous or moderate bodily harm under] the Criminal Code.” 22. Mr Bekirski did not receive any immediate medical treatment for his injuries. 23. The Government claimed that on an unspecified date two more criminal investigations were opened against Mr Bekirski for the attempted murder of an official and attempting to escape while in detention, but did not present documents in support of their assertions. 24. At 9.30 p.m. on 30 August 1996 doctor I.D. examined duty officer G.P. who complained that he had been punched and kicked while subduing a detainee. The report described, inter alia, the injuries sustained by the duty officer as follows: “Limbs – ... in the area of the right armpit ... there is a 4 cm by 4 cm oval reddish coloured bruise ... on the ... right thigh ... there is a 4 cm by 3 cm oval lighter bluereddish coloured bruise. 25. The medical report on duty officer G.P. concluded as follows: “During the examination of [duty officer G.P.] an injury and a bruise were found ... in the area of the right armpit and right thigh. The injuries were caused by a solid blunt object and may have been caused in the manner described [by duty officer G.P.]. [The injuries] caused pain and suffering.” 26. At 10 p.m. on 30 August 1996 doctor I.D. also examined duty officer N.S. who complained that his right palm had been injured while subduing a detainee. The report described the injury sustained by the duty officer as follows: “Limbs – the area of the 5th bone of the right palm, mainly on the side, is painful to the touch in an area measuring 4 cm by 3 cm and minor swelling of the skin is visible.” 27. The medical report on duty officer N.S. concluded as follows: “During the examination of [duty officer N.S.] a swollen injury was found in the area of the 5th bone of the right palm. This injury was caused by a solid blunt object and may have been caused in the manner described [by duty officer G.P.]. [The injury] caused pain and suffering.” 28. The applicants claimed that in the days following the events of 30 August 1996 Mr Bekirski was systematically ill-treated and beaten by police officers while in detention. That was challenged by the Government. The ill-treatment and beatings allegedly continued day and night for several days. The beatings were heard by both the first applicant and other detainees who later testified before the investigators (see part D below). 29. Following complaints by Mr Bekirski that he was in pain, on 2 and 5 September 1996, while at the detention facility, he was examined by a paramedic. He was prescribed painkillers. 30. Meanwhile, on 4 September 1996 a prosecutor from the Plovdiv regional public prosecutor's office visited the detention facility in order to check whether the police were diligently investigating the criminal cases of the detainees being held there. In the course of his visit the prosecutor talked to several detainees and noted their complaints in connection with the processing of their cases. One of the detainees he talked to was Mr Bekirski who told him that he had no complaints, that he did not know why he was being held and that he was innocent. In connection with his visit, the prosecutor prepared a report dated 6 September 1996. 31. On 6 September 1996 Mr Bekirski complained of pain in his abdomen. He was found to have irregular blood pressure, so he was taken to the First Regional Hospital. The persons that accompanied him there informed the medical personnel that Mr Bekirski had suffered injuries (bruises and abrasions) after having attacked a policeman. 32. It was suspected that Mr Bekirski had a burst spleen or internal bleeding, so a stomach operation and a tracheotomy were performed on the same day. However, having opened his abdominal cavity, the surgeons could not find any lacerations of internal organs or haemorrhaging. 33. Thereafter, Mr Bekirski's medical condition continued to be unstable and he remained in hospital. Over the next day and a half he was kept under medical supervision, was visited by medical personnel on several occasions and was prescribed various medication and treatment. 34. In the evening of 7 September 1996 his medical condition deteriorated. In spite of changes to his medication and the involvement of a specialist doctor, Mr Bekirski passed away at 7:20 a.m. on 8 September 1996. 35. The applicants claimed that neither they nor Mr Bekirski's lawyer had been informed of Mr Bekirski's deteriorating medical condition in the period between 30 August and 8 September 1996. That was not expressly challenged by the Government. The applicants also claimed to have learnt of Mr Bekirski's death from the media and to have not received his body for almost a month. 36. An autopsy was carried out on 9 September 1996 with the task of determining the cause of Mr Bekirski's death and identifying what injuries he had sustained prior to his death, including how and when they had been inflicted. The team carrying out the autopsy was lead by doctor I.D. who was assisted by two assistant professors from the University. 37. The autopsy report described in detail the state of Mr Bekirski's body and the examinations and tests carried out. In respect of the injuries established it described its findings, inter alia, as follows: “Head – ... 3 cm above the base of the nose ... there is a 3 cm vertical wound covered by a dry, brownish scab ... There is a 3 cm by 3 cm oval blue-reddish coloured bruise on the skin of the front part of the right earlobe. The skin on the whole right earlobe is bruised ... The skin behind the right earlobe is bruised in a 5 cm by 3 cm area which connects with the bruising of the skin on the right earlobe. ... Neck and chest – ... There is a 40 cm by 26 cm bruise on the skin of the [upper left side of the] back ... the bruise is patchy ... [and there are areas] with more intense linear-shaped bruising ... measuring 10 cm by 3 cm. There is a 38 cm by 25 cm bruise on the skin of the [upper right side of the] back ... This bruise is also patchy ... In the area of the [upper left side of the] back, where there is more intensive bruising, ... there is no epidermis in some places in an area measuring approximately 10 cm by 3 cm [and] there is red-coloured dermis, [which is] wet, fresh [and not] covered by a scab ... Around the two ... armpits there are 30 cm by 20 cm bruises ... on the right and 25 cm by 20 cm bruises on the left ... On the skin on the right side of the chest ... there is a 25 cm by 25 cm bruise ... Abdomen – ... above the umbilicus there is a stitched, vertical surgical scar measuring 18 cm ... On the left side, above the hip joint, there is a bruise ... measuring 48 cm by 25 cm which is patchy because there are [three] areas of more intense bruising and colouring [as follows] – in the vicinity of the hip measuring 8 cm by 8 cm, towards the stomach lining measuring 12 cm by 10 cm and [another] below it extending towards the genitals measuring 12 cm by 10 cm ... On the right hip there is a bruise measuring 8 cm by 6 cm ... From it starts [another bruise] to the side of the buttocks ... measuring 12 cm by 8 cm ... Limbs – ... The skin on both buttocks is bruised and patchy ... because there are areas of more intense bruising and colouring. On the left buttock, there are [two such] areas, one measuring 14 cm by 10 cm ... and the other measuring ... 8 cm by 5 cm ... On the right buttock, ... there is [another such] area measuring 13 cm by 6 cm, which is also patchy ... On the skin of the right side of the genitals, there is a bruise measuring 8 cm by 6 cm ... The right thigh is almost completely bruised and patchy [because] there are areas of more intense bruising and colouring ... on the front and upper outside area measuring 15 cm by 8 cm, on the inner upper area measuring 14 cm by 5 cm, on the back towards the side measuring 15 cm by 10 cm ... and on the back lower area towards the right knee joint measuring 15 cm by 5 cm. On the inner side of the right knee joint there is a bruise ... measuring 8 cm by 4 cm. Behind the right knee joint there is a more intensely-coloured bruise ... measuring 8 cm by 8 cm. On the inner part of the upper to middle part of the right shank there is a bruise ... measuring 8 cm by 7 cm ... the bruising of the right heel is without visible swelling ... The skin on the left thigh is bruised [as follows]: in the upper front and side area measuring 16 cm by 7 cm, in the inner upper to middle area measuring 12 cm by 68 cm, in the area behind the left knee joint ... measuring 8 cm by 8 cm ... On the skin below the left knee joint there is a bruise ... measuring 7 cm by 3 cm. On the inner middle area of the shank there is a bruise measuring 8 cm by 6 cm ... The skin in the area of the ankle joint, on the back of the left heel [and] up to the toes, has a blue-reddish coloured bruise without visible swelling of the skin on the heel. On the frontal area of the right armpit, from the front part of the right shoulder blade leading down to the lower third of the armpit, there is a wavy bruise measuring 23 cm by 7 cm ... On the back and inner area of the right armpit, as well as in the area of the right elbow and the upper back part of the right forearm there is a bruise measuring in total 33 cm by 10 cm ... on the middle back part of the right forearm there is a bruise measuring 10 cm by 7 cm in the middle of which there is a vertical abrasion measuring 6 cm by 1.5 cm covered by a yellow-brownish dry scab ... In the area of the right wrist joint there are three aligned abrasions one above the other measuring 3 cm by 0.5 cm, 4 cm by 0.5 cm and 3 cm by 1.5 cm covered by a yellow-brownish scab ... The skin on the back of the right hand is swollen without visible trauma ... The skin in the area of the left armpit is bruised almost everywhere – the inner, back and side areas ... On the front and inner-side area of the middle left forearm, there is a bruise ... measuring 17 cm by 9 cm. In the area of the left wrist joint there are two aligned abrasions measuring 1 cm by 0.5 cm and 5 cm by 0.5 cm covered by a yellow-brownish scab. The skin on the back of the left hand is visibly swollen. In the area of the right elbow joint there is an oval abrasion measuring 2 cm by 2 cm covered by a yellow-brownish scab. On the upper to middle front part of the right thigh there is an oval abrasion measuring 1 cm by 1 cm covered by a yellow-brownish scab. On the upper front part of the left thigh there are two oval abrasions next to each other, each measuring 2 cm by 0.5 cm [and] covered by a yellow-brownish scab. Incisions were made in the area of the chest, buttocks, and upper and lower limbs in order to examine the underlying soft tissue. In the area of the back, very intense and widespread bruising of the underlying soft tissue was found and deep bruising of the muscles in the area of both shoulder blades was found. The right shoulder blade is fractured in the main part of the scapula and its narrow section. The fracture is 'Yshaped', whereby the two upper sections are each 5 cm long, the [lower] is 3 cm long and there is an adjacent fracture perpendicular to the [lower] section, which is 2.5 cm long. The muscles in the area of the fracture of the right shoulder blade are bruised ... The tissue in the area of both ankle joints and the upper part of the heels are also bruised, but there is no visible swelling to the soft tissue ... ... On the right side, the following ribs are fractured: 6th, 7th, 8th and 10th in their middle [sections] ... while rib 6 is [also] fractured where it is attached to the sternum... ” 38. The autopsy report summarised its findings, inter alia, as follows: “... numerous skin bruising in the area of the head, chest, abdomen, upper and lower limbs, a skin wound on the forehead, abrasions to the skin on the limbs, four fractured ribs on the right [side], a fracture of the right shoulder blade, contusions in the muscles around the area where the skin had been bruised, a fairly distinct fatty embolism in the lungs, [sporadic] drops of fat in the brain and kidney, severe [and] acute swelling in the lungs, swelling and enlargement of the interalveolar barriers, infectious alterations of the lungs – bronchitis, bronchiolitis, bronchopneumonia ... a haemorrhage of the alveolus ... inflammation of the pleura of the lungs, swelling of the brain...” 39. The autopsy report concluded that: “The immediate cause of [Mr Bekirski's] death was acute cardiac and pulmonary insufficiency resulting from massive swelling and infectious alterations of the lungs. The death was also caused by hypoxia (oxygen deficiency) of the body from acute anaemia, was caused by internal bleeding in the soft tissues – under the skin and in the muscles, as well as the morphological changes of the lungs, which most probably resulted in acute pulmonary insufficiency. The above-described changes are the result of injuries which are present on [Mr Bekirski's] body – a chest injury with fractured ribs, a fractured right shoulder blade, a contusion of the chest muscles, as well as bruising of the soft tissues in other parts of his body. Death was caused by varying, fairly complex and interrelated infectious processes and mechanisms which, in order to be clarified, require further data, testimonies of witnesses, data from [Mr Bekirski's medical] examinations, the history of his illness and other data. Generally, the injuries were caused by a solid blunt object. The injuries, relating to the skin bruising and the soft tissue under it, as well as the infectious alterations to the lungs are ... five to seven days [old].” 40. A preliminary investigation into Mr Bekirski's death was opened on 8 September 1996 against an unknown perpetrator. The investigation was assigned to the Plovdiv Regional Investigation Service which was the authority in charge of the facility in which Mr Bekirski had been detained and where the events of 30 August 1996 had taken place. 41. In a letter of 11 September 1996 the second applicant complained to the Plovdiv regional military prosecutor's office that the preliminary investigation had been assigned to the Plovdiv Regional Investigation Service, because of the possible involvement of police officers from that division in the death of her son. No apparent action was taken in response. 42. On an unspecified date in September 1996 a medical report was commissioned to ascertain the injuries sustained by duty officers S.G. and G.G. and whether the weapon used could have been life-threatening. 43. Medical report no. 262/96 (“the duty officers' medical report”) was prepared by doctor I.D. sometime in September 1996 on the basis of the existing documentary evidence. 44. In respect of the events of 30 August 1996, the duty officers' medical report contained the following extracts of statements given by various duty officers in the course of the preliminary investigation: “[duty officer] S.G. (victim) [-] '... at around 7 p.m. ... all of a sudden something hit me in the left eye ... I could not see from the blood ... that's why I ran [down] the stairs to the 6th floor where the duty officers' room was ... on the upper floor [Mr] Bekirski was shouting to my colleagues not to go up and to throw down their guns ... I heard screams and the noise of falling bodies and when I came out onto the landing, several colleagues were wrestling with [Mr] Bekirski until they finally handcuffed him ...' [duty officer] G.G. (victim) [-] '... at around 7 p.m. ... [S.G.] shouted out ... I went over and saw that [Mr] Bekirski had attacked him. At that moment [Mr] Bekirski turned towards me ... he lunged forward ... I felt that he hit me with something sharp in the left eye, which hurt and started to bleed and he began wrestling with me ... I resisted ... then I saw that in his right hand he held a wooden spoon. The forward part of the spoon was in his palm and the handle was protruding forward between his fingers so that he could jab [with it]. I then understood that he had stabbed me in the eye with the wooden spoon ... I managed to grab his hand and, using force, I twisted his right wrist, he opened his fingers and, when I prised the spoon away with the other hand, I threw it down the stairs towards the 6th floor ... Only then did I manage to push him away ... because I pushed him away from me, he fell down the stairs towards the 6th floor ... he could have killed me because the handle of the spoon had been sharpened ...' [duty officer] G.P. [-] '... at around 7 p.m. I heard shouting on the 7th floor landing... Hristo [Bekirski] was behind [G.G.], holding him by the throat with his left hand. In his right hand he was holding a wooden spoon with the handle pointing towards [G.G.'s] neck ... he was pointing the handle of the wooden spoon towards [G.G.'s] eye and then towards his neck ... he started fighting us and all three of us fell down the stairs, where, with N.S., we tried to twist his hands so as to handcuff him ... Downstairs on the 6th floor [B.Z.] joined in and only with his help did we manage to twist Hristo [Bekirski]'s hands towards his back and [B.Z.] handcuffed him ...' [duty officer] B.Z. [-] '... in the corridor on the 7th floor [G.G.] and Hristo Bekirski were brawling. ... Hristo [Bekirski] was behind [G.G.] and was holding him by the throat with his left hand while, in his right hand, he was holding a wooden spoon ... with the handle pointing first towards [G.G.'s] neck and then towards one of his eyes ... at that moment G.P. and N.S. ... grabbed hold of him, all three of them tumbled down the stairs while continuing to wrestle ... I joined in and pinned Hristo [Bekirski] down on the concrete floor and managed to handcuff him behind his back, and that's how we overcame his resistance ...'” 45. In respect of the physical condition of the duty officers, the report noted that duty officer S.G. had almost completely recovered from his injury and concluded as follows: “[Duty officer] S.G. was injured [in the area] of the orbit of his left eye [where there is] a cut to the skin of the upper eyelid [and] bruising and swelling to the skin of the eyelids of his left eye. The injury, and in particular the cut, was caused by a blunt solid object with a discernible edge ... The affected deterioration of [his] health does not represent [grievous or moderate bodily harm under] the Criminal Code.” 46. The report also noted that duty officer G.G. had undergone an operation and subsequent treatment for the injury he had sustained to his left eye. In respect of his condition it concluded as follows: “[Duty officer] G.G. sustained a cut to the skin of the lower eyelid of his left eye, a bruise to the skin of the eyelids of his left eye, a cut and damage to the orbit of his left eye and complete loss of sight in his left eye. These injuries were caused by a blunt solid object with a discernible edge (tip) and it is possible that they were caused by the wooden spoon, which was produced in evidence, whereby the wound [would have been] inflicted by jabbing the sharpened part (tip) of the handle into G.G.'s eye. The damage to the orbit of his left eye caused permanent loss of sight in [that] eye.” 47. Finally, the duty officers' medical report noted that the handle of the wooden spoon used by Mr Bekirski had been sharpened to a fine point thereby allowing it to be used as a stabbing weapon. It concluded that, given the physical strength of Mr Bekirski and the way he had threatened duty officer G.G. by pointing the sharpened handle towards his neck, and given that there were a number of major veins and arteries in that area of the body, the weapon could have been life-threatening. 48. On an unspecified date the Plovdiv Regional Investigation Service commissioned another medical report. Its task was to ascertain the cause of Mr Bekirski's death and its causal relationship with the injuries he had sustained on 30 August 1996. 49. Medical report no. 92/97 (“the second medical report”) was prepared on an unspecified date by a team of five doctors on the basis of the existing documentary evidence. The team was again headed by doctor I.D. and the other doctors all worked at the University. 50. The team reached similar conclusions to those in the autopsy report in respect of the cause of death and that it may have resulted from the injuries sustained on 30 August 1996. 51. In respect of the events of that day, the second medical report contained the following extracts of statements given by witnesses in the course of the preliminary investigation: “[duty officer] B.Z. [-] '... the fight on the landing of the seventh floor edged towards the stairs leading to the [said] floor as a consequence of [Mr] Bekirski's great [sturdiness] ... this fight involved many people and I cannot say who hit [Mr] Bekirski and where ... Mr Bekirski and those trying to restrain him were hitting [each others'] hands, legs, knees, anywhere we could so that [Mr] Bekirski himself ... [was] shoved against the walls, the stairs, the central heating pipes, the frame of the security fence ... my colleague, [N.]S., was also hitting [him] with a truncheon ... I think this continued for 5 to 10 minutes ... In the end, after all the stumbling [and] hitting, we managed to pin [Mr] Bekirski down ...' [duty officer] G.P. [-] '... he started fighting with us using karate [techniques] ... In order to restrain him, we hit and kicked him and, in the case of [our] colleague, [N.]S., with the use of a truncheon, but [Mr] Bekirski continued to resist with the same ferocity. The fight continued down the stairs, whereby [Mr] Bekirski fell several times ... he hit his back against some piping ... We managed to push him to the ground several times and [during that time] we continued to kick him, knee him [and] hit him with a truncheon, but he [still] managed to get up and fight ... Every one of us hit him across every part of [his] body and maybe his head with everything we could – legs, knees, by shoving him and in other ways ...' [duty officer] N.S. [-] '... He was very aggressive and ferocious ... The fight continued down the stairs towards the [security guard's] duty room. We hit him with whatever we had available – hands, legs [and] a truncheon. We fell several times and got up and tried to subdue him ... he was very agile and offered resistance ... When [Mr] Bekirski tumbled down the stairs towards the exit we tried to catch up with him in order to subdue him ...'” 52. On 16 June 1997 the case file was transferred to the Plovdiv regional military prosecutor's office. 53. By a decision given on an unknown date between 16 and 19 June 1997 the Plovdiv regional military prosecutor's office discontinued the preliminary investigation. Although it considered Mr Bekirski's death to have been caused by negligence, it found it not to be a prosecutable offence because it had resulted from the police officers acting in self-defence on 30 August 1996. 54. On 24 June 1997 the second applicant appealed against the decision to discontinue the preliminary investigation. She claimed that the force used against her son on 30 August 1996 had been excessive and objected to the fact that all the medical reports had been prepared with the participation of doctor I.D. 55. On 23 September 1997 a prosecutor from the military prosecutor's office found evidence that Mr Bekirski had been subjected to systematic beatings on more than one occasion after the events of 30 August 1996. He therefore quashed the decision of 19 June 1997 to discontinue the preliminary investigation and remitted the case to the Plovdiv regional military prosecutor's office. 56. In the course of the resumed investigation, ninety-three witnesses were questioned. Twenty of them were duty officers at the detention facility while the remaining seventy-three were detainees who had been held there between 30 August and 10 September 1996. 57. On 13 April 1998 the Plovdiv regional military prosecutor's office stayed the preliminary investigation because of the need to find and question several more witnesses who were considered vital to the investigation. 58. The preliminary investigation was resumed on an unknown date. 59. On an unspecified date, in the course of the resumed investigation, the Plovdiv regional military prosecutor's office commissioned another medical report tasked to ascertain (a) the cause of Mr Bekirski's death, (b) the cause of his injuries, (c) whether the injuries established during the autopsy and the other medical examinations had existed on 4 and 6 September 1996 and (d) when those injuries had been inflicted. 60. Medical report no. 151/99 (“the third medical report”) was prepared on an unspecified date by a team of five doctors on the basis of the existing documentary evidence. The team was again headed by doctor I.D. and the remaining doctors all worked at the University. 61. In respect of the events of 30 August 1996, the report contained extracts from more than seventy witness statements obtained in the course of the preliminary investigation from detainees at the detention facility, which provided a contradictory account of the said events: “[the first applicant -] '... it was on 30 August 1996 around 6 p.m. ... after 8 p.m. I heard the cries of my son. [I] recognised his voice ... Blunt blows could be heard and the cries of my son ... The cries and howls of my son, as well as the blows continued until 10 p.m. on 30 August 1996 ... This continued probably until 1 or 2 a.m. on 31 August 1996 ... on 31 August 1996 the new shift came and they started beating my son ... On 1 September 1996 the beating of my son continued in absolutely the same manner ... on 2 September 1996 ... around lunch and dinner [time] I could hear the cries of my son, which were now inhuman-like and resembled a [dying] man ... at around lunch time and in the evening I could hear the cries of my son ...' ... [detainee S.D. -] '... I only heard that. [I] did not hear anything after that. I did not hear cries or beatings during the following days ...' [detainee T.D. -] '... for 2-3 days after that, muted cries could be heard from somewhere down there. I did not hear any beating ...' [detainee P.Z. -] '... several days after the incident ... patter could be heard ...' [detainee B.V. -] '... I did not hear of any violence having been inflicted on Hristo Bikirski ...' [detainee V.V. -] '... after that everything quietened down ... then I heard the cries of the attacker ... I do not remember hearing the sound of beating ...' ... [detainee A.T. -] '... maybe after an hour the sound of blows and cries could be heard ... this continued for around four days ...' [detainee N.Sa. -] '... maybe after less than half an hour screams started to be heard ... I assumed that they were beating [Mr] Bekirski because he was screaming very loudly and I could also hear blows from a police truncheon ...' [detainee A.I. -] '... the person in the cell was beaten continuously for several days ... five or six days after the incident everything quietened down ...' ... [detainee S.A. -] '... these cries continued throughout the whole night [and I] could hear the sound of beating ... these sounds continued for around a day ... after that I did not hear cries or the sounds of fighting ...' [detainee A.G. -] '... after the incident I did not hear any more cries or the sound of beating ...' [detainee I.R. -] '... I think this continued for around two hours ... the cries were coming form downstairs ...' [detainee V.Ya. -] '... while I was in detention I did not hear anyone getting beaten ...' ... [detainee S.V. -] '... the transfer was made maybe half an hour after the commotion occurred. After the transfer [on Friday evening, 30 August 1996,] until Monday morning, [2 September 1996] muted cries, which I think emanated from the sixth floor, could be heard at regular intervals ... on Monday, 2 September 1996, everything quietened down ...' [detainee A.A. -] '... after that, during the night and also for several days – I cannot say how many – cries, screams and beatings could be heard ... after five or six days everything quietened down ... I have no idea what had been going on ...' ... [detainee Z.M. -] '... after that the situation calmed down ... I do not know what happened ... personally, I did not hear any cries or sounds that were unusual for the [detention facility] ...' [detainee Ya.H. -] '... I did not hear anything after that. The situation in the [detention facility] was normal ...' [detainee N.H. -] '... beatings and cries could be heard ... this continued for a while ... This was repeated with the arrival of the new shift ...' [detainee S.S. -] '... the other person was placed in cell no. 7 ... after that I heard the [duty] officer shouting at the person in cell no. 7 to get up, to eat, but he said that he could not ... I do not know whether, after the incident, the [duty] officers mistreated the person ... after several days the cries stopped ...' [detainee S.B. -] '... and they placed someone in cell no. 7. From Friday evening to five or six days [later] ... I did not hear that person being mistreated by the [duty] officers in the [detention facility] ...' [detainee Z.Z. -] '... they emptied cell no. 7 and placed the person who had shown resistance there ...' ... [detainee S.K. -] '... the blows and the cries continued in intervals of five to ten minutes throughout the whole night ... after that cell no. 7 was again opened and [more] blows and cries were heard ...' ... [detainee K.G. -] '... after a while loud screams and dull thumps could be heard, from which I concluded that they were beating the person whom they had handcuffed ... This continued throughout the whole night on Friday [30 August 1996] to Saturday [31 August 1996]. The beatings, the blows and the cries continued for the following two to three days both during the day and the night ...' ... [detainee A.Ya. -] '... after that the [duty] officers started beating the person in the cell opposite ours ... Cries and blows could be heard ... the beating continued for most of the night ... the [duty] officers were beating that person for three or four days ... relentlessly throughout the day and night, almost continuously. I could distinguish [between] blows to the body [using] a truncheon and [using their] boots [to kick him].' ... [detainee A.I. -] '... they placed someone in the [adjacent] cell. During the night, cries could be heard from the cell where they had placed the person ... sounds of a truncheon hitting a human body could clearly be heard ... The beatings and the cries lasted four or five days ... [Then] all of a sudden, everything quietened down ...' [detainee D.R. -] '... they opened a cell and placed someone inside. From time to time, policemen opened the cell door and an officer hit him on the head with a truncheon and he cried out ... During the following days no one beat him ... This person did not have scars on his face, nor blood ... I later found out that I had been transported [to the hospital] with [Mr] Bekirski. He was apparently left in the hospital because I came back alone ...' ... [detainee S.Ge. -] '... for five to ten minutes someone could be heard screaming ... after five to ten minutes everything quietened down and after several hours it was all repeated again ... As I said, this continued until the morning on Monday [2 September 1996] or Tuesday [the 3rd] ...'” 62. Extracts from the statements of several doctors who had examined Mr Bekirski were also quoted in the report. They all reiterated their previous findings as recorded in the respective medical reports. 63. Extracts from the statements of twenty officers from the detention facility, who all stated that Mr Bekirski had never been tortured by any of them, were also contained in the report. 64. The findings and conclusions of various other reports, such as the medical report of the duty officer who had lost his eyesight, the medical reports on Mr Bekirski, the reports of the medical interventions and of Mr Bekirski's hospital treatment, as well as the autopsy report, were also considered by the medical commission. 65. In respect of the cause of death, the report concluded, similar to the autopsy report, that it had been caused as a result of complications arising out of the various injuries identified on the body. Moreover, it considered that those injuries could all have been sustained during the incident on 30 August 1996 even though some of them appeared to be only five to seven days old at the time of death. The report also reasoned as follows: “the [medical] treatment of [Mr Bekirski] was performed promptly, correctly and in conformity with the [standards] of modern medical science and practice, irrespective of the undesired result – the death of Mr Bekirski.” 66. As to the contradictory accounts of the events, the medical report concluded as follows: “The allegations of ... the witnesses that [Mr Bekirski had] continuously been beaten over several days are not supported by [the evidence] and the injuries established on the body of Mr Bekirski” 67. When, on 27 May 1999 the applicants had acquainted themselves with the results of the investigation, they requested that the body of Mr Bekirski be exhumed and that a new medical report be commissioned from independent medical specialists. 68. In a decision of 2 June 1999 the applicants' requests were dismissed by the investigator. He found that no exhumation of the body was warranted and that the medical report had been: “performed by specialists, who have no interest in the outcome of the proceedings and there are no grounds to recuse any one of them”. 69. In a decision of 9 June 1999 the Plovdiv regional military prosecutor's office discontinued the preliminary investigation. It found that by using force to subdue Mr Bekirski the officers had acted in self-defence and that none of them had performed any actions which could be qualified as murder. The Plovdiv regional military prosecutor's office did not identify any of the officers who had participated in subduing Mr Bekirski on 30 August 1996 and did not assess the relevance of the witness testimonies which had alleged that he had been ill-treated after that date. On 21 June 1999 the first applicant appealed against that decision. 70. In a decision of 5 July 1999 the appellate military prosecutor's office dismissed the appeal. It considered that it had not been irrefutably proven that anyone had beaten Mr Bekirski after 30 August 1996 while the three medical reports had all concluded that his injuries might have been inflicted only during the incident of that date. The first applicant appealed against that decision on an unspecified date. 71. In a decision of 30 September 1999 the Supreme Cassation Public Prosecutor's Office dismissed the first applicant's appeal and upheld the findings of the lower standing prosecutors' offices. It also identified four duty officers who had participated in subduing Mr Bekirski on 30 August 1996. In respect of the validity of the statements of the other detainees pertaining to the alleged ill-treatment after 30 August 1996, the prosecutor found them to be unsubstantiated in view of the conclusions of the third medical report. On 15 October 1999 the applicants appealed against that decision to the Chief Public Prosecutor's Office. 72. Although addressed to the Chief Public Prosecutor's Office, on 27 October 1999 a prosecutor from the Supreme Cassation Public Prosecutor's Office rejected the applicants' appeal because he found that all of their arguments and complaints had already been addressed in the challenged decisions. 73. In response to a further appeal by the applicants of an unknown date, the Supreme Cassation Public Prosecutor's Office, in a decision of 22 March 2000, remitted the case with instructions that the duty officer who partially lost his eyesight be examined by an ophthalmologist and that a further medical report be commissioned to assess whether all of Mr Bekirski's injuries had been caused on 30 August 1996 and in the way indicated by the various witnesses. It also requested an assessment as to whether Mr Bekirski had been beaten after 30 August 1996. 74. In the course of the resumed investigation, on an unspecified date, the Plovdiv regional military prosecutor's office commissioned another medical report tasked to ascertain (a) the date or dates on which the injuries sustained by Mr Bekirski's had been inflicted, (b) whether they could all have been inflicted in the way indicated by the witnesses – duty officers N.S., G.P. and B.Z., (c) whether it was possible that Mr Bekirski had been beaten after 30 August 1996, and (d) to address the questions raised by the applicants in their petition. 75. Medical report no. 192/00 (“the fourth medical report”) was prepared on an unspecified date in May 2000 by a team of five doctors on the basis of the existing documentary evidence. The team was again headed by doctor I.D. and the remaining doctors all worked at the University. 76. The report reiterated the findings of the previous such reports. It compared the injuries sustained by Mr Bekirski on 30 August 1996 and those present on his body in subsequent examinations and found them to be essentially the same, the only difference being their natural physiological change over time. Furthermore, it found it reasonable and probable that they had been sustained only during the events on that day. Finally, it confirmed the duty officer's loss of sight in one eye. 77. When, on 1 June 2000 the applicants had acquainted themselves with the results of the investigation, they once again requested that the body of Mr Bekirski be exhumed and that a new medical report be commissioned from medical specialists in Sofia. 78. In a decision of 6 June 2000 the applicants' requests were dismissed by the investigator. He found that no exhumation of the body was warranted and that the medical report had been: “... prepared by specialists, who have no interest in the outcome of the proceedings and there are no grounds to recuse any one of them.” 79. On 14 June 2000 the applicants appealed against the findings of the investigator to the Supreme Cassation Public Prosecutor's Office. Apparently no response was received, so, on 16 July 2000, they lodged a second appeal to the Chief Public Prosecutor's Office. No response was received from it either. 80. In the meantime and in spite of the above-mentioned appeals, by a decision of 14 June 2000 the investigator proposed that the preliminary investigation be discontinued. He addressed the applicant's arguments and concluded that: “... the [duty] officers ..., in complying with their obligations to guard the detention cells and to prevent the escape of detainees, acted lawfully [and] in self-defence by counteracting the unlawful behaviour of [Mr Bekirski], [which], moreover, was aimed at threatening the life and health of their colleague. In the specific circumstances, they were obliged to use physical force and [police] equipment and the level of response corresponds to the level and intensity of the attack carried out by Mr Bekirski against [the duty officer]. The actions of the [duty] officers do not constitute an offence.” 81. On 21 June 2000 the Plovdiv military prosecutor's office discontinued the preliminary investigation on the above-mentioned grounds, which was confirmed by the appellate military prosecutor's office on 26 June 2000. 82. In a supplementary decision of 12 July 2000 the appellate military prosecutor's office amended the grounds for discontinuing the preliminary investigation as follows: “the negative result – the death of [Mr Bekirski] – is not [punishable], owing to the fact that he was attempting to perpetrate the offence of [escape from detention] and perpetrated the offence of [grievous and moderate bodily harm on two duty officers]. The injuries to Mr Bekirski were inflicted while he was being subdued and in order to prevent him from perpetrating another offence. There was no other way to subdue him and the level of response did not exceed the necessary and lawful [level of force].” 83. The case file was then forwarded to the Military Court of Appeal. On 24 July 2000, in camera, the court confirmed that the preliminary investigation was being discontinued on the grounds indicated in the decision of the appellate military prosecutor's office of 12 July 2000. It also found that: “Information has also been collected in the case that, following the incident and the subsequent restraining of Mr Bekirski on 30 August 1996 and until his [transfer] to hospital on 6 September 1996, [certain] unidentified persons may have inflicted a number of additional injuries [on him] – the other detainees heard groans and moaning from the cell where he was being held. In spite of [having] questioned the personnel at the detention facility and the persons detained there at the time, no unequivocal facts have been ascertained that any such events occurred...” 84. In addition it concluded that: “The necessary level [of force] required to [subdue] Mr Bekirski was not exceeded, because they could not [do it any other way] in view of the specific circumstances (screaming wildly, aggressive, detained for serious intentional offences, having perpetrated offences against two of the duty officers, attempting to escape, small space, badly lit stairs). In view of the events described [above], the actions undertaken by senior sergeants G.P., B.Z. and N.S. on 30 August 1996 to subdue Mr Bekirski are not [punishable], because, even though they formally [perpetrated an offence] it was done in the course of [restraining] a person who had perpetrated an offence, it had not been possible to [subdue] him in any other way and the inflicted injuries correspond to the offences he had perpetrated and the circumstances surrounding his [restraining].” 85. The applicants were informed that the preliminary investigation had been discontinued and, by letter of the appellate military prosecutor's office dated 27 September 2000, were given the decision of the Military Court of Appeal. 86. On an unspecified date the applicants commissioned a medical report. It was prepared on 30 May 2001 by a doctor from the Sofia Academy of Medicine, who re-examined the findings of the first medical report, the autopsy and the other medical reports in the case. 87. That report found that the differences in the injuries identified on the body of Mr Bekirski at the time of his death and their apparently quite recent infliction confirmed that they must have been sustained after 30 August 1996. In addition, it reasoned that the identified differences could not be attributed to the natural physiological change over time of the injuries sustained on 30 August 1996. The report found it more likely that the said differences came from new injuries sustained in the same areas over a longer period and inflicted by various objects. 88. In addition, the report considered that Mr Bekirski's injuries had warranted immediate medical treatment or, at least, that more medical tests should have been carried out in order to ascertain his state of health. 89. Article 12 of the Criminal Code of 1968, as in force on 30 August 1996, provided as follows: “(1) An action shall not be considered dangerous to society, even if injury is caused to an attacker, where it is committed in self-defence – in defence against an imminent unlawful attack ... by the use of reasonable force . (2) The limits of self-defence shall be considered to have been exceeded where the self-defence has obviously not corresponded to the nature and danger of the attack. (3) The perpetrator of an action which is considered to have exceeded the limits of self-defence shall not be punished if the action is committed in an atmosphere of fear or confusion.” 90. Article 12a of the Criminal Code of 1968 provided after 8 August 1997 as follows: “(1) An action shall not be considered dangerous to society, even if injury is caused to a person who has committed a crime, where this occurs in the course of detaining such person for his or her delivery to the authorities and in order to eliminate the opportunity for such person to commit another crime, provided that there is no other way to detain such person and provided that necessary and lawful measures have not been exceeded. (2) The necessary measures for detaining a person who has committed a crime shall be considered to have been exceeded where there is an obvious disparity between the nature and the degree of public danger caused by the crime, and the circumstances of the affected detention, as well as in a case in which unnecessary and obviously excessive harm is inflicted on the person. In such an instance, criminal responsibility shall be sought only under circumstances in which harm was deliberately inflicted.” 91. Separately, under Article 122 § 1 of the Criminal Code of 1968, it is an offence to cause the death of another through negligence. Article 123 § 1 of the Criminal Code of 1968 makes it an offence to cause the death of another through the negligent performance of an occupation or a regulated highrisk activity. Article 387 § 1 of the Criminal Code of 1968 makes it an offence for military or police officers to, inter alia, fail to perform their duties, if this leads to harmful consequences. The offence is aggravated if, inter alia, the harmful consequences are serious (Article 387 § 2). The conduct proscribed by Article 387 § 1 is criminal even if the harmful consequences are caused merely through negligence (Article 387 § 4). These offences are all publicly prosecutable. 92. Article 192 §§ 1 and 2 of the Code of Criminal Procedure of 1974, as in force at the relevant time, provided that investigations concerning publicly prosecutable offences could only be opened by a prosecutor or an investigator. Prosecutors could discontinue investigations when, inter alia, there was no evidence of an offence, or the alleged act did not constitute an offence (Articles 21 § 1 (1) and 237 § 1 (1) and (2)). Prior to 2001, this decision was subject to appeal to a higher prosecutor, or to automatic review by that prosecutor (Articles 181 and 237 §§ 3 to 9, as in force at the relevant time). In April 2001 the Code of Criminal Procedure of 1974 was amended to provide for judicial review at the request of those concerned (Article 237 § 3, as amended in April 2001). 93. At the relevant time offences allegedly committed by police officers or by officers, sergeants and privates of other ministries and agencies were tried by military courts (Article 388 § 1 (2) of the Code of Criminal Procedure of 1974, as in force at the relevant time). Where a case would fall within the jurisdiction of the military courts, the investigation was handled by military investigators and prosecutors. 94. Section 1(1) of the 1988 Act, originally entitled the State Responsibility for Damage Caused to Citizens Act, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act (“the SMRDA”), provides that the State is liable for damage suffered by private individuals as a result of unlawful decisions or actions taken, or omissions made by civil servants in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage resulting from unlawful decisions may be claimed after those decisions have been quashed in prior proceedings. The Supreme Administrative Court has held that it is competent to review the lawfulness of a person's detention by the police and award compensation by reference to the above-mentioned provisions (реш. № 11858 от 28 ноември 2006 г. по адм. д. № 9165/2006 г., ВАС, V отд., реш. № 5230 от 9 май 2008 г. по адм. д. № 11884/2007 г., ВАС, ІІІ отд.). 95. Section 2(1)(1) provides that the State is liable for damage caused to individuals by the investigating or prosecuting authorities or the courts through unlawful detention, provided that such detention has been set aside for lack of lawful grounds. Over the years the application of this provision has generated a considerable amount of case-law. 96. Section 2(2) stipulates that, under certain conditions, the State is liable for damage sustained by individuals on account of their being charged with a criminal offence. 97. Section 6(1) provides that the right to compensation in respect of pecuniary damage is inheritable, but that the right to compensation in respect of non-pecuniary damage survives the death of the individual concerned only if he or she has brought a claim. 98. The general rules of the law of tort are set out in sections 45 to 54 of the 1951 Obligations and Contracts Act. Section 52 provides that the amount of compensation in respect of non-pecuniary damage is to be determined by the court in equity. In application of this provision, the former Supreme Court held that the parents of an individual who has died cannot seek compensation in respect of the non-pecuniary damage suffered by him prior to his death, because of the lack of a sufficient causal link. They can, however, claim compensation in respect of their own distress and anguish flowing from the death (реш. № 3287 от 27 декември 1971 г. по гр. д. № 1964/1971 г., ВС, I г. о.). | 1 |
train | 001-88777 | ENG | RUS | CHAMBER | 2,008 | CASE OF ZULPA AKHMATOVA AND OTHERS 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);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicants are: (1) Mrs Zulpa Akhmatova (also spelled Akhmadova), born in 1939; (2) Mr Abaz Debizov, born in 1932 (died in April 2004); (3) Mrs Taus Serbiyeva, born in 1932; (4) Mr Islam Serbiyev, born in 1964; (5) Mrs Saret Yasadova, born in 1963; (6) Mr Sharpudi Bargayev, born in 1956. The applicants are Russian nationals and live in Chechnya, in the village of Novye Atagi, in the Shali District, except for the fourth applicant, who lives in Grozny. 7. The applicants submitted that between 14 and 16 January 2001 the federal troops had conducted a “sweeping” operation (“зачистка”) in the neighbouring villages of Novye Atagi and Starye Atagi. Early in the morning on 14 January 2001 the federal forces blocked the roads leading into Novye Atagi and stopped the traffic on the Grozny to Shatoy highway, which is the main road leading into and out of the village. They then disarmed and blocked the local police and cut off their communications. After that they proceeded to carry out house-to-house searches and identity checks. 8. The military operation was allegedly in response to the kidnapping on 9 January 2001 of a Médecins sans Frontières humanitarian worker, Mr Kenneth Gluck, which had occurred on the road outside Starye Atagi. The operation was well documented by human rights NGOs, such as Memorial and Human Rights Watch. The applicants submitted numerous affidavits about the events of 14 to 16 January 2001 produced by members of the families of the detained persons and by neighbours. They suggested that at least 21 men had been detained in Novye Atagi and Starye Atagi during that operation, including their relatives Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev. 9. The first and second applicants are the mother and father of Said-Magomed (also spelled Said-Magomet) Abazovich Debizov, born in 1967. Both applicants retired and lived at 40 Arsanova Street. The first applicant suffers from epilepsy and diabetes and the second applicant had advanced tuberculosis (he died in April 2004). Their son Said-Magomed Debizov was a cattle-breeder, and after finishing his army service in 1987 he lived in Kalmykia. He was married and had five minor children; his family resided in Kalmykia. He was also suffering from tuberculosis. In early January 2001 Said-Magomed Debizov came to his home village of Novye Atagi to visit the first and second applicants, whom he also supported financially. Immediately upon arrival he registered with the village administration. Said-Magomed Debizov was described by the head of the village administration as a good member of the community and part of a large and hard-working family, who had not taken part in unlawful activities. 10. The third and fourth applicants are the mother and brother of Iznovr Usamovich Serbiyev, born in 1967. Iznovr Serbiyev was the youngest of the third applicant’s eight children, and lived with her at 62 Arsanova Street in Novye Atagi. He was married and the father of three minor children. After completing his service in the Soviet army in 1987, he graduated from university with a degree in economics. However, he could not find work in this field, and supported his family by working as a car mechanic in Novye Atagi. Iznovr Serbiyev was described by the head of the village administration as a respectful and honest man, who had no connections with the illegal fighters. 11. Said-Magomed Debizov and Iznovr Serbiyev had been friends since childhood. Early in the morning on 14 January 2001 they both went to the car repair shop where Mr Serbiyev worked. They were both carrying identity documents. When the electricity was cut off, they decided to close the workshop and to return home. At about 9.30 a.m. they went out into Gornaya Street, along which two armoured personnel carriers (APCs) and an Ural military truck were passing. Several witnesses testified that the two men had been accompanied by servicemen, who had not been wearing masks and were described as “contract soldiers”, to one of the trucks and put into the back. The vehicles had then driven off towards Grozny, in the direction of the military checkpoint on the main road. 12. The fifth and sixth applicants are the mother and father of Bekkhan Sharpudinovich Bargayev, born in 1981. They lived at 8 Arsanova Street in Novye Atagi. The fifth applicant is a bookkeeper and the sixth applicant is unemployed. Bekkhan Bargayev graduated from the 11th grade of Novye Atagi school no. 2. He was described by the head of the village administration as a modest, good-natured young man, who had mostly stayed at home and had never participated in illegal activities. 13. According to the applicants, on 14 January 2001 Bekkhan Bargayev was washing the family car, a Zhiguli Vaz-2101, near a stream, about 300 metres from his home. At about 1.30 p.m. he saw APCs entering the village and started driving back towards home. An APC, driving at high speed, chased his car and smashed into it. Mr Bargayev was not hurt and climbed out of the car. The fifth applicant, who was at home, ran out because of the noise and the bursts of submachine-gun fire. She saw the servicemen beating her son with rifle butts and tried to intervene. The soldiers beat her, and she fell to the ground. Bekkhan Bargayev was forced into an APC with an obscured hull number and driven away. The neighbours who witnessed the scene were prevented from interfering by armed soldiers. 14. The families of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev have had no news of them since 14 January 2001. 15. The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 14 January 2001 during the daytime, unidentified persons wearing camouflage uniforms and masks, armed with automatic weapons and using armoured vehicles, had arrived in the village of Novye Atagi in the Shali District, apprehended Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev and taken them away in an unknown direction. 16. Immediately after the detention of their family members the applicants started to search for them. Until 16 January 2001 Novye Atagi remained sealed off, and the applicants could not travel and search for their relatives. 17. Most of the men detained during the sweeping operation were released within the following two days, except five men, three of them the applicants’ relatives. On 26 January 2001 the bodies of two detainees were discovered in the Novye Atagi quarry. According to witness statements and a Memorial report, the bodies bore clear signs of torture and violent death: fingers and ears were cut off, there were scars from electric shocks, and knife and gunshot wounds. The Government disputed this information (see below). 18. The applicants applied to numerous official bodies, both in person and in writing, trying to find out the whereabouts and the fate of the three disappeared men. Among other authorities they applied to the departments of the Interior, to the military commanders’ offices, to the Federal Security Service (the FSB), to the civil and military prosecutors at various levels, to administrative authorities and public figures, and to the OSCE mission in Chechnya. The applicants also personally visited detention centres and military bases. On 5 March 2001 the applicants completed UN Human Rights Centre individual reports about cases of forced disappearance. 19. The applicants received no substantive information about the fate of their family members and about the investigation. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors’ services. Below is a summary of the letters kept by the applicants and the replies they received from the authorities. 20. On 19 January 2001 the first and third applicants, Zulpa Akhmatova and Taus Serbiyeva, wrote letters to the military prosecutor of Chechnya, the head of the Chechnya Administration, the military commander of Chechnya and the Special Envoy of the Russian President in Chechnya for rights and freedoms, asking for help in finding their sons. 21. Several weeks after their sons had been detained, the first and third applicants wrote to the Prosecutor General, the head of the FSB and the Minister of the Interior. In the letters they recounted the details of their sons’ detention and stated that Mr Sukharev, the deputy mayor of Grozny in charge of the release of illegally detained persons, had unofficially told them that Said-Magomed Debizov and Iznovr Serbiyev had been detained at “21 Obron” (special mission brigade no. 21) and that a criminal charge had been brought against them. The applicants asked to be informed of the charges against their sons and to receive confirmation of the place of their detention. 22. On 1 March 2001 the applicants wrote to the member of the State Duma for Chechnya, Mr Aslakhanov, and asked for his assistance in finding their family members. 23. On 2 March 2001 the Shali District Prosecutor’s Office (“the district prosecutor’s office”) informed the third applicant that on 20 February 2001 that office had instituted criminal proceedings (case file no. 23034) in respect of the kidnapping of Said-Magomed Debizov and Iznovr Serbiyev, and that she could review the relevant documents in that office. 24. On 3 March 2001 the third applicant submitted a petition to the head of the Chechnya Administration, the military prosecutor and the military commander of Chechnya to help her find her son. 25. On 21 March 2001 the office of the Public Prosecutor of Chechnya (“the Chechnya Prosecutor’s Office”) forwarded the first and third applicants’ complaint to the district prosecutor’s office with a request to open a criminal investigation under Article 126 of the Criminal Code (kidnapping) following the “disappearance” of their two relatives after “unknown persons dressed in camouflage uniform had conducted an identity check in the village of Novye Atagi”. Similar letters were sent on 24 and 27 May 2001. 26. On 9 June 2001 the district prosecutor’s office informed the first and third applicants that on 20 January 2001 it had instituted criminal proceedings under Article 126 of the Criminal Code into their sons’ kidnapping, and that the file had been assigned no. 23034. 27. On 13 March 2002 the first and third applicants requested the district prosecutor’s office to inform them about the progress in the investigation. 28. On 23 April 2002 the Chechnya Prosecutor’s Office forwarded the applicants’ letter to the district prosecutor’s office for action and requested that office to transfer the investigation file to it. 29. On 23 August 2002 the Chechnya Prosecutor’s Office stated in reply to the applicants’ letters that it had examined the investigation files opened in respect of the kidnapping of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, and that the proceedings had been suspended on account of the failure to identify the culprits. The district prosecutor had been instructed to reopen the investigation and to take further steps in order to identify the culprits and to establish the missing persons’ whereabouts. 30. On 17 September 2002 the district prosecutor’s office informed the first and third applicants that the criminal investigation in case no. 23034 had been reopened and that they should report to the office for questioning. On 21 April 2003 the first and third applicants asked the district prosecutor’s office to inform them about the progress in the investigation and to grant them victim status in the proceedings. 31. On 12 May 2003 the district prosecutor’s office informed the applicants that the proceedings in criminal case no. 23034 had been adjourned and reopened on two occasions. In September 2002 the investigation had forwarded a number of requests for information to the military commander of the district, to all the local departments of the interior in Chechnya, to all pre-trial detention centres in Chechnya and to the FSB. These measures had produced no results and the investigation had been adjourned on 10 October 2002. The measures aimed at finding their sons would continue. 32. On 17 May 2003 the district prosecutor’s office reminded the first applicant that in March 2001 she had been questioned and had been granted victim status in the criminal proceedings regarding her son’s abduction. 33. On 17 May 2003 the district prosecutor’s office informed the third applicant that on 15 March 2001 it had questioned Iznovr Serbiyev’s wife and granted her victim status in the proceedings. 34. On 11 June 2003 the district prosecutor’s office again informed the first and third applicants about the adjournment of the proceedings and the absence of relevant information from the law-enforcement authorities in Chechnya. 35. On 30 October 2003 the district prosecutor’s office informed the applicants that the investigation in cases nos. 23034 and 23031 had been adjourned, but that steps aimed at finding their relatives continued. The applicants were informed of the possibility of appealing against the decisions to a higher-ranking prosecutor or to a court. 36. The fifth applicant, Saret Yasadova, submitted that in the days immediately following her son’s detention, the military commander of the village, whose name she did not recall, had told her that Bekkhan Bargayev had been in a hospital in Khankala and that he had been “registered on a computer as an illegal fighter”. 37. In January 2001 the fifth applicant wrote to the district prosecutor’s office, the military commander and the military prosecutor of Chechnya, the head of the district administration and the head of the district department of the interior, stating the circumstances of her son’s detention and asking for help in finding him. 38. At some point in 2001 the fifth applicant wrote to the Deputy Prosecutor General in charge of the Southern Federal Circuit and asked for assistance in finding her son. 39. On 3 March 2001 the fifth applicant wrote to the head of the Chechnya Administration, the military prosecutor and the military commander of Chechnya, requesting them to help her find her son. 40. On 7 March 2001 the military prosecutor of military unit no. 20102, based in Khankala, the main Russian military base in Chechnya, informed the fifth applicant that her complaint about the alleged kidnapping of her son by military servicemen had been forwarded to the military prosecutor of military unit no. 20116, based in Shali. 41. On 15 March 2001 the district prosecutor’s office informed the fifth applicant that a criminal investigation (file no. 23031) had been opened into her son’s kidnapping. 42. On 18 May 2001 the military prosecutor of military unit no. 20116 forwarded the fifth applicant’s complaints to the Chechnya Prosecutor for further investigation, since there were no grounds to conclude that military servicemen had been involved in Mr Bargayev’s abduction. 43. On 23 April 2002 the Chechnya Prosecutor’s Office forwarded the fifth applicant’s letter to the district prosecutor’s office. 44. On 23 August 2002 the Chechnya Prosecutor’s Office stated in reply to the applicants’ letters that it had examined the files opened in respect of the kidnapping of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, and that the investigation had been suspended on account of the failure to identify the culprits. The district prosecutor had been instructed to reopen the investigation and to take further steps to identify the culprits and to establish the missing persons’ whereabouts. 45. On 30 October 2003 the district prosecutor’s office informed the applicants that the investigation of cases nos. 23034 and 23031 had been adjourned, but that measures aimed at finding their relatives were being taken. The applicants were informed of the possibility of appealing against the decisions to a higher-ranking prosecutor or to a court. 46. The applicants referred to the report “Counterterrorist Operation” produced by Memorial, which in Chapter 9 described the sweeping operation in Atagi between 14 and 16 January 2001 and the detention of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev. They also referred to the Human Rights Watch report of March 2001 entitled “The ‘Dirty War’ in Chechnya: Forced Disappearances, Torture and Summary Executions”, which listed Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev among the victims of “forced disappearances” after their detention by the Russian servicemen. 47. In their observations the Government did not dispute the information concerning the investigation of the abduction of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev as presented by the applicants. Relying on information obtained from the Prosecutor General’s Office, they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants. However, despite specific requests from the Court, the Government did not submit copies of any documents to which they referred (see below). 48. On 13 February 2001 the district prosecutor’s office opened a criminal investigation (file no. 23031) under Article 126, paragraph 2 (a) and (g), into the kidnapping of B. Bargayev, acting upon a complaint submitted by the fifth applicant, his mother. On 10 April 2001 the investigation of the case was assigned to an operational investigative group within the prosecutor’s office. 49. On 15 March 2001 the fifth applicant was questioned and was granted victim status in case no. 23031. She stated that at about 1.30 p.m. her son had been washing his car in the street near their house. The car had been hit by an APC, from which armed persons in masks had jumped out and taken her son away. 50. Also on 15 March 2001 the sixth applicant, the father of the kidnapped man, was questioned and was granted victim status. He stated that he had not been an eyewitness to the events, but he was certain that the crime had been committed by military servicemen. He could not name the source of that information and did not submit any pecuniary claims for the damaged car. 51. According to the Government, within the same period the investigation had questioned three relatives of Mr Bargayev and the head of the village administration. It had also carried out on-site examinations and taken other relevant steps. A question had been put to the local military commander. 52. On 13 April 2001 the investigation was adjourned on account of the failure to identify the culprits. On 23 April 2001 the investigation was resumed. In April and May 2001 the investigator forwarded requests to the Shali District Department of the Interior, asking that office to take measures to solve the crime. On 23 May 2001 the investigation was adjourned. On 23 August 2002 that decision was quashed by the Chechnya Prosecutor’s Office. On 28 August 2002 the investigation was resumed and new information requests were sent to the “competent bodies”. On 28 September 2002 the investigation was adjourned. 53. On 3 June 2003 the investigation was resumed. On 1 July 2003 the investigator in charge of the case again examined the site of the crime and drew up a plan. On 15 August 2003 the investigation was adjourned. On 29 June 2005 the investigation of criminal case no. 22031 was resumed, and on 29 July 2005 it was again adjourned. 54. In the meantime, on 20 February 2001 the district prosecutor’s office had opened another criminal investigation (file no. 23034), acting upon a complaint by Mrs A. about the kidnapping of her cousin S.-M. Debizov and his friend I.U. Serbiyev, also under Article 126, paragraph 2 (a) and (g). 55. On 2 March 2001 the first applicant was questioned and granted victim status in case no. 23034, concerning the kidnapping of her son S.M. Debizov. On 5 March (in some documents 15 March) 2001 the investigation questioned the wife of I. Serbiyev and granted her victim status in the proceedings. On 15 March 2001 the third applicant was questioned about her son’s abduction. On 29 June 2005 the third applicant was also granted victim status in case no. 23034. 56. On 15 March 2001 the investigation questioned three neighbours of the applicants. The witnesses stated that on 14 January 2001 at about 11 a.m. a number of unknown persons had arrived at the car repair shop where Mr Serbiyev and Mr Debizov worked and had taken them away. 57. On 20 April 2001 the investigation was adjourned on account of the failure to identify the culprits. On 19 September 2001 that decision was quashed and the investigation was resumed. The investigator forwarded requests for information to the local department of the interior. On 30 September 2001 he informed the fourth applicant that the investigation into his brother’s abduction was ongoing. On 19 October 2001 the investigation was adjourned. 58. On 23 August 2002 the Chechnya Prosecutor’s Office examined the case file and quashed the decision to adjourn the proceedings. On 10 September 2002 the investigation was resumed. On 11 September 2002 the first and third applicants were informed about the resumption of the proceedings, and information requests were forwarded to the competent authorities. On 10 October 2002 the investigation was adjourned on account of the failure to identify the culprits. On 28 June 2005 the proceedings in case no. 23034 were reopened. 59. The Government submitted in their observations that on 29 September 2005 the two criminal investigations had been joined by the district prosecutor’s office, because the crimes had been committed at the same time and the same place. The proceedings were assigned case no. 23031. 60. On 29 and 30 June 2005 the investigation again examined the site of the crime, questioned the third applicant and forwarded requests for information about the missing persons to the pre-trial detention centres in the Northern Caucasus. On 29 July 2005 the investigation was adjourned. 61. On 20 August 2005 (or 3 October 2005 according to one document) the investigation was again reopened. The applicants were informed of this. The investigator instructed the local police service to identify and question witnesses to the abduction. On unknown dates the police questioned five persons, who testified that on 14 January 2001 about 15 persons driving an APC, allegedly military servicemen, had entered Novye Atagi and driven Bekkhan Bargayev away. Three other persons testified that on 14 January 2001 a group of unidentified persons wearing masks and camouflage uniforms, armed with automatic weapons and moving about in APC and UAZ vehicles, had taken away Said-Magomed Debizov and Iznovr Serbiyev from the car repair workshop in Novye Atagi. 62. The Government stated, in summary, that the investigation had questioned over a dozen relatives and neighbours of the abducted persons, as well as the head of the Novye Atagi administration, Mr Datsayev, who had given similar accounts of the events. None of the persons questioned had stated that Mr Debizov, Mr Serbiyev and Mr Bargayev had been ill-treated while being apprehended. 63. Furthermore, the Government stated that on 27 January 2001 the Shali District Prosecutor’s Office had opened a criminal investigation (file no. 23011) following the discovery on 26 January 2001 on the outskirts of Novye Atagi of two male bodies with firearm wounds. The two men had been identified as Z. and Kh., residents of another village, who had left home in the morning of 14 January 2001 and had not been seen alive afterwards. The investigation had not obtained information to confirm that Z. and Kh. had been tortured before their deaths. The investigation had not obtained any clues to link the case to the abduction of the applicants’ relatives and was ongoing. 64. The Government further admitted that the investigation into the kidnapping of the applicants’ three relatives had been unable to establish their whereabouts. It found no evidence to support the involvement of the “special branches of the power structures” (специальных подразделений силовых структур) in the crime. The law-enforcement authorities of Chechnya had never arrested or detained Mr Debizov, Mr Serbiyev and Mr Bargayev on criminal or administrative charges and had not carried out a criminal investigation in respect of any of them. The Shali District Department of the Interior, the Chechnya Department of the FSB and the Northern Caucasus military circuit stated that no special operations had been carried out in respect of the three men and that they had never been detained by them. Furthermore, the Government stressed that the criminal investigation had obtained no information to confirm the applicants’ allegations that the village had been “sealed off” by servicemen or that a special operation had been carried out there at the time. The possibility could not be excluded, in their view, that the crime had been committed by members of the illegal armed groups who had entered the village. 65. Despite specific requests by the Court on two occasions, the Government did not submit any documents from the file in criminal case nos. 23031 and 23034, except for a copy of the list of documents contained in it. 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 Russian 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 and could prejudice the success of the investigation. 66. For a summary of the relevant domestic law, see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007. | 1 |
train | 001-22334 | ENG | ESP | ADMISSIBILITY | 2,001 | MATA ESTEVEZ v. SPAIN | 1 | Inadmissible | Georg Ress | The applicant, Antonio Mata Estevez, is a Spanish national. He was born in 1953 and lives in Madrid. The applicant lived with another man, Mr G.C., for more than ten years. During that period the applicant and Mr G.C. ran a joint household, pooling their income and sharing their expenses. The applicant considered that the nature of their relationship reflected their right to respect for their private and family life since, being homosexual, they could not sanction it by marrying because under Spanish law only heterosexual couples could marry. On 13 June 1997 Mr G.C. died in a road accident. The applicant claimed the social-security allowances for the surviving spouse, arguing that he had cohabited with the deceased for many years. The National Institute of Social Security (“INSS”) granted the applicant’s claim in respect of an allowance for death expenses, which amounted to 5,000 pesetas. However, in a decision of 24 September 1997, it refused to grant him a survivor’s pension on the ground that since he had not been married to Mr G.C., he could not legally be considered as his surviving spouse for the purposes of section 174 (1) of the General Social Security Act. The applicant appealed against that decision, but his appeal was dismissed. The applicant then appealed to the Madrid Social and Employment Court no. 15. In a judgment of 22 April 1998, delivered after a hearing deemed to be inter partes, the court dismissed the appeal. It based its decision on, among other things, the case-law established by a number of judgments of the Constitutional Court dismissing appeals lodged by heterosexual applicants whose claims for a survivor’s pension had been dismissed on the ground that they had been able to marry but had freely decided not to. The court held that the case-law in question could be extended to de facto partnerships between homosexuals living together as a married couple in so far as that type of relationship could not be equated with the traditional concept of family and marriage protected by the legislature and the Constitution. The court also stated that Articles 8, 12 and 14 of the European Convention on Human Rights did not guarantee equality of treatment between de facto homosexual partnerships and heterosexual marriages. The applicant appealed against that judgment to the Madrid High Court of Justice. In a judgment of 26 January 1999 that court dismissed the appeal and upheld the reasoning of the lower court. The High Court added, however, that it was for the legislature and not for the courts to take a decision regarding the extension of survivors’ pensions to stable de facto partnerships, be they heterosexual or not. Accordingly, the High Court held that section 174 (1) of the General Social Security Act was compatible both with the Constitution and the international treaties to which Spain was a party. Relying on Articles 14 (principle of non-discrimination) and 39 (social, economic and legal protection of the family) of the Constitution, the applicant lodged an application for the protection of fundamental rights (an amparo appeal) with the Constitutional Court. In a decision of 21 October 1999, in which it referred to its established case-law, that court dismissed the appeal on the ground that it was ill-founded. The relevant Articles of the Constitution provide: “Spaniards shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” “1. The State authorities shall ensure that the family is afforded social, economic and legal protection. ...” Under section 174 non-marital relationships between men and women do not entitle the survivor to a survivor’s pension even where the persons concerned have lived together. Accordingly, the award of a survivor’s pension is conditional on the existence of a lawful marriage between the deceased and the claimant. Marriage shall be deemed to be “lawful” where it has been celebrated in accordance with one of the forms established by Article 149 of the Civil Code. The only exception to the above rule is that the surviving partner of an unmarried couple who could not marry each other because there was no divorce before 1981 may claim a survivor’s pension. | 0 |
train | 001-138511 | ENG | RUS | ADMISSIBILITY | 2,013 | LOZHKIN v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 1. The applicant, Mr Andrey Aleksandrovich Lozhkin, is a Russian national, who was born in 1988 and lives in the town of Anzhero-Suzhensk (Kemerovo Region). 2. The respondent Government are represented by Mr G. Matyushkin, the 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. The applicant stood trial for murder. He was a minor at the time of the events which gave rise to the accusation. During the trial the applicant was represented by a lawyer of his own choosing and his father as his statutory representative. On 5 June 2007 the Yashkinskiy District Court of the Kemerovo Region convicted the applicant of murder and sentenced him to three years and six months’ imprisonment. 5. On 14 June 2007 the applicant’s lawyer as well as his father lodged appeals before the Kemerovo Regional Court. On 15 June 2007 the applicant lodged his own brief of appeal against his conviction. He made a special request to ensure his participation in the appeal hearing. 6. On 19 July the Kemerovo Regional Court granted the applicant’s request for his participation in the appeal hearing which was set for 14 August 2007. 7. On 31 July and 1 August 2007 the applicant lodged written requests with the Kemerovo Regional Court to hold the appeal hearing in his absence. 8. On 14 August 2007 the Kemerovo Regional Court held the appeal hearing. The applicant’s lawyer did not appear. The public prosecutor was present and made his oral submissions. The Regional Court examined the appeals lodged by the applicant and his lawyer, held that the applicant should serve a prison sentence in a colony with less stringent conditions of detention than that indicated in the judgment, and upheld the remainder of the judgment. The father’s appeal was declared inadmissible because his authority to represent the applicant had expired due to the fact that the latter had reached the age of majority during the trial. It appears that the father was present at the hearing but was not allowed to make submissions on the applicant’s behalf. 9. On 9 February 2010 the Leninskiy District Court of Kemerovo granted an application for the applicant’s release on probation. On 12 February 2010 the applicant was released. 10. On 6 October 2012, on request by the acting Prosecutor of the Kemerovo Region, the Presidium of the Kemerovo Regional Court, by way of supervisory review proceedings, quashed the appeal judgment of 14 August 2007 and remitted the case for a fresh examination before the appellate court. The Presidium found that, in breach of procedural law, the applicant’s right to legal assistance had been infringed, and that the appeal lodged by his statutory representative (father) had not been examined. 11. On 6 November 2012 the Kemerovo Regional Court held a fresh appeal hearing. The statutory representative and a legal-aid defense lawyer participated in the hearing. The applicant did not appear. It follows from the minutes of the hearing that he was summonsed but asked the appellate court to examine the case in his absence. The court studied the case file and heard oral submissions made by the defence lawyer, statutory representative and the public prosecutor. The defence, in particular, pointed to numerous procedural violations, and asked to quash the judgment of 5 June 2007 and to remit the applicant’s case to the trial court for a fresh examination. By judgment of the same date, the appellate court upheld the applicant’s conviction and the sentence. According to the minutes of the hearing, the defence raised no objections as regards the conduct of the proceedings. | 0 |
train | 001-107731 | ENG | SVK | CHAMBER | 2,011 | CASE OF ZUBOR v. SLOVAKIA | 3 | Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Just satisfaction dismissed (out of time) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi | 5. The applicant was born in 1968 and lives in Veličná. 6. On 24 June 2003 the police arrested the applicant. He was accused of planning a robbery and remanded in custody on that date. 7. Several decisions extending the applicant’s detention were made. In particular, on 18 November 2004 the Žilina District Court extended his detention in the context of the preliminary proceedings until 24 January 2005. 8. On 21 January 2005 the public prosecutor indicted the applicant and several others before the Žilina Regional Court. 9. The applicant requested to be released, arguing that the Regional Court had not extended his detention after the expiry of the period indicated in the District Court’s decision of 18 November 2004. 10. On 20 April 2005 the Regional Court ordered the applicant’s release. Upon a complaint lodged by the public prosecutor the Supreme Court decided on 24 May 2005 that the applicant should remain remanded in custody. On 27 July 2005 the applicant complained to the Constitutional Court that his detention after 24 January 2005 was unlawful. 11. In the meantime, on 15 June 2005, the Supreme Court extended the applicant’s detention until 24 June 2006. On 23 August 2005 the applicant lodged a constitutional complaint alleging a violation of Article 5 § 1 of the Convention as a result of that decision. 12. On 31 March 2006 the applicant was released. 13. In judgment III. ÚS 271/06 of 8 March 2007 the Constitutional Court found that by the above decision of 24 May 2005 the Supreme Court had breached the applicant’s right under Article 5 § 1 of the Convention. The Constitutional Court referred to its judgments I. ÚS 6/02 and I. ÚS 204/05 (see paragraphs 25-30 below) and held that there existed no justification for the absence of any judicial decision extending the applicant’s detention after 24 January 2005. 14. The Constitutional Court ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings. It dismissed his claim for just satisfaction, holding that (i) the finding of a violation of Article 5 § 1 provided appropriate redress for the applicant and (ii) the Supreme Court’s decision of 24 May 2005 was based on that court’s practice, which, however, was not in accordance with practice under the Convention. 15. In a different judgment delivered on 6 June 2007 (IV. ÚS 10/07) the Constitutional Court found that by the above decision of 15 June 2005 the Supreme Court had violated the applicant’s right under Article 5 § 1 of the Convention. In particular, with reference to the reasons for its judgment of 8 March 2007 the Constitutional Court was of the view that the Supreme Court should have remedied the situation resulting from the applicant’s unlawful detention by ordering his release. 16. The Constitutional Court granted the equivalent of 1,470 euros (EUR) to the applicant as just satisfaction and ordered the Supreme Court to reimburse the applicant’s costs. 17. The following provisions of the Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., in force until 31 December 2005) are relevant in the present case. 18. Pursuant to Article 71 § 1, a person’s detention in the context of both pre-trial proceedings and during proceedings before a trial court can only last as long as necessary. Where detention in the context of pre-trial proceedings is to exceed six months, it can be extended at a public prosecutor’s request up to one year by a judge or to a maximum of two years by a court’s chamber. 19. Article 71 § 2 provides that a person’s detention in the context of both pre-trial proceedings and during a trial must not exceed two years. In justified cases the Supreme Court may extend its duration to a maximum of three years and in cases of particularly serious offences up to five years. Under paragraph 3 of Article 71 a proposal for extension of a person’s detention is to be submitted by a public prosecutor in the pre-trial proceedings and by the president of the court’s chamber during the trial. 20. Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persist. In pre-trial proceedings a judge is obliged to do so only when deciding on a public prosecutor’s proposal to extend detention or to modify the reasons for it, or when deciding on an accused person’s application for release. Where a reason for an accused person’s detention no longer exists, the accused must be released immediately. 21. Article 72 § 2 entitles the accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay. If an application is dismissed, the accused may only renew it fourteen days after the decision has become final unless he or she gives other reasons to justify his or her release. 22. Pursuant to Article 192, where the court carries out a preliminary examination of the indictment of a person who is detained, it shall also decide whether that person is to remain in custody. 23. In accordance with the Supreme Court’s practice, the time-limits mentioned in Article 71 § 1 of the Code of Criminal Procedure of 1961 concerned exclusively situations where a decision on a public prosecutor’s proposal was to be made in the context of pre-trial proceedings. However, where an indictment had been filed within a shorter time than the two-year period mentioned in Article 71 § 1, the law did not require that a request for continued detention of the accused be made or that a separate decision should be made on their continued detention, with the exception of cases where the indictment had been filed less than ten days before the expiry of the two-year maximum period of detention. 24. Pursuant to a 1975 Supreme Court ruling (Rt 5/75), Article 192 of the Code of Criminal Procedure requires a court to decide on further detention of an accused where it has carried out a preliminary examination of the indictment. Accordingly, where the presiding judge concludes on the basis of the file that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful, there is no need for a separate decision of the court on continued detention of the accused. However, where the accused applies for release, such application must be decided upon without delay in accordance with Article 72 § 2 of the Code of Criminal Procedure. 25. In judgment I. ÚS 6/02 the Constitutional Court noted that the Code of Criminal Procedure did not explicitly require that a decision on extension of an accused person’s detention be given in cases where an indictment had been filed and where the detention, both at the pre-trial stage and during the trial, had not exceeded two years. 26. It held, however, that the filing of an indictment alone did not as such justify a person’s continued detention. The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre-trial proceedings. 27. In its judgment the Constitutional Court referred in particular to the guarantees laid down in Article 5 § 1 of the Convention and the Court’s judgment in Stašaitis v. Lithuania (no. 47679/99, 21 March 2002, §§ 5961). 28. In that case the Constitutional Court found no breach of Article 5 § 1 as the ordinary court involved, both in the context of a preliminary examination of the indictment and in reaction to the accused person’s request for release, decided that the reasons for the latter’s detention persisted. That decision had the same effect as a decision to extend the accused person’s detention. 29. In the above case, which concerned one of the present applicant’s co-accused, the detention in the context of pre-trial proceedings had been extended until 24 January 2005. Prior to its expiry, on 21 January 2005, the accused was indicted. In its judgment the Constitutional Court found that the Supreme Court had breached the plaintiff’s right under Article 5 § 1 of the Convention, in that there had been no judicial decision extending his detention after 24 January 2005 and there existed no justification for that situation. It was irrelevant that courts at two levels had dismissed the accused person’s application for release, as those decisions related to detention in the context of pre-trial proceedings, that is prior to the filing of an indictment. In those circumstances, any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted. 30. With reference to its judgment I. ÚS 6/02 of 4 December 2002 the Constitutional Court held that for a detention to be lawful it must always rely on a court decision. 31. In the above two judgments given in the case of a different co-accused of the applicant, the Constitutional Court found a breach of Article 5 § 1, in that there had been no judicial decision extending the accused person’s detention after the filing of the indictment. In the latter judgment it held, in particular: “In the Constitutional Court’s view, the jurisdiction of the court involved at the pre-trial stage ended with the filing of the indictment on 21 January 2005. The indictment as such is not a ground for continued detention of a person, as it does not explicitly follow from the law, and it is inadmissible to extend the possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure. However, a court’s decision on detention of a person at the pre-trial stage can constitute a ground for such person’s detention during a short period following the indictment. Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed. In the circumstances, a ground for the plaintiff’s detention existed until 25 January 2005. The detention should have been extended by a decision not later than on 25 January 2005 if it was to last after that date. In the absence of any such decision, the restriction of the plaintiff’s liberty after 25 January 2005 was unlawful. The unlawfulness of the plaintiff’s deprivation of liberty after 25 January 2005 cannot be vindicated retrospectively, not even by a judicial decision. Subsequent judicial decisions could not have extended the plaintiff’s detention as it had ended on 25 January 2005. The only existing possibility was to remand the plaintiff in custody again. As this was not the case, his subsequent deprivation of liberty had no legal ground.” 32. In judgment I. ÚS 115/07 the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of the accused to be lawful. The court dealing with the criminal case following the indictment is required to take a decision on the accused person’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre-trial proceedings. The Constitutional Court found a breach of the accused person’s right under Article 5 § 1 of the Convention and ordered his immediate release. 33. The new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into force on 1 January 2006. 34. Article 76 § 5 provides, inter alia, that a court is obliged to decide on further detention of the accused within fifteen days of his or her indictment (or submission for approval of an agreement between the prosecution and the accused on guilt and punishment) unless it has already decided on detention of the accused under provisions which govern the examination of indictments. 35. The explanatory report to the draft Code of Criminal Procedure of 2005 indicates that the above provision accentuates the judicial control of a person’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court’s judgment I. ÚS 6/02 of 4 December 2002. | 1 |
train | 001-113965 | ENG | CZE | ADMISSIBILITY | 2,012 | UHL v. THE CZECH REPUBLIC | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens | 1. The applicant, Mr Pavel Uhl, is a Slovak and Czech national, who was born in 1975 and lives in Prague. 2. In 2008 the City of Prague started issuing a multifunctional smart card called “Opencard” for Prague residents and visitors. It can be used for numerous services offered by the City or other providers, including the Prague public transport system. 3. There were two kinds of Opencard: ordinary or anonymous. An ordinary card is free of charge and anybody can apply by completing an application form that includes personal details such as name, date of birth, place of residence, email address, telephone number and a photo. Applicants must also sign a consent form on the processing of personal details and provision of information in which they consent to the further processing of the personal data from the application form and from using the card by both the City of Prague and any provider of a service which the applicant would use in the future with the Opencard system. Withdrawal of consent by the applicant results in suspension of the card’s use for services. An anonymous card without any personal identification information costs 200 Czech korunas (CZK) (8 euros (EUR)) but its use is limited to certain services. 4. From 2009 an Opencard could be used as a public transport pass. A yearly pass that could be downloaded onto the card cost CZK 4,750 (EUR 190). Those without an Opencard could not buy a yearly pass but instead could buy four three-monthly passes, which together cost CZK 5,920 (EUR 237). 5. On 16 November 2010 the Office for Personal Data Protection concluded its investigation into the Opencard system and found that the City of Prague had not adequately informed users of the future processing of their personal data and that they were therefore in violation of the Personal Data Protection Act (no. 101/2000). The Office also reiterated its previous opinion that there should be an alternative way to access the services for those not wishing to use an Opencard. It also ordered the City of Prague to offer each Opencard user the possibility of using a card without the necessity of consenting to further processing of his or her personal data. 6. As a result the City of Prague introduced in December 2011 a third type of Opencard, which is personal. Personal data are printed on the card but not stored or further processed. Adults holding this Opencard can buy long-term passes for public transport under the same conditions as holders of Opencards who gave consent to the processing of their personal details. This new type of card costs CZK 250 (EUR 10). 7. The current price (from 1 July 2011) of a yearly pass for Prague public transport is CZK 4,750 (EUR 190) for holders of both types of personal Opencard and CZK 6,100 (EUR 244) for holders of an anonymous Opencard or for those without an Opencard. 8. The applicant did not want to provide his personal details to the City of Prague and consent to processing, and therefore did not apply for an Opencard. 9. On 8 December 2008 he asked the Prague Public Transport Company (a joint-stock company 100% owned by the City of Prague) whether he could buy a yearly pass for the same price as users of the Opencard system. He explained that he did not wish to consent to the processing of his personal data. As he received no reply he bought four consecutive threemonth passes. 10. On 13 October 2009 he requested the Public Transport Company to reimburse him CZK 1,170 (EUR 47), corresponding to the difference between the price of a year pass and the price he had to pay for the four three-month passes. Having received no reply, the applicant brought civil proceedings for unjust enrichment. 11. On 30 June 2010 the Prague 9 District Court rejected this claim. It held that the income from fares was further redistributed and thus the defendant was not its only receiver and was therefore not responsible for any loss suffered by the applicant. No appeal lay against that decision. 12. The applicant lodged a constitutional appeal alleging a violation of his right to privacy and fair trial. He argued that the brief judgment of the District Court was beyond any legal logic and in effect lacked any reasoning. He further maintained that there was no other remedy in the domestic law to protect him from violations of his private life and that he could only claim compensation for the financial loss he had sustained as a result of refusing to give his personal details. 13. On 16 June 2011 the Constitutional Court dismissed the applicant’s constitutional appeal as manifestly ill-founded. It held that the subject matter of the proceedings was only CZK 1,170 and, applying the de minimis non curat praetor rule, there could be an interference with fundamental rights only exceptionally in such instances. It did not find any special circumstances in the present case that would require it to hold otherwise. It added that it was obvious that the applicant’s primary concern was not unjust enrichment but protection of his personal data; however, an action for unjust enrichment was not a means to protect those rights. | 0 |
train | 001-5946 | ENG | AUT | ADMISSIBILITY | 2,001 | WUNDERLICH v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Olaf Wunderlich, is a German national, born in 1968. He is represented before the Court by Mr G. Mandl, a lawyer practising in Feldkirch. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department of the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 April 1994 the applicant was arrested in the Czech Republic and taken into detention with a view to his extradition (Auslieferungshaft). Four months later he was transferred to Austria and remanded in custody by the Feldkirch Regional Court (Landesgericht) on suspicion of murder and aggravated robbery. On 14 November 1996 the Feldkirch Regional Court sitting as an assize court (Geschwornengericht) acquitted the applicant of all the charges against him. Upon the pronouncement of the acquittal, the applicant was released. The judgment was served on the applicant on 2 December and became final on 30 December 1996. Immediately after the pronouncement of the acquittal, at the same hearing, the applicant requested compensation for his detention on remand. The Feldkirch Regional Court, with the same composition as above, dismissed the applicant’s claim. It found that the suspicion against the applicant had not been dispelled and that, thus, the requirements of section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969 - “the 1969 Act”) were not met. The court’s decision was served on the applicant after his acquittal had become final. The applicant lodged an appeal with the Innsbruck Court of Appeal (Oberlandesgericht). He complained, in particular, that the Regional Court’s decision violated the presumption of innocence. On 4 March 1997 the Innsbruck Court of Appeal dismissed the applicant’s appeal. Its decision was served on the applicant’s counsel on 17 March 1997. On 27 November 1998 the Feldkirch Regional Court, upon the Public Prosecutor’s request, ordered the re-opening of the criminal proceedings against the applicant, having regard to new statements by two witnesses. Consequently, it quashed the acquittal of 14 November 1996. According to section 359 § 1 of the Code of Criminal Procedure, the proceedings were resumed at the stage of preliminary investigations. On 9 February 2000 the Public Prosecutor filed the indictment, charging the applicant again with murder and aggravated robbery. On 25 February 2000 an international arrest warrant was issued. Currently, the applicant’s whereabouts are unknown and the criminal proceedings against him are still pending. | 0 |
train | 001-90620 | ENG | RUS | CHAMBER | 2,009 | CASE OF MENCHINSKAYA v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Sverre Erik Jebens | 6. The applicant was born in 1949 and lives in Norilsk in the Krasnoyarsk Region of the Russian Federation. 7. In August 1998 the applicant, formerly an engineer in a public company, was made redundant. On 3 September 1998 she was registered in the Norilsk Employment Centre. 8. As the unemployment allowances were paid to the applicant after a substantial delay and, as she believed, their calculation was not correct, in March 2000 she sued the Norilsk Employment Centre for the allowance arrears, adjusted for inflation, and interest thereon. 9. On 25 September 2000 the Norilsk Town Court of the Krasnoyarsk Region allowed the applicant's claims in part. It awarded her 677.35 Russian roubles (RUR) for arrears and RUR 4,568.53 for the indexation of the arrears to take account of inflation. Basing its award on Article 395 of the Civil Code of the Russian Federation the court also granted the applicant RUR 8,102.50 as interest on belated payments. 10. On 2 and 25 October 2000 the applicant lodged an appeal, arguing that the claims rejected by the first-instance court should have been granted. 11. On 9 October 2000 the Norilsk Employment Centre lodged an appeal. It claimed that labour legislation did not provide for an interest on unemployment allowances and therefore requested that the judgment in this part be quashed. 12. On 12 October 2000 the Norilsk Town Prosecutor filed an appeal (protest) against the judgment, exercising his power under Article 282 of the RSFSR Code of Civil Procedure. He submitted that the first-instance court had erroneously applied provisions of civil law to labour law relations and therefore unlawfully granted interest on belated payments in the applicant's favour. In his view, no interest was payable in respect of belated unemployment allowances, thus he requested the Court of Appeal to quash the judgment in this part. The Prosecutor also supported the part of the judgment which rejected the remainder of the applicant's claims. 13. A copy of the prosecutor's protest was served on the applicant on 18 October 2000, and she submitted her objections on 25 October 2000. 14. Having examined the appeals and the prosecutor's protest and having heard the judge-rapporteur and the prosecutor, on 29 November 2000 the Krasnoyarsk Regional Court upheld the arguments made by the Employment Centre and the prosecutor. Finding that the Civil Code was not applicable in the sphere of unemployment benefits, it quashed the first-instance court's judgment in the part granting the applicant RUR 8,102.50 as interest on belated payments. 15. The applicant's attempts to institute supervisory review proceedings proved to be unsuccessful. 16. The Civil Code of the Russian Federation provides that for the use of monetary assets belonging to another person, as a result of their unlawful withholding, or the failure to pay them back ... [statutory] interest should be paid .... The amount of that interest is defined as the refinancing rate [of the Central Bank of Russia] ... applicable in the place of residence of the creditor ... on the day of the execution of the monetary obligation (Article 395). 17. The RSFSR Code of Civil Procedure (in force at the material time) reads as follows: “A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens... The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge applications, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law...” “Judgments of all courts in the RSFSR may be appealed against to the court of cassation by the parties and other persons who took part in the litigation. A prosecutor or his or her deputy lodges an appeal against an unlawful or unjustified judicial decision, irrespective of whether he or she took part in the case...” 18. The Prosecutor's Offices Act (Федеральный закон "О прокуратуре Российской Федерации"), no. 2202-I of 17 November 1992, as in force at the material time, provides: “... 3. In accordance with the procedural legislation of the Russian Federation, prosecutors shall participate in the hearing of cases by courts of law and commercial courts (hereinafter referred to as the “courts”) and shall challenge any court decisions, sentences and rulings which are contrary to the law...” “1. The prosecutor shall take part in court hearings in the cases provided for by the procedural legislation of the Russian Federation and other federal laws... 3. The prosecutor, in accordance with the procedural legislation of the Russian Federation, shall be entitled to make an application to the court or to enter the case at any stage of the proceedings, if the protection of civil rights and lawful interests of society or the state so requires...” “1. Prosecutors or their deputies, within the scope of their powers, shall lodge cassation or private appeals or appeals in exercise of supervisory power with higher courts, and appeals or applications for reviews or appeals in exercise of supervisory power against an unlawful or unfounded court decision, sentence or ruling with commercial courts. Prosecutor's assistants and prosecutors of directorates or divisions may lodge appeals only in cases in the hearing of which they themselves have participated...” 19. The relevant part of the Parliamentary Assembly's Resolution 1604 (2003) On the Role of the Public Prosecutor's Office in a Democratic Society Governed by the Rule of Law reads as follows: “it is essential: a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights; b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors, with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government; and c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system, with separate, appropriately located and effective bodies established to discharge any other functions...” 20. The European Commission for Democracy through Law (the Venice Commission) at its 63rd plenary session (10-11 June 2005) adopted an Opinion on the [Prosecutor's Offices Act] of the Russian Federation. Its relevant provisions provide as follows: “...57...It is, of course, clear that the Russian Office of the Prosecutor General is among those Offices which does not conform to the model which the Parliamentary Assembly considered to be essential. Moreover, in respect of the Prosecutor's predominant role in the Russian administration, which can hardly be described as limited or exceptional, the Prosecutor's Office does not seem to conform to the tests...which are as follows: 1. In addition to the essential role played by prosecutors in the criminal justice system, some member states of the Council of Europe provide for the participation of the prosecutor in the civil and administrative sectors for historical, efficiency and economic reasons but their role should always be exceptional (principle of exceptionality). 2. The role of the prosecutor in civil and administrative procedures should not be predominant; the intervention of the prosecutor can only be accepted when the objective of this procedure cannot, or hardly be ensured otherwise (principle of subsidiarity). 3. The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well-founded, recognisable aim (principle of speciality). 4. States can entitle prosecutors to defend the interest of the state (principle of protection of state interest). 5. Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality (principle of legality). 6. In case it is required for reasons of public interest and/or the legality of decisions (e.g. in cases of protection of the environment, insolvency etc.) the participation of the prosecutor can be justified (principle of public interest). 7. Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor (principle of protection of human rights)... 13. Prosecutors should have no decision-making powers outside the criminal field or be given more rights than other parties before courts (principle of equality of arms). 14. Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-grounded reasons (principle of non-discrimination)... 74. There have been undoubted reforms in the Russian system of Procuracy, notably the limitations on the prosecutor's powers of supervisory review of court decisions... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned”. | 1 |
train | 001-5852 | ENG | GBR | ADMISSIBILITY | 2,001 | HARRISON v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant, Jean Harrison, is a United Kingdom national, born in 1946 and living in Christchurch. She is represented before the Court by Mr M. Murdoch, a lawyer practising in Birmingham. The respondent Government are represented by Mr H. Llewellyn of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a Romany traveller or gypsy. In 1985 she purchased her plot of land at 22E Dudmoor Farm Road, Christchurch, County Dorset and since then she has lived in a caravan or caravans on the plot with her aged mother and the applicant's three grandchildren who attend local schools. The applicant's mother suffers from poor health and requires constant attention. She has lived in caravans all her life. The applicant at the time of introducing the applicant had employment in a local supermarket, but herself also has difficulty reading and writing. A number of other gypsy families lived in caravans in adjacent sites. The Dudmoor Valley had been used by gypsies for at least 40 years and the group resident there were known as the “Dudmoor gypsies”. The applicant's request to Christchurch Borough Council (the “Council”) for planning permission to station her caravans on her land was refused sometime in 1986. The reasons given for the refusal were: 1. that the site fell within an area designated as Green Belt and was therefore contrary to the South East Dorset Structure Plan; 2. that a residential caravan as proposed was considered to be visually damaging to the landscape and was therefore contrary to the South East Dorset Structure Plan; 3. that the proposed development would be contrary to the provisions of the Country Conservation Policy as adopted by the Local Planning Authority for this area, and 4. that, whilst the foul water drainage arrangements were considered to be adequate for the proposed development, the Authority was concerned about the proliferation of such facilities in the immediately surrounding area which might ultimately cause environmental problems and necessitate a marine drainage scheme. An enforcement notice was issued on 29 October 1986 concluding that there had been a breach of planning control due to a material change of use of land from uncultivated and uninhabited land to use for stationing a caravan for the purposes of human habitation. The notice required that the land be reverted to former use as uncultivated and uninhabited land by removing the caravan from the land within a period of six months. An appeal was made to the Secretary of State for the Environment against the refusal of planning permission (under section 36 of the Town and Country Planning Act 1971 as amended by the Local Government and Planning (Amendment) Act 1981) and the enforcement notice (under s. 88(2)(a) and (h) of the Town and Country Planning Act 1971 as amended). An Inspector was appointed and he held a local public inquiry into the appeals on 5 and 6 February 1987. Having visited the site and having heard submissions for the applicant, the Council and third parties, the Inspector concluded that there was a “small but identifiable need for accommodation in the area”. However in respect to the impact of the unauthorised development, the Inspector stated: “The buildings, caravans and rectangular shaped plots are out of keeping with the area and considerably detract from its rural character and appearance ... [T]hey have, in my opinion, a suburban appearance, quite alien in this setting, that unacceptably harms the visual quality of the area and serves to undermine the aims and application of the prevailing restrictive policies.” Placing considerable weight on the serious harm that the sites caused to the area and the strong policy and amenity objections to the site, the Inspector concluded that on balance the use of the sites should not continue. Recognising that the applicant had local links of some longstanding to the extent that she was considered to be “resident in the area”, the Inspector concluded that the question of proliferation and precedent were of particular importance given that, if the present appeal were allowed, future requests would be difficult to refuse. As a result, the Inspector found that the appeal should be dismissed and, recommending that the enforcement notice should be upheld, he proposed extending the period for compliance to 12 months. The Secretary of State accepted the Inspector's recommendations on 30 June 1987 and his conclusion that the appearance of the appeal sites was “out of character with the generally rural nature of the area”. He acknowledged that there was a need to provide accommodation for travelling families in Dorset, but considered that in this case the objections put forward against the proposal outweighed that need. Furthermore, the Secretary of State reiterated the conclusions of the Inspector in relation to the proposal to develop the area for leisure activities, in particular that although this development would substantially alter the area, he did not believe that the proposal would be incompatible with the status of the area as Green Belt, nor would it erode its visual qualities or conflict with its amenity value. The Secretary of State also agreed with the extension of the period for compliance on the grounds that the applicant had nowhere else to go. An offer of sites at Mannings Heath was made to the applicant and other gypsies in or about 1991-1992. It was considered by them to be unacceptable. While the applicant's husband moved to the site after separating from her, she did not believe that he stayed more than a few weeks. Her son took his wife and family to Mannings Heath after she had been scared by council officials but had only stayed there a few weeks. In 1994, complaints were made by the applicant and her neighbours to the Local Authority Ombudsman alleging that the County Council had not fulfilled its statutory obligations to them and that it had not dealt properly with their proposals for resolving the situation. By letter dated May 1994, the Ombudsman noted that the County Council had been attempting to find alternative sites for the complainants for some four years and had offered a number of solutions which the complainants had refused. She concluded: “Having considered the evidence, I am not persuaded that the County Council have failed in their statutory duty to provide adequate accommodation for [the complainants]. I am more inclined to commend the Council for the considerable efforts that they made to try and ensure that [the complainants] were able to remain in Christchurch. ...The offers of accommodation which the Council made... appear to me to be reasonable and consistent with their statutory obligations.” Proceedings were instituted in the Bournemouth County Court by the Council in April 1995 and they resulted in an injunction being made on 9 October 1995 that the applicant remove her caravan from her land by 9 April 1996. The applicant sought to vary this order by extending the time for compliance pending the decision by the European Court of Human Rights in Buckley v United Kingdom (judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1271). This application was opposed by the Council and the Bournemouth County Court dismissed the application on 26 March 1996 on the ground that the injunction was a final order under the Town and County Planning Act 1971 and the judge had no power to alter it. Subsequent appeal to the High Court was available, but the applicant declined to appeal on the advice that such an appeal was bound to fail. In mid-1996, the Council made an application to commit the applicant for contempt of court. On 22 January 1997, the County Court dismissed the order for committal against the applicant and ordered costs in her favour. By letter dated 3 February 1997, the applicant's solicitor informed the European Commission of Human Rights that the application for committal failed on a technicality, namely, that the local authority had failed to ensure that the documentation was adequately and properly served on the applicant. The Council recommenced proceedings in the County Court. An order was made by consent under which the applicant was given six months to vacate the land. The County Council had given notice that they were prepared to re-open a former gypsy site for the applicant and others. The six month period in the order was renewable until the site opened. In February 1998, the site at Mannings Heath was inspected by the applicant and others with representatives of the County Council and District Council. The applicant stated that the warden's office had been destroyed by vandalism and fire; no site warden had been appointed; the site itself was in very poor condition and, when transient gypsy families left, reoccupation of their vacated sites was not being permitted. She alleged that there was a general consensus that she and the other gypsies could not be reasonably expected to move from a rural location to a site which was the equivalent of an inner city sink estate. The applicant's further application for planning permission, along with other Dudmoor gypsies who occupied adjacent sites, concerning altogether 7 residential caravans, 5 touring caravans and associated structures, was refused by the Council during 1997. A public local inquiry concerning their appeals was held before an Inspector on 25 and 26 November 1997. In his report dated 23 November 1998, the Inspector stated: “7.3 It is a matter of agreement that the appeal site and the surrounding area is within the Green Belt and the proposal is contrary to Green Belt policies of the statutory and emerging Developments Plans for the area. 7.4 The area is remote, being accessed over a long partly unmade country lane, but there are views over it from the adjacent St Catherine's Hill which is a popular recreation area. Despite a scatter of buildings the area retains a predominantly rural appearance. 7.5 In my view the cluster of mobile homes the subject of this appeal form an obtrusive feature, harmful to the predominantly rural character and appearance of the area particularly when viewed from St Catherine's Hill and from Dudmoor Farm Road. Despite the long history of the plots, screening has not been effective and in my view the mobile homes are not acceptable in terms of gypsy sites or affordable housing. 7.6. Two earlier appeals in 1987 and 1992 were dismissed and efforts to relocate the appellants and others have been going on since at least the late 1980s. A number of other gypsies have been relocated. 7.7 Despite the appellants' protestations that the alternative sites offered were either unsuitable or unavailable, it seems to me that the evidence of the considerable efforts made to relocate them is much stronger. This was recognised by the Local Authority Ombudsman in 1994 and I find no reason to disagree with his findings. 7.8 The resident gypsies are acknowledged to be hard working families and there is no animosity towards them from local people. However there have been problems arising from the use of the plots as transit sites. 7.9 I am mindful of the disturbance and stress likely to be caused to the appellants and their relatives, particularly the very old, the frail and the young. However, in all the circumstances of this case I conclude that this is not sufficient to justify setting aside the Green Belt and country protection policies ... or outweigh the harm the presence of the mobile homes do to the predominantly rural character and appearance of this area...” In his letter of 25 February 1999, the Secretary of State for the Environment accepted the Inspector's recommendation to refuse the appeals. He considered that considerable efforts had been made to find alternatives for the applicant, including reasonable offers of accommodation at Mannings Heath which were not taken up. He noted that the applicant had stated that she would move to the Mannington Park site (temporarily closed) if that was reopened under suitable conditions and in a suitable state of repair. Offers of sites at Thornicombe and Coldharbour were made to the applicant. She refused them as inappropriate and unacceptable, as they were outside the Christchurch area with which she had long associations and where she had employment and her children had schools. There was no direct public transport and she could not drive. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. Again there is a further right of appeal on a point of law to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995). “1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. ... 1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development. 1.5. There are five purposes in Green Belts: – to check the unrestricted sprawl of large built-up areas; – to prevent neighbouring towns from merging into one another; – to assist in safeguarding the countryside from encroachment; – to preserve the setting and special character of historic towns; and – to assist in urban regeneration by encouraging the recycling of derelict and other urban land. ... 2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. ... 3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. ... 3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.” | 0 |
train | 001-85902 | ENG | SWE | ADMISSIBILITY | 2,008 | HAKIZIMANA v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | The applicant, Mr Jean M. V. Hakizimana, is a Rwandan national who was born in 1973 and is currently living in Sweden. He was represented before the Court by Mr P. Bergquist, a lawyer practising in Huddinge. The Swedish Government (“the Government”) were represented by their Agent, Mr C. H. Ehrenkrona, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 December 2002 the applicant applied to the Migration Board (Migrationsverket) for asylum and a residence permit and, on the same day, an initial interview was held with him. The applicant claimed that he had arrived in Sweden that same day and he submitted his Rwandan identity card. However, he did not present a passport or any travel documents. He stated that he was an ethnic Hutu and had been persecuted by the Tutsis. Between 6 and 29 November 2002, he had been imprisoned in his home town, Gatore, and had been tortured. On the day of his escape from prison, he had been taken by car to Kampala airport and had left the country by plane the following day, via Nairobi and with a second stop-over at a place unknown to him. In the context of a comprehensive asylum investigation, the applicant appeared before the Migration Board on 10 June 2004 in the presence of his legal counsel and stated, in particular, as follows. He came from Gatore, a town in the municipality of Rusumo, in the province of Kibungo. In 1994, because of the civil war, he and his family had fled to Tanzania, where they had lived in a refugee camp and he had worked as a teacher. Upon his return to Rwanda, in 1996, he had received an identity card and had worked for the United Nations World Food Programme. However, he claimed that he had been insulted and then dismissed because of his Hutu ethnicity. Between 1998 and 2002 he had studied computer engineering at a university in Madras, in India, as a United Nations scholarship holder. His wife and two daughters had remained in Rwanda and when one of the daughters had fallen ill, he had returned. On 3 November 2002 he had arrived at the airport in Rwanda where he had had to fill in an “entry form” and then his passport had been taken away from him by a man in civilian clothes. He had been told to return to collect it when he needed it, but he believed that the passport had been taken in order to prevent him from leaving the country. Three days later, when he had gone to visit his parents in Rusumo, he had been arrested by a person working for the Local Defence Forces (hereafter “the LDF”). He had been taken to a secret prison in the countryside where, almost daily, he had been insulted and hit with sticks and he had not been given anything to eat, apart from when his relatives brought him food. However, he had never been interrogated and had managed to escape after his family had bribed a guard. He had subsequently fled to Uganda, via Gatona, by hiding in a pick-up truck. Relatives in Uganda had arranged for him to travel to Sweden since he had not dared to stay in Uganda because of the presence there of high-ranking military persons of Rwandan nationality. Moreover, the applicant stated that he had never been politically active but that the Rwandan authorities probably thought that a Hutu coming back from India could be capable of influencing other Hutus. He had thus been called to gacaca trials (see below under “relevant background material”), as had many others who had been to school. His father had also, several times, been summoned to the police station to be questioned about the applicant’s whereabouts and his brother-in-law had fled to Malawi. His brothers and sisters had been forced to leave Rwanda as well. In a written submission to the Migration Board, the applicant, who had been given the opportunity to comment on the investigation, made certain clarifications and additions. However, he first complained that he had spent more than six hours on a train to get to the meeting with the Board and for this reason he had been tired and unable to prepare himself sufficiently for the interview. He then stated that the prison to which he had been taken had in fact been a normal house, belonging to a businessman. Moreover, he had been arrested when he had got off a bus to visit his brother, who since 1996 had been held in the local “Prison Central”. He had never been informed of the reason for his arrest but he had been ill-treated and threatened and had also seen other persons who had been tortured and had died from their injuries. The applicant further added that, while in Tanzania, he had married his wife and their first child had been born there. In 1996 they, together with all other Hutus in the country, had been forced by the Tanzanian military to return to Rwanda. However, he claimed that they had been too afraid to settle in their home town since his family’s property had been confiscated by the authorities and they had therefore settled in the county town of Kibungo. He had nevertheless made a claim to the mayor of the municipality of Rusumo to have the family’s property returned. The applicant alleged that the mayor had understood the demand to mean that he was against the regime and had issued an order for his arrest. Although the mayor had left office in 1997, the applicant had remained afraid of returning because of the arrest order. Furthermore, the fact that he was a Hutu and well-educated had increased the risk of his being considered as a danger to the regime and arrested. This was particularly so because he had openly expressed his discontent with the Rwandan regime while he had been in India and he was convinced that two other Rwandan students there had been informers of the regime and had reported him to the Rwandan Embassy in New Delhi. The applicant further submitted that he had been in contact with one of his brothers who had recently fled to Uganda and had reported that their father had been battered and interrogated about the applicant’s whereabouts by the same persons who had arrested him. Thus, if forced to return to Rwanda, the applicant was convinced that he would be killed, seriously ill-treated or persecuted because he was a Hutu with higher education who had demanded to have his family’s property returned and who had escaped from a local prison. He was afraid of being sentenced by the gacaca courts. Although their task was to consider charges against people suspected of genocide, he was certain that they also convicted innocent persons whom the Government suspected of being a threat to security or of belonging to the opposition. On 14 July 2004 the Migration Board rejected the application. It first noted that the Special Representative of the European Union in the Great Lakes Region had reported that conditions in the region had developed in a positive way. Freedom of expression and political rights were respected to a larger extent and the death squads in the eastern part of the Democratic Republic of Congo were no longer considered a threat to the internal security of Rwanda. Moreover, because it was still commonplace for people in Rwanda to be accused of having taken part in the genocide, whether they actually had or not, the Government had created the gacaca courts, a community-based justice system. On the basis of this, the Board found that the general conditions in Rwanda were not such as to grant a right to asylum. Turning to the applicant’s personal circumstances, the Board observed that he had not been politically active and therefore considered that it was unlikely that the Rwandan authorities would suspect him of being a security risk or of working against them. If the Rwandan embassy in India had had such suspicions, he would probably have been arrested already upon his arrival at Kigali airport. In view of this, it considered that the fact that his passport had been taken from him at the airport did not raise an issue. Turning to the applicant’s arrest, the Board found that he had probably been arrested because the LDF wanted to make money, since he had neither been interrogated nor accused of any offence. It further considered that the applicant’s allegations that the mayor of Rusumo had ordered his arrest because he had demanded to have his family’s property returned, were not credible as he had added it at a late stage of the proceedings. In any event, the Board was of the opinion that it was not probable that his arrest in 2002 was connected to the mayor’s arrest order in 1996. If such an order had been issued, it was remarkable that he had not been arrested earlier, since he had not been in hiding but had been working and moving freely before travelling to India. Moreover, as regards the applicant’s fear that he would be convicted by the gacaca courts, the Board noted that there were no reports about these courts sentencing innocent people only because the regime suspected them of being a security risk or of belonging to the opposition. However, even if there were such a risk, the Board considered that the applicant would not face a real risk of being convicted by the gacaca courts since he was not a security risk or politically active against the regime. Lastly, having regard to the fact that he had been living in Rwanda between 1996 and 1998 without having any problems and that the Rwandan Government was working very hard to prevent harassment attributable to the genocide, the Board concluded that the applicant would not risk persecution upon his return to Rwanda. The Board thus concluded that the applicant could neither be granted asylum in Sweden nor granted leave to remain on humanitarian grounds. The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adducing, inter alia, the following clarifications and additional comments. When he was arrested on 6 November 2002, the arrest had been made in his home town by a person belonging to the LDF and who knew that he was Hutu and had a higher education. Moreover, his family had bribed a prison guard (i.e. not a member of the LDF) to release him. It was therefore probable that the LDF were still looking for him and that they had beaten his father as revenge and also threatened his brother and sister so that they had felt forced to flee to Uganda. Those two siblings had been registered as refugees by the UNHCR in Uganda. In this respect, the applicant also claimed that another brother of his had recently died following ten years’ imprisonment only because of his Hutu ethnicity. A document was submitted in support of the alleged death. The applicant further alleged that everyone had to carry an identity card in Rwanda, especially Hutus, as otherwise they would be considered to belong to a rebel group or an opposition party. Furthermore, as regards his passport, he had obtained it through payment of bribes and, since he was not in the RUHARWA’s register (the register containing the names of persons suspected of having participated in the genocide), his name was not on any lists at airports or embassies and he had therefore been able to travel to India. The applicant stated that torture still occurred in Rwanda and that, during his imprisonment, he had been tortured as had many others, some of whom had died from their injuries. He gave the names of several of these persons. He was certain that his arrest had been motivated solely by his ethnicity. Moreover, in June 2004, his father had been very severely battered by the police and had had to be hospitalised. He had not been able to report what had happened since the police, the prosecutors and the members of the judiciary were all Tutsis. In the applicant’s view, although the Tutsis made up only 14% of the population, they were governing the country and seeking to “tutsify” it. He further questioned the sources referred to by the Migration Board, alleging that the elections in Rwanda in 2003 had not been fair and that the country was not at all safe for Hutus. The gacaca courts did not reunify the people but only created more conflicts. He invoked various reports in support of the general, poor human rights situation in Rwanda. He was convinced that he would be arrested upon return to his home country and the fact that he had applied for asylum abroad increased this risk even further. On 29 September 2005 the Aliens Appeals Board rejected the appeal, subscribing to the reasons given by the Migration Board. It also added, inter alia, that the applicant could not be considered to have been the victim of State-sanctioned persecution in Rwanda because of his ethnicity, noting that he had been able to live in Rwanda for two years prior to his journey to India and that he had been able to return to his home country without being arrested. The Board further found it improbable that the Rwandan authorities would have a special interest in him only because he had applied for asylum in Sweden. In the Board’Sweden and could not be granted leave to remain on humanitarian grounds. He was ordered to leave the country within two weeks from the date of the decision. On 20 October 2005 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his deportation to Rwanda. He alleged that he would face a real risk of being imprisoned, tortured and possibly even killed if forced to return to his home country. Moreover, he submitted two letters. The first one, dated 27 February 2005, was from the coordinator of the Refugee Sponsorship Program of the Diocese of Thunder Bay, Canada, and stated that the Diocese was willing to offer him support to resettle in Canada, provided that his case was formally referred to them by the UNHCR. The second letter, dated 4 October 2005, was from the Religious of Jesus-Mary, Montreal, Canada, and stated that they promised to provide the applicant with sponsorship as a priority for the beginning of October 2005. They had an agreement with the Government of Quebec which permitted them to sign commitments under which they retained responsibility for refugees during their first year in Canada. On 24 October 2005 the Court decided to apply Rule 39 and to suspend the deportation until the applicant had received an answer concerning the possibilities for him to go to Canada. On the following day, the Migration Board stayed the deportation of the applicant until further notice. The Migration Board’s decision is still in force. On 5 January 2006 the Court adjourned the case at the request of the Swedish Government following the enactment of an interim amendment to the Swedish Aliens Act, on the basis of which the applicant’s case would be reviewed. On 14 June 2006, after having received several submissions from the applicant, the Migration Board decided not to grant him a residence permit in Sweden on the basis of the interim amendment to the Aliens Act. The Board concluded that the applicant was not in need of protection in Sweden and that there were no other grounds on which to grant him leave to remain in the country. By letters of 20 June 2006 and 11 September 2006, the Court requested the applicant to inform it whether he had obtained permission to go to Canada. In a reply which arrived to the Court on 9 October 2006, the applicant stated that he would inform the Court about the outcome of the Canadian proceedings within two months. The applicant then made a new request to the Migration Board for a residence permit in Sweden or, in the alternative, a student visa for one year. He claimed that, if he was allowed to remain one year in Sweden to study, it would heal him mentally and he could then return to live and work in Africa. On 20 November 2006 the Migration Board rejected the request as it considered that these were no new circumstances which could constitute an impediment to the enforcement of the deportation in accordance with the Aliens Act. Subsequently, the applicant submitted several “testimonies” and letters from named Rwandans in confirmation of the poor human rights situation in the country, in particular for Hutus and intellectuals. One of the persons stated that he had been asked to falsely accuse the applicant of having assaulted him and another person and alleged that the applicant had been summoned by the police on 13 December 2005. This person affirmed that he had been instructed to accuse all former teachers in Rwanda of having taught “ethnism” and “divisionism”. Furthermore, two persons testified that they had spent time with the applicant in prison, that they had been battered and that many people had died from the ill-treatment. Another two persons claimed that they had been asked, but had refused, to give false testimony against the applicant by stating that he had taken part in the genocide. However, they alleged that many other people had given false testimonies and that, therefore, the applicant would risk being accused and convicted by the gacaca courts. One more person, who was a Rwandan asylum-seeker in France, stated that, in May 2004, he had heard people mentioning that the applicant was on the Rwandan authorities’ list of people who were considered politically dangerous and who should be arrested. He also confirmed that the applicant had been detained without a trial. The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (Utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was superseded on 31 March 2006 by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 and 2005 Acts define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. Chapter 1, Section 4, of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the grant of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country. Further, under the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 3, Section 3). An alien who was to be refused entry, deported or expelled, in accordance with a decision that had gained legal force, could be granted a residence permit if he or she filed a new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or if it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7). As regards the enforcement of a refusal of entry, deportation or expulsion, account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 8, Section 1). In essence, the 2005 Act did not substantially amend the above provisions, except for the following. Under the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to renew applications but, instead, the Migration Board determines, on its own initiative, whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18). Furthermore, on 15 November 2005 certain interim amendments to the 1989 Act entered into force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined. Rwanda is a constitutional Republic dominated by a strong presidency and with a population of 8.4 million (an estimated 88% Hutus, 11% Tutsis and 1% Twa pygmies). In April 1994, the Hutu-dominated national army and its armed youth militia (the Interahamwe), under the direction of the Hutu-dominated government, began a massacre directed primarily against the minority Tutsi ethnic group, but also against those from the Hutu majority who opposed the killing or had been active in the pro-democracy movement. The genocide, which left close to one million people dead, ended in July 1994 when the predominantly Tutsi Rwandan Patriotic Front (the RPF) overthrew the government and took power. It formed a government of National Unity that functioned until 2003 when, in largely peaceful but seriously marred elections, the RPF won the majority of the seats in the Chamber of Deputies and the Senate. Prior to the genocide, all Rwandans were required to carry identity cards that indicated ethnicity, a practice that had been instituted during the Belgian colonial administration. Following the genocide, the government banned all identity card references to ethnic affiliation and called for national reconciliation. They also eliminated all references to ethnicity in written and non-written official discourse as well as ethnic quotas for education, training, or government employment. The constitution provides for the eradication of ethnic, regional, and other divisions and the promotion of national unity. While some organisations and individuals have continued to accuse the government of favouring Tutsis in government employment, admission to professional schooling, and other matters, the government have denied this charge and there is no evidence to suggest that the government practises ethnic favouritism. The law prohibits “any propaganda of ethnic, regional, racial, or divisive character or based on any other form of divisionism”, and public incitement to “divisionism” is punishable by up to five years in prison, heavy fines, or both. Individuals can criticise the government publicly and privately on most topics but the law discourages citizens from expressing viewpoints unacceptable to the government on sensitive subjects, as such viewpoints sometimes result in imprisonment, harassment, or intimidation under the pretext of “divisionism”. In 2006 Rwanda received some positive comment by a peer review team of the New Economic Partnership for Africa (NEPAD) but was criticized for restricting political space and not recognizing diversity. There were reports that security forces had committed extrajudicial killings and torture, abused suspects with impunity and arbitrarily arrested and detained persons, including street children and members of other vulnerable groups. Local officials had briefly detained some individuals who disagreed publicly with government decisions or policies. Such individuals had not usually been charged and had been released after a day in detention. Furthermore, there were reports of secret detention centres being run by security officials where individuals were detained illegally, abused and deprived of food and water. The government and police denied this but, in 2006, the Senate opened an investigation into the matter. Members of local communities chose community volunteers to serve in the Local Defence Forces (the LDF), a statutorily established law-enforcement organisation under the Ministry of Local Government that assisted police. The national police exercised tactical control of the LDF while locally appointed officials had responsibility for the operational oversight. LDF members performed basic security guard duties throughout the country, including maintaining a presence at gacaca trials, and they were ordinarily unpaid and received less training than the national police. Police officers and LDF members allegedly committed several unlawful killings but the government investigated these killings and reports generally indicated that the LDF members accused of killings had been arrested and charged. In 2006 there were fewer reports of police officers abusing suspects at the time of arrest, and authorities dismissed or disciplined some police officers for excessive use of force. The government took significant steps in 2006 to address human rights deficiencies and institute reforms, such as forming a unit in the National Police to investigate citizens’ reports of official abuse and corruption. Moreover, the judiciary has demonstrated increased independence in its growing willingness to rule against the executive branch, its release of some political prisoners, and in its use of the Judicial Council to conduct investigations into judicial corruption. A traditional, community-based gacaca system of tribunals was established in 2002 to try people suspected of crimes during the 1994 genocide, in order to resolve the enormous caseload of such crimes (however, not the most serious, so-called “category I” crimes, which are still tried in the ordinary courts). The government’s stated goal for the gacaca system was to ensure that those who had participated in the genocide were brought to trial, furthering the ends of justice, ending impunity and promoting national unity. The gacaca law provides for reduced sentences including community service, for cooperation, and credit for time served. After a pilot phase when approximately 700,000 individuals were identified for prosecution for having participated in the genocide, the gacaca courts began trials nationwide in July 2006. The trials have been public but there have been concerns about their fairness, among other things because of a perceived lack of impartiality and reports that defendants have not been given the opportunity to defend themselves. In addition, some courts have spent only a few hours hearing each case and poorly qualified, ill-trained and corrupt gacaca judges in certain districts have fuelled widespread distrust of the gacaca system. There have been reports of local gacaca officials and citizens abusing the process to pursue personal matters and settle grudges unrelated to the genocide, including making false accusations in order to acquire land. However, in some reported cases where judges had acted inappropriately, gacaca officials intervened and held that the procedure had been illegal. Moreover, “Lawyers without Borders” has offered training to gacaca judges. The establishment of section-level appeal courts has lagged behind, limiting the possibility of recourse for those who feel wrongly judged. Many Rwandans have not trusted the gacaca courts and have either boycotted the sessions or have attended under duress. In 2006, when the trials began, some fled to neighbouring countries in fear of being prosecuted but most of them returned to Rwanda later the same year. A variety of international NGOs and more than six domestic human rights groups have been operating in the country. One of these, LIPRODOHR, employed some of its 600 members to conduct field investigations into alleged abuses, published its findings and discussed them with government officials. It raised concerns about false accusations in gacaca trials. In 2006, more than 17,000 asylum seekers returned to Rwanda from Burundi. There were no reports that these repatriates were mistreated upon their return. Also in 2006, Tanzania expelled more that 13,000 Rwandans. The Rwandan government worked with UNHCR and other aid organisations to assist the returnees, who were resettled, and government mediators handled land disputes resulting from the number of returnees. It was reported that Rwandan nationals had not encountered any particular problems in obtaining identity cards or passports, either to leave the country or to return following exile. Corruption was not considered a problem for obtaining passports but it was expensive, thus creating an obstacle for many. According to the UNHCR 2004 Guidelines on Rwandan asylum seekers, the mere assertion of having been deprived of property before or during exile, by itself, was not sufficient to establish a refugee claim. The Rwandan Government had undertaken to ensure the resolution of such cases, and some properties which had been taken by those who returned in 1994 had been restored to their rightful owners. However, persons who illegally took or seized other peoples’ properties in Rwanda are known to have falsely accused the rightful owners of involvement in the genocide when the latter have attempted to assert their property rights. | 0 |
train | 001-23334 | ENG | FRA | ADMISSIBILITY | 2,002 | SAN JUAN v. FRANCE | 1 | Inadmissible | null | The applicant [Mr Daniel San Juan] is a French national who was born in 1947 and lives in Drancy, in the département of Seine-Saint-Denis (France). He was represented before the Court by Mr Olivier de Nervo, of the Conseil d’Etat and Court of Cassation Bar. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant has worked as an accountant for various accountancy firms since 1 July 1965. In 1995 he applied to be registered as a chartered accountant (a member of the ordre des experts-comptables, the Association of Chartered Accountants) on the basis of his professional experience, under section 7 bis of Ordinance no. 45-2138 of 19 September 1945. The procedure laid down in the Ordinance provides for the possibility of becoming a chartered accountant on the basis of professional experience; candidates must demonstrate that they have fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities. Applications are considered by a regional committee, and unsuccessful candidates may appeal to the National Committee set up to implement section 7 bis of the Ordinance of 19 September 1945 (“the National Committee”). On 14 May 1996 the Ile-de-France regional committee refused the applicant’s application on the ground that he had not produced certificates attesting that he had five years’ experience in posts or on assignments entailing substantial administrative, financial and accounting responsibilities. It held that, as a result, the applicant did not “fully satisfy the requirements laid down in the relevant provisions” and could not “be regarded as having acquired experience comparable to that of a well-qualified chartered accountant, as is required by section 7 bis of the Ordinance of 19 September 1945”. The applicant appealed against that decision to the National Committee, arguing that the assessment of his professional experience had been incorrect and that the regional committee had infringed the principle of equality of opportunity in prematurely refusing his application. On 18 November 1996 the National Committee dismissed the applicant’s appeal, giving the following reasons for its decision: “The candidate was considered on the basis of the application he submitted. As a consequence of an appeal, the National Committee rehears the case as a whole. At that stage, the candidate had the opportunity to produce additional information in support of his appeal. Consequently, the procedure followed did not give rise to any discrimination against him. In order to satisfy the first requirement laid down in the Decree cited above, candidates must have discharged accounting or auditing duties on a regular basis for fifteen years. From an examination of the candidate’s application it appears that he satisfies that requirement. In order to satisfy the second requirement, candidates must have assumed substantial responsibilities in three fields – administrative, financial and accounting – for five years. To qualify as substantial, such responsibilities must be exercised within large institutions that raise complex problems, and must be accompanied by decision-making powers enabling the person in whom they are vested to commit the firm by which he is employed and to influence its future. As evidence of the responsibilities he has assumed, the candidate has produced various certificates. Only those from SA LSVO and Socofam are signed by authorised persons. The certificate issued by Mr Le Petit, the chairman of SA LSVO, states that the candidate performed the duties of a management auditor and did not have any real decision-making powers. The candidate performed the duties of a managing director for two years and seven months, as is attested by Mr P. Bouquet, the current managing director of SA Socofam. With regard to the duties performed within the Ile-de-France group ... and subsequently within the Sigafrance company ... and the Socofam company ..., the documents submitted do not give a sufficiently clear indication of the extent of the powers enjoyed by the candidate in administrative and financial matters; in that respect, there is no proof of such powers having been delegated to him. Moreover, the documents and organisation charts giving details of those duties have been drawn up by the candidate himself and, in some cases, are signed by persons outside the companies or by former managers and cannot be treated as employers’ certificates. As regards the remainder of the candidate’s career, there is no evidence in his application that the posts or assignments concerned have entailed responsibilities of the kind required by the statutory provisions. Accordingly, he is unable to show that he has at least five years’ experience in posts entailing substantial administrative, financial and accounting responsibilities. It follows from the foregoing that Mr San Juan does not satisfy the second requirement laid down in Article 2 § 3 of the Decree of 19 February 1970.” The applicant applied to the Conseil d’Etat to have the National Committee’s decision set aside. He argued, in particular, that the proceedings before the National Committee did not satisfy the requirements of Article 6 § 1 on account of their secret and anonymous nature. He submitted in that connection that the committee’s decision did not contain any indication of its composition, so that its members remained anonymous. He also observed that the committee had given its decision without holding a public hearing and without hearing evidence from him. In a judgment of 6 March 1998 the Conseil d’Etat dismissed the application on the following grounds: “Outward legality ... No provision of a statute or of regulations has conferred the status of a court on the National Committee set up to implement section 7 bis of the Ordinance of 19 September 1945. The provisions cited above are therefore not applicable to it. Internal legality By Article 2, paragraph 3, of the Decree of 19 February 1970, as amended, registration as a chartered accountant is conditional on the candidate’s having ‘fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities’. It does not appear from the documents in the file that the National Committee erred in law or made a manifest error of assessment in holding that Mr San Juan, who has practised in various companies and accounting firms since 1965 and satisfies the above-mentioned requirement of having fifteen years’ experience, did not have at least five years’ experience in exercising substantial responsibilities of the kind referred to in the Decree of 19 February 1970 cited above. Mr San Juan accordingly has no grounds for seeking the setting aside of the decision of 28 November 1996 in which the National Committee refused him leave to apply to be registered as a chartered accountant.” Section 7 bis of the Ordinance of 19 September 1945 provides: “Persons who have carried on an occupation entailing accounting or auditing duties and who have consequently acquired experience comparable to that of a well-qualified chartered accountant, may be granted leave to apply ... to be registered as a member of the ordre with the status of chartered accountant. ...” Article 2 of the Decree of 19 February 1970, as amended by Decree no. 85-927 of 30 August 1985, provides: “Persons who are covered by section 7 bis of Ordinance no. 45-2138 of 19 September 1945, cited above, and are at least forty years of age may apply to be registered as a member of the ordre with the status of chartered accountant if they satisfy one of the following conditions: 1. they are certified accountants registered either on a list of company auditors or on a list of court experts in accountancy; 2. they are certified accountants with fifteen years’ experience in an occupation entailing the frequent exercise of substantial responsibilities in each of the following three fields: (a) accounting; (b) verifying accounts prepared by staff under their responsibility; and (c) analysing the position and functioning of firms from an economic, legal and financial standpoint; or 3. they have fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities.” | 0 |
train | 001-68886 | ENG | UKR | CHAMBER | 2,005 | CASE OF SOKUR v. UKRAINE | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | null | 8. The applicant was born in 1940 and lives in the village of Grodovka, the Donetsk region of Ukraine. 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. In 2001 the applicant instituted proceedings in the Novogrodivsky City Court of the Donetsk Region against the “Novogrodivska” Mining Company - a State-owned enterprise - to recover unpaid salary for the years 1998-2000. 11. On 3 May 2001 the Novogrodivsky City Court found in favour of the applicant (рішення Новогродівського міського суду Донецької області) and awarded him UAH 7,406.21 in salary arrears and compensation for devaluation. The decision became effective on 14 May 2001 and was sent for execution to the Novogrodivsky City Bailiffs’ Service (Відділ Державної виконавчої служби Новогродівського міського управління юстиції). However, the decision was not executed, allegedly due to the failure of the Bailiffs’ Service to act in not selling the property of the Mining Company. 12. In the course of the enforcement proceedings, it was established that on 19 November 1998 the Donetsk Regional Arbitration Court (Арбітражний суд Донецької області) had instituted bankruptcy proceedings against the “Novogrodivska” Mining Company. 13. The applicant instituted proceedings in the Novogrodivsky City Court of the Donetsk Region against the Novogrodivsky City Bailiffs’ Service for failure to execute the court decision in his favour. On 18 July 2001 the City Court rejected the applicant’s claim, finding no fault had been committed by that Service. The court stated that the Bailiffs’ Service had presented a decision of the Commercial Court of the Donetsk Region of 30 August 2000 to the respondent company. This decision prohibited the enforcement of judgments against the company by selling its property, due to the bankruptcy proceedings which had been initiated against it. 14. On 1 November 2001 the Appellate Court of the Donetsk Region dismissed the applicant’s appeal. On 18 February 2002 the panel of three judges of the Civil Chamber of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal. 15. On 26 December 2001 the ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital was entrenched in the Law on the Introduction of a Moratorium on the Forced Sale of Property. On 10 June 2003 the Constitutional Court found the moratorium to be compatible with the provisions of the Constitution. 16. On 12 May 2004 the full amount awarded to the applicant was transferred to his bank account, and on 13 May 2004 the enforcement proceedings were completed. 17. Under Article 12 of the Law (Закон України “Про відновлення платоспроможності боржника або визнання його банкрутом”), a commercial court is entitled to order a moratorium on debt recovery from a company which is the subject of bankruptcy proceedings. The moratorium implies a prohibition on the Bailiffs’ Service to execute judgments against such a company. The same Article provides that the company protected by moratorium shall be immune from any fines and other sanctions for non-fulfilment or improper fulfilment of its financial obligations during the moratorium. 18. The Law (Закон України “Про введення мораторiю на примусову реалiзацiю майна”) aims at protecting State interests on the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. A moratorium on the enforcement of judgment debts has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set. Article 2 of that Law provides that the prohibition on the forced sale of property includes the execution of writs by the State Bailiffs’ Service on property belonging to such companies. The Law therefore stays the execution of all writs by the State Bailiffs’ Service against the assets of or undertakings in which the State holds at least 25% of the share capital. 19. Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim by the creditor, pay the amount of the debt, plus any interest payable at an officially established inflation rate during the default period. 20. Under Article 2 of the Law (Закон України “Про виконавче провадження”), the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for the inadequate enforcement or non-enforcement of that judgment, and to receive compensation. 21. Article 11 of the Law (Закон України “Про державну виконавчу службу”) provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. 22. In its judgment, the Constitutional Court of Ukraine mentioned in particular: “The Constitutional Court considers that the Law [on the moratorium] does not violate the constitutional requirement about the binding nature of court judgments. Court judgments on the forced attachment of the property of enterprises, given both prior to and after the Law was adopted, have not been abolished by it; they remain in force, and their enforcement is suspended until the mechanism for the forced sale of property is improved. That means that the Law established an extended term of enforcement during this period.... ... the Constitutional Court of Ukraine has decided: 1. To recognise that the Law “on the Introduction of a Moratorium on the Forced Sale of Property” of 29 November 2001 complies with the Constitution of Ukraine (is constitutional). ...” | 1 |
train | 001-5666 | ENG | AUT | ADMISSIBILITY | 2,001 | LUDESCHER v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austria national, living in Weiler (Austria). He is represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz (Austria). The facts of the case, as submitted by the parties, may be summarised as follows. On 28 December 1989 the Mayor of Röthis dismissed the applicant’s request of 28 August 1989 for a building permit in respect of a shed to be constructed on two plots of land marked as a free zone in the development plan. The Röthis Local Council (Gemeindevertretung) rejected the applicant’s appeal on 11 July 1990. On 9 November 1990 the Feldkirch District Administrative Authority (Bezirkshauptmannschaft) dismissed the applicant’s further appeal. It found that no building was permissible in a free zone. On 11 July 1991 the Constitutional Court (Verfassungsgerichtshof) declined to entertain the applicant’s complaint against the refusal of the building permit and referred the case to the Administrative Court (Verwaltungsgerichtshof). On 4 October 1991 the Administrative Court requested the applicant to amend his submissions, which the applicant did on 4 November 1991. On 15 December 1994 the Administrative Court rejected the applicant’s complaint. It found that the complaint related in essence to the alleged unlawfulness of the development plan underlying the refusal of the building permit, an issue outside the Administrative Court’s competence. | 0 |
train | 001-80008 | ENG | POL | CHAMBER | 2,007 | CASE OF TERESZCZENKO v. POLAND | 4 | No violation of Art. 5-3 | Nicolas Bratza | 4. The applicant was born in 1956 and lives in Warszawa. 5. On 19 November 2002 the applicant was placed in police custody on suspicion of drug trafficking. On 20 November 2002 the Częstochowa District Court ordered that the applicant be detained on remand. 6. The court based its detention order on a reasonable suspicion that the applicant had committed the offence of drug trafficking and the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. Moreover, the court took into account that other suspects had remained at large, which would pose a risk of collusion if the applicant were released. 7. Subsequent decisions on the extension of the applicant's pre-trial detention were taken on 11 February 2003, 8 May 2003, 3 October 2003, 31 December 2003, 29 March 2004 and 29 June 2004. 8. The courts referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and other suspects and exertion of unlawful pressure on witnesses by the applicant. They stressed that the fact that the applicant had not pleaded guilty posed an additional risk of his influencing other persons involved in the proceedings. In their opinion no other preventive measure could ensure the proper conduct of the proceedings. 9. The applicant appealed on several occasions against the decisions extending his detention and requested release from detention or the imposition of a more lenient preventive measure, drawing the court's attention to his poor state of health. 10. On 27 November 2002 a telephone company was requested to provide an itemised bill of the applicant's telephone calls to other suspects. 11. On 18 December 2002 and 29 January 2003 confrontations of witnesses and suspects took place. 12. On 19 December 2002 the prosecutor ordered an expert opinion of a heart specialist with a view to establishing the applicant's state of health. No grounds for the applicant's release from detention were found. 13. On 19 March 2003 an expert opinion was ordered with a view to determining whether the substance found in the course of police operations had been an illegal drug. The opinion was submitted on 15 May 2003. 14. On 30 April 2003 and 8 June 2003 expert opinions concerning a weapon which had been found by the police were submitted. 15. On 5 May 2003 another expert opinion of a heart specialist was ordered. Again, the applicant was found to be fit for detention. 16. On 25 June 2003 a bill of indictment against the applicant and ten other co-accused was lodged with the court. The applicant did not plead guilty. 17. On 15 September 2003 the court decided to transfer the case file to the Prosecutor's Office so that shortcomings in the investigation could be corrected. 18. On 24 December 2003 two expert opinions were ordered with a view to establishing the applicant's mental health. 19. On 9 February 2004 expert opinions on cardiology and diabetology were ordered. The experts did not find any grounds for the applicant's release. 20. Hearings were held on the following dates: 27 November 2003, 25 March 2004, 15 April 2004, 13 May 2004, 17 June 2004, 8 July 2004, 12 August 2004, 9 September 2004 and 27 September 2004. Over thirty-five witnesses were examined by the court. 21. On 17 June 2004 the court ordered that witnesses who had previously failed to appear at hearings be escorted to the court. 22. On 5 July 2004 an expert opinion on neurology was submitted. No grounds for the applicant's release were found, although it was stated in this opinion that his prolonged detention might pose some future risk to his health and he was referred to a prison hospital for observation. The date of his admission to hospital was fixed for 1 July 2004. 23. On 30 September 2004 the Częstochowa District Court gave a judgment. The applicant was found guilty of drug trafficking and sentenced to three years' imprisonment. The court ordered that the applicant remain in custody until the prison sentence could be enforced. 24. On 1 October 2004 the applicant appealed against the decision of 30 September 2004 on the extension of his detention. 25. On 21 October 2004 the Częstochowa Regional Court allowed the applicant's appeal of 1 October 2004 and on the same day he was released from detention. 26. On 6 December 2004 two appeals against the judgment of 30 September 2004 were lodged by the applicant's lawyers. 27. On 22 June 2005 the Częstochowa Regional Court quashed the judgment and remitted the case. The proceedings are pending. 28. The relevant domestic law 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) is 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). 29. The relevant domestic provisions and practice concerning the State's liability for a tort committed by its official, in connection with a right to a trial within a reasonable time, have already been cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, 3 October 2006, and Białas v. Poland, no. 69129/01, 10 October 2006). | 0 |
train | 001-70096 | ENG | UKR | CHAMBER | 2,005 | CASE OF SALOV v. UKRAINE | 1 | Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Antonella Mularoni | 10. The applicant is a Ukrainian national who was born in 1958 and currently resides in Donetsk. He is a lawyer practising in Ukraine. 11. On 31 July 1999 the Central Electoral Commission registered the applicant as the representative of a candidate for the presidency of Ukraine, Mr Olexander O. Moroz. The latter was the leader of the Socialist Party of Ukraine at the time. 12. On 31 October 1999 the Kyivsky District Prosecution Service of Donetsk (the “Kyivsky Prosecution Service”) conducted a criminal investigation into allegations that the applicant had interfered with the citizens' right to vote (Article 127 § 2 of the Criminal Code of Ukraine – “the CC”). 13. On 1 November 1999 the applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate, the incumbent President Mr Leonid D. Kuchma. The applicant had allegedly disseminated this information on 30 and 31 October 1999 in the form of a statement by the Speaker of the Verkhovna Rada (Parliament) published in a special nationwide issue of the Verkhovna Rada newspaper Holos Ukrayiny (газета “Голос України”). The text of the article disseminated by the applicant reads as follows: 14. Following the applicant's arrest, the Kyivsky Prosecution Service carried out a formal criminal investigation into the allegations made against him. 15. On 3 November 1999 the Kyivsky Prosecution Service decided to detain the applicant on suspicion of having committed a crime under Article 127 § 2 of the CC (see paragraph 41 below). The applicant was detained in the Temporary Investigative Isolation Unit of the Donetsk Region. He remained there until 10 November 1999. 16. On 5 November 1999 the applicant was formally charged with having committed an offence under Article 127 § 2 of the CC (see paragraph 41 below). The prosecution service classified his actions as having been committed by an official. 17. On 10 November 1999 the applicant lodged an application (dated 6 November 1999) with the Voroshylovsky District Court of Donetsk to be released from detention. On 17 November 1999 the court dismissed his application. 18. On 11 November 1999 the applicant was transferred to the Donetsk Investigative Detention Centre No. 5. 19. On 16 November 1999 the applicant underwent a medical examination. He was found to be suffering from bronchitis and second-degree hypertension. The medical commission recommended that the applicant be hospitalised. 20. On 22 November 1999 the Kyivsky Prosecution Service completed the pre-trial investigation into the applicant's case and committed him for trial. 21. On 25 November 1999 the case file was transferred to the court. On 10 December 1999 the Kuybyshevsky District Court of Donetsk (the District Court”) committed the applicant to stand trial on charges of interference with the citizens' right to vote, contrary to Article 127 § 2 of the CC (see paragraph 41 below). It also decided not to release him from detention. 22. In the course of the trial Judge T. of the District Court on 7 March 2000 passed a resolution (постанову) ordering He also requested the prosecution to reconsider the preventive measure of detention applied in respect of the applicant and to reclassify the charges against him. In particular, he stated: 23. On 30 March 2000 the deputy prosecutor of the Donetsk Region lodged a protest with the Presidium of the Donetsk Regional Court (“the Presidium”) against the resolution of 7 March 2000 and requested the initiation of supervisory review proceedings in the applicant's case. He also sought to set aside the resolution of 7 March 2000 in which the case had been remitted for additional investigation. The deputy prosecutor considered that there was sufficient evidence to corroborate the applicant's interference with the citizens' right to vote (Article 127 § 2 of the CC). On the same date the registry of the court acknowledged receipt of the protest. 24. On 5 April 2000 the Presidium, composed of its President, L.V.I., and the judges R.L.P., P.L.V., R.L.I., M.M.I. and B.A.M., in the presence of a prosecutor, quashed the resolution of 7 March 2000 and remitted the case for further judicial consideration. In particular, the Presidium found that the District Court had remitted the case back for additional investigation without a thorough examination of the indictment and of the requisite actus rea and mens rea of the offence with which the applicant had been charged. It had also not mentioned which particular investigative measures the prosecution was required to take. The Presidium decided not to release the applicant from detention. In particular, it stated: 25. On 24 April 2000 the District Court dismissed a petition filed by the applicant's lawyer requesting that the case be remitted for additional investigation. It also dismissed the applicant's application for release from detention. 26. On 1 June 2000 the District Court dismissed a further application for the applicant's release. 27. On 16 June 2000 the District Court changed the preventive measure applied in respect of the applicant to an undertaking not to abscond. 28. On 6 July 2000 the District Court, chaired by Judge T., who had heard the case on 7 March 2000, convicted the applicant of interfering with the citizens' right to vote for the purpose of influencing election results by means of fraudulent behaviour. The District Court sentenced the applicant to five years' imprisonment, which was suspended for a two-year probationary period as the actions of Mr Salov “in fact entailed no grave consequences”. It also ordered the applicant to pay a fine of 170 Ukrainian hryvnyas (UAH). It held as follows: 29. On 15 September 2000 the Donetsk Regional Court, composed of the judges D.A.D., G.G. and D.A.V., upheld the judgment of 6 July 2000. 30. On 3 November 2000 and 9 February 2001 respectively the Regional Court and the Supreme Court of Ukraine dismissed, as being unsubstantiated, the applicant's complaints and his request for a supervisory review of his conviction. 31. On 22 November 2000 the Donetsk Lawyers' Qualifications and Disciplinary Commission annulled the applicant's licence to practise as a lawyer (no. 1051, issued on 17 December 1997). It based its decision on the applicant's conviction of 6 June 2000. 32. On 23 April 2004 the applicant received a new licence to practise as a lawyer (no. 1572), after passing an examination before the Donetsk Lawyers' Qualifications and Disciplinary Commission and paying the sum of UAH 1,200. He was allowed to sit exams after the legal effects of his conviction were annulled (погашена судимість). 33. In July 2000 the applicant instituted proceedings in the Voroshylovsky District Court of Donetsk against the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior, claiming compensation for the non-pecuniary and pecuniary damage resulting from his unlawful 10-day detention in 1999 in the Temporary Investigative Isolation Unit (Ізолятор Тимчасового Утримання). In particular, it was contended that he should have been held in the Investigative Detention Centre (Слідчий Ізолятор) and not in the Temporary Investigative Isolation Unit, as his status had been that of a suspect in criminal proceedings. 34. On 15 June 2001 the Voroshylovsky District Court of Donetsk allowed his claims in part. It also ordered the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior to pay UAH 3,000 (EUR 500) to the applicant. 35. On 22 November 2001 the Donetsk Regional Court of Appeal decided that the State Treasury, and not the prosecution service or the Ministry of the Interior, was liable for compensating the applicant. It therefore ordered the Donetsk Regional State Treasury Department to pay the applicant UAH 3,000 (EUR 500) in compensation for pecuniary and non-pecuniary damage. 36. The applicant alleges that this compensation was not paid to him. 37. The relevant provisions of the Constitution of Ukraine read as follows: 38. The relevant provisions of the Judiciary Act of 5 June 1981, with subsequent changes and amendments, as in force at the material time, read as follows: 39. Section 7 of this Act provides that any citizen of Ukraine who has attained the age of twenty-one and has a minimum of two years' legal experience may become a judge. By section 9(3), judges are appointed for a maximum initial period of five years, following an examination by the judicial qualifications commission and a decision of the relevant local authority. In accordance with sections 33 and 34 of the Act, a judge of the district court may be subject to disciplinary investigation on the basis of a request by the President of the regional court. 40. By sections 6 and 7 of this Act, the qualifications commissions had the power to institute disciplinary proceedings, and to submit conclusions on the feasibility of appointing a candidate for a position as a district-court judge and on the renewal of the judicial term of a judge elected for an initial period of five years. They could also request an attestation for a judge proposed for a promotion in judicial or administrative rank within the court, or an assessment of his legal knowledge. The presidents of the regional courts could request the qualifications commissions to certify or assess judges' knowledge and qualifications. In accordance with sections 32 and 33 of the Act, the presidents of the higher courts were allowed to request the institution of disciplinary proceedings against judges of the district courts. 41. The relevant provisions of Article 127 of the Criminal Code read as follows: 42. The relevant provisions of the Code of Administrative Offences read as follows: 43. The relevant provisions of Section III, Chapter 23, of the Code of Criminal Procedure read as follows: 44. The relevant provisions of Chapter 31 of the Code of Criminal Procedure provide as follows: 45. The relevant provisions of the Presidential Elections Act read as follows: 46. The relevant provisions of the reservation contained in the instrument of ratification are set out in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, § 56, 5 April 2005). 47. The relevant transitional provisions of the Constitution of Ukraine are set out in the Nevmerzhitsky judgment cited above. 48. The relevant resolution of the Plenary Supreme Court of Ukraine reads as follows: 49. In its decision the Constitutional Court found that the Cabinet of Ministers had acted unconstitutionally in passing the resolution of 22 March 1999 (no. 432) that reduced the expenditure of the 1999 State budget on the needs of: the Supreme Court by 40%, the regional courts by 7.5%, the district (and city) courts by 6.8%, the Higher Arbitration Court by 26.4%, the arbitration courts by 19.4%, and the military courts by 15.5%. According to the information issued by the Ministry of Justice (responsible for the courts' administration at the material time), this expenditure covered 51.6% of the needs of the first-instance courts and 62.8% of the needs of the regional courts. The Constitutional Court found that Resolution no. 432 exerted financial influence on the courts and infringed the citizens' right to judicial protection. 50. The Council of Judges, in its Decision no. 13 of 12 December 2000, found that the existing procedure for the selection and appointment of candidates for judicial posts, as established by the Ministry of Justice, Higher Council of Justice and the judicial qualifications commissions, was not compatible with the need to form a highly qualified judiciary able to administer justice effectively and independently. 51. On 12 December 2000 the Council of Judges adopted Resolution no. 10, finding that the decisions of the Cabinet of Ministers to lower judicial salaries were contrary to the principle of the independence of the judiciary. | 1 |
train | 001-100686 | ENG | ESP | GRANDCHAMBER | 2,010 | CASE OF MANGOURAS v. SPAIN | 1 | No violation of Art. 5-3 | Alejandro Saiz Arnaiz;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Georgieva;Giovanni Bonello;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen | 13. The applicant was born in 1935 and lives in Greece. 14. On 13 November 2002 the ship Prestige, flying the flag of the Bahamas, was sailing in the Spanish exclusive economic zone off the coast of Galicia, carrying 70,000 tonnes of fuel oil. At a distance of 28 miles from Cape Finisterre it sent out an SOS after sustaining sudden and severe damage which produced a leak and caused the contents of its tanks to spill into the Atlantic Ocean. 15. As the Prestige was in danger of sinking, the maritime authorities launched a large-scale operation to rescue its crew. The ship was adrift and was approaching the coast, spilling its cargo into the sea. The applicant, who was the ship’s Master, was taken by helicopter to the offices of the Corunna (A Coruña) harbourmaster, where he was arrested. 16. The spillage of the ship’s cargo caused an ecological disaster whose effects on marine flora and fauna lasted for several months and spread as far as the French coast. The shores of the Atlantic coast of Cantabria and Galicia were severely polluted by the numerous waves of oil which were washed up. The oil spill blackened beaches and cliffs, destroyed marine life, adversely affected water quality and had an immediate environmental impact on numerous animal species. It caused damage to protected natural areas and had considerable repercussions on several sectors of the economy in the regions concerned, particularly on fishing, commerce and tourism. 17. By a decision of 17 November 2002, the Corunna no. 4 investigating judge remanded the applicant in custody and set bail at 3,000,000 euros (EUR), after finding that the facts of the case disclosed sufficient indicative evidence to justify opening a criminal investigation. While acknowledging that the oil spill had been caused by an accident, the judge said that some of the information in the file, although still provisional at that stage in the proceedings, suggested that the applicant had been at fault in several respects, in particular in failing to cooperate sufficiently with the port authorities when they had tried to take the vessel in tow. The applicant’s conduct could constitute an offence of causing damage to natural resources and the environment and one of failing to comply with the instructions of the administrative authorities. In the judge’s opinion, the seriousness of the offences in question and the fact that the applicant was a foreign national who had no particular ties with Spain justified the high sum set for bail. The relevant part of the decision reads as follows: “The information obtained discloses indicative evidence – still provisional at the preliminary investigation stage – of an offence of causing damage to natural resources and the environment for the purposes of Article 325 and, possibly, Article 326 of the Criminal Code, and of an offence of failure to comply with the instructions of the administrative authorities, punishable under Article 556 of the Code. The investigation has produced sufficient indicative evidence to suggest that Mr Apostolos Mangouras could be criminally responsible for the offences in question. In view of the penalties laid down in the Criminal Code for these offences, and the fact that the application provided for in Article 504 bis § 2 and Article 539 of the Code of Criminal Procedure was made at the mandatory hearing, an order should be made, in accordance with Articles 503 and 504 of that Code, for the accused’s pre-trial detention as a preventive measure, accompanied by the right for the accused to communicate with others and the possibility of release on bail. The reasonable indications referred to above emerge from the documents in the case file and, in particular, from detailed examination of the testimony of the witnesses who appeared this morning. All the evidence indicates that the severe damage to the Prestige was caused by the unforeseeable phenomenon of a storm surge, but that actions were taken which could form the basis of a criminal prosecution, as indicated in the previous paragraph. It should be stressed that the steps taken hitherto and the conclusions to be drawn for the purposes of this decision are of a wholly provisional nature and that many further steps and much more expert evidence will be needed in order to fully elucidate the facts. However, it is clear at this stage that the Prestige did not have any emergency towing equipment or that if it did, it was not in working order, as demonstrated by the recordings of conversations. It is also clear that the ship’s Master, by repeatedly ignoring the instructions of the port authorities, hampered meaningful joint efforts to lessen the extremely serious risks. It appears that the Master of the Prestige refused for almost three hours to cooperate and subsequently continued to do so indirectly, creating difficulties by refusing to take the necessary steps to ensure effective towing of the vessel or to start the engine so that the ship could advance, however slowly. These events occurred within the country’s 24-mile limit and, by definition, within the 200-mile zone. It is true, as already indicated, that further investigative elements are required, in particular the ship’s log, which has been urgently requested, and that it will be necessary to verify all the other information contained in the recordings of conversations, transcripts of which appear to be in the possession of the Cape Finisterre control centre. Without prejudice to all of the above, the accused’s detention could be dispensed with subject to bail being furnished in the amount of three million euros. In the court’s view, the security in question is justified in view of the seriousness of the offences concerned and the heavy sentence they carry and also because the investigation is in the early stages, the accused’s release could impede the investigation, the case has clearly caused a major public outcry and, in addition to the issues of criminal responsibility raised, there are significant civil liability issues at stake involving substantial sums. Furthermore, Mr Mangouras has no ties in Spain and could leave the country at any time and thus evade prosecution. For all the reasons outlined above it is necessary and unavoidable, in the present circumstances, to fix bail. Bail cannot, for the time being at least, be replaced by a less restrictive measure.” 18. On 19 November 2002 the applicant requested his release and, in the alternative, the reduction of bail to EUR 60,000 to reflect his personal situation. He also submitted that his advanced age should be taken into account. In a decision of 27 November 2002, the Corcubión (Corunna) no. 1 investigating judge refused the applicant’s request. The judge took the view that the seriousness of the offences of which the applicant stood accused justified his continued pre-trial detention and that the latter measure was exceptional, subsidiary, temporary and proportionate in nature and thus satisfied the remaining criteria laid down by the case-law of the Constitutional Court. As to the amount set for bail, the judge stated that the applicant’s appearance at trial was vital in order to elucidate the sequence of events following the leak in the vessel. He also reiterated the arguments of the first investigating judge to the effect that the seriousness of the offences, the public outcry caused by the marine pollution, the applicant’s Greek nationality, the fact that his permanent address was abroad and the fact that he had no ties with Spain justified setting a high level of bail in order to rule out any risk that the applicant might fail to appear. 19. On 7 December 2002 the same investigating judge confirmed the decision, rejecting an application from the applicant to set it aside (recurso de reforma). 20. An appeal by the applicant was dismissed on 3 January 2003 by the Corunna Audiencia Provincial subject to the posting of bail in the amount of EUR 3,000,000. The Audiencia Provincial noted the outcry caused by the alleged offences and took the view that the impugned decision was not open to criticism on any account, “including with regard to the amount of bail”. The Audiencia Provincial stressed that the prima facie evidence taken into consideration by the investigating judge in ordering the applicant’s pretrial detention concerned serious offences, that it was too early to rule on whether the offence had been committed intentionally and that the applicant’s detention pursued the legitimate aim of preventing the risk of his absconding, a risk closely linked to the seriousness of the alleged offence and his lack of any particular ties in Spain. It referred in that regard to the category of offences in question and the severity of the likely sentence, the fact that the accused’s presence was essential to the investigation, the possibility that the trial might collapse if he absconded and the public outcry surrounding the established facts. The Audiencia Provincial dismissed the ground of appeal based on the applicability of Article 230 of the United Nations Convention on the Law of the Sea of 10 December 1982, holding that the provision in question referred only to administrative offences relating to pollution of the marine environment committed by foreign vessels beyond the territorial sea, for which only monetary penalties could be imposed, and not to wilful and serious acts of pollution in the territorial sea. 21. On 6 February 2003 the Corcubión (Corunna) no. 1 investigating judge recorded the lodging of a bank guarantee in an amount corresponding to the sum set for bail, which was provided as a one-off, spontaneous humanitarian gesture by the London Steamship Owners’ Mutual Insurance Association Limited (“the London P&I Club”), which insured the ship’s owner. Accordingly, on 7 February 2003, the judge ordered the applicant’s provisional release after eighty-three days in detention, subject to the following conditions: “(a) that [the applicant] supply an address in Spain; (b) that he report every day before 1 p.m. to the police headquarters corresponding to the address supplied; (c) that he remain in the country and surrender his passport to the court’s registry.” 22. On 28 May 2003 the London P&I Club and the ship’s owner, Mare Shipping Inc., paid out EUR 22,777,986 in compensation for the damage for which they were civilly liable within the limits laid down by Article V of the 1992 International Convention on Civil Liability for Oil Pollution Damage (“the CLC 1992”, see paragraph 54 below). 23. Relying on Article 17 of the Constitution (right to liberty and security), the applicant lodged an amparo appeal with the Constitutional Court. While he did not appeal against his pre-trial detention, for which he considered sufficient reasons to have been given, the applicant complained of the amount set for bail, arguing that it had been excessive and disproportionate in view of his financial circumstances and had made any prospect of provisional release unrealistic. He alleged that the amount had been fixed without account being taken of his personal circumstances, in disregard of the requirements of the court’s case-law. 24. By a reasoned decision (auto) of 29 September 2003, the Constitutional Court declared the appeal inadmissible. It began by observing that, according to its case-law, the fact that the applicant had been released did not render the amparo appeal devoid of purpose, given that “... in the event of a breach of the fundamental right asserted, the [c]ourt should allow the appeal and grant the applicant amparo relief”. 25. However, on the merits, the Constitutional Court ruled as follows: “... Article 531 of the Code of Criminal Procedure stipulates that the amount set for bail should take into account, among other factors, the nature of the offence, any previous convictions and other circumstances that might prompt the accused to seek to evade justice. According to the case-law of the European Court of Human Rights, the object of bail is to secure the presence of the accused at the trial ... and the amount should act as a deterrent against any wish to abscond. ... The rulings given in the instant case concerning the amount of bail and the refusal to reduce it provided ample reasons based on the primary objective of securing the accused’s presence at the trial, the seriousness of the offences in question, the national and international disaster caused by the oil spill, the fact that the accused is a nonnational and the fact that he has no ties in Spain. These circumstances led the courts to consider that the risk of flight could only be reduced by setting such a high sum for bail ... They also took into consideration the accused’s personal and financial circumstances and his professional environment. ... In fixing bail at a level such as to dispel any wish to abscond, they further took account of other aspects of the accused’s personal situation, namely his Greek nationality, the fact that his permanent address is abroad and the fact that he has no ties whatsoever in Spain. It follows that bail was fixed on the basis of criteria of proportionality ... The exceptional amount reflects the exceptional nature of the situation.” 26. Subsequently, in March 2005, the Spanish authorities authorised the applicant’s return to his country of origin, where he is now living, on condition that the Greek authorities ensured his compliance with the periodic supervision to which he had been subject in Spain. The applicant is therefore required to report every two weeks to a police station on the island of Icaria, where he was born, or in Athens, where his children live. 27. The criminal proceedings are currently pending before the Corcubión (Corunna) no. 1 investigating judge. 28. The relevant provision of the Spanish Constitution reads as follows: “Everyone has the right to liberty and security. No one may be deprived of his liberty other than in accordance with the provisions of this Article and in the circumstances and form provided by law.” 29. The relevant provisions of the Criminal Code in force at the material time stipulated as follows: “Notwithstanding the provisions of the preceding Articles, convicted persons who have reached the age of 70 or who reach that age while serving their sentence, and who satisfy the requirements laid down [by the law], with the exception of the requirement to have served three quarters or, where appropriate, two thirds of [the sentence], may be granted conditional release. ...” “Any person who ... causes or produces, directly or indirectly, emissions, discharges ... into ... inland or maritime waters or groundwater ... likely to severely upset the balance of natural systems, shall be liable to a term of imprisonment of between six months and four years, a day-fine payable for between eight and twentyfour months and a prohibition of between one and three years on carrying out his or her occupation. Where there is a risk to persons’ health the term of imprisonment shall be in the upper half of the range.” “The commission of any of the acts described in the previous Article shall entail a more severe sentence when accompanied by: a. illegal operation of an industrial or other activity using facilities which have not obtained the necessary administrative authorisation or approval; or b. failure to comply with the express instructions of the administrative authority aimed at remedying or putting an end to the activities referred to in the previous Article; or c. falsification or concealment of information on the environmental implications of the activities in question; or d. hampering of the administrative authorities’ inspection activities; or e. a risk of irreversible or catastrophic damage; or f. illegal pumping of water while restrictions are in place.” “The penalty imposed for an offence referred to in this Chapter shall be in the lower half of the range where the offence was the result of gross negligence.” 30. The second paragraph of Article 325 of the Criminal Code, as amended in November 2003, provides: “2. Persons who knowingly release, discharge or introduce ionising radiation or other substances into the air, soil or maritime waters ... in quantities such as to cause death or illness ... with irreversible effects, shall be liable to a term of imprisonment of between two and four years in addition to the penalty for causing personal injury.” 31. The relevant provision of the Code of Criminal Procedure reads as follows: “In determining the nature and amount of the security, consideration should be given to the nature of the offence, the social circumstances of the accused and any previous convictions, together with any other circumstance which may increase or reduce the incentive to evade justice.” 32. The Environmental Liability Act (Law no. 26/2007 of 23 October 2007) regulates operators’ responsibility to prevent and remedy environmental damage in accordance with Article 45 of the Constitution and the precautionary and “polluter pays” principles. 33. An increasing tendency has been observed at European level to use the criminal law as a means of enforcing the environmental obligations imposed by European Union law. 34. In 1998 the Council of Europe opened for signature the Convention on the Protection of the Environment through Criminal Law (ETS No. 172). To date, however, only thirteen States have signed the Convention and Estonia is the only country to have ratified it. The text includes the following provisions: Article 2 – Intentional offences “1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law: a. the discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which: (i) causes death or serious injury to any person, or (ii) creates a significant risk of causing death or serious injury to any person; b. the unlawful discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which causes or is likely to cause their lasting deterioration or death or serious injury to any person or substantial damage to protected monuments, other protected objects, property, animals or plants; c. the unlawful disposal, treatment, storage, transport, export or import of hazardous waste which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants; d. the unlawful operation of a plant in which a dangerous activity is carried out and which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants; e. the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants, when committed intentionally. 2. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law aiding or abetting the commission of any of the offences established in accordance with paragraph 1 of this Article.” Article 3 – Negligent offences “1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law, when committed with negligence, the offences enumerated in Article 2, paragraph 1 a to e. 2. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall only apply to offences which were committed with gross negligence. 3. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall not apply to: – sub-paragraph 1.a.ii. of Article 2, – sub-paragraph 1.b. of Article 2, in so far as the offence relates to protected monuments, to other protected objects or to property.” Article 6 – Sanctions for environmental offences “Each Party shall adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to make the offences established in accordance with Articles 2 and 3 punishable by criminal sanctions which take into account the serious nature of these offences. The sanctions available shall include imprisonment and pecuniary sanctions and may include reinstatement of the environment.” 35. In its report on sea pollution of 30 March 2005, the Committee on the Environment, Agriculture and Local and Regional Affairs of the Parliamentary Assembly of the Council of Europe stated as follows: “... 167. Four lines of thought must be pursued: (a) The excessively absolute principle of freedom of navigation must be revised, as it is no longer appropriate in the context of present-day transport flows. Legally speaking, this would open the way for passive control and ultimately active control, at least in zones subject to risk. The issue of the responsibilities of control bodies could be considered at the same time. (b) A State which has suffered pollution damage caused by a ship must be able to demand reparation from the State whose flag that ship flies where it is established that the damage results completely or partly from the flag State’s failure to exercise any effective monitoring of the vessel causing the damage. (c) Article 230 of the Convention on the Law of the Sea must be amended to make clearer the possibility of penalties of imprisonment for the most serious pollution offences. (d) An international maritime criminal court must be set up. In the same way that the notion of crimes against humanity finally yielded the creation of the International Criminal Court, it cannot be excluded in the future that states may eventually enshrine the notion of ‘crime against the environment’, drawing the consequences, in legal terms, of the idea put forward by some of establishing the sea as the common heritage of humanity.” 36. The issue of environmental crime has also been debated for many years within the European Union. 37. In its judgment, the Chamber referred to Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollution and on the introduction of penalties for infringements, which makes ship-source discharges in breach of Community law a criminal offence. The Directive further requires that both criminal and administrative penalties be imposed if the persons concerned are found to have committed or participated in the act with intent or as a result of negligent behaviour. The Directive, adopted in response to the sinking of the Erika and of the Prestige, specifically provides that the member States must implement it by 1 March 2007. It was therefore not intended to apply to events having occurred prior to that date. 38. In any event, Directive 2005/35/EC applies to discharges occurring, inter alia, in the exclusive economic zone or equivalent zone of a Member State, from any ship with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used at the material time only on government non-commercial service. The member States must take the necessary measures to ensure that infringements are subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties. 39. In its judgment of 3 June 2008 in Case C-308/06 Intertanko and Others, the Court of Justice of the European Communities (“the ECJ”), having been called upon to examine a challenge to the validity of Directive 2005/35/EC, found that the concept of “serious negligence” provided for in many national legal systems could only refer to a patent breach of a duty of care (paragraph 76 of the judgment). The ECJ further held that “serious negligence” within the meaning of the Directive should be understood as entailing an unintentional act or omission by which the person responsible committed a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation (paragraph 77). 40. In the wake of the ECJ judgments of 13 September 2005 and 23 October 2007, which annulled respectively Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law and Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, which supplements Directive 2005/35/EC (referred to in the Chamber judgment), the Commission put forward a proposal for a directive on the protection of the environment through criminal law. The European Union legislative process culminated in the adoption of Directive 2008/99/EC. Recital 3 in the preamble to the Directive states that the availability of criminal penalties demonstrates social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. It also makes an explicit link between the need for criminal penalties and past experience in the field of environmental protection. 41. The Directive in question requires Member States to treat as criminal offences certain activities that breach European Union environmental legislation, including: (i) unlawful shipment of waste; (ii) trade in endangered species or in ozone-depleting substances; (iii) conduct causing significant deterioration of a habitat within a protected site; (iv) significant damage to the environment caused by the treatment, disposal, storage, transport, export or import of hazardous waste (including oil and gas, waste oils, sewage sludge, metals or electrical or electronic waste); and (v) significant damage to the environment caused by the unlawful discharge of materials or ionising radiation. 42. Member States are required to subject these offences to effective, proportionate and dissuasive criminal penalties and to ensure that companies can be held liable for offences carried out by individuals on their behalf. 43. For its part, Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage is aimed at establishing a framework of environmental liability based on the “polluter pays” principle, with a view to preventing and remedying environmental damage. 44. The relevant Articles of this Convention, which was ratified by Spain on 15 January 1997, read as follows: “... 3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred. ... 6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. 7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organisation or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed. ...” “1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. 2. For the purposes of this Article, ‘maritime casualty’ means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo.” “In exercising their rights and performing their duties under this Part, States shall not discriminate in form or in fact against vessels of any other State.” “1. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea. 2. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea. 3. In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognised rights of the accused shall be observed.” 45. With regard to detention of seafarers and their release, UNCLOS provides: “1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.” “1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. 2. The application for release may be made only by or on behalf of the flag State of the vessel. 3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time. 4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.” 46. The provisions concerning detention and release of vessels and crews have been interpreted by the International Tribunal for the Law of the Sea (“the Tribunal”). In doing so, the Tribunal has laid down a number of criteria in order to determine what constitutes a reasonable bond within the meaning of Article 73 of UNCLOS taken in conjunction with Article 292 of that Convention. Hence, it is interesting to examine the approach taken by the Tribunal in cases relating to the detention of a foreign national by the coastal State and the fixing of the amount of bail. However, it should be borne in mind, firstly, that the Tribunal, unlike the Court, is tasked with striking a balance between the competing interests of two States rather than the interests of an individual and those of a State. Secondly, the issues brought before the Tribunal concern the detention and release of both crews and vessels. Thirdly, unlike the instant case, which is about an environmental disaster, the vast majority of cases before the Tribunal concern fisheries-related violations. In its judgment of 6 August 2007 in the case of Hoshinmaru (Japan v. the Russian Federation), the Tribunal summarised the principles it applies in deciding what constitutes a reasonable bond. The relevant extracts reads as follows: “82. The Tribunal has expressed its views on the reasonableness of the bond in a number of its judgments. In the Camouco case it stated: ‘the Tribunal considers that a number of factors are relevant in an assessment of the reasonableness of bonds or other financial security. They include the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form’ (ITLOS Reports 2000, p. 10, at p. 31, para. 67). In the Monte Confurco case it added that: ‘This is by no means a complete list of factors. Nor does the Tribunal intend to lay down rigid rules as to the exact weight to be attached to each of them’ (ITLOS Reports 2000, p. 86, at p. 109, para. 76). In the Volga case it stated that: ‘In assessing the reasonableness of the bond or other security, due account must be taken of the terms of the bond or security set by the detaining State, having regard to all the circumstances of the particular case’ (ITLOS Reports 2002, p. 10, at p. 32, para. 65). In the Juno Trader case the Tribunal further declared: ‘[t]he assessment of the relevant factors must be an objective one, taking into account all information provided to the Tribunal by the parties’ (ITLOS Reports 2004, p. 17, at p. 41, para. 85). ... 89. The proceedings under Article 292 of [UNCLOS](Monte Confurco, ITLOS Reports 2000, p. 86, at pp. 108-109, para. 74). However, the Tribunal wishes to emphasise that in so doing it is by no means acting as a court of appeal (Monte Confurco, ITLOS Reports 2000, p. 86, at p. 108, para. 72).” 47. It is clear from the foregoing that, in assessing the reasonableness of the bond, the Tribunal takes three factors into consideration: (i) the gravity of the alleged offences; (ii) the penalties imposed or imposable under the laws of the detaining State in so far as they are reasonably proportionate to the gravity of the alleged offences; and (iii) the value of the detained vessel and of the cargo seized. In doing so, the Tribunal is mindful of its duty not to prejudice the merits of the case, which are decided domestically. However, the Tribunal considers that it is not prevented from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond. 48. BIMCO is an independent shipping association with a membership composed of shipowners, managers, brokers, agents and many other stakeholders with vested interests in the shipping industry. BIMCO is one of the third-party interveners in the present case. On 23 March 2009 BIMCO published a report on the treatment of seafarers which is interesting in several respects. 49. Firstly, the report identifies fourteen cases where sanctions were taken against the seafarers involved before any deliberate act or negligence had been admitted or proven in court. The period examined runs for eleven years from 1996 until 2007 and the cases dealt with – which include the Mangouras (or Prestige) case – involve twelve coastal States. The report concludes that: (i) the use of criminal sanctions against seafarers is a worldwide phenomenon, by no means restricted to particular countries or regions; (ii) although the rules are fair, their application is unjust, often flying in the face of the presumption of innocence; and (iii) while there are relatively few cases, the issues involved clearly illustrate that there are continuing problems with respect to the unfair treatment of seafarers. 50. Secondly, the report examines a range of instruments in connection with the treatment of seafarers, including international conventions, the Universal Declaration of Human Rights and a number of regional and national instruments. In the last category, particular attention is given to the European Union legal framework and to the law in France, the United States of America, Canada and the United Kingdom. In its conclusions, BIMCO observes that the test generally applied in those instruments is gross negligence, with punishment ranging from fines to imprisonment. 51. Finally, this report was examined by the Legal Committee of the International Maritime Organization (IMO) at its 95th session from 30 March to 3 April 2009. As regards the fair treatment of seafarers, the minutes of the Legal Committee record the following: “The Committee agreed that the Guidelines on Fair Treatment of Seafarers in the event of a maritime accident, adopted by the Legal Committee, and the Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident, adopted by IMO’s Maritime Safety Committee, should be strictly applied by States so that a proper balance could be achieved between the need, on the one hand, for a thorough investigation of maritime accidents and, on the other hand, the protection of the rights of seafarers. Many delegates noted that the issue of fair treatment of seafarers was the direct responsibility of port, coastal and flag States, the State of the nationality of the seafarers, shipowners, and seafarers. States were obliged to treat seafarers fairly, pursuant to the Universal Declaration of Human Rights and regional human rights instruments, as well as under national law. There was also a consensus that States should comply with the Guidelines on Fair Treatment of Seafarers adopted by the Legal Committee.” 52. The Guidelines on Fair Treatment of Seafarers are attached to the observations of the third-party interveners in the present case. 53. This Convention which, together with the Protocol thereto, was ratified by Spain on 6 July 1984, has been amended on several occasions, most recently in July 2007 (entry into force December 2008). Annex I to the Convention relates to the prevention of pollution by oil following collision or stranding. The Convention, which is a combination of two treaties adopted in 1973 and 1978, constitutes the main instrument covering prevention of pollution of the marine environment by ships from operational or accidental causes. 54. This Convention governs the liability of shipowners for oil pollution damage. It sets up a system of strict liability for shipowners and a system of compulsory liability insurance. The shipowner is normally entitled to limit his liability to an amount which is linked to the tonnage of his ship. “1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident. ... 4. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against: (a) the servants or agents of the owner or the members of the crew; (b) the pilot or any other person who, without being a member of the crew, performs services for the ship; ... unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. ...” “... 2. The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. ...” 55. The Protection and Indemnity Clubs were set up by shipowners themselves to provide cover against various risks including those arising out of pollution caused by their vessels. They are governed by general conditions (the London P&I Rules), the relevant parts of which read as follows: 9.28 – Omnibus Rule “9.28.1 Liabilities, losses, costs and expenses incidental to the business of owning, operating or managing Ships which and to such extent as the Committee in its sole discretion shall consider fall within the scope of this Class, 9.28.1.1 “20.1 The Association may, but shall in no case be obliged to, provide on behalf of an Assured security to prevent arrest or obtain release from arrest or otherwise in respect of an entered Ship and if it does such Assured shall upon first demand made at any time by the Association in writing arrange such counter-security (which expression may in the Association’s sole discretion include a deposit of cash with the Association) as the Association may require and (with or without such counter-security having been required or arranged) shall indemnify the Association against all liabilities and expenses incurred by the Association in consequence of the security originally provided by the Association. In the event that the Assured does not arrange such counter-security as may have been required or does not indemnify the Association as aforesaid, the Association, without prejudice to its other rights, shall be entitled to retain any amounts which would otherwise be recoverable by such Assured, notwithstanding that the same may have no connection with the liability in respect of which the original security was provided and may relate to other periods of cover before or after that liability was incurred by the Assured or to another entered Ship. The provision of security by the Association shall be without prejudice to the Association’s liability to the Assured for the claim in question.” | 0 |
train | 001-87446 | ENG | GEO | CHAMBER | 2,008 | CASE OF GEORGIAN LABOUR PARTY v. GEORGIA | 1 | No violation of P1-3;Violation of P1-3;No violation of Art. 14+P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of a violation sufficient | Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky | 10. The applicant party is a political party. 11. On 20 November 2003 the Central Electoral Commission (“the CEC”) announced the final results of the votes in the regularly scheduled parliamentary election of 2 November 2003, according to which seven parties had cleared the 7% legal threshold required by Article 105 § 6 of the Electoral Code (“the EC”, see paragraph 44 below). The opposition party, the SaakashviliNational Movement, took third place with 18.04% of the vote (giving them 32 seats in Parliament), followed by the applicant party with 12.04% of the vote (20 seats) and the United Democrats, a coalition led by the President of the Parliament, Ms N. Burjanadze, with 8.79% of the vote (15 seats). 12. On account of numerous instances of ballot fraud reported by election observers, the SaakashviliNational Movement and the United Democrats refused to accept the election results. With general support from the population, they called for President Shevardnadze’s resignation. When the newly elected parliament convened for its first session on 22 November 2003, the opposition forces broke into the parliament building, disrupted the President’s inaugural speech and ousted the members of parliament (MPs). 13. On 23 November 2003 Mr E. Shevardnadze resigned and Ms N. Burjanadze became the interim President of Georgia, as provided for by the Constitution. Those events were later referred to as the “Rose Revolution”. 14. As the parliament elected in November 2003 had been ousted by the revolutionary forces, the interim leadership recalled the previous parliament elected in 1999 (see Article 50 § 4 of the Constitution, paragraph 42 below) until such time as a new parliament was elected. 15. On 25 November 2003 the Supreme Court of Georgia annulled the CEC vote tally of 20 November 2003 in the part concerning the election results under the proportional system. The results in single-seat constituencies remained in force. 16. On 28 November 2003 the Chairman of the CEC, who had been appointed by ex-President Shevardnadze, resigned. On 30 November 2003 the interim President dismissed five members of the CEC who had been appointed by the ex-President, and Parliament elected a new Chairman of the CEC on the basis of a candidature proposed by the interim President. 17. In view of the partial annulment of the election results of the initial parliamentary election of 2 November 2003 by the Supreme Court on 25 November 2003, on 2 December 2003 the CEC Chairman issued Ordinance no. 167/2003 which, under Article 106 § 4 of the EC, set the date of the repeat parliamentary election (“the repeat election”) for 25 January 2004. On the same day, however, the CEC Chairman applied to the interim President of Georgia (Decree no. 50/2003), requesting that a later date be set for the election, arguing that it would hardly be possible to ensure its proper administration within such a short time frame. This application was finally granted on 9 January 2004 and the repeat election was scheduled for 28 March 2004 by the interim President. 18. The applicant party challenged CEC Ordinance no. 167/2003 in court, claiming that the CEC had erroneously relied on Article 106 § 4 instead of Article 105 § 17 of the EC when setting the date for the repeat election. By a judgment of 8 December 2003, the Tbilisi Regional Court dismissed the claim, reasoning that the applicant party lacked victim status. That judgment was quashed on 26 December 2003 by the Supreme Court which noted that, since the applicant party was running for election, there was a direct and consequential link between its interests and the decisions of the CEC. However, the Supreme Court dismissed the claim as manifestly illfounded. 19. On 7, 9 and 12 December 2003 the CEC issued Ordinances by which voters were required to attend electoral precincts and fill out special forms; this would enable them to cast their ballots during the presidential election of 4 January 2004. 20. Along with other opposition parties, the applicant party challenged the lawfulness of those rules in court. On 15 December 2003 the Tbilisi Regional Court dismissed the claim as unsubstantiated. With regard to the applicant party, the court stated that it lacked victim status as it had failed to show what direct and specific harm the preliminary voter registration procedure for the presidential election could possibly have caused to its interests. 21. On 15 January 2004 Mr M. Saakashvili was declared President of Georgia. By an Ordinance of 31 January 2004, the new President appointed five members of the CEC, one of whom was given authority to appoint five members in the District Electoral Commissions (“the DECs”) under Article 128(1) § 4 of the EC. 22. Nineteen political parties and blocs were registered by the CEC on 21 February 2004 as candidates for the repeat parliamentary election, including the applicant party and the ruling coalition of the President’s National Movement and Ms Burjanadze’s United Democrats. The presidential National Movement had previously won the 2002 municipal elections in Tbilisi. 23. For the purposes of the repeat election, the CEC passed another decree on 27 February 2004 (Decree no. 30/2004), pursuant to which the Precinct Electoral Commissions (“the PECs”) had to post preliminary lists of voters in their bureaux, data which had been gathered in the course of the preliminary registration of voters for the presidential election. Between 8 and 21 March 2004, voters were to attend the electoral precincts again to verify that their names were on the lists. If a voter found that he or she was missing from the list, a petition for correction was to be filed with the relevant PEC. On 21 March 2004 the PECs were to send corrected versions of the preliminary electoral rolls to the relevant DEC, which was required to produce final electoral rolls and remit them to the PECs for a further public examination. Between 23 and 27 March 2004, voters were to recheck the final lists and request corrections if necessary. The Decree also envisaged adding the names of voters who had not been included in the preliminary registration to the lists on election day itself. 24. The rationale behind the introduction of this system of voter registration was explained by the CEC Chairman in a public statement: “If a voter does not want to participate in the election, does not engage in politics, does not want to cooperate with the State, then the State is also under no obligation to ensure that this voter is on the unified electoral roll.” 25. The repeat election, based on the system of proportional representation, was held as planned on 28 March 2004. Numerous complaints about irregularities on election day were subsequently filed with electoral commissions, including the CEC, and with the courts. 26. On 2 April 2004 the CEC issued Ordinance no. 82/2004, which annulled the election results for all the PECs in the Khulo and Kobuleti electoral districts (nos. 81 and 84) in the Ajarian Autonomous Republic (“the AAR”), where 42,011 and 17,263 voters were registered respectively. The CEC Ordinance did not explain which legal provision had entitled it to take this annulment decision. It simply noted that complaints had been filed about voting irregularities in these two districts. The complaints requested that the investigative measures envisaged by Article 105 § 13 of the EC be undertaken by the CEC. However, “in view of the nature of the irregularities alleged in the complaints”, there was, according to the CEC, no point in resorting to such measures. Consequently, the challenged election results in the Khulo and Kobuleti districts were to be annulled and, in accordance with Article 105 § 12 of the EC, the polls were to be repeated there. The new date was set for 18 April 2004 (for more details, see paragraphs 50 and 53 below). 27. On 6 April 2004 the CEC issued rules of procedure (Decree no. 45/2004) for the posting of electoral rolls in the various precincts of the Khulo and Kobuleti districts. As before the presidential election of 4 January 2004 and the repeat parliamentary election of 28 March 2004, voters were expected to pay preliminary visits to the precincts in order to ensure that their names were on the lists. 28. On 18 April 2004, election day, the polling stations in the Khulo and Kobuleti districts failed to open (see paragraph 50 below). On the same day, however, the CEC tallied the votes in the repeat election of 28 March 2004. It stated that 1,498,012 votes had been cast, while 2,343,087 voters had registered. The applicant party received 6.01% of the vote, which was not enough to clear the 7% threshold and thus to obtain seats in Parliament. 29. According to the minutes of the CEC meeting of 18 April 2004, the applicant party’s representative, as one of the fifteen members of the CEC, objected to the finalisation of the election results. The representative argued that the CEC could not lawfully end the countrywide election without first having held an election in the Khulo and Kobuleti districts. The Chairman of the CEC replied that the fact that the polling stations had not opened in those districts was the fault of the Ajarian authorities. He also added that, even if the election had been conducted in those districts, this would not have affected the final results. By a majority vote, the Chairman’s proposal to approve the vote tally was accepted and the relevant Ordinance (no. 94/2004) was adopted on the basis of Articles 64 and 105 of the EC. 30. On 22 April 2004 the newly elected parliament convened for its first session. After several weeks of tension, the Head of the AAR, Mr A. Abashidze, stepped down on 6 May 2004, fleeing the country. 31. On 20 April 2004 the applicant party appealed to the Supreme Court against Ordinance no. 94/2004 (see paragraph 29 above). Alongside the main claim for annulment of the Ordinance in question, the applicant party asked the court to apply an interim measure whereby Parliament would be forbidden from convening for its first session until the dispute had been resolved. The applicant party argued that, if Parliament convened, it would become impossible to enforce the judgment should the court find in the applicant party’s favour. On 20 April 2004 the Supreme Court declared the claim admissible but refused to apply the requested interim measure. It reasoned that the claim could not have any suspensive effect under Article 77 § 3 of the EC and noted that, pursuant to Article 51 of the Constitution, the first sitting of a newly elected parliament was to be held within twenty days of the finalisation of the election results. 32. The applicant party submitted four major arguments to the Supreme Court, which dismissed its claim on 26 April 2004. 33. Firstly, the applicant party challenged the rules on the composition of electoral rolls. It claimed that many eligible voters who had failed to comply with the procedure for preliminary registration had been refused the right to cast their votes on election day. At the same time, the obligation to register in advance had created a kind of carousel to facilitate ballot fraud in which some voters could register in different electoral precincts and thus cast their vote more than once. As a result of those irregularities, the applicant party claimed that it had lost votes. It also complained that the CEC had not had competence to change the rules on the composition of electoral rolls, this prerogative being reserved solely for Parliament, which alone was entitled to make the relevant legislative amendments to the EC. In the applicant party’s view, the fact that many voters had been refused the right to vote because of the new rules, and that the Government had total control over the electoral administration, had allowed the election results to be rigged. Based on statistical data about high voting activity across the country at particular times, provided by its representatives in the electoral commissions of the Kvemo Kartli, MeskhetJavakheti and Ajarian regions, the applicant party claimed that vote-riggers had fraudulently cast around 500,000 ballots in favour of the presidential and pro-presidential parties at 12 noon, 5 p.m. and 8 p.m. on election day. 34. The Supreme Court found the latter allegation unsubstantiated, reasoning that the applicant party had submitted no relevant evidence in support of it. As to the voter registration rules, the court noted that the CEC had issued Decree no. 30/2004 (see paragraph 23 above) by which it had remedied the deficiency of Article 9 § 12 of the EC, the effect of which had been suspended by the Constitutional Court on 26 December 2003 (see paragraph 45 below). Since that Ordinance allowed voter registration on the day of election, the allegation that the voters who had missed preliminary registration deadlines were subsequently denied the right to vote was held to be ill-founded. 35. Secondly, the applicant party complained that its representatives at various levels in the electoral commissions had been prevented by other members from fulfilling their duties properly. They had been threatened and instructed not to write complaints about violations observed, namely when votes cast in favour of the Georgian Labour Party were attributed to the presidential and pro-presidential parties. The applicant party complained that such permissive conduct was due to the composition of the electoral commissions, since, in every commission at all levels, eight out of the fifteen members were representatives of the presidential and propresidential parties. 36. Thirdly, the applicant party argued that the impugned Ordinance of 18 April 2004 was contrary to Article 105 § 19 of the EC, since it did not specify the total number of voters and the number of votes cast in each district. 37. In reply to these latter arguments, the Supreme Court reasoned that the applicant party should first have complained about the threats to its representatives before a district court. However, it gave no response to the complaint about the pro-presidential composition of the electoral commissions. As to the CEC’s failure to include information in the Ordinance about the total number of voters and the number of votes cast in each district, the court stated that this was not a gross violation of electoral legislation and could not therefore be regarded as grounds for invalidating that administrative act. 38. Lastly, the applicant party claimed that the finalisation of the countrywide election results without elections being held in the Khulo and Kobuleti districts had been unlawful. In view of the fact that there were at least 60,000 voters in those districts and that the applicant party needed only 16,000 votes in order to clear the 7% legal threshold, it complained that it had been unlawfully deprived of a genuine chance to obtain seats in Parliament. It noted that the Georgian Labour Party was, by and large, supported in the Ajarian constituency. 39. The Supreme Court replied as follows: “It is true that the repeat parliamentary election results were annulled in the Khulo and Kobuleti electoral districts and the CEC called a new repeat election by its Ordinance ... [of 2 April 2004]. However, due to well-known events [tensions between the central and local authorities], the election was not held ... in those districts on account of factual circumstances, this being a ground for the annulment of an administrative act [the CEC Ordinance of 2 April 2004] under Article 60 § 1 (g) of the General Administrative Code of Georgia.” Relying on Article 105 § 3 of the EC, the Supreme Court decided that the repeat election could be considered as having been held, since, according to the vote tally, more than a third of the total number of voters had taken part in it. 40. Acting as a private individual, the Chairman of the applicant party challenged CEC Decree no. 30/2004 of 27 February 2004 (the rules on the composition of electoral rolls) and Ordinance no. 94/2004 of 18 April 2004 (the vote tally) before the Constitutional Court. He claimed that the system of preliminary voter registration, the disfranchisement of the Khulo and Kobuleti constituencies and the presidential control of the electoral administration had infringed the constitutional principle of free and fair elections. 41. On 25 May 2004 the Constitutional Court declared the claim inadmissible. It reasoned that, since it was not a normative act, the disputed Ordinance could not be challenged before the Constitutional Court. As to the impugned Decree, it considered that, firstly, the claimant had failed to substantiate how this normative act had infringed any of his constitutional rights. Secondly, it stated that the claimant, as a private person, did not have standing to challenge the constitutionality of the election, this right being reserved by section 37 of the Constitutional Court Act for the President of Georgia and a specific number of MPs. “The mandate of the previous Parliament shall cease immediately after the first meeting of the newly elected Parliament.” “The first sitting of the newly elected Parliament shall be held within twenty days of the elections. The day of the first sitting shall be determined by the President. Parliament shall begin its work when the election of two-thirds of the members of parliament has been confirmed.” Article 60 § 1 (c) – “A void legal-administrative act” “A legal-administrative act shall be void as from its adoption if its implementation is impossible for factual reasons.” “1. The general electoral roll is a list of persons with active electoral rights, who are registered in accordance with the law ... 5. The general list of voters shall be compiled ... on the basis of the data available at the territorial agencies of the Georgian Ministry for the Interior, ... data available at the corresponding agencies of the Ministry of Justice, ... data from local selfgovernment and/or administrative agencies, ... data on internally displaced persons communicated by the Ministry of Refugees and Settlement or by its territorial agencies, ... data communicated by the Ministries of Defence, the Interior and State Security, the State Department of State Border Protection and the Special State Protection Service, ... [and] data communicated by Georgian consular authorities ... 7. A registered party ... and voters ... shall be entitled to consult the public version of the general list available at the Central, District and Precinct Electoral Commissions (an elector having the right to consult only the data concerning his/her person and his/her family members ...) and, in the event of any inaccuracy, to request – not later than twenty-three days prior to the date of the election – that the appropriate amendments be made to the voters’ data and the electoral roll ... 8. The electoral administration shall, on its own initiative or following an application under § 7 of this Article, review the general electoral roll ... A decision by the District Electoral Commission rejecting [petitions for] amendments to the voters’ data and electoral roll shall be reasoned and, if requested, transmitted to the applicant from the day following its adoption. 12. [The above-mentioned decision] can be appealed to the competent district/city court within two days of its adoption. Where the court rules in favour of the applicant, the ruling shall, within three days but no later than by the thirteenth day prior to the election date, be delivered to the District Electoral Commission, which shall immediately furnish the relevant information to the Central Electoral Commission ... Electoral commissions shall immediately make the appropriate amendments to the electoral rolls ... It is prohibited to make amendments to the electoral roll in the last ten days prior to the election date; from the nineteenth to the tenth day before [the election date], amendments shall be made only by a court ruling.” The application of several provisions of Article 9 regulating the timelimits for compiling and examining electoral rolls, including § 12, was suspended on 26 December 2003 by the Constitutional Court. Finally, § 12 was invalidated on 24 January 2005 by the same court (see paragraph 45 below). Under Article 10 § 1, the special list of voters included (a) electoral administration officers who, on election day, were working in an electoral precinct other than that of their residence; (b) voters who, on election day, were being treated in hospital or another in-patient centre; (c) voters who, on election day, were being held in police custody or pre-trial detention; (d) voters who were at sea on election day (they are enrolled at the relevant vessel’s port of registration); and (e) voters who were abroad on election day and registered at the relevant Georgian consulate as well as voters who were not on the consular register, but had registered in a PEC formed abroad or in a consulate. Article 10 §§ 2, 3, 4, 5, 6 and 7 stipulated that the head of the appropriate institution with responsibility for the voters referred to Article 10 § 1 was to compile the special list, be responsible for the accuracy of the data entered on it, which was to be attested by his/her signature, and was to deliver it to the competent electoral commission. “1. The electoral administration of Georgia is a legal entity of public law, which is established in accordance with this Law and shall exercise public authority within the limits specified by it. ... 3. The electoral administration is independent, within the limits of its competence, from other State institutions. 4. The electoral administration is a centralised system composed of the Central Electoral Commission of Georgia [CEC], ... District Electoral Commissions [DECs], [and] Precinct Electoral Commissions [PECs] ... The CEC is the supreme body of the electoral administration of Georgia. ... 6. The CEC is accountable to the Parliament of Georgia ...” “A member of the electoral administration may not join a party, and if he [or she] was a party member, [that person] must withdraw from the party or suspend his [or her] membership for the term of office in the electoral administration ...” “... 7. The decision of an electoral commission shall be considered to have been adopted if it is supported by the majority of the votes cast (unless the Law requires a higher quorum), but not less than one third of the commission members. 8. If the vote is tied, the chairman of the session shall have the casting vote. ... 13. The CEC shall adopt decrees by two-thirds of its members. No decree shall be adopted less than four days before the election date.” Pursuant to Articles 34 § 2 (f), 61 § 5, 62 and 63 §§ 1 and 4, a DEC was competent to receive, examine and decide on requests for a recount or to annul election results in the relevant precincts, based on allegations of voting irregularities. “1. No later than eighteen days after the date of the ballot, the CEC, based on the protocols received from the DECs and PECs, shall consolidate the results of the parliamentary and presidential elections ... and approve by its Ordinance the final protocol of the vote tally. 1(1) The CEC is prohibited from finalising the election results before the resolution of election-related disputes in the courts of general jurisdiction and without consideration of the outcome of those disputes. ... The CEC shall consolidate the election results and determine: (a) the total number of voters; (b) the turnout of voters; (c) the number of ballots deemed invalid; ... and (e) the number of votes received by candidates.” “Lodging appeals with a court shall not have a suspensive effect on the decision.” Under Article 100 § 2, a party or bloc could cancel the nomination of one of its candidates even after the latter’s authority as an MP had been officially recognised. “... 3. An election held under the proportional system shall be considered to have been held if at least one-third of the total number of voters took part in it. ... 6. Seats in Parliament shall be awarded only to party lists that receive no less than 7% of the votes cast. 7. In order to determine the number of seats received by a party list, the number of votes received by this list must be multiplied by 150 and divided by the total number of the votes received by the parties [which cleared the 7% threshold] ... 12. If, due to gross violation of the present law, the voting results are deemed invalid in more than half of the electoral precincts, or in ... precincts where the total number of voters represents more than 50% of the total number of voters in the electoral district concerned, the election results for the entire electoral district shall be deemed invalid and the CEC shall set a date for a repeat election. 13. If any application, complaint or dissenting opinion by a DEC member is submitted requesting revision or invalidation of the voting results, the CEC shall take a decision by passing an Ordinance for or against the opening of packages and the recounting of ballot papers (special envelopes) received from the relevant PEC. The CEC is empowered to collate the election results based on the PEC protocols. ... 16. A second ballot under the proportional representation system shall be held when the total number of voters in the precincts [where the voting results were invalidated] is more than 10% of the total number of voters in Georgia. In such cases, the second ballot shall be held within two weeks of the general election. 17. If the election under the proportional representation system is declared to have been held but none of the parties or electoral blocs have managed to clear the required threshold, a repeat election shall be held within two weeks of the general election, by Ordinance of the CEC. 18. Only those parties and electoral blocs which received 2% of the votes in the general election shall have the right to take part in the repeat election. The party lists ... shall remain unchanged. Amendments to them may be introduced only in accordance with the general rules established by this Law. 19. The summary protocol of the final election returns must disclose the names and numbers of those electoral districts and precincts in which the election was declared invalid, as well as the number of voters in them, the reason for declaring the election invalid, the total number of voters in each electoral district, the turnout of voters, [and] the number of members of parliament elected, with their names listed in alphabetical order.” “... 3. If an election is declared ‘not held’, or if the election results are deemed invalid in a multi-seat electoral district, a repeat election shall be held. If the mandate of the parliamentarian elected in such a district is suspended before its term, a mid-term election shall be held. 4. The repeat election shall be held within two months ... The CEC shall set the election date and time-limits for electoral arrangements by Ordinance no later than seven days after the initial election ... 7. If an MP who resigns was elected through the party list of a party participating independently in the elections, the seat of such an MP shall be occupied within one month by the next candidate on the same list, provided that that candidate agrees to become an MP within fifteen days of the vacancy arising. Otherwise the vacant seat shall be occupied by the next candidate on the list, etc. If there is no other candidate named in the party list, the parliamentary mandate shall be deemed cancelled.” Unlike the parliamentary election under the majority system, neither Article 106 nor any other provision of the EC provided for the possibility of conducting mid-term, repeat or other types of interim polls as under the proportional system after the countrywide election results had been finalised by the CEC (see paragraph 118 below). An amendment to the EC, introducing provisional Articles 128, 128(1) and 128(2), was enacted on 5 August 2003 for the specific purpose of re-forming the CEC for the regular parliamentary election of 2003. Pursuant to Article 128 § 2, the CEC was to be composed of fifteen members and its sessions were considered to be valid if attended by more than half of the members. Article 128 § 3 initially stated that the chairman of the CEC was to be appointed by Parliament following his or her nomination by the Organisation for Security and Cooperation in Europe (OSCE). However, this provision was amended on 28 November 2003 and, under the new rule, the chairman was to be appointed by the President of Georgia, with the approval of Parliament. Article 128 § 4 further established that five members of the CEC were also to be appointed by the President. Pursuant to Article 128 § 5, the remaining nine members of the CEC were to be appointed as follows: (a) three members by the party/electoral bloc which had come second in the parliamentary election of 1999; (b) two members by the party/electoral bloc which had come third in the parliamentary election of 1999; and (c) one member by each of the four parties/electoral blocs which had obtained the best results in the 2002 local election in Tbilisi, held under the proportional electoral system, unless that party/electoral bloc was entitled to appoint a commission member under the preceding subparagraphs (a) and (b). Pursuant to Articles 128(1) § 2 and 128(2) § 2, the composition of the DECs and PECs was similar to that of the CEC. The chairman of the DEC was appointed by the President of Georgia with the approval of Parliament (Article 128(1) § 3), while the chairman of the PEC was appointed by the chairman of the corresponding DEC (Article 128(2) § 3). Five members of the DECs were appointed by one of the members of the CEC who had been appointed by the President of Georgia and granted this power by him or her (Article 128(1) § 4). Five members of the PECs were appointed by one of the five members of the corresponding DEC, appointed in accordance with Article 128(1) § 4. By an amendment of 22 April 2005, the provisional rules under Articles 128, 128(1) and 128(2), as described above, were annulled. 45. Following an application by two voters, on 26 December 2003 the Constitutional Court suspended the effect of Article 9 §§ 7, 8, 10 and 12 and Article 10 §§ 1 (e) and 6 of the EC in the part regulating the time-limits for adding and revising voters’ names on electoral rolls. On 24 January 2005 the Constitutional Court invalidated Article 9 § 12 of the EC, upholding the constitutionality of the rest of the disputed provisions. The relevant part of the judgment provides as follows: “... The registration of voters through the unified electoral roll is what provides citizens with the basis for exercising their right to vote. Consequently, under the disputed provision the right to vote is being denied to those citizens who do not find their names on the roll and are unable to register during the ten days preceding the election date, whereas a court ruling is necessary for registration between the nineteenth and tenth day prior to the election ... The registration of voters is the responsibility of the relevant State authorities. When a citizen’s name is not found on the electoral roll, this is [the State authorities’] omission and should not limit the citizen’s right to vote. The Electoral Code should secure not merely formal but real mechanisms that would enable the exercise of the constitutional right.” 46. The relevant provisions of the Resolution provide as follows: “... 7. ... [T]he Assembly asks the Georgian authorities to adopt without delay a number of measures, which must be fully implemented when the forthcoming parliamentary elections are held on 28 March 2004, in particular: (i) to amend the Electoral Code and all other electoral legislation and regulations, ... so as to: (a) modify the composition of the Central Electoral Commission and the electoral commissions at lower levels, in order to promote the principle of balanced, fair and equal representation of all political forces; ... (c) ensure a clear segregation between governmental structures and the electoral authorities, and introduce a principle that the latter must be completely impartial; ... (ii) to revise the electoral rolls, and create as soon as possible a single, centralised and computerised register of electors, and to put an end to the practice of registering voters’ names on supplementary lists on election day itself, a practice which entails a considerable risk of fraud. 8. The Assembly also declares its concern about the current reshaping of Georgian political life and the risk of the disappearance of all parliamentary opposition after the forthcoming elections and, in consequence, of any true institutional counterweight. If the elections were to culminate in the sole representation in Parliament of the ruling coalition, the Assembly might fear for the future of democratic pluralism in Georgia. It therefore recommends that the Georgian authorities amend the corresponding legislation so as to reduce the electoral threshold in the proportional representation system from 7% to at least 5%.” 47. The Code of Good Practice in Electoral Matters was adopted by the Venice Commission at its 51st Plenary Session (5-6 July 2002) and submitted to the PACE on 6 November 2002. Its relevant provisions provide as follows: 2. “Regulatory levels and the stability of electoral law” “(a) Apart from rules on technical matters and detail – which may be included in the regulations of the executive –, rules of electoral law must have at least the rank of a statute. (b) The fundamental elements of electoral law, in particular the electoral system proper, membership of electoral commissions and the drawing of constituency boundaries, should not be open to amendment less than one year before an election, or should be written in the constitution or at a level higher than ordinary law.” 3.1. “The organisation of elections by an impartial body” “(a) An impartial body must be in charge of applying electoral law. (b) Where there is no long-standing tradition of administrative authorities’ independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level. (c) The central electoral commission must be permanent in nature. (d) It should include: (i) at least one member of the judiciary; (ii) representatives of parties already in Parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters. It may include: (iii) a representative of the Ministry of the Interior; (iv) representatives of national minorities. (e) Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis ... (f) The bodies appointing members of electoral commissions must not be free to dismiss them at will. (g) Members of electoral commissions must receive standard training. (h) It is desirable that electoral commissions take decisions by a qualified majority or by consensus.” 48. A selected passage from the Venice Commission’s Report on Electoral Law and Electoral Administration in Europe, issued on 9-10 June 2006, provides as follows: “34. Although in many countries the influence of the executive government on the composition of the electoral commissions has, in general, greatly been reduced, in a few States still a significant number of commission members are nominated and appointed by the executive government, e.g. the President of the Republic or the Ministry of the Interior or Justice. For example, in Georgia five (out of fifteen) members of the Central Electoral Commission are appointed by the President, not including those members appointed by the governing parties in Parliament. To avoid the risk of governmental interference in the commission’s work, as a rule the number of commission members nominated and appointed by the executive government should, if at all, be very low.” 49. The relevant excerpts from the Report read as follows: “Preliminary voter registers released in early October contained significant anomalies and errors. The number of voters registered in a number of individual districts showed a wide variation from previous elections ... Inaccurate lists were of concern not only because errors could deny eligible citizens the right to vote but ... increased the possibility of election fraud. Reports on errors in voter lists included: omitting entire apartment blocks or streets; voters being listed in the wrong districts; listing many deceased persons; and large numbers of duplicate entries. Despite the enormity of the task, many PECs worked conscientiously to rectify errors. However, some DECs failed to supply the PECs with voter lists, and many PECs appeared unfamiliar with new registration procedures and applied inconsistent methods. Many failed to display lists in a systematic or practical manner ... Other problems included: a 2,250-page list of deceased persons in Tbilisi that was unusable as it was not broken down by district or precinct; IDP [internally displaced person] voters not being systematically included in lists; and significant numbers of voters lacking ID documents ... Unexpectedly, on 26 October, the CEC decided to cease work on the central database altogether, thereby jettisoning the effort to improve the accuracy and transparency of voter registers. The PECs were permitted to use either handwritten or computerised lists. This decision dramatically altered the voter registration framework and caused a complete lack of uniformity in the type of list used.” 50. This Report was submitted by the respondent Government as part of their observations. Selected passages from its summary provide as follows: “Conditions in the Autonomous Republic of Ajaria were once again not conducive to democratic elections. Intimidation and physical abuse of opposition supporters and journalists underlined the democratic deficit in Ajaria evident during this election process, effectively creating a dual standard for elections in Georgia. The CEC administered these elections in a credible and professional manner. However, at times the CEC appeared to exceed its authority, for example, by extending legal deadlines or modifying other legal provisions through decrees. Several aspects of the election process were improved over previous elections, although some CEC decisions in the post-election period cast doubts about its impartiality. Voter registers were further improved and consolidated in a computerised database ... However, further efforts are needed to complete voter lists, correct remaining errors, and improve their accuracy. The lack of political balance on election commissions remained a source of concern. Some DECs and PECs failed to maintain appropriate distance from the ruling parties, and some local authorities interfered in the work of lower-level election commissions. President Mikheil Saakashvili’s offer to reduce the number of his appointees on the DECs and PECs from five to three addressed some of these concerns. However, these changes came late in the electoral process and should have been extended to the CEC. ... The tabulation of results at district level was marred by irregularities in a number of DECs. In some cases, election material was delivered unsealed or inadequately secured, protocols were completed or changed at the DEC level, and in at least one case, the DEC members ‘negotiated’ the results. The handling of electionrelated complaints at some DECs was also inadequate. An analysis of the PEC results made available by the CEC showed a number of anomalous or implausible results in a significant minority of districts. Such anomalies included: a rapid increase in voter turnout during the last three hours of voting; an implausible voter turnout, in some cases exceeding 100%, and sometimes coupled with a share of the vote for the ruling parties in excess of 95%; and instances of an unusually high percentage of invalid votes. A total of fifty-two polling stations were invalidated by the DECs due to irregularities. The CEC cancelled the results in two districts in Ajaria (Khulo and Kobuleti) and ordered repeat elections for 18 April, which did not take place due to security reasons. The CEC’s decision to cancel the results and repeat elections in entire districts appeared to be based on questionable legal arguments. Overall, the following elements marked positive developments for the election process: • improvements in the administration of the election process; • the enhanced professionalism and openness of the CEC; • commendable efforts to improve, computerise and consolidate the voter lists, although they remain incomplete; • with the exception of Ajaria, a peaceful and free pre-election period, although there was a late and very limited campaign; • freedom of expression enjoyed by the media, with the exception of Ajaria; ... However, some aspects of the process need to be addressed in order to remedy issues of concern and continue forward progress, including: • the continuing lack of a clear separation between State administration and political party structures, and the ongoing potential for misuse of State administrative resources; • the inability to ensure the balanced composition of election commissions at all levels; • the interference by some local authorities in the functioning of a number of lowerlevel commissions, thereby lessening their independence; • continuing irregularities in some polling stations, as indicated by implausible and anomalous results; • irregularities at a relatively high number of DECs during the tabulation process, and the failure of some DECs to properly address complaints after election day; • the adoption of some decisions by the CEC, such as the cancellation of results in two entire districts, which seem of questionable legality and could be perceived as having been politically motivated ...” 51. With regard to the new system of voter registration, the Report noted as follows: “The CEC implemented a number of recommendations made by the OSCE/ODIHR in previous reports, including: ... • consolidating the voter list into a central, computerised database; • providing an additional period for citizens to register to vote and for a periodic display of newly-printed voter lists ... The number of registered voters under-represented the number of eligible voters, partly because an active system of voter registration was instituted in December and again in March. Under an active system, citizens unwilling or unable to register are excluded from the lists ... [T]he CEC began the consolidation of handwritten voter lists into a single computerised database. The accuracy of this data was verified, and many errors were eliminated. The CEC produced voter lists according to the language in which they were originally compiled, which increased the transparency of the process for non-Georgian speaking voters ... While observers expressed increased confidence in the voter lists, particularly compared to November 2003, shortcomings were noted ... After the election, the CEC announced that some 145,000 voters had registered to vote on election day, bringing the total number of registered voters to 2,343,087.” 52. The Report gave an account of the tensions between the central and Ajarian authorities on the eve of the repeat parliamentary election of 28 March 2004: “The situation in the [AAR] remained tense, especially after a state of emergency was imposed on 23 November. The state of emergency decreased civil liberties, and consequently limited even further the campaign opportunities for parties in opposition to Ajarian leader Aslan Abashidze. Relations between the Georgian government and the Ajarian authorities deteriorated following the November events. On 14 March, President Saakashvili was denied entry into Ajaria, where he intended to campaign. The Georgian government reacted by imposing economic sanctions on Ajaria, and tensions mounted significantly. The situation seemed to improve after an agreement was reached during a meeting between Saakashvili and Abashidze on 18 March. However, the partial implementation of the agreement did not significantly reduce the tension prior to the elections ... Opposition gatherings were violently suppressed or attacked by supporters of the Ajarian authorities ... Offices of parties in opposition to the Ajarian authorities and of non-governmental organisations (NGOs) were ransacked, opposition activists and journalists were assaulted or abducted, and members of election commissions were intimidated. While incidents of violence and intimidation also marred previous elections in Ajaria, the intensity and frequency with which they occurred this time was higher. Overall, the environment in Ajaria was once again not conducive to a meaningful democratic contest during this election process.” 53. The Report also commented on the situation surrounding the CEC’s decision of 2 April 2004 to cancel the election results in the Khulo and Kobuleti districts and call for repeat polls in those districts: “On 2 April, the CEC decided to annul the district-wide election results in Khulo and Kobuleti and repeat polling in these two districts on 18 April. In addition, the CEC dismissed the entire membership of the two DECs and created two temporary groups composed of CEC members and CEC staff members to organise the repeat elections. On 12 April, the CEC temporary groups were dispatched to Ajaria but they rapidly encountered active resistance. On 13-14 April, the temporary groups were forced to leave the Ajarian territory by crowds of people. On the same day, the CEC Chairman was prevented from entering Ajaria at Choloki checkpoint on the administrative border. On 16 April, at a press conference, the CEC Chairman declared that for security reasons elections in Khulo and Kobuleti would not be held on 18 April. Nevertheless, the elections were not officially cancelled. The CEC based its decision to annul the district-wide election results in Khulo and Kobuleti and repeat polling in these two districts, respectively on Articles 105 § 13 and 105 § 12 of the EC. Prior to election day, the EOM [the Election Observation Mission] attempted to clarify with the CEC Chairman whether the CEC had the authority to cancel the DEC results. During these discussions, he [the CEC Chairman] indicated that it was certainly a questionable issue. While EC Article 105 § 13 grants the CEC the right to examine the PEC documentation, recount ballots and sum up results based on PEC protocols, the EC does not specifically grant the CEC the authority to annul the results in an entire district. In fact, the CEC simply cancelled the entire district results without hearing testimony or investigating the circumstances at each PEC or establishing with any certainty if the number of votes at the annulled polling stations was sufficient to meet the criteria outlined in Article 105 § 12. Furthermore, the CEC did not examine the electoral material. Elsewhere, where results were annulled this was done by DECs or local courts. Notwithstanding the fact that violations took place in Khulo and Kobuleti districts, the decision to annul their results and call a repeat polling appeared inconsistent with the fact that major violations in other districts did not result in the annulling of the DEC results there. Moreover, the legal arguments used and legal basis were weak. The EOM believes that Article 105 § 12 relates to majoritarian elections rather than the proportional contest. The citing of this article rather than Article 105 § 16 (which specifically mentions its applicability to proportional elections) raises the question as to whether Georgia is a single electoral unit for the proportional election or seventy-five ‘fragments’. This issue is not adequately defined in the EC. ... Should Article 105 § 16 be applied, then elections should also be repeated elsewhere, as more than 10% of voters within a district were affected by the annulling of results. Thus, it appeared that the CEC adopted different and legally questionable procedures just for these two districts. [Election observers] appealed the CEC decision to invalidate the election results and to set repeat elections in Khulo and Kobuleti. In the course of the hearing it became apparent that CEC Order 82/2004 was based on a questionable decision-making procedure. The CEC could not prove that it made the decision to annul the district results on a PEC-by-PEC basis. The Tbilisi District Court upheld the CEC decision and challenged the election observers’ authority to bring the case. The court decided that their appeals were [in]admissible because their legitimate rights or interests were not damaged. [The observers] appealed this decision at the Supreme Court, that ruled against [them] in a closed session. The decision to dismiss the case, based on the plaintiffs not having the legal right to appeal, was highly questionable. The EC does not clearly state that observers can appeal a CEC decision to invalidate the DEC results since there is no provision in the EC that the CEC can overrule a DEC in such cases. Consequently, the decision of the CEC had to be questioned, not the rights of observers. The dismissal of such an important and well-founded case ... contributed to the impression that the [electoral] law was applied in a non-transparent and inconsistent manner.” 54. In one of its working documents, the French Senate examined the systems of voter registration in Belgium, Denmark, Germany, Italy, the Netherlands, Portugal, Spain and the United Kingdom. 55. With the exception of Portugal and the United Kingdom, the initial registration of voters and subsequent amendments to the electoral rolls in these States are automatically carried out by the authorities on the basis of mandatory domiciliary declarations by the population. 56. In Portugal, the compilation and modification of electoral rolls depend on the voters’ individual requests to that end. Portuguese law even envisages individual criminal responsibility for those who fail to take the necessary steps for electoral registration. 57. In the United Kingdom, the system is mixed. The authorities compile electoral rolls automatically, on the basis of domiciliary declarations and the general census of the population. However, all subsequent modifications to the rolls are contingent upon voters’ individual declarations to that end. 60. The International Institute for Democracy and Electoral Assistance (IDEA) has identified three broad types or models of electoral management – the independent, governmental and mixed models (see Electoral Management Design: The International IDEA Handbook). The independent model of electoral management exists in those countries where elections are organised and managed by an electoral management body which is institutionally independent and autonomous from the executive branch of government, and which has, and manages, its own budget. It may be accountable to the legislature, the judiciary, or the Head of State, but not to the government. The governmental model exists in those countries where elections are organised and managed by the executive branch through a ministry (such as the Ministry of the Interior) and/or through local authorities. In the mixed model of electoral management, there are usually two component bodies, and dual structures exist: a policy, monitoring or supervisory body that is independent of the executive branch of government and an implementation body located within a Department of State and/or local government. 61. According to the classification system adopted by the IDEA, among the forty-seven member States of the Council of Europe there are twenty-two countries, mostly from central and eastern Europe, which follow the independent model. There are sixteen States which have adopted the governmental model, and nine the mixed model. Among the thirteen Contracting States considered in the IDEA handbook, four are classified as following the independent model (Bosnia and Herzegovina, Bulgaria, Moldova and Serbia), six the governmental model (Belgium, the Czech Republic, Germany, Italy, Sweden and the United Kingdom) and three the mixed model (Hungary, Portugal and Spain). 62. There are no common standards among Contracting States as regards the composition of electoral commissions and the appointment of their members. As regards the authority which is competent for formally appointing the commission members, there are some countries which provide for a unique institution (the parliament in Bosnia and Herzegovina, Hungary and Serbia; the Head of State in Bulgaria and the United Kingdom; and the government in Sweden). Even in these cases, however, other institutions and actors may intervene in the nomination process. For instance, in Bulgaria the members of the CEC are appointed after consultation with parliamentary parties and coalitions. In Hungary, the members of the National Election Committee are elected on the basis of a motion submitted by the Minister of the Interior, after taking the parties’ recommendations into account. In the United Kingdom, Her Majesty appoints the commission members on an address from the House of Commons, made after consultation with the leaders of registered parties. 63. There are other systems which provide for a mixed appointment by different State organs, including the judiciary. In Moldova, one member is appointed by the President, one by the government and seven by the Parliament. In Portugal, the National Election Commission is composed of a judge appointed by the judiciary, citizens designated by the Parliament and three specialists designated by governmental departments. The Spanish electoral boards have a quasi-judicial composition, since the majority of their members are directly appointed from among sitting judges by the General Council of the Judicial Power, whereas the rest are selected from among experts proposed by the political parties. 64. In systems which can be regarded as governmental from the standpoint of electoral management, such as Belgium or Germany, the majority of the assessors of the electoral boards/committees are appointed by the chairman (a judge in Belgium; the Federal Returning Officer nominated by the Ministry of the Interior in Germany) among electors. In Germany, most of the assessors are proposed by the political parties. In Italy, electoral boards responsible for the lawfulness of the electoral lists and candidates are created within the Court of Cassation and other tribunals. The difference with the countries mentioned above is that, in such countries, electoral bodies are set up for the exclusive purpose of specific elections. 65. In some States, such as Bosnia and Herzegovina, Hungary, Portugal, Spain and Sweden, the electoral commissions may be classified as expertbased. In others, such as Bulgaria, Moldova or Serbia, the commissions are composed of experts and representatives of political parties (combined membership). The electoral legislation in Hungary and Serbia provides for the possibility of expanded membership of the commissions to include representatives of political parties which have submitted electoral lists. 66. The general trend is that decisions are taken by a simple majority (Germany, Hungary, Moldova, Portugal, Serbia, Spain and Sweden). Only in Bosnia and Herzegovina (a two-thirds majority, except for municipal commissions), Bulgaria (a two-thirds majority) and the Czech Republic (an absolute majority), is a qualified majority required. In Bosnia and Herzegovina, if a decision cannot be reached at the first meeting, then at the second meeting the decision is taken by a majority vote. 67. In the case of a tie, the chairman has the casting vote in Germany, Portugal, Spain and Sweden. This helps to avoid eventual obstructions to the decision-making process. By contrast, in the Czech Republic, in the event of a tie, the proposal is deemed to be rejected. The fact that a chairman with the casting vote is directly appointed by the president of the Republic or the executive government, as in Georgia, is of course a relevant factor to be borne in mind for the assessment of the independence of an electoral agency. This can only be compared to the position of the Federal Returning Officer or the Land Returning Officer in the Federal Electoral Committee and the Land Electoral Committees in Germany, whose appointment depends on the Federal Ministry of the Interior or the Land Government. In both cases, the officer is the chairman of the committee and has a casting vote. By contrast, in the majority of the countries examined, the chairman is elected by the electoral commission itself (Bosnia and Herzegovina, Hungary, Moldova, Serbia and Spain). 68. One of the guarantees of election commissions’ independence is that persons who could be involved in an inherent conflict of interests should not be allowed to be appointed to electoral commissions, in particular registered candidates. This kind of rule can be found in the majority of the Contracting States considered (Belgium, Bosnia and Herzegovina, the Czech Republic, Germany, Hungary, Moldova, Portugal, Serbia, Spain and the United Kingdom). Apart from candidates standing for election, incompatibility requirements may apply to members of political parties or organisations nominating candidates (Hungary and Moldova), members or employees of registered parties (the United Kingdom), members of parliament, judges in the Supreme Court, servicemen in the armed forces, officers in the Ministry of the Interior (Bulgaria), the president of the Republic, heads of administrative offices, civil servants, and mayors (Hungary). 69. In order to achieve an adequate balance between political representatives in the commission, there are some systems which provide specific rules. For instance, in Bulgaria and Serbia, no political party or coalition may have a majority within the commission. In Bulgaria, the chairman and the secretary must belong to different political parties. In the Czech Republic, the chairman and the vice-chairman of an electoral board may not be representatives of the same political party or coalition. | 0 |
train | 001-22714 | ENG | HRV | ADMISSIBILITY | 2,002 | PLAFTAK and OTHERS v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicants, Ms Marija Plaftak, Mr Stjepan Oštrec, Mr Zvonko Grdan, Ms Marija Miljković, Mr Đuro Pišpek, Mr Franjo Miser, Mr Ivan Turek, Mr Marko Vugdragović, Mr Boris Štrukelj, Ms Zlata Strmečki, Mr Željko Derdić, Mr Branko Fuček, Mr Milan Dragičević, Mr Boris Barbarić, Mr Slavko Mladić, Ms Rezika Vraneković, Ms Marija Premuž, Ms Danica Zrinšćak-Klein, Ms Olga Andrun, Mr Slavko Oršić and Ms Marija Horvatin, are Croatian citizens, who were born in 1947, 1942, 1946, 1927, 1939, 1935, 1944, 1940, 1934, 1926, 1968, 1943, 1951, 1930, 1953, 1938, 1925, and 1949 respectively and live in Zagreb, Zelina, Bjelovar, Petrinja, Samobor, Čazma and Sveta Nedjelja. They are represented before the Court by Mr Zvonko Nogolica, a lawyer practising in Zagreb. The facts of the case, as submitted by the applicants, may be summarised as follows. During 1992 the applicants lent various sums of money to company M.J.B. in Zagreb at a high rate of interest (so-called financial engineering). As the company failed to repay the loans, the applicants instituted civil proceedings on 30 March 1995 in the Zagreb Municipal Court (Općinski sud u Zagrebu) for re-payment of their loans. The proceedings are pending before the court of first instance. Section 26 of the Constitutional Act on the Changes of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 29 of 22 March 2002 - hereinafter “The Act of 15 March 2002” - Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske) introduced a new Section 59 (a), which subsequently became Section 63 of the 2002 Constitutional Act on the Constitutional Court. The relevant parts of that Section read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. | 0 |
train | 001-81873 | ENG | UKR | ADMISSIBILITY | 2,007 | GLAVCHEVA v. UKRAINE | 4 | Inadmissible | Peer Lorenzen | The applicant, Ms Lyudmila Zakirovna Glavcheva, is a Ukrainian national who was born in 1951 and lives in the town of Gorlovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On an unidentified date the applicant instituted proceedings in the Mykytivskyy District Court of Gorlovka against her employer, the “Donbasvuglezbagachennya” private joint stock company (ТОВ «Донбасвуглезбагачення»), claiming salary arrears. On 24 July 2000 the court found for the applicant and awarded her 5,306.73 Ukrainian hryvnas. In August 2000 the Mykytivskiy District Bailiffs’ Service instituted enforcement proceedings. On 3 April 2001 by the decision of the Donetsk Regional Commercial Court the debtor was declared bankrupt. The writs of enforcement have been transferred to the liquidation commission. The judgement of 24 July 2000, however, has never been enforced. | 0 |
train | 001-103239 | ENG | UKR | CHAMBER | 2,011 | CASE OF STEBNITSKIY AND KOMFORT v. UKRAINE | 3 | Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient | Angelika Nußberger;Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva | 4. The first applicant was born in 1960 and lives in Donetsk. The applicant company also has its seat in Donetsk. 5. On 13 December 1999 and 29 June 2000 the Donetsk Regional Commercial Court awarded the applicant company, 27,159.11 and 30,786.83 Ukrainian hryvnas (UAH) respectively against the Y. private open joint-stock company. Between November 2000 and January 2001 the Yenakiyevo Bailiffs' Service instituted enforcement proceedings. 6. In December 2001 the applicant company instituted proceedings in the Donetsk Regional Commercial Court against the Yenakiyevo Bailiffs' Service, challenging its inactivity in the enforcement of the above judgments. On 18 June 2003 the court found for the applicant company and ordered the Bailiffs' Service to enforce the judgments. On 17 September 2003 the Donetsk Commercial Court of Appeal upheld that judgment. 7. The judgments of 13 December 1999 and 29 June 2000 in the applicant company's favour were enforced by November 2003. 8. On an unspecified date the applicant company instituted proceedings in the Donetsk Regional Commercial Court against the Yenakiyevo Bailiffs' Service, claiming UAH 11,657.42 in compensation for pecuniary damage (inflation losses) caused by the lengthy delay in enforcing the judgments of 13 December 1999 and 29 June 2000 in its favour. 9. On 3 March 2004 the court found against the applicant company. On 18 May 2004 the Donetsk Commercial Court of Appeal upheld that judgment. 10. On 17 June 2004 the Higher Commercial Court of Ukraine refused to examine an appeal by the applicant company as it had failed to pay a court fee. The applicant company appealed against that decision, arguing that in accordance with section 86 of the Enforcement Proceedings Act, the creditor was dispensed from paying court fees in cases against a legal person, entrusted with enforcing a judgment, for compensation for damage sustained as a result of the non-enforcement of a judgment. 11. On 3 November 2004 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the applicant company as unsubstantiated. 12. During the period from 2000 to 2002 the applicant company instituted numerous proceedings against the Voroshylovskyy District Tax Administration challenging tax payments, fines etc. 13. In June 2003 the Voroshylovskyy District Tax Administration instituted insolvency proceedings in the Donetsk Regional Commercial Court against the applicant company. The Tax Administration stated that the applicant company had failed to pay UAH 57,840.91 in tax in 2000 and had already had a tax lien imposed on it. Moreover, the last transaction on the applicant company's account had taken place more than a year ago and the applicant company's location was unknown. Apparently, the applicant company was not informed about these proceedings. 14. On 4 September 2003, in the applicant company representative's absence, the court declared the applicant company insolvent for failure to pay UAH 57,840.91 in taxes to the State budget. The Voroshylovskyy District Tax Administration was appointed its liquidator. 15. According to the applicant company, it was informed about this decision only by letter of 10 March 2004. Subsequently, the applicant company requested the court to fix a new time-limit for lodging an appeal against the decision of 4 September 2003. On 22 April 2004 the Donetsk Commercial Court of Appeal refused this request because, in accordance with Article 93 of the Code of Commercial Procedure, the relevant time-limit of three months from the date on which the appealed judgment or decision had been adopted had expired. On 22 June 2004 the High Commercial Court of Ukraine dismissed an appeal by the applicant company against the above decisions for non-compliance with the procedural formalities prescribed by law. On 3 November 2004 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the applicant company. 16. On 19 April 2004 the applicant company requested a review of the decision of 4 September 2003 in the light of newly established evidence. 17. On 27 April 2004 the Donetsk Regional Commercial Court started its consideration of the applicant company's request. 18. On 24 May 2004 the proceedings in the case were stayed pending consideration of the applicant company's complaint lodged in 2004 against the tax administration regarding unlawfulness of the latter's decision of 30 April 2000 by which the applicant company had been ordered to make some tax payments and to pay fines. 19. On 30 June 2004 the applicant company's complaint against the decision of 30 April 2000 was left without consideration as the applicant company had been declared insolvent. The final decision in this case was taken by the Supreme Court of Ukraine on 13 January 2005. 20. On 21 October 2005 the Donetsk Regional Commercial Court resumed the proceedings. 21. On 13 December 2005 the Donetsk Regional Commercial Court quashed the decision of 4 September 2003 because the applicant company had not been properly informed about the insolvency proceedings against it. The court also terminated the insolvency proceedings and obliged the Voroshylovsky District Tax Administration to publish a refutation of the statement that the applicant company had been declared insolvent. 22. In its observations of 25 December 2007 the applicant company submitted that no such refutation had yet been published. 23. On 6 April 2000 the tax police instituted criminal proceedings against the first applicant for tax evasion. The case was later transferred to a prosecutor's office for investigation. 24. On 5 July 2000 the Donetsk City Prosecutor's Office instituted new proceedings against the first applicant for forgery in public office and joined them to the initial ones. On the same day the first applicant was charged with those crimes. 25. In September 2000 the case was transferred to the court and on 6 October 2000 the Voroshylovskyy District Court of Donetsk started its consideration. Between October 2000 and May 2003 seven court hearings took place and twenty-seven hearings were postponed for various reasons (on nine occasions the first applicant and/or his lawyer failed to appear and on one occasion the first applicant was ill). Other reasons for postponement of hearings included prosecutor's and witnesses' failure to appear, court's decision that additional evidence should be brought into the court hearing, judge's being busy with another case or judge's vacation etc. 26. On 20 March 2003 the court changed the charge against the first applicant to neglect of official duty. 27. On 7 May 2003 the court remitted the case for additional investigation. 28. On 4 July 2003 the Donetsk Regional Court of Appeal quashed this decision and remitted the case to the District Court for consideration on the merits. 29. Between July 2003 and March 2004 one hearing took place and six hearings were postponed for various reasons (on three occasions the first applicant failed to appear). 30. On 13 January 2004 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the first applicant against the decisions of 7 May and 4 July 2003. 31. On 17 March 2004 the Voroshylovskyy District Court of Donetsk again remitted the case for additional investigation. 32. On 14 May 2004 the Donetsk Regional Court of Appeal upheld that decision. 33. On 9 September 2004 the Kuybyshevskiy District Prosecutor's Office suspended criminal proceedings “[instituted] for neglect of official duty” because “it was impossible to establish who had committed that crime”. 34. On 5 May 2005 the Supreme Court of Ukraine dismissed a cassation appeal lodged by the first applicant against the decision of 17 March 2004 on the ground that such decision could not be appealed in cassation. 35. In accordance with section 86 (1) of the Enforcement Proceedings Act, the creditor is entitled to institute court proceedings against a legal person, entrusted with collecting payments from the debtor, for inadequate or non-enforcement of a judgment due to the fault of that legal person. In such cases the creditor is dispensed from paying court fees. 36. Section 86 (2) provides that compensation for damage caused by the State Bailiff's Service in enforcement proceedings is to be paid in accordance with the procedure prescribed by law. 37. According to paragraph 26 of this letter, a legal person, as referred to in section 86 (1) of the Enforcement Proceedings Act, is a tax authority, a bank, and so forth, but not the Bailiffs' Service. 38. In accordance with section 3 of this Act, after the debtor is declared insolvent by the court, its business activity shall be stopped. The court nominates a liquidator, who takes over the management of the debtor's assets. Having taken the necessary steps to identify and recover the debtor's debts and search for the assets, the liquidator shall assess these assets and carry out their sale. Having sold the assets and paid the creditors, the liquidator shall submit a report and the liquidation balance to the court. | 1 |
train | 001-89881 | ENG | UKR | CHAMBER | 2,008 | CASE OF STADNYUK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 4. The applicant was born in 1931 and lives in Andrushivka, Zhytomyr region, Ukraine. 5. By its judgment of 8 December 2000, the Andrushivka District Court awarded the applicant 700 Ukrainian hryvnyas (UAH) in compensation for pecuniary and non-pecuniary damage caused to her by Mr Y. It appears that this judgment became final and the enforcement proceedings were initiated. No further information about enforcement of this judgment is available. 6. In February 2002 the applicant lodged a claim with the Bogunsky District Court of Zhytomyr against the Bogunsky District Bailiffs’ Service of Zhytomyr (відділ державної виконавчої служби Богунського районного управління юстиції м. Житомира), alleging the latter’s inactivity in respect of the enforcement of the judgment of 8 December 2000 and claiming compensation for pecuniary and non-pecuniary damage she had sustained as a result. 7. On 17 April 2003 the court found in part for the applicant and ordered the defendant to pay her a total of UAH 450.39. The applicant did not appeal against this judgment. 8. On 21 November 2003 the Bogunsky District Bailiffs’ Service of Zhytomyr instituted enforcement proceedings. Subsequently, the latter transferred the enforcement writ to the Zhytomyr Regional Bailiffs’ Service (відділ примусового виконання рішень державної виконавчої служби Житомирської області) for enforcement. 9. In the course of these enforcement proceedings the Zhytomyr Regional Bailiffs’ Service requested the Bogunsky District Court of Zhytomyr to replace the Bogunsky District Bailiffs’ Service of Zhytomyr with the local department of the State Treasury of Ukraine, as the debtor under the judgment of 17 April 2003. On 28 October 2004 the court rejected this request. The applicant did not attend this hearing. 10. On 21 May 2004 the State Treasury of Ukraine replied, upon the applicant’s request, that the 2004 State Budget of Ukraine did not provide funds for payment of compensation for damage caused by officials of the State Bailiffs’ Service. 11. Between July 2004 and April 2006 the Zhytomyr Regional Bailiffs’ Service several times terminated and resumed the enforcement proceedings in respect of the judgment of 17 April 2003. By the decision of 18 April 2006, the Zhytomyr Regional Bailiffs’ Service terminated the enforcement proceedings of the judgment of 17 April 2003 on the ground that the debtor had been liquidated. Apparently the applicant did not appeal against this decision. 12. The judgment of 17 April 2003 remains unenforced. 13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). | 1 |
train | 001-89964 | ENG | FIN | CHAMBER | 2,008 | CASE OF K.U. v. FINLAND | 1 | Violation of Art. 8;Non-pecuniary damage - award | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1986. 7. On 15 March 1999 an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time, which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”. 8. The applicant became aware of the advertisement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”. 9. The applicant’s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic Internet Protocol (IP) address in question, regarding itself bound by the confidentiality of telecommunications as defined by law. 10. The police then asked the Helsinki District Court (käräjäoikeus, tingsrätten) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997). 11. In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen; Act no. 450/1987) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act (laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, malicious misrepresentation was not such an offence. 12. On 14 March 2001 the Court of Appeal (hovioikeus, hovrätten) upheld the decision and on 31 August 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 13. The person who had answered the dating advertisement and contacted the applicant was identified through his e-mail address. 14. The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act (henkilötietolaki, personuppgiftslagen; Act no. 523/99, which came into force on 1 June 1999). More specifically, the service provider had published a defamatory advertisement on its website without verifying the identity of the sender. 15. The Finnish Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone’s right to private life is guaranteed. 16. At the material time, Chapter 27, Article 3, of the Penal Code (rikoslaki, strafflagen; Act no. 908/1974) provided: “A person who in a manner other than that stated above commits an act of malicious misrepresentation against another by a derogatory statement, threat or other degrading act shall be sentenced for malicious misrepresentation to a fine or to imprisonment for a maximum period of three months. If the malicious misrepresentation is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.” 17. At the material time, Chapter 5a, section 3 of the Coercive Measures Act provided: “Preconditions of telecommunications monitoring Where there is reason to suspect a person of (1) an offence punishable by not less than four months’ imprisonment; (2) an offence against a computer system using a terminal device, a narcotics offence; or (3) a punishable attempt to commit an offence referred to above in this section; the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect’s possession or otherwise presumed to be in his use, or temporarily to disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ...” 18. Section 18, subsection 1(1) of the Protection of Privacy and Data Security in Telecommunications Act, which came into force on 1 July 1999 and was repealed on 1 September 2004, provided: “Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain: (1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the owner of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, Article 9 (a), Chapter 17, Article 13 § 2 or Chapter 24, Article 3 (a) of the Penal Code (Act no. 39/1889) ...” 19. Section 48 of the Personal Data Act provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory advertisement on its website. Section 47 provides that the service provider is also liable in damages. 20. At the material time, processing and publishing sensitive information concerning sexual behaviour on an Internet server without the subject’s consent was criminalised as a data protection offence in section 43 of the Personal Files Act (Act no. 630/1995) and Chapter 38, Article 9 (Act no. 578/1995) of the Penal Code, and as a data protection violation in section 44 of the Personal Files Act. Furthermore, it could have caused liability in damages by virtue of section 42 (Act no. 471/1987) of the said Act. 21. Section 17 of the Exercise of Freedom of Expression in Mass Media Act (laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation; Act no. 460/2003), which came into force on 1 January 2004, provides: “Release of identifying information for a network message At the request of an official with the power of arrest, a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the Helsinki District Court, within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.” 22. The rapid development of telecommunications technologies in recent decades has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies. The Council of Europe recognised the need to respond adequately and rapidly to this new challenge as far back as in 1989, when the Committee of Ministers adopted Recommendation No. R (89) 9 on computer-related crime. Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer-related crimes, in 1995 the Committee of Ministers adopted Recommendation No. R (95) 13 concerning problems of criminal procedural law connected with information technology. In point 12 of the principles appended thereto, it recommended that: “Specific obligations should be imposed on service providers who offer telecommunication services to the public, either through public or private networks, to provide information to identify the user, when so ordered by the competent investigating authority.” 23. The other principles relating to the obligation to cooperate with the investigating authorities stated: “9. Subject to legal privileges or protection, most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence. In a parallel fashion, provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority. 10. Subject to legal privileges or protection, investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein. Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein.” 24. In 1996, the European Committee on Crime Problems set up a committee of experts to deal with cybercrime. It was felt that, although the previous two recommendations on substantive and procedural law had not gone unheeded, only a binding international instrument could ensure the necessary efficiency in the fight against cyberspace offences. The Convention on Cybercrime was opened for signature on 23 November 2001 and came into force on 1 July 2004. It is the first and only international treaty on crimes committed via the Internet and is open to all States. The Convention requires countries to establish as criminal offences the following acts: illegal access to a computer system, illegal interception of computer data, interference with data or a computer system, misuse of devices, computer-related forgery and fraud, child pornography, and the infringement of copyright and related rights. The additional protocol to the Convention on Cybercrime, adopted in 2003, further requires the criminalisation of hate speech, xenophobia and racism. The scope of the Convention’s procedural provisions goes beyond the offences defined in the Convention in that it applies to any offence committed by means of a computer system: “1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings. 2. ... each Party shall apply the powers and procedures referred to in paragraph 1 of this Article to: (a) the criminal offences established in accordance with Articles 2 through 11 of this Convention; (b) other criminal offences committed by means of a computer system; and (c) the collection of evidence in electronic form of a criminal offence. 3. ...” 25. The procedural powers include the following: expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data and interception of content data. Of particular relevance is the power to order a service provider to submit subscriber information relating to its services; indeed, the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment: “1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order: (a) a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and (b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control. 2. The powers and procedures referred to in this Article shall be subject to Articles 14 and 15. 3. For the purpose of this Article the term ‘subscriber information’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services, other than traffic or content data and by which can be established: (a) the type of communication service used, the technical provisions taken thereto and the period of service; (b) the subscriber’s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement; (c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.” 26. The explanatory report notes that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used (for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the e-mail address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences (Articles 20 and 21 of the Convention on Cybercrime). 27. A global conference, “Cooperation against Cybercrime”, held in Strasbourg on 1-2 April 2008 adopted the “Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime”. The purpose of the Guidelines is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues. In order to enhance cybersecurity and minimise the use of services for illegal purposes, it was considered essential that the two parties cooperate with each other in an efficient manner. The Guidelines outline practical measures to be taken by law enforcement agencies and service providers, encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime. In particular, service providers are encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law. 28. Out of a number of resolutions adopted in the field of cyberspace, the most pertinent for the purposes of the present case are General Assembly Resolutions 55/63 of 4 December 2000 and 56/121 of 19 December 2001 on combating the criminal misuse of information technologies. Among the measures to combat such misuse, it was recommended in Resolution 55/63 that: “(f) legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations;” 29. The subsequent Resolution took note of the value of the various measures and again invited member States to take them into account. 30. On 15 March 2006 the European Parliament and the Council of the European Union adopted Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amending the previous data-retention Directive 2002/58/EC. The aim of the Directive is to harmonise member States’ provisions concerning the obligations of communications providers with respect to the retention of certain data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It does not apply to the content of electronic communications. The Directive requires member States to ensure that certain categories of data are retained for a period of between six months and two years. Article 5 specifies the data to be retained: “1. Member States shall ensure that the following categories of data are retained under this Directive: (a) data necessary to trace and identify the source of a communication: ... (2) concerning Internet access, Internet e-mail and Internet telephony: ... (iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;” 31. Member States had until 15 September 2007 to implement the Directive. However, sixteen States, including Finland, made use of the right to postpone their application to Internet access, Internet telephony and Internet email until 15 March 2009. 32. A comparative review of the national legislation of the member States of the Council of Europe shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data, including subscriber information, in response to a request by the investigating or judicial authorities, regardless of the nature of a crime. Some countries have only general provisions on the production of documents and other data, which could in practice be extended to cover also the obligation to submit specified computer and subscriber data. Several countries have not yet implemented the provisions of Article 18 of the Council of Europe Convention on Cybercrime. 33. The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State’s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States. 34. It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, the Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity. | 1 |
train | 001-101256 | ENG | HRV | ADMISSIBILITY | 2,010 | LAZAREVIĆ v. CROATIA | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mrs Snježana Lazarević, is a national of Bosnia and Herzegovina of Serbian origin who was born in 1967 and lives in Ugrinovci (Serbia). She was represented before the Court by Mrs S. Petrović, an advocate practising in Beograd. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The Government of Bosnia and Herzegovina, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of Court), did not avail themselves of this right. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 November 1991 the applicant's parents were awarded a house in Čeminac (Croatia) for temporary use by the occupying forces who, at that time, controlled Čeminac. The house was owned by Mrs M.G., who had been forced to leave Čeminac in August 1991 shortly before the village was taken by the occupying forces. The applicant's parents moved out of the house between 13 and 16 March 1997 and went to live in Prijedor (Bosnia and Herzegovina). On 26 March 1997 M.G. brought a civil action against the applicant's parents in the Beli Manastir Municipal Court (Općinski sud u Belom Manastiru). She claimed that they had looted her house when they moved out of it, and sought 252,000 Croatian kunas (HRK) in compensation, which was her estimate of the value of the household items allegedly stolen by the applicant's parents. As the defendants' address was unknown, the court appointed Mr M.Š., an advocate from Osijek, to act as their temporary representative (privremeni zastupnik) in the proceedings. On 21 September 1998 the applicant's mother died. During the proceedings the court called three witnesses proposed by the plaintiff. At the request of the plaintiff, on 25 March 2002 the court decided to obtain an expert opinion on the value of the household items missing from the plaintiff's house and appointed Mr F.V., an expert witness in economics, for that purpose. On 14 June 2002 the expert witness prepared his opinion and submitted it to the court three days later. He assessed the value of the objects in question at HRK 97,427. At a hearing held on 2 July 2002 the court called the expert witness. On the same day, the court issued a judgment in which it found for the plaintiff and ordered the applicant's parents to pay M.G. HRK 97,427 in compensation for the looted property, together with accrued statutory default interest running from 26 March 1997. The relevant part of that judgment reads as follows: “Having consulted the opinion of expert witness F.V., who was also heard in person, the court has established beyond dispute that the value of the household items appropriated from the plaintiff's house in 1991 amounted to 97,427 kunas. ... In deciding the amount of pecuniary damages ... on the basis of the expert opinion, which the court accepted because it had been prepared meticulously and competently, the court considers that the plaintiff should be awarded ... the sum of 97,427 kunas ...” In the absence of any appeal, the judgment became final on 3 October 2002. On 29 September 2003 the applicant's father, represented by an advocate, lodged a petition to reopen the above-mentioned civil proceedings with the Beli Manastir Municipal Court. On 13 May 2004 the applicant's father died. On 29 March 2005 the applicant was declared the sole heir of her parents. On 9 May 2005 the applicant, as her father's heir, took over the proceedings from him. She gave a power of attorney to the same advocate who had represented her father in the proceedings. On 28 November 2005 the court reopened the proceedings and set aside its previous judgment of 2 July 2002. At a hearing held on 3 October 2006 in the reopened proceedings, the court provided the applicant's representative with the plaintiff's statement of claim (tužba) dated 26 March 1997, its prior judgment of 2 July 2002 and a transcript of the previous proceedings. At subsequent hearings held on 21 February, 19 March, 16 April, 16 May and 2 July 2007, the court called the defendant, the plaintiff, four witnesses for the defendant, one witness for the plaintiff that it had already heard in the previous proceedings and three new witnesses for the plaintiff. However, in the reopened proceedings, the court did not call the expert witness or two other witnesses for the plaintiff whom it had called in the previous proceedings. Instead, at a hearing held on 7 February 2007, the court read out the transcripts of the testimony given by those witnesses in the previous proceedings. On 12 July 2007 the Beli Manastir Municipal Court again ruled for the plaintiff. It ordered the applicant to pay HRK 97,427 to M.G. in compensation for the property appropriated from M.G., together with accrued statutory default interest running from 26 March 1997. The relevant part of the judgment reads as follows: “... The court accepted the opinion of the expert economic witness in its entirety because it considers that it was prepared meticulously and competently. ... In deciding the amount of the plaintiff's claim, the court considers that on the basis of the expert opinion the plaintiff should be awarded ... the sum of 97,427 kunas ...” On 4 August 2007 the applicant appealed. In her appeal she argued, inter alia, that the value of the property she had inherited from her parents was less than the amount of the award of damages she had been ordered to pay. The applicant also argued that the first-instance court had merely deferred to the expert opinion of 14 June 2002 without critically examining it. In her appeal the applicant wrote, inter alia: “The defendant [i.e. the appellant] primarily emphasises that she entered the proceedings as an heir of her deceased parents ... The defendant as an heir is liable for the debts of her parents only up to the value of the inherited property. It cannot be disputed that the value of the property inherited from the deceased, M.T. and R.M., is significantly less than the sum the defendant was ordered to pay by the [contested] judgment ... Namely, the defendant Snježana Lazarević, inherited practically worthless plots of land from her parents... ...[A] total of 4.5 hectares of scattered and worthless land is [her] inherited property, whereas the court obliges the defendant to pay a sum, the principal amount of which already exceeds the value of the inherited property by several times. ... Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable, and the defendant considers that the manner [in which the court of first instance] established the facts is contrary to the principle of free evaluation of evidence provided for in section 8 of the Civil Procedure Act. The first-instance court's bases its decision on the amount of pecuniary damage exclusively on the expert opinion, whereas it [i.e. the court] did not critically assess that evidence in any way, as it was obliged to do in accordance with the principle of seeking the material truth [i.e. its fact-finding role]. The duty of the expert economic witness was to determine the real market value of the appropriated household items ... in accordance with prices [pertaining] at the time the judicial decision was rendered. From the expert opinion it cannot be discerned what were the prices used to assess the value of the household items. The expert did not have at his disposal photographs which were subsequently submitted. Had he had them, it is likely that the value of [those] items would have been [assessed] significantly lower. The state of [repair of] [those] objects, their age and quality is significantly below average, let alone better than average as assessed by the expert. The defendant considers that the main reason for the flaws in the expert opinion is the fact that the decision of the court to obtain an expert opinion was not sufficiently clear and specific. Thus, it did not give the expert clear instructions ..., which in the defendant's view, significantly affected the lawfulness and correctness of the contested judgment.” On 25 October 2007 the Osijek County Court (Županijski sud u Osijeku) dismissed the applicant's appeal in respect of the part of the first-instance judgment ordering the applicant to pay the plaintiff HRK 97,427. It allowed her appeal and reversed the first-instance judgment only in respect of the award of statutory default interest, finding that interest should run from 12 July 2007 and not from 26 March 1997. The court held that during the course of the proceedings before the court of first instance, the applicant had not submitted any evidence as regards the value of the property inherited by her and that she had never objected to the expert opinion. The relevant part of the County Court's judgment reads as follows: “The defendant correctly notes that under the Inheritance Act an heir is liable for the debts of the decedent up to the value of the inherited property. It is uncontested that the defendant inherited the immovable property listed in the enclosed decision on inheritance. However, a court in civil proceedings does not determine the value of that immovable property of its own motion, and in the [instant] proceedings the defendant did not indicate the value of the inherited immovable property nor propose evidence to determine that value. ... The value of household items appropriated from the plaintiff was determined according to the expert opinion ... Following a petition by the defendant, the first-instance court allowed the reopening of the previous civil proceedings... and the final judgment obliging M.T. and R.T. to pay an amount of money was set aside. Therefore, the defendant was aware of [the expert opinion] and she did not object to [it].” On 8 December 2007 the applicant lodged a constitutional complaint against the County Court's judgment, alleging violations of her constitutional rights to equality before the law and to a fair hearing. She argued, inter alia, that the amount of the award of damages had been established on the basis of the expert opinion of 14 June 2002. However, as she had not been served with the opinion, she had not therefore had a chance to submit her comments on the expert's findings, including those relevant to the value of the plaintiff's claim. In her constitutional complaint the applicant wrote, inter alia: “The complainant has never received a decision of the court [of first instance] ordering an expert opinion, appointing an expert and instructing him in respect of which circumstances the opinion should be prepared. The expert opinion was obtained in the initial proceedings, it has never been served on the complainant or read out [before the court] at the main hearing [during the reopened proceedings]. Nor did the parties consent that evidence should be taken by reading out the expert opinion at the main hearing. In this way, the complainant was not given an opportunity to comment on the expert opinion, to object to it or to examine the expert. Nor is she aware in respect of which circumstances the report was prepared, or which household items were the subject of, his report. ... Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable. Its decision as to the sum of pecuniary damages the first-instance court bases exclusively on the expert opinion, which was not obtained during the [reopened] proceedings nor read out [in court]. The expert did not have at his disposal photographs which were subsequently submitted [when compiling the report]. Had he had them, it is likely that the value of the household items [in question] would have been [assessed at a] lower [price]. The state of [repair of those] objects, their age and quality is below average, let alone better than average as assessed by the expert.” On 23 April 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint and served its decision on her representative on 29 August 2008. The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provide as follows: “All shall be equal before the law.” “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “1. The right of ownership shall be guaranteed. 2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.” “1. Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia, subject to payment of compensation equal to the market value. 2. The exercise ... of the right of ownership may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.” The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution ('constitutional right')... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.” “A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right...” “ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.” Section 139(3) of the Inheritance Act (Zakon o nasljeđivanju, Official Gazette 48/2003 and 163/2003), which entered into force on 3 March 2003 and was applicable as of 3 October 2003, provides as follows: “An heir shall be liable for the debts of the decedent up to the value of the inherited property. The court shall take into account the value of the inherited property and the value of the decedent's debts that the heir has already paid only if the heir raises [that issue].” | 0 |
train | 001-113289 | ENG | RUS | CHAMBER | 2,012 | CASE OF VESELOV AND OTHERS v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). These operations led to their criminal conviction for drug dealing. 6. The facts of each individual criminal case, as submitted by the parties, are summarised below. The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases, and where this is so both versions are given. As regards the factual details of the covert operations, they are not in dispute. In particular, it is common ground that the applicants knowingly procured drugs in the course of the test purchases. 7. The applicant was born in 1989 and lives in Moscow. At the time of his arrest he was a third-year student at a management college. He is currently serving a prison sentence in a correctional colony. 8. According to the Government, on 19 May 2009 a Mr X voluntarily went to the police and reported that two persons, “Viktor” (the applicant) and “Ruslan”, were selling hashish at 600 Russian roubles (RUB) per gram. 9. According to the applicant, X was a drug addict, with a previous criminal conviction for illegal possession of drugs, and he was a police informant who had previously taken part in test purchases of drugs. To support these allegations the applicant provided a copy of the judgment against X and copies of four judgments in unrelated criminal proceedings against four different persons where X featured as the buyer in test purchases of cannabis, heroin and hashish from the accused. 10. It is common ground, supported by the official records, that the police ordered a test purchase and proceeded with it immediately after having received the information from X. The order indicated the applicant’s name and stated that he was suspected of selling hashish at RUB 600 per gram. X phoned “Ruslan” and told him that he wished to buy hashish. The police officers were present when X was speaking to “Ruslan”, but the conversations were not recorded. X was given RUB 3,000 that had been photocopied. He met “Ruslan” later on the same night and together they met the applicant who took RUB 1,200 from them and went away to purchase the drugs. The applicant was later arrested and was found in possession of banknotes that matched the photocopied ones. Throughout the test purchase X had his mobile phone turned on with the police officer’s number dialled, which enabled the police to overhear their conversations. These communications were not recorded. Neither “Ruslan” nor the applicant’s dealer were arrested or prosecuted, allegedly on the grounds that their identities could not be established. 11. X testified at trial that he had met the applicant and “Ruslan” at a local supermarket about two weeks before the test purchase. In the course of their conversation the applicant had told him that he could get some hashish for him. “Ruslan” had given him his phone number. X had then volunteered that information to the police and agreed to take part in the test purchase. He testified that he had not previously bought drugs from the applicant. When the defence counsel cross-examined X the court disallowed questions about his criminal record and whether he was a drug user. It also dismissed the motion to have the judgments proving that X had previously acted as a buyer in test purchases of drugs accepted as evidence. 12. The policemen who had initiated and carried out the test purchase testified at the trial that prior to X’s information they had not known the applicant as drug dealer. They reiterated the details of the test purchase. 13. At the trial the applicant pleaded guilty of assisting “Ruslan” in buying drugs, but claimed that it had been the result of police incitement. He claimed that he and “Ruslan” were occasional smokers of hashish but that he was not selling or otherwise supplying it to anyone. The test purchase was the first time he had agreed to help “Ruslan”, or anyone, in obtaining drugs, and he had only done so because of his insistent prompting. 14. The person named “Ruslan” was not called to be cross-examined at the trial, allegedly because the investigating authorities had failed to establish his identity. 15. On 15 September 2009 the Nikulinskiy District Court of Moscow found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to four and a half years’ imprisonment. The court did not make an express assessment of the applicant’s plea of entrapment. 16. The applicant appealed. He reiterated his plea of provocation, claiming, inter alia, that X had been a police informant and challenging the refusal of the firstinstance court to admit the relevant documents as evidence. He also pointed out that the police had no other information suggesting that he had previously sold drugs. He also complained that the authorities had not made any attempts to find and question “Ruslan”, who had played a key role in the test purchase and could have cast light on the extent of the provocation. 17. On 11 November 2009 the Moscow City Court upheld the firstinstance judgment. It reiterated the finding that the applicant had attempted to sell the narcotic drug during the test purchase and implicitly dismissed the plea of entrapment without answering the applicant’s arguments. 18. The applicant was born in 1982 and lives in Yekaterinburg. He is currently serving a prison sentence in Nijniy Tagil. 19. According to the Government, on 13 June 2006 Ms Y voluntarily went to the police and reported that she was a heroin addict and that she wished to inform on her drug dealer. She said that she had been buying heroin from the applicant for a long time, but did not specify for how long. The police asked her to participate in a test purchase of drugs from the applicant, and she agreed to do so. 20. According to the applicant, he knew Y from primary school and through his girlfriend. He knew that she was a drug user; she would occasionally offer to sell him second-hand mobile phones of unclear provenance. A few months before the test purchase she had sold him a DVD player which had later been seized by the police as a stolen item. Because of that, Y owed the applicant RUB 6,000 which she was unable to repay. On 13 June 2006 she contacted him with an offer to redeem the debt, but told him that she would only do so if he got her some heroin, of which she was badly in need. The applicant contacted an acquaintance, a drug dealer, and arranged for the quantity Y had requested. He claimed that it was the first time he had agreed to purchase drugs for Y or for anyone. 21. It is common ground between the parties that prior to Y’s submissions the police had not been in possession of any information suggesting the applicant’s possible involvement in drug dealing. 22. On the same day the police ordered a test purchase. The order indicated the applicant’s name and address and stated that he was suspected of selling heroin at RUB 500 per gram. Y was given RUB 3,000 in banknotes that had been photocopied. She phoned the applicant and arranged to purchase five grams of heroin. The content of the phone call, which was made from police premises and in the presence of police officers, was not recorded. The applicant met Y at the agreed place in town and she passed him the money. The police arrested the applicant on the spot. He was in possession of RUB 3,000 in banknotes that matched the ones the police had photocopied. Y handed in a packet of heroin allegedly purchased from the applicant. The applicant claimed that he had not supplied the drugs handed in by Y because he was supposed to give them to her later. 23. After the arrest the applicant offered to inform the police on the dealer from whom he had obtained the heroin for Y and to conduct a test purchase from him, but the offer was not followed up. 24. The case was examined at first instance by the Ordzhonikidzevskiy District Court of Yekaterinburg. At the trial the applicant pleaded partly guilty but claimed that the crime he had committed was the result of police entrapment. He pointed out, in particular, that there was no evidence of his prior involvement in drug dealing. He maintained that Y had previously asked him to buy heroin for her, knowing that he had an acquaintance who was a dealer, but he had always refused. 13 June 2006 was the first time he had agreed to help her, and this was only because she had promised to pay back her debt if he did. He claimed that her participation in the test purchase was not “voluntary”, but prompted by the police, who had manipulated her by playing on her drug addiction. 25. Y testified at the trial that on 13 June 2006 she had voluntarily gone to the police to inform them about the applicant’s involvement in drug trafficking. She also stated that she had previously bought heroin from the applicant at least three times. 26. The police officer who carried out the test purchase testified at the trial that on 13 June 2006 Y had voluntarily gone to the police station and reported that she was a heroin addict and that she wished to inform them that the applicant was her drug dealer. He also stated that she had collaborated with him for six months prior to the test purchase, and that she had taken part in unrelated test purchases of drugs from other persons. He further stated that prior to 13 June 2006 the police had had no information on the applicant and that the test purchase was ordered as soon as Y had reported him. She had been asked to make a phone call to the applicant immediately from the police station; when she did so she had only asked the applicant to sell her heroin, without entering into any other subjects. 27. The court also cross-examined another policeman who had taken part in the test purchase, and read out statements given by the attesting witnesses in the investigation, in which they set out the details of the test purchase. On 28 September 2006 it found the applicant guilty of attempted illegal sale of narcotic drugs in particularly large quantities. It did not expressly refer to the applicant’s plea of entrapment, having found the fact of the sale sufficiently established and having noted the compliance of the test purchase with the procedural requirements. It considered that the applicant’s version of events, whereby he met Y because of the debt, had been refuted by other evidence. The applicant was sentenced to ten years’ imprisonment in a high-security correctional colony. 28. The applicant appealed, pleading police incitement of the offence he was convicted of and alleging that the firstinstance court had incorrectly assessed the evidence. 29. On 6 December 2006 the Sverdlovskiy Regional Court upheld the first-instance judgment. It did not address the plea of entrapment, but limited itself to finding the applicant’s conviction lawful and well-founded. 30. The applicant was born in 1977 and lives in Moscow. Trained in the past as a policeman, in 2002 he was convicted of a murder and, after his release, worked as a welder. He is currently serving a prison sentence in a correctional colony in the Republic of Mordovia following his conviction of the drug offence described below. 31. According to the Government, on 4 September 2008 Ms Z voluntarily presented herself at the local office of the Federal Service for Drug Control (ФКСН, the police) and reported that she was a heroin addict and that she wished to inform the authorities that the applicant was a drug dealer. The police asked her to participate in a test purchase of drugs from the applicant, and she agreed to do so. 32. It is common ground between the parties that prior to Z’s submissions the police had not been in possession of any information suggesting the applicant’s possible involvement in drug dealing. However, the Government also claimed that this information was corroborated by a report of an officer of the Federal Service for Drug Control drawn on the same day, 4 September 2008. 33. According to the applicant, he had known Z for about ten years through his personal contacts; he was also acquainted with a certain Ms P, also through personal contacts. From his police training with the Federal Service for Drug Control he knew that the two women were drug addicts, with criminal records related to drug dealing, and that they were police informants. On 4 September 2008 Z called him and asked for the phone number of P because she wanted to buy drugs from her; she said that she was suffering severe withdrawal symptoms and was on the verge of committing suicide. Later the same day she called him again and asked him to accompany her to the meeting with P because she feared that P would not sell to her if she was on her own. Out of compassion he agreed to go along. When the three of them met, P sold Z two grams of methamphetamine, a home-made narcotic drug produced with ephedrine and referred to throughout the proceedings by its slang name “speed” («винт»). The applicant was arrested on the spot. He alleged that he did not have either money or drugs on him during the arrest, claiming that the money was planted on him during the search. He acknowledged, however, that he assisted Z in buying the “speed” but maintained that it was the first time he had done so for Z or for anyone, having succumbed to her persistent begging. 34. The official records presented the following account of the test purchase. Having received the information from Z, the police ordered a test purchase and proceeded with it immediately. The order indicated the applicant’s name and stated that he was suspected of selling “speed” for RUB 500 per gram. Z was given RUB 1,000 in banknotes that had been photocopied. She phoned the applicant from police premises and asked him to get the drugs for her. He called her back later and they arranged to purchase two grams of “speed”. The police officers were listening when Z spoke to the applicant on the phone, but the conversations were not recorded. The applicant met Z later on the same night and together they met another person, P. When Z gave a signal to the police they arrested the applicant and took him to the police station. At the station the police examined a wallet allegedly found on him which contained RUB 1,000 in banknotes that matched the photocopied ones. Z handed in a syringe with “speed” in it, allegedly purchased from the applicant. P was also arrested, but she was released shortly afterwards and was not prosecuted. 35. At the trial the applicant pleaded guilty of helping Z to buy drugs, but claimed that he had been induced by the police to do so and requested that the evidence relating to the test purchase be excluded. 36. Z testified that she had volunteered information about the applicant to the police because she thought it would make it easier for her to overcome her addiction. She stated that before the test purchase she had never bought drugs from the applicant; however, since they used to buy and consume them together she told the police that she would be able to convince him to obtain the drugs for her. She further stated that she did not know if the applicant had previously sold drugs to anyone else, and she was almost certain he did not produce them himself. She also admitted that she used to buy drugs from another source. Finally, concerning the circumstances of the test purchase, she testified that she gave the money to the applicant and took the syringe from him and that she did not see P handle either the money or the syringe. 37. The applicant requested that P be called and cross-examined, but the court noted that she had been summoned and had absconded, and that her whereabouts were unknown. The court considered this to constitute exceptional circumstances allowing it to take her written depositions into account. Despite the applicant’s objections, it read out her pre-trial statement saying that she had delivered the drugs to the agreed place at the applicant’s request, but that the sale had been arranged by him. 38. Four police officers were cross-examined about the covert operation. They reiterated the details of the test purchase. One of them testified, when asked, that Z was not remunerated for her collaboration with the police. 39. On 17 February 2009 the Zyuzinskiy District Court of Moscow found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to four and a half years’ imprisonment. The sentence was increased to five years for breach of parole relating to his previous conviction. 40. The applicant appealed, pleading police incitement of the offence he was convicted of and complaining that the first-instance court had incorrectly assessed the evidence. 41. On 13 May 2009 the Moscow City Court examined the appeal. It dismissed the plea of entrapment, stating that the test purchase was based on the information given by Z to the police, notably that she “had previously bought drugs from the applicant on multiple occasions”, and concluded that the test purchase was therefore lawful. It upheld the first-instance judgment as well-founded. 42. Article 228.1 of the Criminal Code (as in force at the material time) provided that the unlawful sale of narcotic drugs or psychotropic substances carried a sentence of four to eight years’ imprisonment; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to twelve years’ imprisonment; the same offence involving a particularly large quantity of drugs carried a sentence of up to twenty years’ imprisonment (Article 228.1 § 3 (d)). 43. On 15 June 2006 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 14) on jurisprudence in criminal cases involving narcotic drugs or psychotropic, or strong, or toxic substances. The Plenary ruled, in particular, that any sale of such substances, if carried out in connection with a test purchase under the Operational-Search Activities Act, should carry charges of attempted sale (Article 30 § 3 in conjunction with Article 228.1 of the Criminal Code). It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings: (i) they must have been obtained in accordance with the law; (ii) they must demonstrate that the defendant’s intention to engage in trafficking of illegal substances had developed independently of the undercover agents’ acts; and (iii) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence. 44. The Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provided as follows at the material time: “An operational-search activity is a form of overt or covert activity carried out by operational divisions of State agencies authorised by this Act (hereinafter ‘agencies conducting operational-search activities’) within the scope of their powers, with a view to protecting the life, health, rights and freedoms of individuals and citizens, or property, and protecting the public and the State against criminal offences.” “The aims of operational-search activities are: – to detect, prevent, intercept and investigate criminal offences as well as searching for and identifying those responsible for planning or committing them; ...” “... A person who considers that an agency conducting operational-search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a higher-ranking agency conducting operational-search activities, a prosecutor’s office or a court. ...” “In carrying out investigations the following measures may be taken: ... 4. test purchase; ... 9. supervision of postal, telegraphic and other communications; 10. telephone interception; 11. collection of data from technical channels of communication; 12. operational infiltration; 13. controlled supply; 14. operational experiments. ... Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunications companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service, the agencies of the Interior Ministry and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved. ...” “[Operational-search activities may be performed on the following grounds;] ... 1. pending criminal proceedings; 2. information obtained by the agencies conducting operational-search activities which: (1) indicates that an offence is being planned or has already been committed, or points to persons who are planning or committing or have committed an offence, if there is insufficient evidence for a decision to institute criminal proceedings; ...” “Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning: 1. the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory; 2. persons who are conspiring to commit, or are committing or have committed an offence whose investigation is mandatory; ... Test purchases ..., operational experiments, or infiltration by agents of the agencies conducting operational-search activities or individuals assisting them, shall be carried out pursuant to an order issued by the head of the agency conducting operational-search activities. Operational experiments may be conducted only for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons who are planning or committing or have committed a serious crime. ...” “The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused. ... The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons. ...” “To pursue their aims as defined by this Act, agencies conducting operational-search activities may create and use databases and open operational registration files. Operational registration files may be opened on the grounds set out in points 1 to 6 of section 7(1) of this Act ...” “Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...” 45. On 24 July 2007 section 5 of the Act was amended to prohibit agencies conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences. 46. Article 125 of the Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provided at the material time that orders of a preliminary interview officer, investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation. Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged. 47. On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 1) on the practice of judicial examination of complaints under Article 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary ruled, inter alia, that decisions of officials of agencies conducting operational-search activities must also be subject to judicial review under the provisions of Article 125 if the officials were acting pursuant to an order by an investigator or the head of the investigating or preliminary inquiry authority. 48. The Code of Criminal Procedure provides, in so far as relevant: “1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings]. ...” “... 5. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial. 49. Article 392 of the CCP contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. A judgment of the European Court of Human Rights finding a violation of the European Convention on Human Rights in a case in respect of which an applicant lodged a complaint with the Court is considered to be a new circumstance warranting a reopening (Article 392 § 4 (4)). 50. The Court conducted a comparative study of the legislation of twenty-two member States of the Council of Europe (Austria, Belgium, Bulgaria, Czech Republic, Croatia, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Lithuania, “the former Yugoslav Republic of Macedonia”, Poland, Portugal, Romania, Slovenia, Spain, Turkey and the United Kingdom) concerning the use of undercover agents in test purchases and similar covert operations. 51. The comparative study showed that in all of these countries it is possible for the police to carry out undercover operations, in particular in drug-trafficking cases, according to the procedure set out in the relevant laws and regulations. Only in Ireland is there no formal legislative or regulatory basis for the use of undercover police. A number of countries provide also for the involvement of private individuals and authorise resort to undercover agents only when the collection of evidence by other means is too complicated or impossible. 52. Research reveals that in most of the countries covered there is exclusive or shared responsibility of the judicial bodies in the authorisation procedure, although in some the decision lies with the public prosecutor, the administrative authorities or high-level police officials. 53. A judicial authorisation is required in Bulgaria (court), Croatia (investigating judge), Estonia (investigating judge), Greece (indictments chamber), Liechtenstein, Poland (regional court with prior agreement of the Prosecutor General), Slovenia (investigating judge), and Turkey (judge). 54. In Austria and Belgium the authority to sanction undercover operations lies exclusively with the public prosecutor. 55. A number of countries provide for the involvement of the prosecutor or the court, or both, depending, for example, on the type of operation or, more commonly, the stage of the proceedings. 56. In the Czech Republic, “fictitious transfers”, which include test purchases, require authorisation by the public prosecutor, whereas the use of an undercover agent (in connection with particularly serious offences) can be authorised only by a High Court judge. Under German law, the use of undercover agents must be authorised by the public prosecutor, and additionally by a court if the operation targets a particular person or involves entry into private premises. In Romania also the authorisation is given by the public prosecutor, but video and audio recording during the operation requires prior authorisation by a judge. 57. In France, the authorisation is delivered by the public prosecutor at the preliminary inquiry stage, and by the investigating judge (juge d’instruction) during the pre-trial investigation. Lithuanian law, in a similar vein, requires the authorisation of a pre-trial judge during a pre-trial investigation, while at an earlier stage the authorisation of the prosecutor suffices. In “the former Yugoslav Republic of Macedonia” special investigative measures in the pre-investigation phase can be ordered either by the public prosecutor or by an investigating judge, but once an investigation has been opened the authorisation can be given only by the latter. 58. In Portugal, covert operations within the framework of the inquiry are subject to the prior authorisation of the competent member of the Public Prosecution, with mandatory communication to the investigating judge, and are deemed to be ratified if no order refusing permission is issued within 72 hours. If the operation is carried out in the framework of crime prevention, it falls within the competence of the investigation judge to give the required authorisation at the proposal of the prosecution authorities. 59. Spanish law also provides for notification of the investigating judge when authorisation for an undercover operation has been given by the public prosecutor. Such authorisation can also be issued directly by the judge. 60. In Italy there is no requirement for formal authorisation from the prosecutor or a court, but the appropriate authority must give prior notification of the start of the operation to the competent prosecutor. In drug cases, before undertaking an undercover operation, the Central Directorate for Drug Services or its regional or provincial offices need to inform the prosecutor in charge of the investigations, but they do not need their formal approval. 61. In a few countries, there is no involvement of a court or a prosecutor in the authorisation procedure. In Finland, the decision on undercover activities is taken by the Head of the National Bureau of Investigation or the Head of the Security Police, at the request of a regular police department. The decision-making bodies are separate from the services which carry out the operation. 62. In the United Kingdom undercover operations are subject to administrative rather than judicial authorisation. In the House of Lords decision in R v. Loosely [2001] Lord Mackay underlined that although the technique in the United Kingdom for authorising and supervising such practice was very different from the judicial supervision in continental countries, the purpose was the same, namely to remove the risk of extortion, corruption or abuse of power by policemen operating without proper supervision. The public authorities entitled to authorise the use or conduct of a Covert Human Intelligence Source (CHIS) are laid out in law. Each public authority has its own separate authorising officer. Authorising officers should not be responsible for authorising their own activities, that is, those in which they themselves are to act as the CHIS or as the handler of the CHIS. Furthermore, authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible, especially in the case of small organisations, or where it is necessary to act urgently or for security reasons. Where an authorising officer authorises his own activity the central record of authorisations should highlight this and the attention of a Commissioner or Inspector should be drawn to it during his next inspection. 63. In Ireland similarly there is no judicial authorisation procedure. The police or other enforcement agencies both take and carry out all operational decisions concerning undercover operations. 64. The Council of Europe’s instruments on the use of special investigative techniques are outlined in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008-...). “... in order to ensure that the use of undercover agents does not unduly interfere with the right to fair trial guaranteed by the European Convention on Human Rights, Article 59 of Legislative Decree No. 15/93 on the prevention of drug-trafficking has been amended by Act No. 45/1996 of 3 September 1996. According to the added paragraph 3 to Article 59, the use of such persons is subject to a court’s approval, which has to be given within 5 days and for a specific period. The Government is of the opinion that, in view of the supra-legal status of the Convention, as interpreted by the European Court of Human Rights, in Portuguese law (Constitutional Court judgments Nos. 345/99 of 15 June 1999 and 533/99 of 12 October 1999), the Portuguese courts will exercise this supervision and adapt their interpretation of the Code of Criminal Procedure (in particular of Article 126) in such a way as to avoid new violations similar to that found in the Teixeira de Castro case. In order to facilitate this adaptation, the judgment of the European Court of Human Rights has been published in the Revista Portuguesa de Ciência Criminal (RPCC 10/2000) and also disseminated to the authorities concerned, including the police.” 66. On 10 March 2011 the Committee of Ministers concluded the execution of the judgment in the case of Pyrgiotakis v. Greece (no. 15100/06, 21 February 2008), having adopted Resolution ResDH(2011)11 which read in so far as relevant: “The Court’s findings have been endorsed in national case-law: it is held that, in conformity with Article 6 of the Convention, the conviction of an accused should not arise solely from the conduct of a police officer involved in the case (acting as agent provocateur), otherwise the requirements of a fair trial are not met (Court of Cassation 193/2009). Furthermore, this conviction should be based on additional, strong evidence, and not only on the testimony of the police officers involved. (Court of Cassation 100/2007, Corfu Court of Appeal 29/2007).” “In order to prevent similar violations, the Supreme Court set out, in its decision of 16 December 2008, the general principles with regard to cases where the criminal conduct simulation model is employed. First, the Supreme Court stressed that the criminal conduct simulation model as an investigative technique may not be employed to incite the commission of an offence but may be applied only if credible and objective information had already been obtained to the effect that the criminal activity had been initiated. Secondly, state officials may not act as private persons to incite third parties to commit an offence, while the acts of private persons acting to incite third parties to commit an offence under the control and instructions of state officials shall constitute such incitement. Thirdly, it may be inferred that there is an act of incitement even if state officials do not act in a very intensive and pressing manner, including in situations when contact with third parties is made indirectly through mediators. Fourthly, the burden of proof in judicial proceedings lies with the state authorities, which have an obligation to refute any argument raised by a defendant in criminal proceedings in respect of the incitement by state agents to commit an offence. Fifthly, once the act of incitement is established, no evidence obtained through incitement shall be admissible. The confession of an offence as a result of incitement does not eradicate either incitement or its effects. Sixthly, it is preferred that undercover techniques are supervised by a court although supervision by a prosecutor does not in itself violate the Convention. This decision of the Supreme Court is binding upon all domestic courts. Thus, it provides a clear and foreseeable procedure in similar cases.” | 1 |
train | 001-22776 | ENG | SVK | ADMISSIBILITY | 2,002 | HAJDUCEKOVA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Ms Ivica Hajdučeková, is a Slovakian national, who was born in 1967 and lives in Košice. The facts of the case, as submitted by the applicant, may be summarised as follows. By a judgment delivered on 25 June 1996 the Košice I District Court granted the divorce of the applicant and her husband. The applicant obtained custody of the child born out of wedlock. On 22 July 1996 the applicant sued her former husband before the Košice I District Court. She claimed that the joint tenancy of the flat in which she had lived together with the defendant be annulled and that she should be declared its exclusive tenant. Subsequently the father of the applicant’s former husband exchanged the flat for a smaller one with another person. On 21 August 1996 the municipality which owned the flat in which the applicant and her former husband had lived approved of the exchange. On 21 September 1996 the applicant was prevented from entering the flat as the lock had been changed. She called the police who established that the tenancy rights had been transferred to the above person who turned out to be the new partner of the applicant’s former husband. On 23 September 1996 the applicant complained to the Košice I District Prosecutor’s Office that by approving the exchange the municipality had acted unlawfully. On 15 November 1996 the Košice I District Prosecutor informed the applicant that no action would be taken on her petition. The letter stated that the mayor had not exceeded his powers and that the person with whom the applicant’s father-in-law had exchanged the flat had acquired tenancy rights in its respect by virtue of an agreement with the municipality concerned dated 22 August 1996. The letter further indicated that public prosecutors had no power to examine whether the tenancy of the flat had been transferred to the applicant’s former husband in accordance with the relevant law as alleged by the applicant. That issue was to be determined, as a preliminary question, by the courts deciding on the applicant’s action for the joint tenancy to be terminated. On 19 December 1996 the Košice I District Court dismissed the applicant’s action of 22 July 1996. The court established, after having heard several witnesses and with reference to the documentary evidence available, that the applicant and her former husband had never formally become tenants of the flat. The judgment stated that the flat had been allocated to the father of the applicant’s former husband. The joint tenancy of the flat by the applicant and her former husband could not be derived from the fact that they had lived in the flat as they had failed to meet the statutory requirement that they lived in the flat in a common household together with the user to whom the flat had been allocated. The District Court further held that the transfer of tenancy to the applicant and her former husband was excluded as the apartment in question had been allocated to her former father-in-law in his capacity of an employee of a public organisation. On 14 February 1997 the applicant appealed and challenged the conclusions reached by the first instance court. The applicant also applied to the District Court to issue an interim measure prohibiting the new user from purchasing the flat pending the outcome of the proceedings in the applicant’s above action. On 10 July 1997 the Košice I District Court dismissed the request noting, with reference to the above judgment of 19 December 1996, that the applicant had not shown that she had any right in respect of the flat in question. On 23 July 1997 the applicant filed an appeal against this decision. On 16 October 1997 the applicant challenged the Regional Court judges. She alleged that her former husband, who was a public prosecutor at the Košice Regional Prosecutor’s Office, knew all the Regional Court judges in Košice and had friendly relations with several of them. The applicant further argued that Regional Court judge C. was on friendly terms with her former husband’s mother as the latter had been the superior of the judge’s wife. On 30 March 1998 the Supreme Court decided that the Regional Court judges to whom the case fell to be examined were not biased. Reference was made to statements by two of the judges according to which they did not know the applicant and her former husband. The Regional Court further noted that judge C. had stated that he had no professional or other contacts with the applicant’s former husband and that he had no relationship with the latter or his mother. The Supreme Court held that the existence of any personal interests or relations in respect of the parties in the proceedings which could affect an objective assessment of the facts of the case by the three judges concerned had not been established. In particular, there was no indication that the applicant’s former husband had any personal contacts with the judges, and the fact that he worked with the Regional Prosecutor’s Office did not, as such, cast doubts on the impartiality of the judges. Furthermore, it was not shown that judge C. had relations with the mother of her former husband, and the fact that she had been the hierarchical superior of the wife of judge C. related to the past. The Regional Court concluded that the applicant’s fear concerning the lack of impartiality of the judges was not supported by any objective facts. In the meantime, the applicant learned that the new tenant had requested the municipality to sell the flat to her in accordance with the legislation on sale of municipal apartments. The applicant informed the municipality concerned about the proceedings concerning her action and requested that the sale be suspended. On 4 March 1998 the Košice I District Court issued an interim measure, at the applicant’s request, prohibiting the Košice I District Office from entering the transfer of ownership of the flat in the land registry pending the delivery of a final decision in the applicant’s action. When delivering this decision the District Court apparently was not aware of the fact that the Košice I District Office had already given leave for the relevant entry to be made in the land registry on 23 Februrary 1998. The applicant learned about the transfer of the ownership on 19 April 1998. On 21 May 1998 the Košice Regional Court upheld the District Court’s judgment of 19 December 1996. The judgment stated that new relevant facts had occurred in that the flat in question had been transferred to another person who had become its owner on 23 February 1998. Reference was made to Section 70 (2) of the Land Registry Act of 1995. Accordingly, the applicant could not claim that she and her former husband had joint tenancy rights in respect of the flat. The Regional Court further noted, with reference to the relevant provisions of the Code of Civil Procedure, that a party was free to put forward new facts or arguments in his or her appeal and that it was bound to decide on the facts of the case as they existed at the moment of the delivery of judgment. On 14 September 2000 the General Prosecutor’s Office informed the applicant that the Košice I District Office had not infringed the law by allowing the person who had acquired the flat in question by exchange to be entered as its owner in the land registry. The letter stated that that person had acquired tenancy rights by virtue of an agreement which she had concluded with the municipality which owned the flat on 22 August 1996. Subsequently, the municipality agreed to sell the flat to the tenant in accordance with the relevant law and an agreement was concluded to that effect. At the moment of the entry in the land registry of the new owner there existed no restrictions on the transfer of the ownership of the flat. In particular, under the law in force the fact that proceedings in the applicant’s above action of 22 July 1996 were pending could not affect the validity of the entry in the land registry. As to the interim measure issued by the Košice I District Court on 4 March 1998, the public prosecutor noted that the applicant had expressly requested that the District Office be ordered not to allow the transfer of ownership to be entered in the land registry on 3 March 1998, that is after such an entry had been made. Section 80 (c) gives everyone the right to bring civil proceedings with a view to having the existence of a right or of a legal relation determined provided that it is justified by a pressing legal interest. Pursuant to Section 154 (1), a court’s judgment shall be based on facts as they exist at the moment of its delivery. Section 213 (1) provides that an appellate court is not bound by the facts as they were established at first instance. Under Section 70 (2), the data entered in the land registry, including information about the rights in respect of the property in question shall be considered trustworthy and binding unless the opposite is shown. | 0 |
train | 001-85442 | ENG | RUS | CHAMBER | 2,008 | CASE OF AZIYEVY v. RUSSIA | 4 | Violation of Article 2 - Right to life;Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13 - Right to an effective remedy | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicants were born in 1947 and 1949 respectively. They are married and had two sons: Lom-Ali Aziyev, born in 1973, and Umar-Ali Aziyev, born in 1974. They all lived in an apartment situated on the second floor of a block of flats at 49 Tukhachevskogo Street, Grozny. 7. During the night of 24 September 2000 the applicants and their sons were asleep at home. At around 1.20 a.m. a group of eight armed men wearing camouflage uniforms and masks and carrying torches entered the applicants’ flat, having broken down the door. The men did not identify themselves. The applicants claimed that the men were members of the Russian military, since they spoke Russian and could move around freely in Grozny during the curfew. 8. The men kicked the first applicant and beat him with machine guns. They aimed their guns at both applicants and ordered them to be silent. 9. Thereafter the men proceeded to the applicants’ sons’ room. Without producing any documents to authorise their actions, the men searched the room and arrested Lom-Ali and Umar-Ali Aziyev. As the applicants’ younger son resisted, he was knocked off his feet, handcuffed and blindfolded. Then the men took away the Aziyev brothers, who only had their underwear on and were barefoot. One of the men also took a pair of shoes and a tape recorder. The second applicant’s attempts to obstruct the detention of her sons failed as the men threatened her with firearms. According to the applicants, the men assured them that they would check their sons’ identities and release them immediately afterwards. 10. In the morning the applicants found their sons’ identity documents on a bedside table in the room. The room was in a mess and a sofa was broken. 11. The applicants submitted that the neighbours had told them later that on that night armed men wearing masks, with torches, had been standing on all the landings of their building, between the first and the ninth floors. One of the women neighbours told them that she had been asked about the Aziyev brothers and that she had replied that they were “good boys”. 12. In support of their statements, the applicants submitted two written accounts signed by five of their neighbours from the building, including Mr R., and one account from a man who lived in the building opposite theirs, about 30 metres away. They confirmed the applicants’ submissions and stated that in the early hours of 24 September 2000 the doors of two flats in that building had been broken down by a group of men wearing training shoes and armed with automatic rifles. They asked the neighbours about the Aziyev family, with whom the neighbours were on good terms. One of the neighbours saw the group of armed men walking afterwards towards the military roadblock at the intersection of Tukhachevskogo and Kaspara Streets. 13. The applicants have had no news of their sons since. 14. The Government did not dispute the circumstances of the Aziyev brothers’ detention as presented by the applicants. They submitted that during the night of 24 September 2000 unidentified persons wearing camouflage uniforms and masks and armed with automatic weapons had arrested the brothers L.-A. and U.-A. Aziyev at 49 Tukhachevskogo Street, apartment no. 79, and taken them away to an unknown destination. The same persons had caused physical injuries to the first applicant. 15. On 24 September 2000, in the morning, the first applicant was taken by his neighbours to Hospital no. 9 and underwent a medical examination. 16. The examination established that he had a craniocerebral injury, an avulsed wound (with detached tissue) in the temple area, a haematoma of the head as well as concussion, temporary blindness, a haematoma of the thorax and the subcutaneous stomach tissue, a haematoma of the scrotum, uraemia, fractured ribs and a contusion of the liver, of the kidneys and of the bladder. 17. The first applicant submitted that he had had to stay in bed for about a month to recover. 18. According to the Government, the first applicant had first notified the authorities of the beatings in February 2001. The first applicant argued that he had talked about his injuries to the investigators who had questioned him on 24 September 2000, and that he had mentioned the beatings in a letter to the prosecutor of the Chechen Republic dated 9 December 2000, a copy of which had been submitted to the Court. 19. On an unspecified date the Grozny Town Prosecutor’s Office (“the Grozny prosecutor’s office”) ordered a forensic medical examination of the first applicant so as to ascertain whether there was a causal link between his injuries and the actions of unknown servicemen who had raided his flat on 24 September 2000 and beaten him. 20. This examination was carried out on 8 February 2001. The report relied on a medical record indicating the results of the medical examination carried out on 24 September 2000 and confirmed that the injuries in question could have been sustained during the period and in the circumstances described by the first applicant. 21. It appears that the first applicant’s allegations were investigated in the context of criminal proceedings brought in respect of the abduction of his two sons and that on 17 December 2003 he was granted victim status in that connection. 22. In 2005 the investigating authorities ordered another forensic medical examination on the ground that the results of the examination of 8 February 2001 were unreliable. On 10 March 2005 experts reported that they had not found any signs of injury to the first applicant’s head, face or body, and that X-ray examinations had not disclosed any damage to the first applicant’s heart, lungs or ribs. With reference to the medical record made in Hospital no. 9 on 24 September 2000 the experts concluded that the injuries complained of by the applicant had been acquired on that date, and that the first applicant had been likely to have sustained those injuries during the period and in the circumstances described by him. The report also stated that there were no objective data to confirm the conclusion of the examination of 24 September 2000 that the applicant had had fractured ribs, concussion and contusions of the liver, of the kidneys and of the bladder. 23. Since 24 September 2000 the applicants have repeatedly applied in person and in writing to various public bodies, including the district office of the Ministry of the Interior (“the ROVD”), prosecutors at various levels, a military commander’s office, the administrative authorities of Chechnya and the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms. They have been supported in their efforts by two NGOs: Memorial and the SRJI. In their letters to the authorities the applicants referred to their sons’ detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants’ requests have been forwarded to various prosecutors’ offices. 24. The first applicant has also visited a number of detention centres and prisons in Chechnya as well as further afield in the Northern Caucasus, but has received no information as to the whereabouts of his sons. 25. On 29 September 2000 the Grozny prosecutor’s office instituted a criminal investigation into the disappearance of the applicants’ sons under Article 126 § 2 of the Criminal Code (kidnapping of two or more persons by a group using firearms). The case file was assigned no. 12200. 26. On 11 October 2000 the Grozny prosecutor’s office granted the second applicant victim status. According to the Government, she was notified of that decision the same day. From the applicants’ submissions it appears that they were not informed of that decision until May 2003, when they received a copy of it. 27. On 29 November 2000 the Grozny prosecutor’s office suspended the criminal proceedings for failure to establish the identity of those responsible. 28. On 9 December 2000 the first applicant wrote to the public prosecutor’s office of the Chechen Republic (“the Chechnya prosecutor’s office”) and stated the circumstances of his sons’ detention and of his injuries. He stated that his children had never taken part in the activities of illegal armed groups and asked for the persons who had committed the crime to be identified. 29. In a letter of 19 January 2001 the Chechnya prosecutor’s office informed the applicants that the decision of 29 November 2000 had been set aside. 30. On 1 February 2001 the investigation of the disappearance of Lom-Ali and Umar-Ali Aziyev was resumed. 31. On 1 March 2001 the criminal proceedings in case no. 12200 were adjourned, since no culprits had been identified. 32. On 11 September 2001 the second applicant submitted a complaint to the Chechnya prosecutor’s office. In it she outlined the circumstances of her sons’ detention and mentioned that in June 2001 she had seen a list of persons who had allegedly been detained at the Khankala military base and that the name of Lom-Ali Aziyev, detained on 23 September 2000, had been on that list. 33. In a letter of 19 June 2002, in response to a request from Memorial on the applicants’ behalf, the Chechnya prosecutor’s office stated that the decision of 1 March 2001 had been quashed, and the investigation of the abduction of the Aziyev brothers reopened. 34. In a letter of 30 July 2002 the Chechnya prosecutor’s office informed the applicants of the decision to reopen the criminal proceedings in case no. 12200. 35. According to a letter from the Grozny prosecutor’s office dated 29 October 2002, the criminal proceedings were again suspended on 6 September 2002. 36. In a letter of 17 September 2003 the Chechnya prosecutor’s office informed the applicants that the investigation of the disappearance of their sons had been suspended on 27 July 2003, as the perpetrators had not been found. 37. It appears that some time later the investigation was resumed, as in a decision of 17 December 2003 the prosecutor’s office of the Leninskiy District of Grozny (“the Leninskiy district prosecutor’s office) declared the first applicant to be a victim of crime in case no. 12200. 38. On 22 June 2005 the SRJI, on behalf of the applicants, requested the Leninskiy district prosecutor’s office to give them an update of the investigation of the kidnapping of the Aziyev brothers and to allow the applicants, as victims, access to the investigation file. In July 2005 the district prosecutor’s office replied that the investigation had been adjourned on 28 April 2005 and that all the necessary investigative measures had been taken. The second applicant was invited to access the file at the prosecutor’s office during working hours. 39. On 1 November 2005 the Leninskiy district prosecutor’s office informed the first applicant that the investigation had been resumed. On 1 December 2005 the first applicant was informed that the investigation had been adjourned and of his right to appeal. 40. The applicants submitted that their health had deteriorated significantly since the events of 24 September 2000 and the disappearance of their sons. They presented a number of medical documents, according to which the first applicant was suffering from the consequences of a stroke and the second applicant had chronic hypertension and rheumatological problems. 41. In their observations the Government did not dispute the information concerning the investigation of the abduction of the Aziyev brothers as presented by the applicants. Relying on information obtained from the General Prosecutor’s Office, they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants. However, despite specific requests from the Court and two reminders, the Government did not submit copies of most of the documents to which they referred (see below). 42. With reference to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation of the abduction of Lom-Ali and Umar-Ali Aziyev and the inflicting of injuries to the first applicant by “unidentified masked men in camouflage uniforms with machine guns” had commenced on 29 September 2000. They further submitted that an investigator from the Grozny prosecutor’s office had examined the scene of the incident on 24 September 2000, but “had not found any evidence of crime”. The investigator also questioned the applicants. 43. The first applicant was questioned further on 22 June 2002, 17 December 2003, 21 February and 5 April 2005, and the second applicant was questioned as a witness on 11 October 2000 and 22 June 2002. The applicants were granted victim status on 17 December 2003 and 11 October 2000 respectively. 44. In April 2005 new charges were brought against the same unidentified persons who had stolen the applicants’ property. The Government submitted that in September 2006 the investigation had sent requests to all the district departments of the interior in Chechnya with the aim of establishing the whereabouts of the pair of shoes and video player stolen from the applicants. 45. As the Government stated, the investigation questioned a number of witnesses. On unspecified dates two of the applicants’ neighbours, including Mr. R., testified that during the night of 24 September 2000 “unidentified armed men in camouflage uniforms had burst into their flat, checked their documents and then left”. Mr R. had been additionally questioned in October and November 2006, when the investigation decided that no further criminal investigation would be opened, as the witness had not sustained any damage. 46. In November 2005 and October 2006 the investigation questioned twelve persons, some of them the applicants’ relatives and neighbours. According to the Government, they confirmed the arrest of the Aziyev brothers in September 2000 by unidentified armed men. Apparently, the witnesses were mostly aware of this event by hearsay. According to the Government, it was impossible to find other witnesses in the case. 47. The Government submitted that the investigating authorities had sent a number of queries to various State bodies on 11 October 2000, 3, 10, 11 and 16 February and 23 October 2001, 21 June 2002, 1 December 2003, 14 February and 2 November 2005 and had taken other investigative measures, but did not specify what those measures had been. They also submitted that in April 2005 the investigation had sent requests to all district departments of the interior in Chechnya with the aim of establishing the whereabouts of the Aziyev brothers; however, no relevant information had been obtained. The Government referred to a reply from the criminal police Department of the Ministry of the Interior of Chechnya, which had stated that the two men had not been detained by that body and had not been delivered to the law-enforcement authorities. 48. According to the documents submitted by the Government, between September 2000 and November 2006 the investigation was suspended and resumed on eight occasions, and has so far failed to identify those guilty. In the latest decision to resume the investigation, dated 10 November 2006, the deputy prosecutor of the Leninskiy district prosecutor’s office criticised the progress of the investigation and stated that a number of important investigative steps should be taken without delay. These included the following actions: “ – to collect his sons’ identity documents from [the first applicant]; - to obtain full descriptions of the brothers U.-A. and L.-A. Aziyev; - to question the applicants further in order to find out which language the abductors spoke; - to make a legal assessment of the actions of the persons who unlawfully broke into the apartments of [the applicants] and [their neighbour Mr. R.]; - to question the sister of the two kidnapped men; - to question the inhabitants of the nearby houses in order to find out whether they saw servicemen walking to the checkpoint that night.” The Government further submitted that the progress of the investigation was being supervised by the Prosecutor General’s Office. According to the Government, the applicants had been duly informed of all decisions taken during the investigation. 49. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 12200, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to the relatives of the adjournment and reopening of the proceedings. 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. 50. On 30 December 2002 the SRJI applied on the applicants’ behalf to the Leninskiy District Court of Grozny (“the District Court”), complaining that the Grozny prosecutor’s office had failed to investigate the disappearance of Lom-Ali and Umar-Ali Aziyev effectively. 51. On 19 May 2003 the District Court dismissed that complaint, having found that the investigating authorities had taken all necessary measures to find the Aziyev brothers and those involved in their abduction. The applicants did not appeal against that decision. In their submissions to the Court they alleged that they had been unable to do so, as they had not been notified of the court session and that the decision in question had been taken in their absence. From the copy of the court decision submitted by the Government it transpires that the first applicant attended the court session. 52. Until 1 July 2002 criminal law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 53. Article 161 of the new CCP establishes the rule that data from a preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from an investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission. | 1 |
train | 001-106192 | ENG | SRB | CHAMBER | 2,011 | CASE OF ŽIVIĆ v. SERBIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | 5. The applicant was born in 1975. He resides in Kosovska Mitrovica in Kosovo, where he is employed as a police officer with the Ministry of Internal Affairs of the Republic of Serbia (Ministarstvo unutrašnjih poslova Republike Srbije, hereinafter “the Ministry”). 6. The facts, as submitted by the parties, may be summarised as follows. 7. On 24 January 2000 and 17 July 2003 respectively, the Serbian Government adopted two decisions whereby, inter alia, all of its employees who resided and worked in Kosovo were to be paid double salaries. 8. On 31 January 2000 the Ministry issued a decision stating that the police officers in question were entitled to have their salaries increased by between 2.5% and 4.5%, depending on the circumstances. 9. In reality, the applicant only received the increase approved by the Ministry, amounting to significantly less than the doubling of his salary envisaged by the Government. 10. On 29 August 2006, therefore, the applicant filed a civil claim against the Ministry with the First Municipal Court (Prvi opštinski sud) in Belgrade, seeking payment of the difference between the salary increase received and that granted by the Government. The applicant further requested the payment of unspecified amounts on account of the related pension and disability insurance contributions. 11. On 23 July 2007 the First Municipal Court ruled in favour of the applicant and ordered his employer to pay: i. 145,821.60 Serbian dinars (“RSD”) (approximately 1,760 Euros (“EUR”) at the relevant time) in respect of the difference between the salary received from 1 July 2003 to August 2006 and that granted by the Government, plus statutory interest; ii. the extra pension and disability insurance contributions for the above period in respect of this additional salary to the relevant State fund; and iii. RSD 39,532 (approximately EUR 477) for his legal costs. 12. On 19 December 2007 the District Court (Okružni sud) in Belgrade reversed that judgment and rejected the applicant’s claim. In its reasoning the District Court held, inter alia, that the applicable domestic regulation was contained in the decision of the Ministry adopted on 31 January 2000. This judgment was served on the applicant on 29 January 2008. 13. Many of the applicant’s colleagues (hereinafter “the plaintiffs”) had lodged separate claims with the District Court concerning the same issue, some of which were successful while others were unsuccessful: in seventy-three other judgments rendered between 25 January 2006 and 1 October 2008, the same District Court ruled in favour of the plaintiffs, notwithstanding the fact that their claims were based on the same facts as those in the applicant’s case and concerned identical legal issues. In its reasoning in these other cases, the District Court held, inter alia, that the plaintiffs’ salaries had to be paid in accordance with the Serbian Government’s decisions of 24 January 2000 and/or 17 July 2003. 14. Of the seventy-three judgments mentioned above, in fifty cases the respondent lodged appeals on points of law (revizije) with the Supreme Court (Vrhovni sud Srbije, see paragraphs 21 and 24 below). In the remaining twenty-three cases, however, the respondent lodged no such appeal, apparently in the light of the statutory threshold (see paragraph 22 below). 15. The Government provided examples of relevant case-law adopted by the Supreme Court, in particular six separate judgments, of which one had been issued on 3 July 2008 and the remaining five between 25 December 2008 and 1 October 2009. In each case, deciding upon appeals on points of law, the Supreme Court had ruled against the plaintiffs, albeit with somewhat different reasoning compared with that employed by the District Court. In particular, the Supreme Court had held, inter alia, that the Government’s decision of 17 July 2003 was not directly applicable. 16. In the meantime, on 23 September 2008, the Civil Division (Građansko odeljenje) of the Supreme Court held a meeting which was meant to resolve the issue of how to rule in all cases like the applicant’s (see paragraph 26 below). In the minutes of this meeting, it was noted, inter alia, that in two cases registered in 2008 where appeals on points of law had been considered, the Supreme Court had in fact confirmed the lower courts’ rulings in favour of the plaintiffs (Rev II 429/08 and Rev 623/08). The meeting, however, was ultimately adjourned pending the outcome of a case which had been brought before the Constitutional Court (Ustavni sud Srbije) concerning the abstract review of the constitutionality of the Government’s decision adopted on 17 July 2003. On 16 April 2010 the Constitutional Court held that the impugned decision was unconstitutional. 17. In eighteen separate cases the plaintiffs thereafter lodged their appeals with the Constitutional Court (ustavne žalbe), but, according to the information contained in the case file, these proceedings are all still pending. 18. The applicant was not entitled to lodge an appeal on points of law since the value of his claim was below the threshold of 500,000 dinars. He did not attempt to obtain constitutional redress. 19. The relevant provisions are set out in the Vinčić and Others v. Serbia judgment (nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, §§ 22-34, 1 December 2009). 20. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights. 21. Articles 394 § 1, 396 and 398 provide that parties may file an appeal on points of law (revizija) with the Supreme Court. They may do so within a period of thirty days following receipt of a final decision rendered at second instance, and only if the relevant legislation, procedural or substantive, has been breached by the lower courts. 22. Article 394 § 2 provides, inter alia, that an appeal on points of law is “not admissible” in pecuniary disputes (kad se tužbeni zahtev odnosi na potraživanje u novcu) where the “value of the part of the final judgment being contested does not exceed 500,000 dinars”. 23. Article 439 provides that an appeal on points of law is admissible in employment-related cases which concern one’s hiring or dismissal or the “existence” of one’s employment (u parnicama o sporovima o zasnivanju, postojanju i prestanku radnog odnosa) 24. In accordance with Articles 396 and 406-409, inter alia, the Supreme Court, should it accept an appeal on points of law lodged by one of the parties concerned, has the power to overturn and/or amend the impugned judgment or quash it and order a re-trial before the lower courts. 25. Article 422.10 provides that a case may be re-opened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue. 26. 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 in such a meeting are binding for all panels (veća) of the division in question. | 1 |
train | 001-82863 | ENG | ALB | CHAMBER | 2,007 | CASE OF GJONBOCARI AND OTHERS v. ALBANIA | 3 | Violation of Art. 6-1 (failure to enforce a final judgment);Violation of Art. 6-1 (length of the third set of proceedings);Not necessary to examine Art. 13+6-1 (failure to enforce a final judgment);Violation of Art. 13+6-1 (length of the third set of proceedings);Remainder inadmissible;Damage - Government to secure the enforcement of the domestic court's final judgment;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention and domestic proceedings) - claim dismissed | Nicolas Bratza | 5. The applicants, who are all siblings, were born in 1939, 1927, 1934, 1931, 1924, 1949 and 1949, respectively. They live in Tirana and Vlora. A. Proceedings pursuant to the Property Act 6. During the communist regime several plots of land owned by the applicants’ parents had been confiscated by the authorities without compensation. The property measuring in total 132 hectares was situated in the Vlora region on the southern Albanian coast. 7. On 30 March 1994, pursuant to the Property Act, the applicants lodged a request with the Vlora Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave, “the Vlora Commission”) seeking the allocation of the original property to them. 8. On 27 August 1996 the Vlora Commission assigned to the applicants jointly, as co-owners, 14 hectares (2 hectares per person) of the property (“relevant property”). The decision was signed by four out of the seven members of the Vlora Commission. 9. Notwithstanding this, and based on the Commission’s decision, on an unspecified date the applicants registered the relevant property with the Vlora Land Registry. 10. On 28 December 1998 they applied to the Vlora Commission requesting the issuance of a new document complying with formal legal requirements, namely, a document duly signed by all of the Commission’s members. 11. On 6 January 1999, by document no. 76, the President of the Vlora Commission replied to the applicants, informing them that the Commission had already confirmed their title in its decision of 27 August 1996. In any event, pursuant to the laws in force at the material time, competence for any formal correction of the Commission’s documents lay with the courts. B. Proceedings with the Ministry of Tourism as a party 12. On 25 November 1996 the Ministry of Tourism, by decree no 20/2, (“the decree”), leased a plot of land (part of the applicants’ property) to A.L., for tourism purposes. 13. On 29 December 1997 the applicants brought an action before the Tirana District Court to quash the decree. 14. On 17 February 1998 the Tirana District Court annulled the decree on the ground that the transaction concerned private property. 15. On 16 June 1998 the Tirana Court of Appeal quashed the District Court’s decision and upheld the validity of the decree, stating that the Commission’s decision of 27 August 1996 had been invalid in that it had not complied with formal requirements. Consequently, the applicants could not claim title to the relevant property. 16. On 10 June 1999, following an appeal by the applicants, the Supreme Court quashed the Court of Appeal’s judgment of 16 June 1998 on the ground that it had been illogical and sent the case back to the Court of Appeal for re-hearing. 17. On 10 November 1999 the Tirana Court of Appeal, following a re-hearing, rejected the applicants’ action on the ground that it had been lodged with the District Court after the one-month time-limit stipulated by law had expired. 18. On 17 January 2001 the Supreme Court upheld the Court of Appeal’s judgment. C. Proceedings on the restitution of the property to K.B. 19. Meanwhile, on 9 October 1997 the Vlora Commission allocated to K.B. - A.L.’s mother - as compensation, the same plot of land that the Ministry had previously leased to her son. 20. On an unspecified date K.B donated the land to her son. 21. Following a request by A.L., by order no. 3 dated 11 June 1999, the Vlora Land Registry cancelled the applicants’ title to this plot of land and registered A.L. as the owner. D. Proceedings with A.L. as a party 22. On 13 December 1999, following a civil action brought by A.L., the Vlora District Court declared null and void the Vlora Commission’s decision of 27 August 1996 which had allocated the ownership of the plot of land to the applicants on the ground that it had not been issued in compliance with formal requirements (see the findings of the Tirana Court of Appeal decision of 16 June 1998). 23. On 17 March 2000 the Vlora Court of Appeal upheld the District Court’s decision and reasoning, adding that the Vlora Commission had exceeded its jurisdiction in taking decisions about properties which the State had assigned for tourism purposes. 24. On 17 January 2001 the Supreme Court confirmed that the Vlora Commission’s decision was null and void, on the ground that it had not been issued in compliance with formal requirements. It was consequently of no effect as regards the applicants or other third parties. Notwithstanding this, it quashed the judgments given at first and second instance and discontinued the proceedings. E. Proceedings with the Vlora Commission as a party 1. Ordinary proceedings 25. On 18 April 2000 the applicants initiated proceedings with the Vlora District Court seeking the annulment of the decision of the Vlora Commission in K.B.’s favour. On 6 February 2001 the Vlora District Court dismissed the applicants’ request on the ground that the Vlora Commission’s decision in their favour had been declared null and void by the Vlora District Court’s decision of 13 December 1999. 26. On 25 May 2001 the Vlora Court of Appeal, having examined the applicants’ appeal, rejected the applicants’ argument as to the nullity of the Commission’s decision allocating the land to K.B. on the ground that it was unsubstantiated. It also rejected their second request, holding that an irregular act, even if not considered formally invalid, as in this case, should not have any legal effect. 27. On 6 March 2003 the Supreme Court quashed the first and second instance decisions in part. It dismissed the applicants’ request for a declaration that the Vlora Commission’s decision allocating the plot of land to K.B. was null and void, on the ground that its nullity could only be determined once a valid decision determining the applicants’ rights over the land had been taken. It accordingly ordered the Vlora Commission to issue a decision vis-a-vis the applicants in compliance with the formal requirements. 2. Enforcement proceedings 28. On 14 April 2004 the Vlora District Court, upon a request by the applicants, issued an enforcement order instructing the Vlora Commission to comply with the Supreme Court’s judgment of 6 March 2003. 29. On 10 May and 2 September 2004 the Commission informed the Bailiffs’ Office that they had not issued the decision ordered in the Supreme Court judgment due to the fact that the applicants had failed to submit the documents necessary to enable a legally correct decision to be taken. 30. On 27 August 2004 the Bailiffs’ Office once again brought to the Vlora Commission’s attention the enforcement order issued on 14 April 2004. 31. On 12 May and 6 September 2004 the Bailiffs’ Office invited the applicants to comply with the Commission’s requests and to submit the documents relating to their property claims. 32. The applicants then informed the Bailiffs’ Office and the Vlora Commission that they had already submitted the necessary documents at the time the Commission had decided in 1996. Moreover, they were reluctant to submit the requested documents since they disagreed with any suggestion that their case had to be decided ex novo. In their opinion, the Supreme Court’s judgment only required the formalisation of the decision of 1996. 33. On 29 May 2006 the Vlora Commission decided not to consider the case for apparent insufficiency of documentation and on 30 November 2006 it sent the case for further consideration to the National Committee for the Restitution and Compensation of properties. 34. On 5 April 2007 the National Committee, now known as the Agency for the Restitution and Compensation of properties (“the Agency”) informed the applicants that, notwithstanding that the Commission file was in fact complete, it had decided to stay the proceedings until the Government had issued the appropriate plans for the properties’ valuation. 35. The Albanian Constitution, in so far as relevant, reads as follows: “1. The right of private property is protected by law 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. The expropriations or limitations of a property right that are equivalent to expropriation are permitted only against fair compensation. 5. A complaint may be filed in court to resolve disputes regarding the amount/extent of compensation due.” “In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “State bodies shall comply with judicial decisions.” “The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” “1. Within two to three years from the date when this Constitution enters into force, The Assembly, guided by the criteria of article 41, shall issue laws for the just resolution of different issues related to expropriations and confiscations done before the approval of this Constitution,. 2. Laws and other normative acts that relate to the expropriations and confiscations, adopted before the entry into force of this Constitution, shall be applied provided they are compatible with the latter.” 36. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) underwent several amendments during the past fourteen years. The main changes to the first Property Act of 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006. Thus, hereinafter they will be referred to as the “Property Act 1993”, the “Property Act 2004” and the “Property Act 2006”, respectively. The relevant provisions of each of these laws are abridged as follows: 37. According to the Act of 1993 the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim the ownership over the original properties. Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in kind (in a maximum of 10,000 sq. m) or in value if one of the following conditions was met: the alleged property (1) was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) was not subject to Law no. 7501 of 19 July 1991; (3) was currently State-owned; (4) had been designated as suitable for construction and is situated within the boundaries of a city. Section 16 of the Act provided for the following forms of compensation in respect of property which could not be restituted: (a) State bonds, equivalent to the compensation owed, and with a first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans; (b) an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations; and (c) an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations. The Council of Ministers had the authority to define detailed rules for determining the methods and time-limits for such compensation to take place. 38. Moreover, the 1993 Act instituted the Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave) as the competent administrative body to deal with former owners’ restitution and compensation of property claims. However, it omitted to provide a time-limit within which a decision could be appealed, thus preventing it from even becoming binding. 39. The Property Act enacted in 2004, repealing the previous one, provided for two forms of restitution of immovable properties, namely the return, under certain circumstances, of the original property and compensation in the event of the impossibility for the authorities to return the original property. The restitution was not limited in size. The Act provided for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, and (e) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11). The Act instituted the State Committee for Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role was to decide on the lawfulness of district committees’ decisions on restitution and compensation claims (sections 15 and 17). The Council of Ministers was to establish the rules and the criteria of these (sections 13). 40. Section 19 provided for the enforcement of the decisions awarding compensation within the first six months of each financial year. On its entry into force, persons entitled to claim restitution or compensation had to lodge applications with the District Committee by 31 December 2007. The Act granted the Committee discretion to decide which form of compensation should be granted, but applicants could express in writing their preferred type of compensation. The District Committee’s decision could be appealed to the State Committee (section 20) and to the district courts within thirty days of the date of issue of the Committee’s decision. 41. On 28 April 2005 Parliament adopted an Act, setting down the method by which immovable property would be valued for compensation purposes. Its implementation was left to the State Committee for the Compensation and Restitution of Properties, which was to issue the appropriate maps for the properties’ valuation. 42. In order to comply with the committees’ decisions awarding pecuniary compensation, section 23 of the 2004 Act provided for the establishment of a ten-year Property Compensation Fund, whose aim was to provide financial support for such awards. The 2004 Act was examined by both the Constitutional and the Supreme Courts. On 24 March 2005 the Supreme Court, Joint Colleges, concluded that the Property Act of 2004 had no retroactive effect and that its provisions, could therefore, not have any impact on property rights recognised by administrative or court decisions given before its entry into force. 43. On 17 July 2006 Property Act of 2004 was amended by means of the Property Act 2006 which entered into force on 17 August 2006. It provided, inter alia, for the establishment of the Agency for the Restitution and Compensation of Properties, a new body competent to decide restitution and compensation claims (section 15). The new law repealed sections 11 § 2; 19 and 20 of the previous law which, inter alia, provided for the procedure for the enforcement of decisions that awarded compensation. | 1 |
train | 001-78589 | ENG | TUR | CHAMBER | 2,006 | CASE OF PAMUK v. TURKEY | 4 | Preliminary objection dismissed (exhaustion) - Not necessary to examine Art. 8;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient | null | 4. The applicant was born in 1943 and lives in Izmir. 5. In 1996 the General Directorate of National Roads and Highways expropriated land (plot no. 431/4) and a building which the applicant coowned. The applicant received an amount determined by a committee of experts at the time of the expropriation. 6. On 5 January 1996 the applicant filed an action for additional compensation with the Izmir Civil Court of First Instance. On 27 December 1999 the first-instance court awarded the applicant additional compensation plus interest at the statutory rate applicable at the date of the court's decision. This judgment was quashed by the Court of Cassation on 17 April 2000. 7. On 4 December 2000 the first-instance court awarded the applicant additional compensation of 3,275,732,664 Turkish liras (TRL) (approximately 5,470 euros (EUR)), plus interest at the statutory rate applicable at the date of the court's decision, running from 12 January 1996. On 12 March 2001 the Court of Cassation upheld this judgment. 8. On 29 August 2001 the administration paid the applicant TRL 12,352,710,000 (approximately EUR 10,042) covering the additional compensation, interest, costs and expenses. 9. The relevant domestic law and practice are outlined in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25). | 0 |
train | 001-78981 | ENG | PRT | GRANDCHAMBER | 2,007 | CASE OF ANHEUSER-BUSCH INC. v. PORTUGAL | 1 | No violation of P1-1 | András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Elisabeth Steiner;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stanislav Pavlovschi;Volodymyr Butkevych | 12. The applicant is an American public company whose registered office is in Saint Louis, Missouri (United States of America). It produces and sells beer under the brand name “Budweiser” in a number of countries around the world. 13. The applicant company has sold beer in the United States under the “Budweiser” mark since at least 1876. It broke into the European markets in the 1980s and says that it began to sell “Budweiser” beer in Portugal in July 1986. 14. The applicant company’s decision to extend the sale of its beers to Europe led to a dispute with a Czechoslovak – now Czech – company called Budějovický Budvar. Budějovický Budvar produces a beer in the town of České Budějovice in Bohemia (Czech Republic) which is also called “Budweiser”. The term comes from Budweis, the German name for the town. The applicant company alleges that Budějovický Budvar has only been marketing beer under the “Budweiser” name since 1895, whereas Budějovický Budvar says that it has been entitled to use that appellation since 1265, when King Ottakar II of Bohemia conferred the right to produce the beer on a number of independent brewers in České Budějovice (Budweis in German). The brewers used a special technique and beers produced by this method became known by the term “Budweiser”, just as beers produced using the methods of another Czech town, Plzeň (Pilsen in German), became known as “Pilsner”. 15. According to the information before the Court, the applicant company concluded two agreements in 1911 and 1939 with Budějovický Budvar concerning the distribution and sale of “Budweiser” beer in the United States. However, these agreements did not deal with the question of the right to use the “Budweiser” name in Europe. As a result, the two companies became embroiled in a series of legal proceedings over the right to use the term “Budweiser” in various European countries, including Portugal. 16. On 19 May 1981 the applicant company applied to the National Institute for Industrial Property (NIIP) to register “Budweiser” as a trade mark on the industrial-property register. The NIIP did not grant the application immediately because it was opposed by Budějovický Budvar, which alleged that “Budweiser Bier” had been registered in its name as an appellation of origin since 1968. Budějovický Budvar had effected the registration under the terms of the Lisbon Agreement of 31 October 1958 for the Protection of Appellations of Origin and their International Registration (see paragraph 33 below). 18. The applicant company then applied to the Lisbon Court of First Instance on 10 November 1989 for an order cancelling Budějovický Budvar’s registration. A summons was served on Budějovický Budvar, but it did not file a defence. In a judgment of 8 March 1995 (which, in the absence of an appeal, became final), the Lisbon Court of First Instance granted the applicant company’s application on the ground that the product to which the registration referred, namely the beer known as “Budweiser Bier”, was not an appellation of origin or indication of source. The Court of First Instance noted that under the terms of the Lisbon Agreement of 31 October 1958 such protection was reserved to the geographical name of a country, region, or locality, which served to designate a product originating therein, the quality and characteristics of which were due exclusively or essentially to the geographical environment, including natural and human factors. “Budweiser” did not come within this category. The registration was therefore cancelled. 19. Following the cancellation of the appellation of origin, and despite the fact that Budějovický Budvar had challenged the application for registration under the opposition procedure, the NIIP registered the “Budweiser” trade mark in the applicant company’s name on 20 June 1995 in a decision that was published on 8 November 1995. 20. On 8 February 1996 Budějovický Budvar appealed to the Lisbon Court of First Instance against the NIIP’s decision on the strength of an agreement between the governments of the Portuguese Republic and the Czechoslovak Socialist Republic on the Protection of Indications of Source, Appellations of Origin and Other Geographical and Similar Designations (“the Bilateral Agreement”), which was signed in Lisbon on 10 January 1986 and which came into force on 7 March 1987, after publication in the Official Gazette. As required by law, the applicant company was invited by the court to take part in the proceedings as an interested party. In June 1996 it was served with the originating summons that had been lodged by Budějovický Budvar. 21. In a judgment of 18 July 1998, the Lisbon Court of First Instance dismissed the appeal. It found that the only intellectual property eligible for protection under Portuguese law and the Bilateral Agreement (which, according to the court was no longer in force, owing to the disappearance of one of the contracting parties, Czechoslovakia) was the “Českobudějovický Budvar” appellation of origin, not the “Budweiser” trade mark. In addition, it found that there was no risk of confusion between the appellation of origin and the applicant company’s trade mark, which the vast majority of consumers tended to think of as an American beer. 22. Budějovický Budvar appealed against that decision to the Lisbon Court of Appeal, alleging, inter alia, a breach of Article 189 § 1, sub-paragraphs (l) and (j), of the Code of Industrial Property. In a judgment of 21 October 1999, the Lisbon Court of Appeal overturned the impugned judgment and ordered the NIIP to refuse to register “Budweiser” as a trade mark. The Court of Appeal did not consider that there had been a breach of Article 189 § 1 (l) of the Code of Industrial Property, as the expression “Budweiser” was incapable of misleading the Portuguese public as to the origin of the beer concerned. However, it found that such a registration would infringe the Bilateral Agreement and, consequently, Article 189 § 1 (j) of the Code of Industrial Property. In that connection, it noted that the Bilateral Agreement had remained in force, following an exchange of notes between the Czech and Portuguese governments (see paragraph 25 below) and had been incorporated into domestic law by virtue of Article 8 of the Constitution, which contained a clause providing for international law to take effect in the Portuguese legal system. 23. The applicant company appealed on points of law to the Supreme Court alleging, inter alia, that the impugned decision contravened the Agreement of 15 April 1994 on the Trade-Related Aspects of Intellectual Property Rights (“the TRIPs Agreement”), which establishes the rule that registration confers priority, and in particular its Articles 2 and 24 § 5. The applicant company also alleged that, in any event, the protected appellation of origin “Českobudějovický Budvar” did not correspond to the German expression “Budweiser”, so that the Bilateral Agreement could not be used to challenge its application for registration. The applicant company argued that, even supposing that the German expression “Budweiser” was an accurate translation of the Czech appellation of origin, the Bilateral Agreement applied only to translations between Portuguese and Czech, not to translations into other languages. It submitted, lastly, that the Bilateral Agreement was unconstitutional owing to a formal defect in that it had been adopted by the government, not Parliament, in breach of Articles 161 and 165 of the Constitution governing parliamentary sovereignty. 24. The Supreme Court dismissed the appeal on points of law in a judgment of 23 January 2001, which came to the applicant company’s attention on 30 January 2001. With regard to the TRIPs Agreement, the Supreme Court began by noting that the provision on which the applicant company relied required it to have acted in good faith before going on to say that the applicant company had not referred in its application for registration to any factual information that demonstrated its good faith. In any event, the effect of Article 65 of the TRIPs Agreement was that it had not become binding under Portuguese law until 1 January 1996, that is to say after the entry into force of the 1986 Bilateral Agreement. The Supreme Court therefore found that the TRIPs Agreement could not take precedence over the Bilateral Agreement. As regards the interpretation of the Bilateral Agreement, the Supreme Court considered that the intention of the two contracting States in entering into it had incontestably been to protect through reciprocal arrangements their respective national products, including when translations of a name were used. The appellation of origin “Českobudějovický Budvar”, which became “Budweis” or “Budweiss” in German, indicated a product from the České Budějovice region in Bohemia. It was therefore protected by the Bilateral Agreement. Lastly, the procedure whereby the Agreement had been adopted did not contravene Articles 161 and 165 of the Constitution, since it did not concern a sphere for which Parliament had exclusive competence. 25. The Agreement between the governments of the Portuguese Republic and the Czechoslovak Socialist Republic on the Protection of Indications of Source, Appellations of Origin and Other Geographical and Similar Designations was signed in Lisbon in 1986 and came into force on 7 March 1987. In a note verbale dated 21 March 1994, the Czech Minister for Foreign Affairs indicated that the Czech Republic would succeed Czechoslovakia as a contracting party to the Agreement. The Portuguese Minister for Foreign Affairs agreed thereto on behalf of the Portuguese Republic in a note verbale dated 23 May 1994. 26. Article 5 of the 1986 Agreement provides, inter alia: “1. If a name or designation protected under this Agreement is used in commercial or industrial activities in breach of the provisions of this Agreement for products ... all judicial or administrative remedies available under the legislation of the Contracting State in which protection is sought to prevent unfair competition or the use of unlawful designations shall, by virtue of the Agreement, be deployed to restrain such use. 2. The provisions of this Article shall apply even when translations of the said names or designations are used ...” Appendix A to the Agreement lists the designations “Českobudějovické pivo” and “Českobudějovický Budvar” among the protected appellations of origin. 27. According to the applicant company, Czechoslovakia entered into similar agreements with two other member States of the Council of Europe, these being Austria and Switzerland. The agreement between Czechoslovakia and Switzerland was signed on 16 November 1973 and came into force on 14 January 1976. The agreement between Czechoslovakia and Austria was signed on 11 June 1976 and came into force on 26 February 1981. 28. The Paris Convention of 20 March 1883 for the Protection of Industrial Property, as subsequently revised on numerous occasions (the most recent being in Stockholm on 14 July 1967, United Nations Treaty Series 1972, vol. 828, pp. 305 et seq.), sets up a Union for the protection of industrial property, an expression that encompasses industrial designs, trade marks, appellations of origin and indications of source. The purpose of the Paris Convention is to prevent discrimination against non-nationals and it lays down a number of rules of a very general nature dealing with the procedural and substantive aspects of industrial property law. It enables owners of marks to obtain protection in various member States of the Union through a single registration. It also establishes the priority rule, which grants, for a set period, a right of priority to an application for protection of an intellectual property right in one of the Contracting States over applications lodged subsequently in another Contracting State. The system introduced by this convention is administered by the World Intellectual Property Organisation (WIPO) based in Geneva (Switzerland). 29. The following provisions of the Paris Convention are of relevance to the present case: “A. (1) Any person who has duly filed an application for ... the registration of ... an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed. (2) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority. (3) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application. B. Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, ... the use of the mark, and such acts cannot give rise to any third-party right or any right of personal possession. Rights acquired by third parties before the date of the first application that serves as the basis for the right of priority are reserved in accordance with the domestic legislation of each country of the Union C. (1) The periods of priority referred to above shall be ... six months for industrial designs and trademarks. ...” “(1) The countries of the Union undertake, ex officio if their legislation so permits, or at the request of an interested party, to refuse or to cancel the registration, and to prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods. These provisions shall also apply when the essential part of the mark constitutes a reproduction of any such well-known mark or an imitation liable to create confusion therewith. ...” 30. Portugal, Czechoslovakia (succeeded by the Czech Republic) and the United States of America were all Contracting Parties to the Paris Convention at the material time. 31. The Madrid Agreement of 1891 Concerning the International Registration of Marks and the Madrid Protocol of 27 June 1989 establish and govern a system for the international registration of marks that is administered by the International Bureau of the WIPO. The Madrid Agreement was revised in Brussels (1900), Washington (1911), The Hague (1925), London (1934), Nice (1957) and Stockholm (1967). The 1989 Madrid Protocol established the “Madrid Union” composed of the States Parties to the Madrid Agreement and the Contracting Parties to the Protocol. Portugal became a party to the Agreement on 31 October 1893. The United States has not ratified the Agreement. It ratified the Protocol on 2 November 2003. 32. The system set up by the Madrid Agreement is applicable to the members of the Madrid Union and affords owners of a mark a means of securing protection in various countries through a single application for registration in a national or regional registry. Under the system, the registration of an international mark has the same effect in the countries concerned as an application to register the mark or registration of the mark by the owner directly in each individual country. If the trade-mark registry of a member State does not refuse protection within a fixed period, the mark enjoys the same protection as if it had been registered directly by that registry. 33. The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration was signed in Lisbon on 31 October 1958, revised in Stockholm on 14 July 1967 and amended on 28 September 1979. It enables Contracting States to request other Contracting States to protect appellations of origin of certain products, if they are recognised and protected as such in the country of origin and registered at the International Bureau of the WIPO. Both Portugal and the Czech Republic, as a successor to Czechoslovakia, are parties to this Agreement. 34. The Agreement on Trade-Related Aspects of Intellectual Property Rights was concluded in the Uruguay Round of the negotiations that resulted in the signature in April 1994 of the World Trade Organisation (WTO) Agreements in Marrakesh, which came into effect on 1 January 1995. The aim of this Agreement is to integrate the system of intellectual-property protection into the system of world-trade regulation administered by the WTO. The member States of the WTO undertake to comply with the substantive provisions of the Paris Agreement. 35. The provisions of the TRIPs Agreement of relevance to the present case are as follows: “1. In respect of Parts II [Standards Concerning the Availability, Scope and Use of Intellectual Property Rights], III [Enforcement of Intellectual Property Rights] and IV [Acquisition and Maintenance of Intellectual Property Rights and Related Inter-Partes Procedures] of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967). ...” “1. The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Members making rights available on the basis of use. ...” “Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.” “Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either: (a) before the date of application of these provisions in that Member as defined in Part VI; or (b) before the geographical indication is protected in its country of origin; measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark ... on the basis that such a trademark is identical with, or similar to, a geographical indication.” “Subject to the provisions of paragraphs 2, 3 and 4 [which provide for longer periods], no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.” 36. European Union law contains various instruments designed to regulate and protect intellectual property, including trade marks. The instrument of most relevance to the present case is Council Regulation (EC) No. 40/941 of 20 December 1993 on the Community trade mark, which establishes a right to a Community trade mark and confers certain rights on applicants for registration. Its aim is to promote the development, expansion and proper functioning of the internal market by enabling Community undertakings to identify their products or services in a uniform manner throughout the Union. To that end, the Office of Harmonisation for the Internal Market (OHIM) has been established (for trade marks and designs – Article 2). It is based in Alicante (Spain). Applications for registration of a Community trade mark are sent to the OHIM, which decides whether to grant or reject them. An appeal lies against its decisions to the OHIM’s Board of Appeal, and from there to the Court of First Instance of the European Communities (Articles 57-63). 37. Article 24 of the Regulation, which is entitled “The application for a Community trade mark as an object of property”, lays down that the provisions relating to Community trade marks also apply to applications for registration. These provisions include Article 17 (Transfer), Article 19 (Rights in rem), Article 20 (Levy of execution) and Article 22 (Licensing). By virtue of Article 9 § 3, an application for registration may also found a claim for compensation. 38. Finally, Article 17 § 2 of the Charter of Fundamental Rights (Article II-77 of the draft Treaty establishing a Constitution for Europe, signed on 29 October 2004, but not yet in force), which guarantees the right to property, provides: “Intellectual property shall be protected.” 39. In accordance with the relevant international instruments, the legislation of most of the member States of the Council of Europe regards registration as a corollary to the acquisition of the right to the mark. However, the vast majority of the States also regard the application for registration of the mark as conferring certain rights. In most cases, once registered the mark is deemed to have been valid since the date the application for registration was filed (system of retrospective protection through registration). The date of filing also determines priority in the system of international marks. Lastly, in some countries, an application to register a mark may itself be the subject of provisional registration, while in others it may be the subject of an assignment, security assignment or licence and (provided the mark is subsequently registered) create an entitlement to compensation in the event of fraudulent use by a third party. 40. In most countries, registration is preceded by publication of notice of the application and a procedure whereby interested parties can oppose registration in adversarial proceedings. However, in some countries, registration is automatic if the competent authority is satisfied that the application satisfies the formal and substantive requirements. In both cases, in accordance with the applicable international rules, an action to have a mark revoked or declared invalid may be brought within a set period. Such actions may be based on grounds such as valid prior title, prior application, right to international priority or a failure to use the mark for a certain period. 41. The substantive and procedural law of industrial property at the material time was contained in two successive Codes of Industrial Property, the first introduced by Legislative-Decree no. 30679 of 24 August 1940 and the second by Legislative-Decree no. 16/95 of 24 January 1995. It was the latter Code which the domestic courts applied in the instant case. 42. The 1995 Code provided a right of priority identical to that set out in the Paris Convention (Article 170). Priority was determined by reference to the date the application for registration was filed (Article 11). By virtue of Articles 29 and 30, the application for registration itself could be the subject of an assignment, with or without consideration, or a licence. 43. The other provisions of the Code of relevance to the present case read as follows. “1. The certificate of registration shall be issued to the interested party one month after the time-limit for appealing has expired or, if an appeal has been lodged, once the final judicial decision has been delivered. 2. The certificate shall be issued to the holder or to his or her representative upon presentation of a receipt.” “An appeal against a decision of the National Institute of Industrial Property may be lodged by the applicant, a person who has filed an opposition or any other person who might be directly affected by the decision.” “Appeals must be lodged within three months after the date of publication of the decision in the Industrial Property Bulletin or, if earlier, the date a certified conformed copy of the decision is obtained.” “1. Registration shall also be refused of a mark ... containing one or all of the following: ... (j) expressions or forms that are contrary to morals, domestic or Community legislation, or public order; (l) signs liable to mislead the public, in particular as to the nature, quality, use or geographical source of the product or service to which the mark relates; ...” 44. Appeals against a decision by the NIIP to register a mark had to be lodged with the Lisbon Civil Court (Article 2 of Legislative-Decree no. 16/95). The Code did not indicate whether they had suspensive effect. 45. In a judgment of 10 May 2001 (Colectânea de Jurisprudência [Case-law collection], 2001, vol. III, p. 85), the Lisbon Court of Appeal held that the mere filing of an application for registration conferred on the applicant a “legal expectation” (expectativa jurídica) that justified the protection of the law. Article 5 of the new Code of Industrial Property, which was introduced by Legislative-Decree no. 36/2003 of 5 March 2003 and came into force on 1 July 2003, provides “provisional protection” of the mark even prior to registration and entitles the applicant to bring an action in damages on the basis thereof. | 0 |
train | 001-107539 | ENG | MLT | CHAMBER | 2,011 | CASE OF FRENDO RANDON AND OTHERS v. MALTA | 3 | Violation of Art. 6-1;Violation of P1-1;Just satisfaction - reserved | David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The applicants were born in 1926, 1969, 1925, 1923, 1926, 1937, 1938, 1949, 1953, 1946, 1973, 1975, 1949, 1950, 1953, 1951, 1955, 1957, 1946, 1941, 1944, 1944, 1945, 1946, 1950, 1960, 1955, 1931, 1923, 1926, 1940, 1941, 1943, 1944, 1946, 1925, 1955, 1954, 1930, 1958, 1959, 1954, 1979, 1982, 1987, 1953, 1929 and 1959 respectively. The first thirty-eight applicants live in Malta, the next eight applicants live in the United States of America, the penultimate applicant lives in Canada and the last applicant lives in the United Kingdom. 7. The applicants or their predecessors in title (hereinafter “the applicants”) owned four plots of land of varying sizes. The applicants were notified that their land had been made subject to two declarations by the Governor General dated 13 February 1969 and 20 February 1969, stating that the land would be expropriated for a public purpose. The intended public purpose was the building of the Malta Freeport. The said plots were numbered Plot 2 (16,544 sq.m), Plot 3 (405 sq.m), Plot 41 (6,841 sq.m) and Plot 53 (12,538 sq.m). 8. Following notices to treat of 21 February 1969 and 24 February 1969 respectively, the applicants were offered 3,225 Maltese liras ((MTL) - approximately 7,512 euros (EUR)) for Plot 2, MTL 973,40 (approximately EUR 2,267) for Plot 3, MTL 575 (approximately EUR 1, 340) for Plot 41, and MTL 1,127 (approximately EUR 2,625) for Plot 53. In March 1969 the applicants refused the above-mentioned offers in respect of Plots 2, 41 and 53 and submitted their counteroffers. According to the Government, the applicants accepted the offer in respect of Plot 3; however, the applicants contested this. Subsequently, the Commissioner of Lands (CoL) was required to institute proceedings before the Land Arbitration Board (LAB) (see “Relevant domestic law below”). Although no such proceedings ensued, the CoL gave possession of the four plots of land to the Malta Freeport Corporation. 9. The applicants unsuccessfully requested the CoL to initiate proceedings a number of times; however, the latter did not do so, insisting that he wanted further information in relation to the applicants’ ownership title. The law at the relevant time did not provide for a procedure which would allow the applicants to initiate proceedings for compensation. The initiation of compensation proceedings was an action which could be undertaken only by the authorities, and to which no time-limit applied. However, in the 1990s it had been confirmed that the ordinary courts had the competence, upon a request made by persons in a similar position to the applicants, to set a time-limit for the performance of that obligation, by virtue of Article 1078 of the Civil Code. 10. Thus, on 27 August 1996 the applicants lodged ordinary civil proceedings, requesting the court to order the CoL to initiate the necessary proceedings within an established time frame. 11. On 4 February 2000 the Civil Court upheld the applicants’ request, and ordered the CoL to initiate proceedings before the LAB within three months of that date. It noted that the relevant notices to treat had been issued to all the owners concerned who at the time were still alive. Moreover, it was incumbent on the CoL to establish the identity of the owners of the land and to ensure that they were notified and that the relevant proceedings were pursued properly. No appeal having been lodged, the judgment became final. 12. On 18 April 2000 the CoL instituted compensation proceedings in respect of only two of the plots of land in question (Plots 41 and 53). These proceedings are still pending, as they were suspended sine die, pending the outcome of the constitutional proceedings mentioned below. 13. Compensation proceedings in relation to Plots 2 and 3 had not been initiated by the time the applicants instituted constitutional redress proceedings. However, pending the constitutional proceedings, on 6 February 2003, a schedule of deposit was filed in court, in relation to Plot 2, consisting of MTL 3,225 (approximately EUR 7,512) covering the price of the land and MTL 3,288 (approximately EUR 7,659) as damages for the delay in payment. 14. By that date, only a portion of the four plots of land had been used, the remaining portion remaining unused but earmarked for future expansion. More precisely, most of Plot 2 is currently being developed as a stacking area for containers for the purposes of the Freeport, the remaining 500 sq. m forming part of an area of land conceded on lease by the Freeport Corporation to Medserv Ltd. Plot 3 (consisting of a farmhouse and adjacent rural structures) and Plot 41 are outside the Freeport zone, and are currently in their original state but may be earmarked for future expansion. Plot 53 is almost entirely within the Freeport zone and has been used for that purpose, including the building of roads, except for a piece of land measuring 600 sq.m, which is outside the Freeport zone and is currently in its original state but may be earmarked for future expansion. 15. In consequence, the applicants, who remain uncompensated to date, instituted two sets of constitutional proceedings. 16. In 2002 the applicants instituted proceedings in relation to the taking of Plots 41 and 53, complaining under Article 6 of the Convention of a lack of access to court; a lack of a fair hearing within a reasonable time (in respect of the thirty years before the proceedings started and in respect of the current pending proceedings before the LAB), before an independent and impartial tribunal, the latter in that they considered that the LAB’s constitution did not fulfil the said requirements. They further complained under Article 1 of Protocol No. 1 to the Convention about the lack of adequate compensation in relation to the taking; in particular, they noted that the law as it stood referred to values applicable at the time of taking. At the final stages of oral submissions they further argued that the taking had not been carried out in the public interest as it had been given to a commercial entity and that the unused land was to be returned according to the Cachia jurisprudence (see relevant domestic law and practice below). 17. On 20 October 2008, the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 6 § 1 of the Convention, in that the applicants had been denied access to court. Indeed, it was only the CoL who could institute proceedings according to domestic law. The fact that recently the law had been applied to allow the applicants to take up proceedings requesting a court to order the latter to act within a time-limit did not detract from the fact that it ultimately remained the duty of the CoL to take up these proceedings, and the affected individuals had no obligation to solicit such an action. Moreover, even in the event that ownership of land was at issue, it referred to the Civil Court’s earlier reasoning in this respect (see paragraph 11 above) and, moreover, considered that the CoL could have instituted proceedings by means of a curator. It awarded them EUR 100,000 by way of damages and dismissed the remainder of their claims. It held that the taking of the two plots of land which were being used for the Freeport had been in the public interest, the latter being an important economic venture for the country. The fact that it was later privatised did not take away the element of public interest, despite the fact that the deed of expropriation had not yet been finalised. Moreover, the one-tenth of the two plots which was outside the Freeport zone which had remained unused could have been used for future development. It failed to take cognisance of the complaint regarding compensation, holding that this had not yet been determined by the LAB. As to the complaint about the length of the proceedings, namely thirty years for the CoL to initiate proceedings, the court held that apart from the fact that this had been related to the previous complaint under Article 6, the provision referred to proceedings which had already begun and had taken an unreasonable time to be finally decided; therefore it was not applicable in the present case which was still pending. Lastly, since the law had been changed, the composition of the LAB clearly satisfied the Article 6 requirements. 18. On appeal, by a decision of 10 July 2009 the Constitutional Court reversed the said judgment in part. It confirmed that there had been a violation of Article 6 in so far as the applicants had been deprived of access to a court but only from the period starting on 30 April 1987, the date when Malta introduced the right of individual petition. It also considered that there had been a violation of the reasonable time principle between 30 April 1987 and 18 April 2000, the date when the compensation proceedings were initiated. It had regard however to the fact that the applicants were also to blame for not having taken up the civil remedy available to solicit the CoL earlier than they had done. Moreover, no proof had been supplied that the proceedings currently pending before the LAB were not satisfying the reasonable time requirement. 19. The Constitutional Court further found a violation of Article 1 of Protocol No. 1 to the Convention. Holding that the public interest had to persist from the date of the taking to the date of the conclusion of the act of expropriation, it considered that even the land which had remained unused had been taken for such a purpose, since the Freeport could reasonably expand to cover such land. Moreover, the privatisation of the Freeport did not detract from the public interest involved. The court further confirmed that it was not in a position to consider the amount of compensation which had yet to be decided by the LAB. However, the fact that the process of expropriation had taken decades had caused the applicants to suffer a disproportionate burden, constituting a violation of the applicants’ property rights. 20. The Constitutional Court reduced the amount of compensation to EUR 20,000, covering moral damage in relation to the said violations and confirmed the rejection of the remaining complaints. 21. In parallel, in 2002 the applicants instituted proceedings in relation to the taking of Plots 2 and 3, with identical complaints to those in case no. 17/2002 (see paragraph 16 above). 22. On 20 October 2008 the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 6 § 1 of the Convention, in that the applicants had been denied access to court, and rejected the remaining complaints on the same ground of the judgment in case no. 17/2002 (see paragraph 17 above). It added however that the present case was a more serious breach of the applicants’ right of access to court, as the CoL had failed to institute proceedings even after he was ordered to do so by a court. It thus awarded the applicants EUR 125,000 by way of damages. 23. On appeal, by a decision of 10 July 2009 the Constitutional Court reversed the said judgment in part. It held that the findings of the Constitutional Court in its judgment in case no. 17/2002, applied in the same way in this case, except for the fact that the violation of the reasonable time principle was in respect of the period from 30 April 1987 to the date of this judgment, since the CoL had not yet instituted the relevant proceedings. It awarded the applicants EUR 27,000 in moral damage. 24. Shortly before and during the constitutional proceedings certain developments took place. Domestic jurisprudence developed by means of the Cachia case (see “Relevant domestic law” below); and the Government announced the privatisation of the Freeport, by conceding it on a long-term lease (of thirty years at the price of one million United States dollars (USD) per year, to be augmented over the years to reach a maximum of USD 15,220,000 per year); the jurisprudence in the Cachia case was overturned; and, in 2002 the law was amended to provide a procedure for an individual to initiate compensation proceedings before the LAB in relation to new and recent expropriations. 25. At the hearing of 5 November 2009 the CoL informed the LAB of the outcome of the constitutional proceedings. However, neither the applicants nor their lawyers were present at that hearing; nor were they present at the subsequent five hearings. On 31 January 2011 the applicants requested an adjournment in order to regularise their position. 26. The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), in so far as relevant, reads as follows: Section 3 “The President of Malta may by declaration signed by him declare any land to be required for a public purpose.” Prior to the amendments introduced in 2002, the Land Acquisition (Public Purposes) Ordinance provided that: Section 12 (1) “...the competent authority shall give to the owner a notice ... by means of a judicial act, stating the amount of compensation, as shown in a valuation to be attached to the notice to treat.” Section 13(1) “The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ...” Section 22 “If the owner shall by a judicial act decline to accept the offer made by the competent authority, the matter shall be brought before the Board by an application to be made by the competent authority, and the Board shall give all necessary orders or directions in accordance with the provisions of this Ordinance.” 27. Article 1078 (b) of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows: “Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed: (b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to circumstances.” 28. In Pawlu Cachia vs Avukat Generali u l-Kummissarju ta l-Artijiet (Rikors Nru 586/97, 28/12/2001) the Constitutional Court held, after giving an overview of the applicable principles under Article 1 of Protocol No.1 to the Convention, that whenever the process by which an individual is divested of his property is not concluded, the interference therefore remains one of control of use, the State has the obligation to release the property to its rightful owners as soon as it transpires that there no longer exist grounds on which the State had originally, validly and justifiably taken the measure by which the owner’s use was restricted. It was for the Government to prove that both at the time of the Governor’s declaration and throughout the proceedings until the transfer of the property concluding the expropriation there existed a public interest for the taking of the property. 29. In this case the evidence revealed that for at least four years the competent authorities had actively considered releasing the property to its rightful owners, as it was no longer needed for the purposes for which it had originally been taken. Moreover, decades had passed since the date of the declaration and the present application, and thus the lack of public interest was evident. The Constitutional Court noted that a general interest had indeed existed at the time of the declaration. However, it subsequently emerged that Mr C.’s property would not have been used for that purpose and therefore the Government should have returned the said property. Failure to comply with this latter obligation amounted to a breach of the applicants’ property rights under the Convention. | 1 |
train | 001-58194 | ENG | ITA | CHAMBER | 1,998 | CASE OF BRONDA v. ITALY | 3 | No violation of Art. 8;Not necessary to examine Art. 13 | C. Russo;N. Valticos | 9. The applicants – Mr Bronda and his wife Mrs Bronda Kaiser – live at Sanremo. In 1984 their daughter, S.B., her common-law husband and their granddaughter, S., born in 1984, moved in to live with them. In 1985 S.'s father moved to Rome. 10. In a note of 30 September 1987, Sanremo Social Services Department informed the relevant authorities that one of the applicants and certain neighbours had told them that S.B. was neglecting her parental duties towards S. Thereafter, S.B.'s interviews with the Social Services Department became tense and her relations with the social workers began to deteriorate. Accordingly, State Counsel attached to the Genoa District Court requested the Youth Court to commence proceedings with a view to determine whether S. should be removed from her mother’s care. 11. On 29 October 1987 the Genoa Youth Court (“the Youth Court”) made a care order in respect of S. (affidamento al commune); parental rights were assigned to the local authority, Sanremo District Council. Although that decision was declared to be immediately enforceable, it was not in fact enforced as the Social Services Department feared the mother might overreact. 12. On 4 December 1987 S.B. applied to the Youth Court for the care order to be set aside. Three medical reports confirmed that S.B. was mentally fit to assume her parental responsibility. 13. On 10 February 1988 the Youth Court set aside the care order on condition that S.B. remained in regular contact with the social workers. On 23 March 1988, as S.B. had failed to attend interviews with the Social Services Department, she was questioned by the guardianship judge, who subsequently sent the papers to State Counsel for his opinion as to whether a fresh care order should be made and the child placed for adoption. On 25 March 1988 State Counsel’s Office advised against that course of action. 14. Nevertheless, on 6 April 1988 the Youth Court made a second care order and requested a psychiatric report on S.B. In her report, filed on 25 January 1989, the psychiatrist stated that, although S.B. had certain psychological problems, she was fit to assume her parental responsibilities. 15. On 16 September 1989 the social services took S. away from her mother, who was then admitted to hospital where she received psychiatric care for five days. S. was placed in a children's home. On 2 November 1989 S.B. requested the Youth Court to set aside the second care order. On 21 February 1990 the court refused to set the care order aside and ordered a further psychiatric report on S.B. On 13 April 1990 S.B. removed S. from the children's home and took her into hiding. Attempts to find her were unsuccessful. On 2 July 1990 the psychiatrist stated that S.B. was unfit to assume her parental responsibility and had jeopardised S.'s future emotional development. 16. On 30 August 1990 the Youth Court commenced proceedings with a view to placing S. for adoption. 17. On 1 October 1990 S.B. and S. were found in Sanremo. S. was taken back to the children's home. On 9 October 1990 the President of the Youth Court heard evidence from the applicants and S.B. On 12 November 1990 State Counsel’s Office recommended placing S. for adoption. 18. In a decision of 22 November 1990 the Youth Court ruled that S. was available for adoption (stato di adottabilità) under section 8 of Law no. 184/1983. S. was placed with a family in Tuscany. S.B. and the applicants applied on 21 January 1991 for an order setting aside that decision; S.’s father did likewise on 7 March 1991. 19. On 13 March 1991 the guardianship judge ordered a medical and psychological report on S. In his report filed on 10 October 1991, the psychiatrist stated that S.'s father had lost all interest in her, that her mother was suffering from a very serious mental illness and that, consequently, S.'s family environment was detrimental to her emotional and psychological development. S. had therefore been abandoned, which was the statutory precondition for declaring a child available for adoption. 20. On 19 December 1991 the Youth Court dismissed the applications. 21. On 17 March 1992 S.B. and the applicants, who denied that S. had been abandoned, appealed to the Genoa Court of Appeal. In a judgment of 8 June 1992, the Court of Appeal found that S. had never been abandoned in the sense of her mother failing to provide her with emotional and material support. It set aside the judgment of the Youth Court, annulled the declaration that S. was available for adoption and ordered the Youth Court to arrange for S. to be returned to her natural family. The judgment was immediately enforceable. However, no contact was authorised between S. and her mother or grandparents. 22. Under the procedure laid down by Article 333 of the Civil Code (see paragraph 41 below), the Youth Court instructed a psychiatrist to prepare a report on S.'s family environment and to prepare those concerned for her possible return to her natural family. 23. On 5 October 1992 S.'s guardian ad litem appealed on points of law against the Court of Appeal's judgment. 24. In a decision of 21 December 1992, deposited in the court registry on 22 December and served on the applicants and S.B. on 23 December, the Youth Court prohibited any contact, even by telephone, between S. and her natural family, in order to allow the expert to prepare his report without interference. 25. On 17 February 1993 the expert filed his report; he said that the applicants' family was not yet fit to provide a home for S. and that, moreover, S. had panicked at the idea of leaving her foster parents. The expert concluded, inter alia, that the following factors made it impossible for him to bring S. and her family together: (a) S.'s mental and psychological state; having fully adapted to her foster parents, she dreaded the prospect of leaving them; (b) her mother's mental health; she would have been unable to deal adequately with S.'s return and ensure her normal emotional and intellectual development; (c) the lack of any relationship between S.'s parents; and (d) the applicants' conflictual family environment. 26. On 16 March 1993 S.'s guardian ad litem made an application under Article 373 of the Code of Civil Procedure (see paragraph 43 below) to the Genoa Court of Appeal for a stay of execution of the judgment of 8 June 1992 until the appeal on points of law to the Court of Cassation had been heard. He submitted in particular, on the basis of the psychiatric report, that returning S. to her natural family would put her at risk and cause her permanent harm. 27. At a hearing on 5 April 1993 evidence was heard from the parties and the psychiatric experts. The applicants and S.B., relying on their own psychiatric report which stated that it was in S.'s interests for her to return to her natural family, opposed the application for a stay. 28. On 19 April 1993 the Court of Appeal ordered a stay. It based its decision on the psychiatric report of 17 February 1993. The Court of Appeal considered that the outcome of the appeal to the Court of Cassation was unpredictable and concluded that postponing S.'s return to her mother and grandparents – even if delay was always undesirable “given the effects of and hopes raised by the passage of time, which further complicate the homecoming” – would be less detrimental to S. than the irreversible effects of returning her to her natural family immediately, only for her to be taken into care again shortly afterwards. 29. In a judgment of 22 March 1994, deposited in the court registry on 6 October 1994, the Court of Cassation dismissed the appeal. 30. The Youth Court, which had been instructed by the Court of Appeal to arrange for S. to be returned to her family (see paragraphs 21 and 22 above), summoned S.B., S.'s father and the applicants, in accordance with the procedure laid down in Article 333 of the Civil Code, to appear before the guardianship judge on 2 March 1995. It ordered a psychiatric report as requested by State Counsel's Office; S. remained with her foster parents. 31. The expert took the oath on 26 April 1995. He then interviewed S.B. twice and arranged a meeting between S.B. and the psychologist from the Social Services Department. The Youth Court also asked the police for information about S.'s father; two reports were filed, on 27 March and 8 May 1995. In the meantime, the Social Services Department organised three meetings between S. and her natural family, on 21 April, 23 May and 12 June 1995 respectively. At each meeting, S. told her natural relatives that she did not want to return to them. During the meetings, S. appeared frightened and anxious and asked to leave before the appointed time. 32. The expert filed his report on an unspecified date. His view was that it would be dangerous for S. and her mother for S. to return to her natural family since the mother was suffering from a very serious “psycho-dissociative” illness. He recommended that S. should remain with her foster parents at least until her fourteenth birthday, while continuing to have contact with her mother. 33. On 11 August 1995 the Youth Court held that S. was sufficiently mature for her wishes to be taken into account and that she should not therefore be returned to her natural family against her will. Accordingly, the court awarded care of S. to her foster parents under Article 333 of the Civil Code and granted the parents access once every three months. The decision was lodged with the registry on 11 September 1995. 34. On 19 September 1995 S.'s parents and the applicants lodged a complaint (reclamo) against that decision with the Genoa Court of Appeal. In its decision of 19 October 1995, which was lodged with the registry on 1 December, the Court of Appeal upheld the complaint in part and ordered that monthly meetings be organised under the supervision of the Youth Court, three at the offices of the social services followed by a fourth at the grandparents’ home. 35. On 17 September 1997, having noted that the first three meetings had been attended only by S.’s father and grandparents and in the light of the report of the social services and in particular their finding that the father’s conduct was aggressive and that S. was afraid, the Youth Court held that she should remain with the foster parents. It ordered that there should be no more contact between S. and her parents and allowed the grandfather three access visits a year. The applicants appealed against that decision to the Court of Appeal, which on 13 October 1997 set the case down for hearing on 7 May 1998. At the date of adoption of this judgment the Court has no information on the outcome of that hearing. 36. Under Article 30 of the Italian Constitution “Parents have a duty and a right to maintain, educate and bring up their children, even those born out of wedlock. Where the parents are incapable of performing these duties and exercising these rights, the legislature shall make appropriate provision...” 37. Law no. 184 of 4 May 1983 completely revised Italian adoption law. “... a minor has a right to be brought up by his own family.” “... a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family, if possible with other minor children, or with a single person, or with a family-type community, for the purposes of providing him with support, an upbringing and an education. If it is not possible to provide him with a satisfactory family environment, a minor may be placed in a public or private children’s home, preferably in the area in which he has been living.” Section 7 provides that minors who have been declared available for adoption may be adopted. It also lays down that minors aged fourteen or over cannot be adopted unless they have given their consent, even if their fourteenth birthday falls during the course of the proceedings. Minors aged twelve or over must be heard in person. Minors aged under twelve may be heard if it appears appropriate and there is no danger of them thereby being harmed. “... the Youth Court may, even of its own motion, declare ... a minor available for adoption if he has been abandoned in the sense of being deprived of all emotional or material support from the parents or the members of his family responsible for providing such support (other than in temporary cases of force majeure). A minor shall continue to be considered abandoned ... even if he is in a children’s home or has been placed in a foster home.” Section 8 provides that a case of force majeure shall be deemed to have ceased where the parents or other members of the minor's family responsible for providing support refuse assistance from the authorities and the court considers their refusal unjustified. The fact that a minor has been abandoned may be reported to the authorities by any member of the public or noted by a court of its own motion. Furthermore, any public official and any member of the minor's family who is aware that a child has been abandoned must report the situation to the authorities. Any failing by the family in this regard may entail loss of parental responsibility. Children’s homes must keep the judicial authorities regularly informed of the situation of minors whom they take into their care (section 9). Section 10 provides that, pending a minor's placement in a foster home before adoption, the court may order any temporary measure which is in the minor's interests, including, if necessary, the suspension of parental rights. Sections 11 to 14 provide that enquiries shall be made so as to clarify the minor's situation and determine whether he has been abandoned. In particular, under section 12 the President of the Youth Court or a delegated judge may, if he considers it appropriate, order the parents to take measures to provide the minor with emotional support, maintenance, an education and an upbringing and at the same time require regular checks – with the assistance, if necessary, of the guardianship judge or the local social services – to ensure that the measures are taken. 38. If, at the end of the procedure provided for in the above sections, the minor is still abandoned within the meaning of section 8, the Youth Court shall declare him available for adoption if: (a) the parents or other members of the family have not appeared in the course of the proceedings; (b) it is clear from interviews with them that they are still failing to provide the child with emotional and material support and are unable or unwilling to remedy the situation; and (c) measures ordered under section 12 have not been implemented through the parents' fault (section 15). 39. Section 15 also provides that a declaration that a minor is available for adoption shall be made in a reasoned decision of the Youth Court sitting in chambers, after it has heard State Counsel, the representative of the children’s home in which the minor has been placed or any foster parent, the guardian, and the minor if aged over twelve or, if under twelve, where necessary. Under section 19 parental responsibility is suspended while a minor is available for adoption. Lastly, section 20 provides that a minor shall no longer be available for adoption once he has been adopted or has come of age. Moreover, a declaration that a child is available for adoption may be annulled, either by the court of its own motion or at the request of the parents or State Counsel’s Office, if the conditions laid down in section 8 have in the meantime ceased to apply. However, if the minor has been placed with a family with a view to adoption (affidamento preadottivo) within the meaning of sections 22–24, the declaration that he is available for adoption cannot be annulled. 40. Under the Court of Cassation’s case-law, a child has been abandoned if the parents have been shown to be incapable of ensuring its normal mental and physical development (judgment no. 2099/1989). The Court of Cassation has also held that the fact that a child’s upbringing is less than perfect or that his relationship with his parents can be criticised on account of the latter’s cultural or intellectual shortcomings or personality defects will not necessarily result in the child being declared available for adoption, unless such shortcomings or defects are likely to jeopardise the child's mental development irremediably (judgment no. 3369/1990). The Court of Cassation has also held that a parent does not have to have lost all interest in the child: it suffices that the behaviour of a parent living with the child seriously and irremediably jeopardises its mental and physical development (judgment no. 3526/1989). A child may therefore be held to have been abandoned even where it is living with its parents (judgment no. 5491/1982), as sometimes the mere presence of a parent may be detrimental to a minor's balanced mental and physical development (judgment no. 7427/1986). The parent does not have to be guilty of wilfully neglecting or harming the minor's interests to have abandoned it. Abandonment is an objective state of affairs and the declaration that a child is available for adoption flows from a decision which is not necessarily intended to penalise the parent (judgment no. 7486/1987). 41. Article 333 of the Civil Code also provides that where the conduct of one or both parents is not sufficiently serious to justify forfeiting their parental rights, but is nonetheless detrimental to the child, the court may take any appropriate decision and even order the child’s removal from its home. 42. The Court of Cassation said in its judgment no. 2641/1982 that even if a declaration that a child is available for adoption is set aside on an application by the parents, the court must not automatically order the child’s return to its family, but must verify whether, in the meantime, the child has adapted and become attached to its foster home and considers it as its own, and whether, consequently, it would be detrimental to the child's equilibrium, physical and mental health, upbringing and future to return it to its natural family. 43. Under Article 373 of the Code of Civil Procedure, where enforcement of a judgment may cause serious and irreparable harm, the court which delivered the judgment in question may stay its execution until an appeal on points of law to the Court of Cassation has been heard. | 0 |
train | 001-58197 | ENG | TUR | GRANDCHAMBER | 1,998 | CASE OF INCAL v. TURKEY | 1 | Violation of Art. 10;Violation of Art. 6-1 (independent and impartial tribunal);Not necessary to examine other complaint under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | John Freeland;N. Valticos | 9. Mr İbrahim Incal, a Turkish national born in 1953, lives in İzmir. A lawyer by profession, he was at the material time a member of the executive committee of the İzmir section of the People’s Labour Party (“the HEP”). That party, which was represented in the National Assembly, was dissolved by the Constitutional Court on 14 July 1993. 10. On 1 July 1992 the executive committee decided to distribute in the İzmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city. The title of the leaflet, of which ten thousand copies were printed, was “To all democratic patriots!”, and the text read as follows: “In the last few days a campaign aimed at ‘DRIVING THE KURDS OUT OF THE CITIES’ has been launched in İzmir against the Kurdish population by a combination of prefecture, security police and town hall. In this campaign İzmir has been designated a pilot-city. The first stage was the operation [against] street traders, stallkeepers and mussel sellers, whom they tried to hide away on the ground that it was necessary to smarten up the city and ease traffic congestion. The purpose of this operation was to impose an ‘economic blockade’ on our, mainly Kurdish, fellow citizens who make their living through these activities, condemning them to destitution and starvation. In this way the masses were to be frightened, oppressed and compelled to return to their province of origin. Before the ‘DRIVING THE KURDS OUT’ campaign began the organisational and psychological ground had already been prepared by leaflets signed by ‘Patriotic inhabitants of İzmir’ and handed out in large numbers for weeks by ‘obscure forces’. These leaflets incited hostility against the Kurdish population in particular and stirred up anti-Kurdish feelings. This led to racist and chauvinistic anti-Kurdish attitudes through propaganda saying: ‘Don’t give employment or housing to the Kurds. Don’t speak to them, don’t let your daughters marry them and don’t marry one yourself. Smash the Kurds.’ That is how the psychological foundations were laid down, the preparations for the future offensives. Although these leaflets were handed out in broad daylight, those responsible – and nobody knows why – were never arrested. But the campaign was by no means limited to the operation against street traders, stallkeepers and mussel sellers. The second prong was ‘Operation shantytown’. The same combination of prefecture, security police and town hall launched the demolition of the squatters’ camps. It began in Yamanlar and Şemikler and continued in Gaziemir, [all] shantytown districts inhabited mainly by Kurds, who, before the elections, were regarded by the parties in favour of the status quo as a source of votes. Those who had encouraged the mushrooming of the shantytowns by dishonestly promising freedom to build in exchange for votes and those who, with the local mafia, had appropriated public land this time set about the ferocious destruction of these huts to oppress and intimidate the Kurds and force them to go back home. The Kurdish and Turkish proletarian people suddenly and without any warning saw the huts they had run into debt to build, with so many sacrifices made by cutting down on their children’s food, collapsing about their ears. That is how they are trying to oppress the Kurdish and Turkish people and drive them into distress and despair. IT’S STATE TERROR AGAINST TURKISH AND KURDISH PROLETARIANS! It is certain that these demolitions, which began in Yamanlar and are still continuing in Gaziemir, will soon spread to İzmir’s other shantytowns. The State is testing the people’s reactions and will to resist by causing various kinds of destruction. Passivity as a form of defence against this devastation has encouraged the State to commit further kinds of destruction. In conclusion: The ‘Driving-the-Kurds-Out policy’ forms part of the SPECIAL WAR being conducted in the country at present against the Kurdish people. It is one of the mechanisms of that war, the way it impinges on the cities. Because the methods used are the same, namely enslavement, violence, terror and oppression through compulsion. It is a psychological war. While, in the country, they are trying to oppress and silence the people through counter-insurgency tactics, special patrols, village guards, the SS decree and every [other] form of State terror, in İzmir they want to achieve the same aim by depriving our fellow citizens of their means of subsistence and in the end by knocking their houses down about their ears. The methods used, although different in form, are in the final analysis mechanisms serving the purposes of the special war. It is the urban form of the special war. TO ALL DEMOCRATIC PATRIOTS! The way to nullify these insults to the cities is to set up NEIGHBOURHOOD COMMITTEES BASED ON THE PEOPLE’S OWN STRENGTH. We call on all Kurdish and Turkish democratic patriots to assume their responsibilities and oppose this special war being waged against the proletarian people. LONG LIVE THE BROTHERHOOD OF NATIONS! STOP THE SPECIAL WAR BEING SPREAD INTO THE CITIES!” 11. By a letter of 2 July 1992, accompanied by a copy of the leaflet in question, the president of the HEP informed the İzmir prefecture of the executive committee’s decision (see paragraph 10 above) and asked for permission to implement it. 12. The İzmir security police, to whom this request had been referred, considered that the leaflet contained separatist propaganda capable of inciting the people to resist the government and commit criminal offences. On 3 July 1992 they asked the Principal Public Prosecutor attached to the İzmir National Security Court (“the public prosecutor”, “the National Security Court”) to state his opinion as to whether the contents of the leaflet contravened the law. 13. On the same day, at the request of the public prosecutor’s office, a substitute judge of the National Security Court issued an injunction ordering the seizure of the leaflets and prohibiting their distribution. The police searched the HEP’s premises in İzmir, first at the headquarters, where the party leaders handed over, without demur, nine thousand copies of the leaflet which were still parcelled up, and then at the Buca district office, where the thousand remaining copies were seized. 14. Still on 3 July 1992 the public prosecutor’s office opened a criminal investigation against the HEP’s local leaders and the members of its executive committee, including the applicant. 15. On 27 July 1992 the public prosecutor instituted criminal proceedings in the National Security Court against the applicant and the other eight members of the HEP committee who had taken part in the decision of 1 July 1992 (see paragraph 10 above). Citing the text of the leaflet, he accused them of attempting to incite hatred and hostility through racist words and asked the court to apply Articles 312 §§ 2 and 3 of the Criminal Code, section 5 of the Prevention of Terrorism Act (Law no. 3713) and additional section 4 of the Press Act (Law no. 5680) (see paragraphs 21, 23 and 24 below). He also asked the court to order confiscation of the leaflets. 16. On 9 February 1993 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty of the offences charged and sentenced him to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras. It also ordered the confiscation of the leaflets and disqualified him from driving for fifteen days. In its interpretation of the wording of the leaflet, the National Security Court accepted the public prosecutor’s oral submissions entirely, except for that part which related to the applicability of the Prevention of Terrorism Act (Law no. 3713). It noted in particular that the leaflet suggested recourse to resistance against the police and the establishment of “neighbourhood committees”, which it held to be illegal forms of protest. It further held that the offence had been intentionally committed, since the accused had not contested either the existence or wording of the text on which the charge was based. With regard to the severity of the sentence, it observed that although commission of the offence through the medium of print was an aggravating circumstance, it was necessary to take into account the accused’s good faith and the fact that the authorities had been able to lay hands on the leaflets before they had been distributed. 17. On 9 March 1993 the applicant and the other convicted persons appealed to the Court of Cassation. In their notice of appeal they asked for a public hearing to be held and challenged the National Security Court’s interpretation of the leaflet and its refusal to commute the prison sentence to a fine. 18. On 20 May the Principal Public Prosecutor attached to the Court of Cassation forwarded the case file together with an opinion couched in a standard form of words – which was not communicated to Mr Incal – asking the court to uphold the judgment. 19. In a judgment of 6 July 1993 the Court of Cassation upheld all the operative provisions of the impugned judgment, after observing that, regard being had to the nature and length of the sentence imposed at first instance, it was not necessary to hold a hearing. 20. On 23 August 1993 the prosecuting authorities decided, at the applicant’s request, to stay execution of the prison sentence for four months. 21. The relevant provisions of the Criminal Code read as follows: “Public incitement to commit an offence Where the incitement [to commit an offence] is done by means of mass communication, of whatever type, by tape recordings, gramophone records, newspapers, press publications or other published material, by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled…” “Non-public incitement to commit an offence Whosoever expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall be sentenced to between six months’ and two years’ imprisonment and a … fine of between six thousand and thirty thousand liras. Whosoever expressly arouses hatred and hostility in society on the basis of a distinction between social classes, races or religions, or one based on allegiance to a particular denomination or region, shall be sentenced to between one and three years’ imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement is done in a manner likely to endanger public safety, the sentence shall be increased [by one third to one half]. The penalties to be imposed on those who have committed the above-mentioned offences by the means listed in Article 311 § 2 shall be doubled.” 22. A conviction under Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that section may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)). In addition, if the sentence imposed exceeds six months’ imprisonment, the convicted person is debarred from entering the civil service, provided that the offence has been committed intentionally (Law no. 657, section 48(5)). 23. Additional section 4(1) of the Press Act (Law no. 5680) provides: “Where distribution [of the printed matter whose distribution constitutes the offence] is prevented … by a court injunction or, in an emergency, by order of the Principal Public Prosecutor, to be confirmed by a court, … the penalty imposed shall be one-third of that laid down by law for the offence concerned.” 24. Law no. 3713 of 12 April 1991, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies. However, the act punishable pursuant to Article 312 of the Criminal Code (see paragraph 21 above) is not among them. 25. Article 318 of the Code of Criminal Procedure provides for the holding of a public hearing in proceedings before the Court of Cassation only where the impugned judgment concerns offences classified as “serious”, such as those punishable by the death penalty or a term of imprisonment of more than ten years. The Court of Cassation’s jurisdiction, according to Article 307 of the Code, is limited to questions concerning the lawfulness and procedural regularity of the first-instance judgment. 26. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That Law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage: “There may be acts affecting the existence and stability of a State such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to [give judgment on] a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have [thus] been enacted in advance and that the courts have been created before the commission of any offence …, they may not be described as courts set up to deal with this or that offence after the commission of such an offence.” The composition and functioning of the National Security Courts are subject to the following rules. 27. The constitutional provisions governing judicial organisation are worded as follows: “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 office or compelled to retire without their consent before the age prescribed by the Constitution…” “Presidents, regular members and substitute judges of the National Security Courts shall be appointed for a renewable period of four years.” “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...” 28. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows: “In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic – whose constituent qualities are enunciated in the Constitution – against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.” “The National Security Courts shall be composed of a president and two other regular members. In addition, there shall sit at each National Security Court two substitute members.” “The president of a National Security Court, one of the other regular members and one of the substitutes shall be civilian … judges, the other members, whether full or substitute, military judges of the first rank…” “The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the special legislation [concerning those posts]. Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years… … If, after an investigation concerning the presidents and regular or substitute members of the National Security Courts conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of a military judge, the duty station of that judge or his duties [themselves] … may be changed in accordance with the procedure laid down in that legislation.” “The National Security Courts shall try persons accused of the offences defined in (a) [Article] 312 § 2 … of the Turkish Criminal Code…” “The Court of Cassation shall hear appeals from the judgments of the National Security Courts.” “The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences … they may commit in the performance of their duties shall be as laid down in the relevant provisions of the laws governing their professions… The observations of the Court of Cassation and the assessment reports drawn up by Ministry of Justice assessors on judges of the Military Legal Service … and the files on any investigations conducted against them … shall be transmitted to the Ministry of Justice.” “A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…” 29. The relevant provisions of the Military Legal Service Act are worded as follows: “The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Act and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The immediate superior competent to carry out assessment and draw up assessment reports for military judges, whether full or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence. …” “Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and legal advisor of the General Staff, the personnel director and legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…” “Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces… … The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the immediate superiors…” “The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.” “The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions: A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties. … B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy. … The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…” “When military judges … sit in court they shall wear the special dress of their civilian counterparts…” 30. Article 112 of the Military Criminal Code of 22 May 1930 provides: “It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a [public] official in order to influence the military courts.” 31. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their promotion and professional advancement. 32. The Government produced several judgments of the First Division of the Supreme Military Administrative Court setting aside decisions concerning the appointment and promotion of military judges or disciplinary sanctions applied to them. These were the judgments of 31 May 1988 (no. 1988/185), 14 December 1993 (no. 1993/1116), 22 December 1993 (no. 1993/1119), 19 November 1996 (no. 1996/950), 1 April 1997 (no. 1997/262), 27 May 1997 (no. 1997/405) and 3 July 1997 (no. 1997/62). It appears from these judgments that in setting aside the transfer decisions concerned, the First Division gave as its grounds either lack of consent on the part of the person concerned or abuse of the military authorities’ discretionary power. In connection with assessment reports, failure to state reasons or a lack of objectivity on the part of the immediate superior was taken into account. Lastly, in connection with a disciplinary sanction, against which in principle no appeal lies, the First Division held that the acts of which the person concerned stood accused had been incorrectly established and that the sanction was accordingly null and void. 33. The Government also submitted a number of judgments rendered by National Security Courts relevant to the impartiality of military judges sitting as members of such courts. These were the judgments of 12 September 1995 (no. 1995/171), 27 February 1996 (no. 1996/38), 7 March 1996 (no. 1996/55), 21 March 1996 (no. 1996/70), 2 April 1996 (no. 1996/102), 9 April 1996 (no. 1996/112), 2 May 1996 (no. 1996/141), 9 May 1996 (no. 1996/150), 19 August 1996 (no. 1996/250), 12 September 1996 (no. 1996/258), 19 September 1996 (no. 1996/263), 1 October 1996 (no. 1996/270), 3 October 1996 (no. 1996/273), 8 October 1996 (no. 1996/278), 12 June 1997 (no. 1997/128) and 15 July 1997 (no. 1997/393). Most of these decisions declared the accused guilty but also contained separate opinions by military judges adopting a dissenting opinion with regard to the establishment and classification of the facts, the way sentence was determined or the finding of guilt itself. | 1 |
train | 001-60717 | ENG | POL | CHAMBER | 2,002 | CASE OF LISIAK v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 9. The applicant was born in 1968 and lives in Bielsko-Biała. 10. On 10 August 1991 the applicant was arrested by the police on suspicion of having committed homicide. On 12 August 1991 the Bielsko-Biała District Prosecutor (Prokurator Rejonowy) charged the applicant with homicide and uttering threats, and detained him on remand. 11. On 30 April 1992 the Bielsko-Biała Regional Prosecutor lodged a bill of indictment with the Bielsko-Biała Regional Court (Sąd Rejonowy). The applicant was indicted on the charges of homicide and uttering threats. 12. The trial began on 16 June 1992. 13. On 14 October 1992 Court quashed the order for the applicant’s detention and released him. The Regional Prosecutor appealed. The Katowice Court of Appeal dismissed the appeal on 4 November 1992. It held that a “reasonable suspicion” that the applicant had committed the offences with which he had been charged was no longer justified because S.U., the witness who had incriminated him in the investigation, had fundamentally changed his original testimony. 14. Between 16 June 1992 and 1 May 1993 the trial court held fourteen hearings. It heard evidence from twenty lay witnesses and one expert witness. 15. Between 4 May 1993 and 25 May 1994 the Bielsko-Biała Regional Court held ten hearings and heard evidence from forty-one witnesses and two experts. It needed to rehear evidence from some witnesses several times. 16. On 25 May 1994 the court acquitted the applicant on all charges. On 12 October 1994 the Bielsko-Biała Regional Prosecutor appealed against the acquittal. 17. The appeal was heard before the Katowice Court of Appeal on 9 March 1995. The court quashed the contested judgment and remitted the case to the Bielsko-Biała Regional Prosecutor, holding that a further investigation should be carried out. In particular, the Court of Appeal ordered the prosecutor to reconstruct the scene of the crime and to obtain evidence from experts in psychology. It considered that in order to assess the credibility of evidence given by S.U., the main prosecution witness, it was necessary to diagnose his personality and establish his perception skills. 18. On 12 May 1995 the Bielsko-Biała Regional Prosecutor asked the Institute of Forensic Experts (Instytut Ekspertyz Sądowych) in Cracow to prepare a comprehensive report on S.U.’s psychological profile. Furthermore, since in the course of the original investigation the prosecution had already obtained two, albeit inconsistent, reports from psychologists, the prosecutor also adduced copies of those reports and asked experts from the Institute to resolve contradictions. 19. The experts set the dates of the examination for 19 December 1995 and for 12 February 1996 respectively. However, S.U. did not keep his appointment for the examination on either of these dates. Eventually, he appeared before the experts on 9 May 1996 and was examined by them on that day. Their report was ready on 6 September 1996. 20. On 30 December 1996 the Bielsko-Biała Regional Prosecutor lodged a new bill of indictment with the Bielsko-Biała Regional Court. The applicant was again indicted on the charges of homicide and uttering threats. 21. On 27 March 1997 the trial court remitted the case to the Bielsko-Biała Regional Prosecutor, holding that the prosecution had not complied with the orders given by the Katowice Court of Appeal on 9 March 1995. They had not, among other things, reconstructed the scene of the crime. 22. On 30 April 1997 the Bielsko-Biała Regional Prosecutor indicted the applicant on the same charges for the third time. 23. The retrial started on 4 September 1997. The subsequent hearings were held on 4 November 1997, 6 January and 8 April 1998. On 12 February 1998 the court cancelled a hearing because the applicant was ill. 24. On 9 June 1998 the trial was adjourned since a new judge rapporteur had in the meantime been appointed and needed to study the case-file. 25. The trial was to be resumed on 26 March 1999 but it was again postponed. The applicant was absent at that hearing. He was also absent at the hearing listed for 7 May 1999. The applicant’s lawyer informed the court that he had left for Greece in search of odd jobs and that he would be absent for some four months. In fact, the applicant returned after three weeks. Also, at that time, the court found that the witness S.U. had left his place of residence without indicating his new address and that his whereabouts were unknown. In the circumstances, the court stayed the proceedings. 26. On 7 November 2000, at the applicant’s request, the proceedings were resumed. In 2001 the Regional Court held three hearings. They took place on 20 April, 15 June and 31 October respectively. 27. Further hearings were scheduled for 4 January, 6 February, 6 March, 9 April and 14 May 2002. The court heard evidence from twenty witnesses. At the hearing held on 9 April 2002 the court, at the Regional Prosecutor’s request, ordered that evidence from a DNA identification test of several hairs found on the victim be obtained to determine whether they belonged to the applicant. However, on 13 May 2002, experts from the Forensic Laboratory of the Silesian Regional Police Headquarters informed the court that it was not possible for them to make any DNA identification of the specimens as they had to be analysed through a chondrosome test, which only the Cracow Institute of Forensic Experts or the Bydgoszcz Forensic Institute could carry out. On 20 May 2002 the court asked the Cracow Institute to make the relevant test and adjourned the trial sine die. In the meantime, the Regional Court had tried to establish the whereabouts of S.U., who was a homeless person. It appears that those efforts have so far been unsuccessful. The proceedings are pending. | 1 |
train | 001-98760 | ENG | ALB | ADMISSIBILITY | 2,010 | PLEPI v. ALBANIA AND GREECE | 4 | Inadmissible | Christos Rozakis;Giovanni Bonello;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicants, Mr Vezir Plepi, Mrs Fersilet Plepi and Ms Miaftoni Zeka are Albanian nationals who were born in 1957, 1962 and 1969 respectively and are currently serving prison sentences in Greece. The first and second applicants are married and the third applicant is the sister of the second applicant. The couple's children have lived in Albania since the applicants were arrested in Greece. The applicants are represented before the Court by Ms A. Stavri, a lawyer practising in Athens. The Albanian Government were represented by their then Agent, Ms S. Meneri. The Greek Government were represented by their Agent, Mr K. Bakalis, President of the Legal Council of the State. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date in 1998 the applicants were arrested in Greece. On 8 September 1998 the applicants were charged by the Greek authorities with illegally entering Greek territory, setting up and participating in a criminal organisation and drug trafficking. On 9 December 1999 the Athens Court of Appeal, sitting as a first-instance court with a bench of three judges, found the applicants guilty and sentenced them to life imprisonment and to the payment of a fine that amounted to 10 million drachmas. On an unspecified date in 2000, since their minor children and family were living in Albania, the applicants lodged a request with the Greek Ministry of Justice pursuant to a 1993 Bilateral Agreement between Albania and Greece on the transfer of sentenced persons (“the Bilateral Agreement”), seeking to serve their prison sentence in an Albanian prison. According to the applicants, in order to fulfil the requirements for their transfer to Albania they waived their right to appeal against the judgment that had led to their conviction. On 7 April and 4 May 2000 the Greek Ministry of Justice requested the Albanian authorities to initiate proceedings for the transfer of the applicants to Albania. The standard text of the requests, in so far as relevant, read as follows: “I. We hereby inform you that [the name of the applicant], an Albanian national serving a sentence in [the name of prison], has requested to be transferred to Albania to serve the remainder of the sentence. II. The Greek Party has no objection to the transfer of the sentenced person. III. The following documents have been annexed for your information: The application form of the sentenced person requesting the transfer. Copies of the minutes and judgment of the Athens Court of Appeal of 9 December 1999. Copies of the applicant's waiver of the right to appeal against the above-mentioned judgment. ...” On an unspecified date, the Greek Ministry of Justice requested the Albanian Ministry of Justice, under Article 6 of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention”), to provide them with information about the legal consequences of the transfer of sentenced persons under that country's criminal law. Pursuant to the procedure provided for by the Transfer Convention and the Bilateral Agreement, it would appear that on 24 October 2000 the Albanian General Prosecutor initiated proceedings in the Lushnjë District Court for the validation and enforcement in Albania of the judgment given by the Athens Court of Appeal. On 15 November 2000 the Lushnjë District Court, relying on the Transfer Convention and the Bilateral Agreement, considered that the sentences imposed by the Greek court were compatible with Albanian criminal law and found that the applicants should serve the following sentences in Albania: twenty years' imprisonment for the first applicant and eighteen years' imprisonment for the second and third applicants, in accordance with Articles 283 and 297 of the Criminal Code. Lastly, the court ordered that the applicants should pay the costs of the proceedings. The judgment became final on 27 November 2000. It appears that on 6 April 2001 the Albanian Ministry of Justice informed its Greek counterparts that there existed the possibility of conditional release for the applicants after serving half of their sentence, provided that they had displayed good behaviour in prison. Consequently, on 8 June 2001 the Greek Ministry of Justice informed the applicants and the Albanian Ministry of Justice of its refusal to transfer the applicants on the ground that the sentences commuted by the Albanian court were inferior to those imposed by the Greek court and thus incompatible with the gravity of their offence and with the short time they had spent in Greek prisons. In 2003 and 2004 the applicants unsuccessfully requested that the Greek authorities transfer them to Albania in accordance with the transfer procedure. It would appear that on 25 February 2003 the second and third applicants sought leave to appeal out of time against the sentence of 9 December 1999. On 8 June 2005 the Court of Cassation (Areios Pagos) dismissed the appeals against the judgment that had led to their conviction as being time-barred. On unspecified dates the applicants requested that the Albanian Ministry of Justice enforce the judgment of the Lushnjë District Court that had converted their Greek sentence and proceed with their transfer to Albania. On 29 December 2005 the Albanian Ministry of Justice informed the applicants' family, without giving reasons, that the procedure for their transfer to Albania had been stayed. On 3 February 2006 the prosecutor at the Lushnjë District Court informed the applicants' family of the refusal of the Greek Ministry of Justice to transfer the applicants to Albania. It appears that in 2009 the applicants unsuccessfully requested that the Greek authorities transfer them to Albania in accordance with the transfer procedure. Article 5 of the Constitution provides that the Republic of Albania applies international law that is binding upon it. Article 64, as in force at the material time, stated that a prisoner could be conditionally released after serving half of the sentence, provided that his good behaviour and work had achieved the goal of educating him. Article 283, as in force at the material time, provided that the organisation and initiation of narcotics trafficking was punishable by a maximum sentence of twenty years' imprisonment. Article 297, as in force at the material time, provided that unlawful crossing of the border was punishable by a maximum sentence of two years' imprisonment. Article 105 of the Greek Criminal Code provides for the conditional release of a life prisoner, after having served at least 20 years' imprisonment. The 1993 Bilateral Agreement was adopted at a time when Albania was not a Contracting Party to the Transfer Convention and in many parts reflects the content of that instrument. It entered into force in respect of Albania on 29 October 1993. The preamble to the Agreement reads “the Republic of Albania and the Hellenic Republic, desirous of further developing cooperation in the field of criminal law, have agreed to conclude an Agreement for the Transfer of Sentenced Persons (...).” Article 2 states that “both countries undertake to mutually assist with the transfer of sentenced persons in accordance with the provisions of this Agreement.” Quite unlike the Transfer Convention, Article 3 of the 1993 Bilateral Agreement provides that the sentenced person may also request his transfer, in addition to the sentencing State or the administering State. Under Articles 4 and 8, a sentenced person may be transferred if the following conditions are met: (a) the criminal offence is punishable by the criminal law of the sentencing and the administering State; (b) the sentencing judgment is final; (c) the sentenced person is of sound mind; (d) the sentenced person still has at least one year of the sentence to serve; and (e) the sentenced person has given his consent to the transfer. Articles 6 and 7 provide for the grounds on which the transfer may be refused, for example if the sentenced person has not satisfied his obligations in terms of cash, fees, expenses or other penalties to which he is liable, and, if the maximum punishment imposed by the administering State is much lower than the one imposed by the sentencing State. The Transfer Convention entered into force in respect of Albania on 1 August 2000 and in respect of Greece on 1 April 1988. The Additional Protocol has not been signed or ratified to date by Albania and has been in force in respect of Greece from 1 January 2006. The Preamble to the Transfer Convention, in so far as relevant, reads: “...Desirous of further developing international co-operation in the field of criminal law; Considering that such co-operation should further the ends of justice and the social rehabilitation of sentenced persons; Considering that 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; ...” The relevant provisions of the Transfer Convention read as follows: “A sentenced person may be transferred under this Convention only on the following conditions: a. if that person is a national of the administering State; b. if the judgment is final; c. if, at the time of receipt of the request for transfer, the sentenced person still has at least six months of the sentence to serve or if the sentence is indeterminate; d. if the transfer is consented to by the sentenced person or, where in view of his age or his physical or mental condition one of the two States considers it necessary, by the sentenced person's legal representative; e. if 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 f. if the sentencing and administering States agree to the transfer.” “... 2. If a transfer is requested, the sentencing State shall provide the following documents to the administering State, unless either State has already indicated that it will not agree to the transfer: a. a certified copy of the judgment and the law on which it is based; b. a statement indicating how much of the sentence has already been served, including information on any pre-trial detention, remission, and any other factor relevant to the enforcement of the sentence; c. a declaration containing the consent to the transfer as referred to in Article 3.1.d; and d. whenever appropriate, any medical or social reports on the sentenced person, information about his treatment in the sentencing State, and any recommendation for his further treatment in the administering State.” “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. ...” “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.” “... 2. If two or more Parties have already concluded an agreement or treaty on the transfer of sentenced persons or otherwise have established their relations in this matter, or should they in future do so, they shall be entitled to apply that agreement or treaty or to regulate those relations accordingly, in lieu of the present Convention.” “The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of its application.” Paragraph 10 of its explanatory report states that “the Convention confines itself to providing the procedural framework for transfers. It does not contain an obligation on Contracting States to comply with a request for transfer; for that reason, it was not necessary to list any grounds for refusal, or to require the requested State to give reasons for its refusal to agree to a requested transfer”. | 0 |
train | 001-22205 | ENG | GBR | ADMISSIBILITY | 2,002 | BLAND v. THE UNITED KINGDOM | 4 | Inadmissible | Gaukur Jörundsson;Nicolas Bratza | The applicant, John Bland, is a United Kingdom national, who was born on 12 April 1940 and lives in Cowling, North Yorkshire. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant applied to the Benefits Agency for a retirement pension, but was informed, by a letter dated 17 May 2000, that the Agency would not consider his claim until four months before his sixty-fifth birthday. At present, women in the United Kingdom become eligible for a State pension at the age of sixty, whereas men are not eligible until sixty five. In their Observations, the Government submitted that the applicant received a total of GBP 236.15 per week in State benefits, including income support, disability living allowance and invalid care allowance. They claimed that the applicant would be in an identical financial position if he were a woman, the only difference being that part of the money paid to him by the State would be paid in the form of retirement pension rather than income support. The applicant has not denied the Government’s account of his income. He claims, however, that if he were in receipt of State pension he would in addition be entitled to other financial benefits, such as a bus pass and discounts in shops, restaurants and hairdressers. | 0 |
train | 001-80079 | ENG | BGR | CHAMBER | 2,007 | CASE OF ZELENI BALKANI v. BULGARIA | 3 | Preliminary objection (non-exhaustion of domestic remedies) dismissed;Violation of Art. 11;Violation of Art. 11+13;Non-pecuniary damage - financial award;Costs and expenses partial award | Peer Lorenzen | 6. On an unspecified date the Plovdiv Municipality (the municipality) started clearing the banks and the riverbed of the river “Maritza”, which runs through the city. The procedure involved the uprooting and eradication of trees and plant life, which were blocking the flow of the river. 7. The applicant organisation believed that the actions of the municipality were in violation of the domestic environmental protection legislation and that the disorderly uprooting and eradication of the trees and the plant life would disrupt the biological balance of the river. 8. On 18 April 2000 the applicant organisation informed the municipality of its intention to hold a public rally on the following day, the 19th, in front of the municipality. The aim of the public rally was to protest against the municipality's actions and to demand that the disorderly uprooting and eradication of the river's plant life be stopped because it was destroying important alluvial trees and the habitat of rare, endangered birds. 9. In a letter of 19 April 2000 the municipality informed the applicant organisation that it would not permit the rally to go ahead as planned. The full text of the letter, signed by the secretary of the municipality, read as follows: “We inform you that the Plovdiv Municipality does not permit the conducting of the [planned] public rally.” 10. Later on the same day, police officers visited the offices of the applicant organisation and obtained signed declarations from its leaders that they were aware of the prohibition and would not organise the rally as planned. 11. The applicant organisation did not hold a rally on 19 April 2000 and the clearing the banks and the riverbed of the river “Maritza” continued unabated. 12. On 26 April 2000 the applicant organisation appealed against the municipality's prohibition of its public rally. The appeal was filed with the municipality which did not forward it, as required under the applicable legislation, to the domestic courts together with all relevant documents. 13. On 7 June 2000 the applicant organisation re-filed its appeal with the Plovdiv Regional Court. 14. On 21 June 2000 the Plovdiv Regional Court requested the municipality to provide it with its file and all other relevant documents regarding the public rally planned by the applicant organisation. 15. The municipality sent the requested documents to the Plovdiv Regional Court on 22 June 2000 with the exception of the applicant organisation's appeal of 26 April 2000. 16. On 5 July 2000 the Plovdiv Regional Court requested that the municipality also provide it with the applicant organisation's appeal of 26 April 2000. On the same day it also instructed the applicant organisation to deposit the required court fee, which the latter did on 9 October 2000. 17. On 25 October 2000 the municipality provided the Plovdiv Regional Court with the applicant organisation's appeal of 26 April 2000. 18. At a hearing on 24 January 2001 the applicant organisation's appeal was examined by the Plovdiv Regional Court. 19. In a judgment of 28 March 2001 the Plovdiv Regional Court declared null and void the municipality's prohibition of the public rally planned by the applicant organisation for 19 April 2000. It established that the prohibition had been issued in violation of the provisions of the Meetings and Marches Act, as it had been decided not by the mayor but by the secretary of the municipality. Furthermore, it lacked reference to any of the statutory grounds for issuing such prohibitions. 20. The applicant organisation claimed, which the Government did not challenge, that it was informed of the judgment of the Plovdiv Regional Court on 10 July 2001. 21. No appeal was filed against the judgment of 28 March 2001 and it became final on an unspecified date. 22. The relevant provisions of the Constitution (1991) and the Meetings and Marches Act (1990) have been summarised in the Court's judgment in the case of The United Macedonian Organisation Ilinden and Ivanov v. Bulgaria (no. 44079/98, §§ 72-79, 20 October 2005). 23. Section 39 (1) of the Administrative Procedures Act provided at the relevant time that the administrative authority, whose act was being appealed, had an obligation to forward the appeal filed with it to the competent court within three days together with its full file on the matter. The second paragraph of this section provided that if the appeal and file were not forwarded to the courts then the appellant had the right to re-file his appeal directly with the courts. 24. Before 1 January 2006 the State Responsibility for Damage Act of 1988 (the “SRDA”) provided, inter alia, that the State was liable for damage caused only to private persons by (a) the illegal acts, actions or omissions of its bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts (sections 1 and 2: see Решение № 1307 от 21.10.2003 г. по гр. д. № 2136/2002 г., V г. о. на ВКС and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). 25. Currently, the State and local municipalities are also liable for damage caused to juridical entities by the illegal acts, actions or omissions of their bodies and officials acting within the scope of, or in connection with, their administrative duties (section 1). The amendment does not have retroactive effect in respect of damage cause prior to its date of introduction. | 1 |
train | 001-106584 | ENG | EST | CHAMBER | 2,011 | CASE OF S. v. ESTONIA | 4 | Violation of Art. 5-1 | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 6. The applicant was born in 1967 and lives in Tallinn. 7. On 4 October 2006 a criminal investigation was started in respect of the applicant’s violent behaviour towards her partner. Allegedly, on 17 September 2006, she had repeatedly punched him and broken his nose. 8. On 5 November 2006 another criminal investigation was started in respect of the applicant’s allegedly violent behaviour towards her partner on 3 November 2006. The two proceedings were subsequently joined. 9. According to the applicant, her partner had physically attacked her and she had acted in self-defence. 10. On 6 November 2006 the applicant was admitted to the admissions ward of the Psychiatric Clinic of the North Estonia Medical Centre. 11. On 8 November 2006 the psychiatric clinic filed an application with the Harju County Court for the authorisation of the applicant’s involuntary psychiatric treatment. The application was accompanied by an opinion signed by two doctors, according to which the applicant had been suffering from a mental illness for some years. She had been treated in different hospitals and had been making outpatient visits to psychiatrists. When not in hospital, she had used medicines irregularly. According to the doctors’ opinion, the applicant was suffering from delusions of grandeur, she was paranoid and her condition had become acute. She had attacked her partner and had been travelling with her six-year old child all over Estonia, including doing so late in the evening, and had repeatedly taken the child to a shelter. She had been hospitalised on 30 October 2006 but as she had refused inpatient treatment, had behaved in a restrained manner and had undertaken to follow outpatient treatment, she had been allowed to leave the hospital on the following day. However, the applicant had failed to undergo adequate treatment. She had become aggressive and, after having attacked her partner again, she had been hospitalised by ambulance. The doctors affirmed that at the time of her involuntary admission to the clinic on 6 November 2006 the applicant had demonstrated uninhibited and threatening behaviour. Thereafter, she had remained psychotic, had demonstrated signs of delusions of grandeur and had been paranoid. The doctors affirmed in their opinion that the applicant had refused inpatient treatment. 12. On 8 November 2006 the County Court decided to apply interim measures (esialgne õiguskaitse) and authorised the applicant’s involuntary psychiatric treatment for as long as necessary, but for no longer than three months. The relevant part of the court’s decision read as follows: “The court, having examined the evidence presented to it, finds that there are circumstances [warranting] involuntary emergency psychiatric treatment pursuant to the procedure for the application of interim measures. According to the application of the health care institution and the accompanying letter from the attending physicians, [the applicant] was taken to the Psychiatric Clinic by ambulance on 6 November 2006 because she had attacked her partner. She had also been roaming around Estonia with her six-year old child, thereby exhausting [the child] and damaging the child’s health. On admission the patient was noisy, agitated and very angry with her partner: she did not deny having punched him, but argued that she had done so in self-defence. As [the applicant’s] behaviour was threatening and uncontrollable, involuntary emergency psychiatric treatment was applied in respect of her from 6 November 2006, as she posed a danger to herself and to those around her. Previously, [the applicant] had received inpatient treatment [at a psychiatric hospital] in Jämejala and [had also been treated] in recent years in Tallinn. She had also been making outpatient visits to psychiatrists. Since 1993 [the applicant] had received treatment at the Psychiatric Clinic [of the North Estonia Medical Centre] on five occasions. At the time of the lodging of the application the patient’s condition had not improved. [She] is agitated and stressed, and does not understand the need for treatment. Considering [the applicant’s] mental state and the fact that her treatment is not possible by other means, the court finds that there are grounds to apply interim measures pursuant to Article 534 § 3 of the Code of Civil Procedure – that is, before hearing the person herself and the other persons [involved], and before appointing a representative for her. Based on the above, involuntary emergency psychiatric treatment shall be authorised in respect of [the applicant] for as long as necessary, but for no longer than three months.” On the same date, the decision was sent to the psychiatric clinic by fax. 13. On 8 November 2006, after having taken the above decision, the County Court appointed a lawyer to defend the applicant at the State’s expense. 14. According to the applicant, she gave her consent to undergo treatment and signed a consent form on 8 November 2006. 15. According to the psychiatric clinic, as stated in the reply to the applicant’s subsequent appeal against the County Court’s decision (see paragraph 20 below), the applicant had said that she consented to the treatment on 9 November 2006, after having been informed of the County Court’s decision. She had signed a consent form to that effect which had been placed in her medical file. 16. On 14 November 2006, in the course of the criminal proceedings, the police ordered the applicant’s forensic psychiatric examination. According to an expert report drawn up on 17 November 2006, the applicant suffered from paranoid schizophrenia and, at the time of committing the acts she was accused of (that is, the alleged assaults on 17 September and 3 November 2006), she had been mentally incompetent. Furthermore, she was unable to participate in the pre-trial investigation, give evidence in court or serve a punishment. 17. On 21 November 2006 the County Court heard the applicant’s brother. 18. On 23 November 2006 the applicant’s lawyer and a judge from the County Court paid a visit to the applicant in the clinic. According to a note made by the judge in the case file concerning the hearing of the applicant, she was satisfied with her treatment, particularly satisfied with her doctor, and had no complaints. 19. On 13 December 2006, following a telephone call from the Estonian Patients’ Advocacy Association (“the EPAA”), the applicant was given a copy of the County Court’s decision of 8 November 2006. On 22 December 2006, represented by an EPAA lawyer, she appealed against the decision, arguing that the court had not reliably established the existence of the circumstances required for involuntary emergency psychiatric care under section 11 of the Mental Health Act (Psühhiaatrilise abi seadus). She also complained that there had been procedural violations, arguing that she had not been heard at the earliest opportunity, that both the hearing and the appointment of a lawyer had been of a merely formal nature and that the principle of equality of arms had not been complied with. 20. On 25 January 2007 the psychiatric clinic submitted a reply to the applicant’s appeal, explaining with reference to her medical record that the conditions for placing her in involuntary psychiatric treatment had been met. It was noted, inter alia, that the applicant’s consent to her voluntary treatment, given on 9 November 2006, had been disregarded as this had not been her true will. 21. On 5 February 2007 the applicant’s treatment in the psychiatric clinic was terminated and she was transferred to the Jämejala psychiatric hospital where she stayed until 5 September 2007. The legal basis for her treatment in Jämejala was the Harju County Court’s decision of 5 February 2007, made in the context of the criminal proceedings. The court found that the applicant had committed the unlawful acts she had been charged with. However, she had been mentally incompetent at the time. Therefore, the criminal proceedings were terminated and the applicant was subjected to coercive psychiatric treatment under Article 86 of the Penal Code (Karistusseadustik). 22. On 20 March 2007, in a written procedure, the Tallinn Court of Appeal dismissed the appeal by the applicant against the County Court’s decision of 8 November 2006. 23. The applicant appealed to the Supreme Court, reiterating her earlier complaints. In addition, relying on Article 5 § 4 of the Convention, she complained that she had received the County Court’s decision thirty-eight days after it had been adopted and that it had taken three months for the Court of Appeal to decide on her appeal. 24. On 10 October 2007 the Supreme Court dismissed the applicant’s appeal. It found that the elements required under section 11 of the Mental Health Act to involuntarily admit the applicant to a closed institution had been established by the lower courts which in their decisions had referred to doctors’ opinions. As regards the fifteen-day delay that had elapsed before the County Court had heard the applicant, the Supreme Court stated as follows: “18. In response to the claim in the [present] appeal concerning a violation of the second sentence of Article 534 § 3 of the [Code of Civil Procedure – “the CCP”], the [Supreme Court] notes the following. In the event of the admission of a person to a closed institution pursuant to the procedure for the application of interim measures, the person himself or herself, and those close to him or her, have to be heard (Article 534 § 1 (4) of the CCP). The second sentence of Article 534 § 2 of the CCP allows for an exception from this rule to be made if the hearing may cause significant damage to the health of the person or if the person is clearly not able to express his or her will. According to the first sentence of Article 534 § 3 of the CCP, due to the potential danger resulting from a delay (the meaning of the provision indicates that reference is made to danger to the person’s own life or other persons’ lives, health or safety), interim measures may be applied before hearing the person himself or herself and the other persons, and before appointing a representative for him or her. According to the second sentence of Article 534 § 3 of the CCP, such [hearing and appointment] must be performed promptly thereafter. The [Supreme Court] considers that the main purpose of Article 534 § 1 (4) and the second sentence of § 534 (3) of the CCP is the need to prevent an unfounded admission of a person to a closed institution or the opportunity to decide on the termination of the admission pursuant to Article 539 § 1 of the CCP. In the present case, the County Court heard the person concerned fifteen days after the decision to apply interim measures had been taken. The [Supreme Court] finds that in the present case the County Court has not given reasons for the fifteen-day delay. Although the second sentence of Article 534 § 3 of the CCP obliges the court to promptly perform certain acts (hear the person himself or herself and the other persons named in the law, and appoint him or her a representative), the meaning of the law is that the person concerned has to be heard in the first place. Since the person concerned, as a rule, will have been admitted to the closed institution by that time, his or her whereabouts will be known to the court. If there were any objective circumstances preventing the court from hearing the person concerned herself, or if there were any circumstances mentioned in the second sentence of Article 534 § 2 of the CCP (hearing the person concerned would cause significant damage to his or her health, or he or she is clearly not able to express his or her will), pertinent reasons should have been set out in the decision. However, the aforementioned violation of the norms of procedure is not so important that it would result in quashing the ruling. The County Court has heard the person concerned and, based on the materials in the case file and the rulings made, the courts have not had doubts as to the existence of the prerequisites for the person’s admission to the closed institution or as to their cessation.” 25. The Mental Health Act (Psühhiaatrilise abi seadus), as in force at the material time, provided: “(1) A person may be admitted to the psychiatric department of a hospital for emergency psychiatric care without the consent of the person or his or her legal representative, or the treatment of a person may be continued regardless of his or her wishes, only if all of the following circumstances exist: 1. the person has a severe mental disorder which restricts his or her ability to understand or control his or her behaviour; 2. without inpatient treatment, the person may endanger the life, health or safety of himself or herself or others due to the mental disorder; and 3. other psychiatric care is not sufficient. (2) Involuntary treatment may be applied only on the basis of a court’s decision. Involuntary care may be applied in the absence of a court’s decision if this is unavoidable for the protection of the person or the public and a court’s decision cannot be obtained sufficiently promptly. (3) A decision to apply involuntary treatment in the absence of a court’s decision shall be made by a psychiatrist on the admission of the person to the psychiatric department of the hospital ... promptly after his or her medical examination. ... (4) Involuntary treatment on the basis of a decision referred to in subsection 3 may be applied for forty-eight hours from the beginning of the involuntary treatment. ...” “(1) A request to apply involuntary treatment and admit a person to a hospital’s psychiatric department under the procedure for the application of interim measures shall be made to the court in the area where the hospital is located by the hospital’s chief doctor. ...” 26. Admission of persons to closed institutions is dealt with in Chapter 54 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik). As in force at the material time, it provided: “Pursuant to the procedure provided in this Chapter, the court shall conduct proceedings concerning the following matters based on a petition by the rural municipality or city government of the residence of the person: 1. the admission of a mentally ill person to a psychiatric hospital or a social welfare institution against his or her will, together with deprivation of the liberty of the person; ... 3. other matters concerning the admission of a person to a closed institution provided by law.” “(1) Based on the request of the petitioner, the court may [order the] admission of a person to a closed institution pursuant to the procedure for the application of interim measures, if: 1. the conditions of admission to a closed institution are clearly met and a delay is likely to result in danger, and 2. documents exist concerning the person’s state of health, and 3. a representative has been appointed for the person [concerned] in the proceedings, and 4. the person himself or herself, and the persons specified in Article 536 § 2 of this Code, have been heard. (2) ... A person need not be heard if this may cause significant damage to his or her health or if the person is clearly not able to express his or her will. (3) If a delay could result in danger, the court may apply interim measures even before hearing the person himself or herself and the other persons, and before appointing a representative for him or her. In such a case, such [hearing and appointment] must be performed promptly (viivitamata) thereafter. (4) Interim measures may be applied for a period of up to three months. After hearing an expert, such term may be extended to up to six months. Such term shall also include the time the person is admitted to a closed institution for examination. (5) In the cases and pursuant to the procedure provided by law, a person may be admitted to a closed institution without a court ruling if this is strictly necessary for the protection of the person himself or herself or the public, and a court ruling cannot be obtained promptly enough. In such a case, a petition for obtaining a court ruling shall be submitted no later than during the following working day.” “(1) If it is clearly necessary in the interests of the person and the person is not represented by another person with full legal capacity [to take part in] civil proceedings, the court shall appoint a representative for the person [concerned] in proceedings for the admission of the person to a closed institution. ...” “(1) Before a person is admitted to a closed institution, the person must be heard in person by the court and the court shall explain the course of the proceedings to him or her. If necessary, the court shall hear the person in his or her usual environment. ... (2) Before a person is admitted to a closed institution, the court shall also hear the opinion of the rural municipality or city government, and the following persons: 1. the spouse of the person, and other family members who live or have lived together with the person; 2. the guardian or caregiver of the person; 3. the trustee appointed by the person; 4. the head of the closed institution in which the person has been admitted, or an official appointed thereby. ...” “(1) The court shall terminate the admission of a person to a closed institution by a ruling after the prerequisites thereof have ceased to exist. The court may also terminate admission to a closed institution based on an application by the person himself or herself, the petitioner or at the initiative of the court. Before terminating a person’s admission to a closed institution, the court shall obtain the opinion of the rural municipality or city government. ...” | 1 |
train | 001-119049 | ENG | NOR | CHAMBER | 2,013 | CASE OF KRISTIANSEN AND TYVIK AS v. NORWAY | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award | Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 4. On 30 November 1990 the first applicant submitted a patent application for a particular method of propulsion of aircrafts and sea vessels to the Norwegian Industrial Property Office (Patentstyrets første avdeling – hereinafter referred to as “NIPO”). Ranging under the Ministry of Trade and Industry, NIPO is a government authority, responsible for processing and deciding on applications for patent protection in Norway. The application was allotted no. 19905214. 5. In a letter of 21 March 1991, NIPO presented a preliminary opinion stating that the application in its present form was not patentable because it did not reveal a concrete solution to achieve the desired effect. It also questioned whether the invention had any effect at all. Therefore, under former section 28 (currently section 32) of the Regulation (forskrift) to the Patents Act 1967 (patentloven), NIPO required the first applicant to perform a test (“praktiske forsøk”) at an independent research institute and to submit the necessary test documentation. The first applicant replied on 30 September 1991 that he disputed the need for a test and referred to the high costs for such tests. However, he informed NIPO that prototypes were under construction and could be tested in the presence of representatives from NIPO. 6. In the period from 6 May 1992 to 10 May 1994, there was correspondence between the first applicant and NIPO as to the existence of any need to protect the confidentiality of the application. In February 1993 NIPO asked the Military Supreme Command whether the application should be kept secret on national security grounds, which the latter answered in the negative in March 1993. The first applicant was informed in June 1993. 7. On 9 May 1994 the first applicant provided NIPO with further information on the subject-matter of the application. On 24 February 1995, NIPO reiterated its request of 21 March 1991 that the first applicant provide evidence from tests showing the technical effect and concrete features of the invention. In his reply of 23 May 1995 the first applicant submitted theoretical views on the subject-matter of the application with reference to a research report of 1965 which, according to him, described tests and results that proved the technical effect of his invention. The required tests were therefore superfluous, in his view. 8. The first applicant on 27 November 1996 complained about the delays in the processing of his application. The NIPO’s Director General on 9 December 1996 apologised for the delay and said the matter would be given priority. 9. On 16 December 1996 NIPO maintained its earlier requirement of independent tests, to which a series of exchanges ensued between the applicant and NIPO on the need for tests, including a protest by the applicant questioning NIPO’s technical competence and the submission by him of statements by two academics, dated 14 March and 18 December 1997, respectively. 10. Whilst apologising for the delay, NIPO maintained its position on the need for testing in a communication to the first applicant of 5 May 1999 and gave him until 5 November 1999 to comply. 11. By a registered letter of 26 October 1999, received on 11 November 1999, the first applicant again characterised NIPO’s processing as late and technically incompetent without making any new arguments concerning the requirements for granting a patent. 12. On the ground of the first applicant’s failure to comply with the time-limit of 5 November 1999, NIPO decided to discontinue (henlegge) its examination of his application under section 15(2) of the Patents Act (according to which, in the event of an omission by a patent seeker to provide a statement or to take measures to rectify a notified deficiency, the application shall be shelved). Upon reconsideration of the matter, NIPO informed the first applicant on 18 February 2000 that, although the application had been received on time, it maintained its decision to shelve the application because he had not met the substantive requirements indicated to him on 5 May 1999. 13. The first applicant then lodged a petition with the Parliamentary Ombudsman for Civil Matters on 8 March 2001. 14. Following an inquiry by the Parliamentary Ombudsman for Civil Matters, NIPO informed the first applicant on 30 August 2001 that it had annulled its decision to discontinue the matter and gave him until 28 February 2002 to respond to its letter of 5 May 1999. He replied on 24 September 2001 but without presenting any new arguments or material. 15. On 2 October 2001 NIPO refused the application on the ground that the applicant had not made it probable that the subject-matter of the application had the alleged technical effect. 16. On 23 January 2002 the Parliamentary Ombudsman informed NIPO that he found no grounds for continuing the investigation of the petition. 17. On 27 November 2001 the first applicant appealed to the Board of Appeals (Patentstyrets annen avdeling) against NIPO’s decision of 2 October 2001. 18. Following a period of circulation of the case files among the members of the Board of Appeals, the first meeting on the case was held on 13 September 2004. The Board of Appeals took a different view than NIPO and indicated a new formulation of the patent claims which might lead to a patent, but only for sea vessels. The applicant was informed correspondingly in a letter of 29 September 2004. 19. During the period from 12 November 2004 to 13 January 2005, there was correspondence between the Board of Appeals and the first applicant in order to arrange a meeting, which was held on 2 February 2005. The subject-matter of the appeal was discussed together with the further process. 20. On 14 February 2005, NIPO was informed that 50% of the ownership to the application had been transferred to the second applicant Tyvik AS. Thereafter, mostly both applicants, occasionally only the first applicant, acted as claimants in the relevant proceedings (to simplify “applicants” is used in the following). 21. In the period from 2 May 2005 to 17 October 2005, the Board of Appeals and the applicants exchanged various communications regarding the patentability of the original patent claims. By a decision of 14 November 2005, the Board of Appeals concluded that the invention in application no. 19905214 had a technical effect, but the Board did not consider whether other patent requirements had been fulfilled. The applicants had received information on how to change the claims into a patentable invention but had been unwilling to do so. Consequently, the Board did not find any grounds to continue processing of the application. Accordingly, NIPO’s decision was set aside and the application was referred back to NIPO for further consideration. 22. Following the return of the application to NIPO, it concluded in its letter of 29 November 2005 that the subject-matter of NO 19905214 could not be considered novel. 23. The applicants, represented by Mr. H. Berge, filed a new complaint to the Parliamentary Ombudsman on 13 March 2006 concerning the proceedings before NIPO. In particular they claimed that the executive officer of NIPO had been prejudiced as he was responsible for considerable parts of the previous processing and the refusal of the application prior to the appeal to the Board of Appeals. The Parliamentary Ombudsman replied on 22 March 2006 and 29 June 2006 that he could not decide on complaints until the processing of the application had been completed, but assumed that the case would now be examined with due diligence (“tilbørlig hurtighet”). 24. Exchanges of correspondence between NIPO and the applicants continued between 31 May 2006 and 11 June 2006. NIPO provided guidance and suggested that specific changes be made to the patent claims in order to render the subject-matter of the application patentable. The applicants disagreed. 25. On 20 June 2007, the application was formally refused due to lack of novelty (see paragraph 35 below). 26. On 20 August 2007 the applicants appealed to the Board of Appeals. On 29 November 2007, they were informed that the Board, after having examined the case (on 12 November 2007) had found it clear that the conditions for granting a patent had not been fulfilled in so far as concerned aircrafts. However, the application might succeed in respect of a more limited field of sea vessels. It was proposed that the patent requirements be formulated in a similar manner as proposed in the Board of Appeals’ letter of 29 September 2004 (see paragraph 18 above). 27. The communication of 29 November 2007 further warned the applicants that if the patent requirements were not defined in accordance with the indications given, the Office’s rejection might be confirmed. In the alternative, the part of the application that related to air transport might be disjoined from that which related to sea transport, in which case it might be expected that the former part would be rejected. As an alternative to delimiting against the requirements to aircrafts, dividing the application into two parts, one concerning aircrafts, another concerning sea vessels, could be considered, in accordance with section 11 of the Patents Act. In that case, a rejection of the separate part relating to air crafts ought to be expected. 28. The applicants were given until 29 January 2008 to comment and were warned that the case might be determined on the basis of the case-file as it stood as at that date. 29. In a letter to the Board of Appeals of 28 January 2008, the applicants submitted their observations to the communication of 29 November 2007 and altered the definition of patent requirements. 30. On 22 September 2008 the Board of Appeals confirmed NIPO’s refusal of the patent requested (see paragraph 25 above), albeit on a different reasoning. Whilst NIPO had been sceptical about whether the patent requested could serve according to its purpose, the Board of Appeals had no doubt that the results could be achieved with the invention that could be exploited industrially and that the application could not be rejected on this ground. Both NIPO and the Board of Appeals found that the application did not involve any novelty in respect of aviation, though the reasoning differed. Unlike NIPO, the Board of Appeals found that the application could have succeeded in a limited area of sea transport. The applicants had been advised that in order to succeed, the patent requirements would have to be defined so as to exclude aviation but had not been willing to do so. The application as presented did therefore not fulfil the conditions for grant of patent. 31. The applicants have apparently not challenged the Board of Appeals’ decision of 22 September 2008 before the Norwegian courts. 32. According to the applicants, the patent applications they had filed in 2003, made in light of the patent application of 30 November 1990 (no. 19905214), had been granted in the United States of America, Russia, China and Singapore and “through the EPO [European Patent Office] as well”. 33. The Government submitted that according to Espacenet (a database provided by EPO), the applicants had not claimed priority with respect to no. 19905214 in any of the above mentioned countries or in EPO. The granted EPO patent had claimed priority in relation to another and separate application by the applicants, namely no. 20015844, which had been based on knowledge from no. 19905214. When comparing the EPO patent claims with no. 19905214, one would observe that the former had been based on additional features that had made the invention patentable. 34. Section 1 (1) of the Patent Act 1967 (patentloven), provides: “Within any technical field, any person who has made an invention which is susceptible of industrial application, or his successor in title, shall, in accordance with this Act, have the right on application to be granted a patent for the invention and thereby obtain the exclusive right to exploit the invention commercially or operationally.” The expression “industrial application” requires that the innovation has “technical effect”. 35. Pursuant to section 2, patents shall be granted only for inventions which are new in relation to what was known before the filing date of the patent application, and which also differ essentially therefrom. 36. Section 15 provides: “If the applicant has not complied with the prescribed requirements with respect to the application, or if NIPO finds other obstacles to the acceptance of the application, the applicant shall be notified to that effect and be invited to submit observations or to correct the application within a specified time limit. However, NIPO may make such amendments in the abstract as found necessary without consulting the applicant. If the applicant fails, within the time limit, to submit observations or to take steps to correct a defect which has been pointed out, the application shall be shelved. Information to that effect shall be given in the notification from NIPO referred to in the first paragraph.” 37. Section 27 (1) to (3) of the Patents Act reads: “An appeal must be received by NIPO within two months from the date on which notification of the decision was sent to the party concerned. ... If these provisions are not complied with, the appeal shall not be submitted for consideration. Even if the opponent withdraws his appeal, it may be examined if special circumstances make it desirable. A decision by the Board of Appeals refusing a patent application, revoking a patent, or maintaining a decision by NIPO to revoke a patent may not be brought before the courts of law later than two months from the date on which the applicant or patent holder was notified of the decision. Information with respect to the time limit for instituting proceedings shall be given in the notification.” 38. According to section 40 of the Patents Act, a granted patent may be maintained for up to twenty years from the date of filing of the patent application. It is undisputed in this case that, had a patent been granted in Norway, this would have meant that the patent protection would have expired on 30 November 2010. | 1 |
train | 001-82053 | ENG | RUS | CHAMBER | 2,007 | CASE OF KOZEYEV v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Christos Rozakis | 4. The applicant was born in 1967 and lives in the town of Ryazan. 5. The applicant is a retired serviceman. On unspecified dates in the past, he had taken part in peace-keeping operations in former Yugoslavia. 6. On an unspecified date, the applicant instituted proceedings against military unit no. 03611, seeking to recover the unpaid daily allowances owed to him for his participation in the above operations. 7. In the proceedings before the Military Court of the Ryazan Garrison (Рязанский гарнизонный военный суд) the representative of the military unit fully accepted the applicant's claim. 8. He submitted that it was impossible to pay the sum owed to the applicant, since there was no mechanism developed for payment of daily allowances to servicemen who had been commissioned abroad. Furthermore, no funds were available for this purpose. 9. On 11 December 2001 the Military Court of the Ryazan Garrison granted the applicant's claim and ordered the defendant to pay him 377,776.12 Russian roubles (RUR, approximately 14,100 euros at the material time). 10. The court found that the applicant could not be deprived of the right to receive the sum owed to him because of the absence of an appropriate mechanism of payment. No appeal was lodged and this judgment became final on 24 December 2001. 11. On 5 February 2002 the Military Court issued an execution writ. 12. On an unspecified date, the applicant submitted the execution writ to the Ryazan Regional Branch of the Federal Treasury. 13. It appears that the Federal Treasury informed the applicant that it was impossible to enforce the judgment as there were no budgetary funds available on the defendant's account for this purpose. He was advised to apply to the Ministry of Finance for the latter to recover the amount due from the Ministry of Defence. 14. On 16 September 2002 the applicant forwarded the execution writ to the Ministry of Finance. 15. On 6 November 2002 the Moscow Military Circuit Court, acting as a supervisory review instance upon the application by the President of that Court, quashed the judgment of 11 December 2001 as unlawful and unfounded and remitted the case at first instance for a fresh examination. 16. It does not appear that the applicant and his counsel were notified of the supervisory review proceedings in advance or that they were able to take part in them. 17. According to the Government, in April 2003 the Military Court rejected the applicant's claims. This judgment was upheld on appeal by the Moscow Military Circuit Court by two decisions dated 16 May, 10 and 17 June 2003. 18. According to Articles 13, 209 and 338 of the old Code of Civil Procedure (Гражданский процессуальный кодекс РСФСР), in force at the material time, a court judgment, which has become final, is binding and must be executed. | 1 |
train | 001-99376 | ENG | RUS | CHAMBER | 2,010 | CASE OF GUBIN v. RUSSIA | 4 | Violation of Art. 13;Violation of Art. 3;Violation of Art. 5-4 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1981 and lives in Moscow. 6. On 12 August 2003 a Ms T. lodged a complaint with the Kuzminskiy District Prosecutor's Office of Moscow alleging that she had been kidnapped and raped by a group of men. 7. On 13 August 2003 the applicant was arrested on suspicion of kidnapping and rape. 8. On 14 August 2003 the District Court authorised the applicant's detention pending trial. The applicant was represented by counsel of his own choosing. 9. According to the applicant, he could not appeal against the decision of 14 August 2003 since he was not provided with stationery by the administration of the temporary detention facility where he was being held at the time. 10. On 8 October 2003 the Kuzminskiy District Court of Moscow extended the applicant's pre-trial detention until 12 December 2003. The applicant attended the hearing. His counsel asked the court to consider the case in his absence and did not appear at the hearing. The applicant was represented by a court-appointed lawyer. 11. On 14 October 2003 the applicant lodged an appeal against the court order of 8 October 2003. He asked the appeal court to ensure his and his lawyer's presence at the hearing. 12. On 3 November 2003 the Moscow City Court examined the appeal. The hearing was held in the absence of the applicant and his counsel. The prosecutor considered that the applicant's appeal should be dismissed. The City Court found that the extension of the applicant's pre-trial detention was in accordance with the law and upheld the decision of 8 October 2003. 13. The District Court further extended the applicant's detention pending trial. Extensions were granted at the prosecutor's request on 3 December 2003 and 10 February 2004. The City Court upheld those decisions on appeal on 21 January and 9 March 2004 respectively. The applicant did not provide any other details in respect of the detention orders. 14. On several occasions in 2004 the applicant asked the investigator to question additional witnesses and examine forensic evidence. The investigator dismissed the applicant's requests, indicating, inter alia, that: “The guilt of [the defendants] ha[d] been fully proved”. 15. On 30 January 2004 the District Court dismissed the applicant's complaint about the prosecutor's refusal to open a criminal investigation against the police officers who had allegedly ill-treated him during his arrest. The applicant did not appeal. 16. On 1 April 2004 the Kuzminskiy District Court of Moscow received the case file. 17. On 20 December 2004 the District Court found the applicant guilty of kidnapping and rape and sentenced him to four and a half years' imprisonment. 18. On 19 April 2005 the Moscow City Court upheld the applicant's conviction on appeal. 19. From 13 to 20 August 2003 the applicant was held in cell no. 2 of the Maryinskiy temporary detention facility. The cell measured 8 sq. m. The applicant was detained there alone. According to him, the cell was poorly lit, and the cement floor was dirty. The cell was infested with bedbugs and other insects. The corners were covered in cobwebs. No bed sheets, mattresses or blankets were provided. The radio was left on during the whole night. Water was available twice a day. There was no sink and the applicant had to wash himself over the toilet. The applicant received one meal a day. 20. On 20 August 2003 the applicant was transferred to remand prison no. 77/1. On arrival he was placed in a cubicle measuring 1 sq. m where he spent the whole day. He was not given any food or allowed to use the bathroom for the whole of the time he spent in the cubicle. 21. On 21 August 2003 the applicant was placed in cell no. 274, where he was detained until 11 September 2004. It measured 16 sq. m and had eight sleeping places. It housed from ten to fifteen persons (in his subsequent submissions the applicant stated that it housed from twelve to sixteen persons). The inmates had to take turns to sleep. The beds were 1.65 m long. The cell did not have any drawers or shelves to allow the inmates to store their personal belongings properly. Approximately eighty per cent of the inmates smoked and the applicant, a non-smoker, was exposed to tobacco smoke. The toilet was located about one metre from the dinner table. It was dirty and foul smelling. There was no separation between the toilet and the living area of the cell and the person using it could be seen by others present in the cell. The inmates had to pull a curtain across to separate the toilet from the living area. However, the prison guards removed the curtain each time they made an inspection. Because of the overcrowding of the cell the inmates had to wait a long time for their turn to use the toilet. 22. The food was of poor quality and portions were small. On the days of the court hearings, the applicant left the prison at six a.m. and came back late at night. As a result, he missed the meals served at the prison and was left hungry all day. No drinking water was available in the cell. There was only cold tap water that contained rust and had a peculiar colour and taste. 23. The cell had only one window measuring 1.2 sq. m, which was covered with a metal screen and bars. The screen and the bars prevented any fresh air or natural light from entering the cell. There were no window panes. The artificial ventilation system did not function properly. The electric light was constantly on. 24. The cell was stuffy and infested with parasites. It was never disinfected. There was fungus and mould in the shower rooms. Medical assistance was of poor quality. 25. According to the applicant, he twice attempted to lodge a complaint with the authorities about the conditions of his detention. On both occasions an administrative officer physically destroyed the written complaints. 26. The applicant submitted written testimonies from five of his fellow mates who corroborated the description of cell no. 274 provided by the applicant. 27. On arrival at the remand prison the applicant was taken first to the processing area (сборное отделение). He was held for one hour in a one-person cubicle equipped with a seat and artificial lighting. Then he was transferred to another cell which was equipped with running water, lighting, ventilation and a seat. The applicant spent about one day there. 28. On 21 August 2003 the applicant was transferred to cell no. 274. The average number of inmates held with the applicant in that cell was seven. There were eight beds in the cell. At all times the applicant and other inmates were provided with an individual sleeping place and bed linen. 29. According to the excerpts from the remand prison population register submitted by the Government, the number of inmates in the cell was as follows: 30. There were no metal shutters on the cell windows. They had been removed before 1 April 2003, that is before the applicant's detention there began. The windows were provided with air vents which could be kept open. There was also exhaust ventilation which was in good working order. The prison was equipped with central heating which functioned properly at all times. The average temperature in the cells was never below +180C during the winter and did not exceed +220C during the summer. 31. The cell was equipped with electrical lighting. During the day lighting was on from 6 am to 10 pm. At night lower-voltage bulbs were used to provide lighting for surveillance and safety reasons. 32. The applicant had the opportunity to take a shower once a week. The bed linen was changed weekly. The remand prison had a centralised water supply system. The quality of the water was in full compliance with standards of hygiene. 33. The cell was disinfected according to the schedule approved by the head of the prison. The daily cleaning was the inmates' responsibility. The toilet was separated from the rest of the cell by a 1.25-metre partition to ensure the privacy of the person using it. 34. The applicant received three meals a day. The food ration was in full compliance with quality and quantity standards. 35. On 11 September 2004 the applicant was transferred to remand prison no. 77/6. 36. On 4 October 2004 he lodged another complaint about the conditions of his detention in remand prison no. 77/1. 37. On 27 November 2004 Ms F., an administrative officer at the remand prison, allegedly summoned the applicant to her office. She threatened to move him back to remand prison no. 77/1 or make his life more difficult at remand prison no. 77/6 if he continued to complain about the conditions of his detention. 38. On 30 November 2004 the Moscow City Department of Corrections responded officially to the applicant's complaint about conditions of detention at remand prison no. 77/1. The applicant was informed that the overcrowding in the cells had been caused by renovation work being carried out at the prison; that the food rationing was in accordance with the applicable norms; that the inmates were allowed to take a fifteen-minute shower once a week; and that the bed sheets were changed on a weekly basis. 39. From 18 to 31 May 2005 the applicant was detained in remand prison no. 66/1 in Yekaterinburg. According to the applicant, he was held in cell no. 334, which measured 30 sq. m and housed from twenty-four to twenty-seven persons. It had eleven sleeping places and the inmates had to take turns to sleep. The cell was infested with bedbugs, cockroaches, lice and rats. It was never cleaned. There were nine mattresses. No bed sheets, pillows or blankets were provided, nor was there any cutlery or tableware. Water was constantly leaking from a corroded sink onto the floor. The toilet was separated from the living area by a partition less than one metre high. The inmates were allowed to shower once every ten days. Because of the small size of the table and bench, the inmates had to take turns to eat. There was no radio or clock. The inmates did not receive soap or buckets with which to do their laundry. | 1 |
train | 001-121613 | ENG | ROU | CHAMBER | 2,013 | CASE OF NICULESCU v. ROMANIA | 4 | 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 correspondence;Respect for private life);No violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-a - Information on nature and cause of accusation);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-b - Preparation of defence);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses) | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 5. The applicant was born in 1956 and lives in Bucharest. At the relevant time, she was a lawyer specialised in criminal matters, in the Bucharest Bar Association. 6. On 4 April 2000 the Anti-Corruption Department of the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor’s office” or “the prosecutor”) authorised telephone tapping in respect of the applicant and her husband for a period of six months, running until 4 October 2000. The authorisation was granted at the request of the Romanian Intelligence Service (“the RIS”) under the National Security Act (Law no. 51/1991). 7. On 25 August 2000 the prosecutor’s office issued a new similar authorisation, under the National Security Act, granting interception of another of the applicant’s telephone lines, also until 4 October 2000. 8. On 11 September 2000 the RIS informed the prosecutor that the applicant had given bribes to several judges and prosecutors in order to obtain decisions favourable to her clients. It based the accusation on information obtained through the telephone tapping. Several conversations between the applicant and judge V.A. concerning cases of the applicant’s clients had been recorded between 7 and 14 June 2000. The RIS handed over the audio tapes and their transcripts to the prosecutor’s office. The prosecutor then continued the surveillance of the applicant’s activities, including through telephone tapping. 9. In its report, the RIS referred to G.D. as the applicant’s “intimate friend”, whereas other participants in the various conversations recorded are referred to simply as “friend”. Those syntagms were reproduced several times in the decision adopted by the first-instance court. 10. On 30 April 2001 the prosecutor instituted criminal proceedings against the applicant (începerea urmăririi penale). 11. In the evening of 3 May 2001, as the applicant was returning home by car accompanied by T.C., a fellow lawyer, she was apprehended by the police and taken to the prosecutor’s office for questioning on charges of corruption. 12. The applicant was shown the RIS report of 11 September 2000 (see paragraph 8 above) and then questioned throughout the night. According to her, T.C. was not allowed to attend the actual questioning; he was allowed to see the applicant only afterwards, when she was writing a statement, which he then read and countersigned. In her statement the applicant confessed to the crimes and gave a detailed description of the facts. While the applicant was in the prosecutor’s office, T.C. completed a power of attorney document so that he could represent her in the event that she was taken into custody that night. The applicant did not sign that document. 13. The applicant lodged a criminal complaint against the prosecutor in charge of the proceedings on the night of 3 May 2001, but on 2 September 2002 the Prosecutor’s Office attached to the Supreme Court of Justice decided not to prosecute. The applicant did not object to that decision before the courts. 14. On 4 May 2001 the applicant was hospitalised for panic attacks, impulsive personality disorders and stress induced by her workload. She left the hospital the next day, on her own initiative. 15. On 7 May 2001 the prosecutor ordered the applicant’s detention pending trial. However, she could not be arrested, as she had left the country. On 14 July 2001 the applicant was apprehended in Bulgaria. She was extradited at the prosecutor’s request. 16. On 6 June 2001 the prosecutor set in motion the criminal trial against the applicant (punerea în mişcare a acţiunii penale). 17. On 18, 22 and 26 September, and 1 October 2001 the applicant gave new statements to the prosecutor in the presence of her appointed counsels. She retracted her initial confession, claiming that it had not represented the truth but was a mere reproduction of what the prosecutor had read to her from the RIS report (see paragraph 8 above). She claimed that at the time she had made the initial statement she had been in a state of shock, having been traumatised by the prosecutor and forced to confess to deeds that she had not committed. The prosecutor had suggested that if she confessed, only disciplinary action would be taken against the judges and prosecutors suspected of corruption; she was therefore led to believe that through her action she would help the magistrates who were under investigation. She denied having committed any of the acts of corruption imputed to her and claimed that she could not remember what she and the other defendants had been referring to in the conversations recorded by the RIS and played to her by the prosecutor during questioning. Mention was made in the statements that the applicant had been informed of the charges brought against her and of the rights of the defence. 18. On 12 December 2001 the prosecutor indicted the applicant for trading in influence (trafic de influenţă), giving bribes (dare de mită) and illegally crossing the border (trecerea frauduloasă a frontierei). Several other persons were committed to trial under the same measure, including judges V.A. and R.F. and a prosecutor. In particular, the applicant was accused of having offered money to judges, including V.A. and R.F., in an attempt to have some of her clients released from pre-trial detention. She was also accused of having fled the country in order to escape the criminal proceedings against her. 19. The case was heard by the Criminal Division of the Supreme Court of Justice. 20. On 31 January 2002 the Supreme Court heard testimony from each defendant and the relevant parts of the audio tapes were played in their presence. None of them denied having had the recorded conversations. 21. The applicant denied having committed any crime and claimed that she could not remember exactly what she had been referring to in the conversations recorded by the RIS. She maintained that the discussions with V.A. had concerned only matters of law. 22. Judge V.A. also denied having committed any crime. He explained that his discussions with the applicant, which had been recorded through secret surveillance, as well as those he had had with his fellow judges about the cases referred to by the applicant, had concerned only questions of law. He maintained that he had not accepted any money or promise of money from the applicant. He reiterated that in his capacity as judge inspector, he was entitled to discuss questions of law with his colleagues. 23. Judge R.F. also denied having committed any crimes. She claimed that the only relevant discussions she had had with V.A. were in connection with the cases in which they had been sitting on the same bench. She declared that she did not know the applicant, had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate. 24. At the same hearing on 31 January 2002, the co-defendants alleged that there were procedural defects. They argued that as the prosecutor had failed to request the necessary authorisation for intercepting magistrates’ conversations, the audio recordings were illegal. The court gave detailed answers to their complaints. Concerning the telephone tapping, it noted that one of the applicant’s clients had been indicted for weapons and ammunition smuggling, which, under the National Security Act, constituted a threat to national security and thus allowed the RIS, under a procedure regulated by the Code of Criminal Procedure, to seek authorisation from the prosecutor to intercept the suspect’s conversations. The fact that during the surveillance activity the authorities came across telephone discussions among the codefendants which led them to believe that the applicant was trying to corrupt judges constituted preliminary investigation (acte premergătoare). The Supreme Court reiterated that so long as the recordings had been obtained during the preliminary investigation phase, they did not constitute evidence. Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file. 25. On 21 February 2002 the statements made by the defendants were read out in court. They were allowed to supplement their testimony and put questions to their co-defendants. 26. At the same hearing the Supreme Court heard testimony from the witnesses for the prosecution. 27. On 14 March 2002, at the defendants’ request, the Supreme Court ordered an expert examination of the audio tapes, in accordance with Article 915 of the Code of Criminal Procedure (“the CCP”). 28. At a hearing on 4 April 2002 the Supreme Court dismissed a request by the co-defendants, A.V. and R.F., for the RIS to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the RIS and the prosecutor’s office. The Supreme Court considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations. 29. On 4 April, 25 April, 9 May, and 6 June 2002 the Supreme Court heard eight witnesses for the defence. 30. Lawyer T.C. attested that the applicant had been in a state of shock the night when she had been taken to the prosecutor’s office to give a statement; that he had accompanied her there but had not been allowed to attend the actual questioning; and that only afterwards had he seen her writing the statement, which he had then read and countersigned. He reiterated that while the applicant had been in the prosecutor’s office, he had completed a power of attorney document so that he could represent her (see paragraph 12 above). 31. On 3 June 2002 the two experts rendered their report, as requested by the Supreme Court. They concluded that the audio tapes were neither authentic nor original and advised against admitting them as evidence in the criminal trial. 32. On 6 November 2002 the Supreme Court of Justice, sitting as a three-judge bench, rendered its decision. It changed the legal classification from a continuous crime of giving bribes, to three individual crimes of giving bribes. It convicted the applicant for the three counts of giving bribes, for trading in influence and for illegally crossing the border, and sentenced her to six years’ imprisonment. The co-defendants were likewise convicted and received prison sentences for their deeds. The sums of money received in bribes were confiscated. 33. The Supreme Court considered that the statements made by the defendants and the witnesses, both before the prosecutor and in open court, corroborated the theory that some of the applicant’s clients had been released from prison because she had bribed the judges. The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted, either before the prosecutor or in court, that they had been pressured by the defendants into changing their declarations. The court also considered that the testimonies given by the applicant and the witnesses corroborated the transcripts of the telephone conversations. 34. The Supreme Court also made a lengthy analysis of the transcripts, thus responding to the defendants’ allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage. The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court. It noted that the experts had not questioned that aspect either. As for the authenticity and originality of the tapes, which the experts contested, the court pointed out that, in the sense of Article 224 of the Code of Criminal Procedure, the report concerning the transcripts, drafted by the prosecutor after the opening of the criminal proceedings, represented the evidence and not the tapes themselves (which were attached to the prosecutor’s report, as the law required); neither did the original harddisk on which the conversations had been recorded. In his report, the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected. The court confirmed those aspects. The defendants had had ample opportunity to challenge it, as provided for by the CCP. Moreover, the court observed that the original recording had been digital, done straight onto the hard-disk of the equipment used by the RIS for telephone tapping; the tapes attached to the prosecutor’s report were consequently copies of the original recordings. Because of its nature and purpose, the hard-disk could not be attached to the prosecutor’s report; furthermore, it did not need to be attached as it did not constitute evidence. The court concluded that the absence of the hard-disk did not automatically disqualify the transcripts from being used as evidence. The court noted that, for obvious reasons related to respect for the private life of those involved, it had not listened to all the conversations recorded by the RIS, but only to those relevant to the charges brought before it. However, the parts presented to it and to the defendants by the prosecutor represented full conversations. The dialogues were coherent, the sentences were not truncated and no words were missing or had been inserted into the dialogues. It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified. 35. The court was therefore satisfied that the prosecutor’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file. 36. The Supreme Court further dismissed the applicant’s complaints concerning the manner in which she had been questioned by the prosecutor in the night of 3 May 2001. In particular, the court observed that the applicant’s statement was clear and coherent. In the court’s opinion, it showed no signs of having been given in an unbalanced mental state, as the applicant had tried to claim afterwards. The court proceeded to examine in parallel the RIS report and the applicant’s incriminatory statement, and noted that she had offered significant details that did not figure in the RIS report. This proved that she had had the conversations, as only a direct participant could have known aspects that had not been revealed in the RIS report but had later been confirmed by supporting evidence. It also noted that neither she nor her counsel had made any complaints at that time about the questioning or the alleged disregard for the rights of the defence. 37. All parties appealed against the judgment. In particular, the applicant complained that the Supreme Court had changed the classification of the crimes; that she had been forced to make the initial statement of 4 May 2001; that the telephone tapping had been illegal and in breach of Article 8 of the Convention – she asked the court to hear evidence from the experts – and lastly, that there had not been sufficient elements to justify her conviction by the lower court. The applicant made no specific complaints concerning the wording of the judgment, in particular about the manner in which the court had qualified one of her interlocutors as an “intimate friend”. 38. The case was heard by a nine-judge bench of the Supreme Court, who rendered the final decision on 8 October 2003. 39. The Supreme Court noted that the telephone tapping had not observed the stricter requirements relating to magistrates. It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping; on this point it reiterated that the information concerning the magistrates’ alleged involvement had been obtained incidentally by the prosecutor. It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations. The court also reiterated that as the tapes had disclosed information on the commission of crimes, they could not have been ignored by the authorities. Furthermore, the tapes had been made with the prosecutor’s prior approval, as the law had required at the time, and had not contravened public order. The Supreme Court attached great importance to the fact that the defendants had not denied having had the recorded conversations. It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file. It therefore concluded that the tapes could be used as evidence. The Supreme Court also decided that the evidence had to be interpreted in its entirety and in context, and reiterated that the law did not give precedence to any type of evidence to the detriment of others. 40. It therefore concluded that the evidence in the file was sufficient and that the first-instance court had correctly interpreted the facts based on the elements at its disposal. 41. The Supreme Court noted that the first-instance court had changed the legal classification of the crimes committed by the applicant from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by V.A. from a continuous crime of trading in influence and aiding and abetting the applicant to give bribes to several individual crimes of trading in influence and aiding and abetting the applicant to give bribes. It accepted that the first-instance court had erred in not allowing the parties to discuss the new legal classification of the crimes. However, it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification, as the consequences in law for both situations were identical. 42. From the date of her arrest on 7 December 2001 until her release on 1 March 2005, the applicant was held mainly in Bucharest-Rahova and Târgşor Prisons. She was first taken to the latter on 7 September 2002. 43. Regarding the conditions of detention in Rahova Prison, the applicant alleged that she had been held in overcrowded, badly ventilated cells. She claimed that the occupancy rate had been between nine and twenty prisoners to one six-bed cell. She had had to share the cell with individuals suffering from consumption or HIV. She alleged that the detainee who had been suffering from HIV had been violent and had threatened her fellow inmates that she would contaminate them with the virus. The applicant further alleged that the prison authorities had failed to intervene, despite her complaints. 44. It appears from the official prison documents submitted by the Government that in Rahova Prison the applicant was held in a 21 sq. m cell containing ten bunk beds. The cell had a 1.44 sq. m window, and the ventilation was ensured naturally through the door and window. It contained a separate toilet measuring 1.78 sq. m with a window and a shower room measuring 6.48 sq. m. The detainees had permanent access to running drinkable water; hot water was available twice a week for two hours at a time. The inmates were responsible for cleaning the facilities with products provided by the prison administration. The detainees were allowed daily walks of one to three hours in the prison court yard. 45. According to the applicant, during her stay in Târgşor Prison she had had to work for more than ten hours each day and received less than the monthly average salary. 46. The official prison records submitted by the Government attested that the applicant had worked an average of 17.76 days a month for an average of eight hours a day, which was below the twelve-hour working day permissible under the Execution of Sentences Act (“Law no. 23/1969”; see paragraph 59 below). In accordance with the relevant law, the applicant’s sentence was reduced in proportion to the work performed. She also received remuneration for her work, of which, in accordance with the law, 10% was paid to her and 90% to the prison. 47. During her stay in Târgşor Prison the applicant lodged a complaint under Emergency Ordinance no. 56/2003 on the rights of persons deprived of their liberty (“Ordinance no. 56/2003”; see paragraph 59 below) alleging lack of privacy when making telephone calls from prison. She complained that the telephones were too close to each other to allow for private conversations and that the wardens remained close by when prisoners were using the phones. She sought 5,000 euros (EUR) in damages for mental suffering. 48. It appears from the information submitted by the prison authorities that detainees were required to write down in a special register the date and start time of telephone calls, the number dialled, and to sign their name. 49. On 26 October 2004 the Ploieşti District Court dismissed the complaint, considering that the situation in Târgşor Prison respected the relevant regulations concerning the confidentiality of telephone conversations and that therefore no infringement of the privacy rights guaranteed under Article 8 could be found. 50. In an appeal lodged against the District Court’s judgment, the applicant pointed out that all the phone numbers dialled from prison were recorded in a special register, along with the date and time of the respective calls. 51. In a final decision of 15 December 2004 the Prahova County Court dismissed the appeal and upheld the District Court’s decision. It observed that the telephones were placed at regular two-metre intervals approximately three to four metres from the warden’s booth. Under the regulations, the warden had an obligation to check that the telephone number dialled was the same as that entered by the prisoner in the special register, but she did not monitor the telephone conversation itself. The court considered that the registration of the dialled numbers did not constitute a breach of prisoners’ privacy rights. 52. On 4 September 2003 the applicant filed for divorce and custody of her minor child, on the grounds that her relationship with her husband had started to become tense in 2000; he had neglected their two children and had ultimately left home in May-June 2001. 53. The request was granted and in a decision of 13 November 2003 the Bucharest District Court declared the couple divorced. The applicant reverted to her maiden name, Niculescu. 54. On 10 May 2001 the applicant was suspended from the Bar Association for the duration of the criminal proceedings against her. On 27 October 2003 the Bucharest Bar Association decided, based on a recommendation by the National Bar Association, to exclude the applicant from its list of members. This decision was not communicated to the applicant. 55. As the final decision of 8 October 2003 (see paragraphs 38 and following, above) did not prohibit the applicant from exercising her profession, on 5 May 2005 she asked the Bucharest Bar Association to reinstate her. On 20 April 2005 the Bucharest Bar refused her request and informed her of the decision taken on 27 October 2003. 56. Having objected unsuccessfully to the National Bar Association, the applicant lodged a complaint with the administrative courts, invoking both procedural and substantive flaws in the contested decision. 57. On 8 January 2008 the Bucharest Court of Appeal dismissed the complaint, giving detailed responses to all the arguments raised by the applicant. In particular, the court noted that the applicant’s name had been struck from the Bar Association’s list of lawyers not to prohibit her from exercising her profession, but because, in committing crimes in the exercise of her profession, she had become unfit to practise as a lawyer, in accordance with the Legal Profession Act (Law no. 51/1995). 58. An appeal lodged by the applicant was subsequently dismissed by the High Court of Cassation and Justice, which gave the final ruling in the case on 22 October 2008. 59. The relevant legal provisions concerning the conditions of detention, including a succession of laws on the execution of sentences – Law no. 23/1969, Ordinance no. 56/2003 (in force since 27 June 2003) and Law no. 275/2006 (in force since 23 July 2006) – and the effective remedies they introduced are summarised in Iacov Stanciu v. Romania (no. 35972/05, §§ 11319, 24 July 2012). In addition, the provisions of the above laws concerning prison work are detailed in Floroiu v. Romania (dec.), no. 15303/10, §§ 17-21, 12 March 2013). The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and the reports by the Council of Europe Commissioner for Human Rights, made following numerous visits to Romanian prisons, are also summarised in Iacov Stanciu, cited above, §§ 125-29). There is no CPT report concerning Rahova Prison. However, a Romanian NGO, APADOR-CH (Association for the Defence of Human Rights in Romania – the Helsinki Committee) visited that establishment on 13 February 2009. The report prepared following its visit indicated that, based on the information submitted by the authorities, the average personal space for each prisoner was 2.77 sq. m. The overcrowding was obvious when visiting individual cells: one of the cells visited, measuring 18 sq. m, had accommodated eleven prisoners, even though only ten beds had been available. The report indicated that only one detainee had complained about the quality of the prison food and that many prisoners had preferred to eat the food they received from home or bought from the shop (see Goh v. Romania, no. 9643/03, § 38, 21 June 2011). 60. The legislation in force at the relevant time concerning telephone tapping, including the National Security Act, is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007). 61. The relevant provisions of the Code of Criminal Procedure concerning the preliminary investigation read as follows: “1. The criminal investigation authorities may conduct any preliminary investigation measures. ... 3. The report of execution of any preliminary investigation measure shall constitute evidence.” “The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article 221 shall order, by decision (rezoluţie), the opening of criminal proceedings where the content of that application or the preliminary investigation does not disclose any grounds for not prosecuting, as provided for in Article 10, with the exception of the ground set out in subparagraph (b)1.” 62. Concerning the telephone tapping at the preliminary investigation stage, the High Court of Cassation and Justice considered, in a decision rendered in an appeal on points of law (decision no. 10 of 7 January 2008) that the lawfulness of the interception was not dependent on whether criminal proceedings had been opened; it further noted that the law did not impose an obligation on the authorities to inform the person concerned of that measure, an omission which the High Court found reasonable, given the purpose of the telephone tapping and its secrecy. However, the person concerned had subsequently had an opportunity to listen to the recordings and contest their content. The High Court also reiterated that there was no prior value attached to the report drafted by the prosecutor, as the courts were free to assess the evidence in the context of the files under examination. By its decision no. 962 of 25 June 2009, the Constitutional Court confirmed that Article 911 of the CCP did not allow for evidence to be gathered during the preliminary investigations; any such evidence would fall under the courts’ scrutiny. 63. The provisions of Ordinance no. 56/2003 and the subsequent Execution of Sentences Act (Law no. 275/2006), concerning the use of public telephones in prison, are described in Brânduşe v. Romania (no. 6586/03, § 26, 7 April 2009) and in Coscodar v. Romania ((dec.), no. 36020/06, § 12, 9 March 2010). In addition, in accordance with Article 7 of Order no. 4622 issued on 22 September 2003 by the Director General of the Prison Administration pursuant to the above Ordinance, the prison staff had to keep a record of the numbers dialled by the detainees and the start time of telephone calls. | 1 |
train | 001-67643 | ENG | GBR | ADMISSIBILITY | 2,004 | WARD v. THE UNITED KINGDOM | 3 | Inadmissible | Nicolas Bratza | The applicant, Mr Martin Ward, is an Irish national born in 1941 and living in London. He is represented by Mr C. Johnson, a solicitor practising in London. The applicant is a traveller who, since 1972, has lived with his family in a caravan on Westway Travellers' Site. This site was established as an official local authority site in 1975 under the duty to provide gypsy sites contained in the Caravan Sites Act 1968. The site is now leased by the Royal Borough of Kensington and Chelsea and managed by the London Borough of Hammersmith and Fulham. It is located beneath two flyovers that make up part of the motorway bridge known as the Westway leading from Marylebone Road in London. A railway line also passes nearby. Plots 1 and 20 were directly under the flyover, the carriageways to the east and west were separated from the site by a concrete barrier and vehicles passed within several metres of residential caravans. Virtually since the opening of the site, the applicant has been campaigning for its relocation because of the pollution and noise, coming from the adjacent highways. In November 1992 two independent Environmental Health Officers inspected the site and concluded: "The present conditions are unsatisfactory, and are prejudicial to health within the meaning of s. 79 of the Environmental Protection Act 1990. Environmental issues, such as rat infestations, lead levels in dust and noise levels, smells and nuisance from adjoining premises are largely beyond the control of the managing authority. In our opinion the site is not suitable for residential occupation. The original decision to locate the site in such a position fails any commonsense assessment of the suitability of the environment." They noted that while a number of items could be remedied by works, for example, site drainage, other problems, such as, nitrous oxide poisoning and noise levels resulted from the site's location and could not be remedied. Following the coming into force of the Human Rights Act 1998, the applicant instructed his solicitors to obtain an updated environmental report from the two officers who produced the 1992 report. This was finalised in February 2002 and confirmed the earlier conclusion that it was not a suitable location for a gypsy site. The two experts noted that lead levels had dropped since 1992 due to a ban on leaded petrol and this was no longer a ground of concern. It found the residents at the site were being exposed to nitrogen dioxide levels above the air quality objective of 21 ppb (a mean concentration in 1992 of 24.2 and in 2001 of 25.6). The report noted that air pollution in the United Kingdom was unlikely to cause any serious health effects in the population as a whole but that young children, the elderly or those suffering from respiratory problems might be more sensitive to air pollution. No formal measurement of noise levels was made but it was noted that road traffic noise was intrusive and almost continuous during both their visits. Given the location between major roads and adjacent to a railway they recommended formal monitoring of noise levels be undertaken. The applicant presented the report to the Royal Borough and renewed requests for relocation of the site, invoking arguments under the Convention. By letter of 23 August 2002, the Royal Borough responded to the applicant's complaints stating that the alleged treatment failed to satisfy the degree of severity for a breach of Article 3 and that no claim arose under Article 8 as it would be akin to interpreting the provision as requiring a right to be given a home. It denied that it was under any duty to provide a new site. The Royal Borough obtained that year Government approval of a major grant for 75% of the total expenditure for refurbishment of the site then estimated at GBP 700,000. The applicant commenced judicial review proceedings in December 2002. On 12 May 2003, the High Court judge refused the application on the ground of delay. Following a hearing on 30 July 2003, the Court of Appeal dismissed his appeal. Lord Justice Carnwath noted the delay in bringing the proceedings: “In this case it seems to me that the important issue is the delay in bringing the proceedings. From October 2000 the rights under the Human Rights Act 1998 were established. Mr Ward was being advised by his present solicitors ... In November 2000 he was also being advised by [counsel] who appeared before us. There was no doubt as to the nature of his rights. The only excuse put forward for the delay until the end of 2002 was the time taken to get this report. However the report itself, although detailed, is reiterating matters which [the applicant] had been asserting for many years. The council has had its own reports in 2000 which showed as a matter of principle that there were major problems with the site. It seems to me that during this time the council was, to [the applicant's] knowledge presumably, putting forward major proposals for refurbishment with the support of the majority of the residents. It was crucial that, if there was some legal error in the way the council approached it, it should be established as soon as possible. In my view the judge was right to refuse permission on the ground of delay. I see no arguable basis for appeal.” Concerning the substantive issues, he held: “.. The problem in this case is that it is accepted that, as a result of changes in the law since the 1968 Act, the council is under no duty to provide [the applicant] with a site here or anywhere else. In those circumstances, it seems difficult to see that he can argue for a right to be relocated to another and better site. If the argument is right, it is difficult to see what distinction there would be between [the applicant] and any other inhabitant of a caravan or a house who is concerned about pollution levels in his home. In my view, there is nothing in European law or, more particularly the cases we have been shown, which provides any support for such a claim. Under English law, [the applicant] has potential remedies under the Environmental Health Act which do not seem to have been activated. As I understand from the evidence, the council is taking active measures to improve the site. The more general problems about which [the applicant] complains are the pollution levels, nitrogen dioxide and noise. Those are problems which, unhappily, are shared by a number of urban sites. The council's Environmental Health Officer has acknowledged the problems but considers they do not cause unacceptable conditions ...” | 0 |
train | 001-86179 | ENG | GBR | ADMISSIBILITY | 2,008 | HAYES v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Norman John Hayes, is a British national who was born in 1957 and lives in Wirral. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant received a notice of intended prosecution requiring him to name the driver of his car on 10 December 2001. The applicant replied that either he or his wife had been driving but neither could actually remember which one of them had been driving through the location of the speed trap on that date. On 17 October 2002 the Magistrates’ Court convicted the applicant of an offence under section 172 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988 for failing to give information which might have led to the identification of the driver of his car. He was fined GBP 150 and ordered to pay GBP 100 costs, with his licence to be endorsed with three penalty points. On 27 November 2002 the Crown Court rejected the applicant’s appeal, amending the sentence such that he would have to pay GBP 212 costs. The applicant appealed to the High Court by way of case stated claiming a breach of his rights under Article 6 of the Convention. In the case stated, the Crown Court trial judge, having set out the facts of the case, stated that the court had been of the opinion that the applicant was trying to evade responsibility for the disregard of the speed limit, that the right against self-incrimination did not apply and accordingly dismissed the appeal. On 4 February 2004 the High Court rejected the applicant’s appeal, referring to established domestic case-law on the point in Brown v. Stott [2001] 2 WLR 817. The relevant domestic law and practice is set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007... | 0 |
train | 001-68373 | ENG | UKR | CHAMBER | 2,005 | CASE OF NOVOSELETSKIY v. UKRAINE [Extracts] | 1 | Violation of Art. 8;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | null | 9. The applicant was born in 1938 and lives in Ussuriysk (Russia). 10. By a decision of 2 June 1995 under the Education Act, the trade union branch at the Melitopol State Teacher Training Institute (“the Institute”), which was the applicant's employer at the time, granted the applicant indefinite authorisation (ордер) to occupy and use a two-room, 25.1 sq. m flat in a building in Melitopol on the Institute's books. 11. In August 1995 the applicant resigned from the Institute and went to live in Vladimir (Russia) to prepare his doctoral thesis. Before leaving, he took his wife to Kotovsk (Ukraine), where she was due to receive medical treatment. 12. On 5 October 1995 the Institute annulled its decision of 2 June 1995 and granted authorisation to occupy and use the flat to T., another of its employees. 13. On 3 November 1995 T., accompanied by four witnesses, entered the flat. They noted that the flat was empty and made a statement to that effect. According to the applicant, his possessions were removed or stolen from the flat. 14. In November 1995 the applicant's wife returned to Melitopol. Unable to move back into the flat, which was now occupied by T.'s family, she had to return to Kotovsk and move in with relatives. In January 1996 the applicant returned to Melitopol, before joining his wife in Kotovsk. 15. In late February 1996 the applicant filed a civil claim against the Institute with the Melitopol City Court, claiming compensation for pecuniary and non-pecuniary damage and seeking to assert his right to free use of the flat in question. The Institute in turn lodged an application to have that right withdrawn from the applicant. 16. On 15 May 1996, following an intervention by the procurator at the applicant's request, the Institute annulled its decision of 5 October 1995, finding that it had been unlawful, and restored the applicant's rights to the flat. 17. In a judgment of 27 June 1996, the Melitopol City Court dismissed the applicant's claim and granted the Institute's application. It found in particular that, in accordance with the legislation in force and the employment contract concluded between the Institute and the applicant, the latter had forfeited his right to use of the flat concerned after taking up permanent residence elsewhere. The court also noted that, according to the statement made on 3 November 1995, the flat in question had been empty when it was entered. 18. Following an objection under the supervisory review procedure from the Zaporijya deputy regional procurator, the Zaporijya Regional Court, in a judgment of 23 May 1997, quashed the judgment of 27 June 1996 and remitted the case to the Melitopol City Court for further consideration. 19. By a judgment of 28 April 1998, the Melitopol City Court rejected the applicant's claim, reiterating in substance the findings of the judgment of 27 June 1996. 20. Following an appeal by the applicant on points of law the Zaporijya Regional Court, in a judgment of 18 August 1998, quashed the judgment of 28 April 1998 and remitted the case once more to the court of first instance. In particular, the Regional Court noted that the issue of the lawfulness of the Institute's decision of 5 October 1998, granting T. the rights to the flat in question, had not been addressed, despite the fact that the decision had subsequently been annulled following an objection from the procurator. The court further noted that the applicant's wife, who was also authorised to occupy the flat, had been absent from the flat only temporarily, and on medical grounds. The court noted, inter alia, that three of the four witnesses had signed the statement of 3 November 1995 at T.'s request and had not been present when he had entered the flat. 21. By an order of 2 December 1998 giving effect to the Institute's decision, the executive committee of Melitopol municipal council transferred ownership of the flat in question to T., a private individual. 22. In a judgment of 6 January 1999, the Melitopol City Court allowed the applicant's claim in part. That judgment was upheld by the Zaporijya Regional Court in a judgment of 16 February 1999. The court noted in particular that the applicant's move to Vladimir had been only temporary, and that Melitopol had remained his permanent place of residence. Accordingly, it found that the applicant had the right to free use of the flat in question in Melitopol. However, the court rejected the applicant's claim for damages, observing that the criminal investigation into the disappearance of his possessions had been closed by an order of 15 February 1996 (see paragraph 36 below). In that connection, the court took the view that neither the amount of the claim nor the existence of the pecuniary damage allegedly caused by the Institute had been borne out by the evidence provided. It also noted that the law made no provision for compensation in respect of non-pecuniary damage in landlord-tenant disputes. 23. On 17 May 1999 the Melitopol City Court forwarded the writ of execution in respect of the judgment of 6 January 1999 to the Melitopol department of the Ukrainian Ministry of Justice. 24. On 21 May 1999 the court bailiff noted that the flat in question was occupied by T.'s family. Accordingly, he lodged a request with the Melitopol City Court for an interpretation of the judgment of 6 January 1999. 25. In a decision of 14 September 1999, the Melitopol City Court dismissed the request on the ground that it was aimed at having the judgment in question varied rather than interpreted. Furthermore, it noted: “In examining the aforementioned civil case, the court was not aware that ownership of the flat in question ... had been transferred to a private individual, as T. had not informed the court of this fact when he gave evidence as a witness at the hearing. Only after the judgment had been delivered did this come to light. That being the case, neither the court nor the applicant R.N. Novoseletskiy was aware that the flat had passed into private ownership. It was for that reason that Mr Novoseletskiy lodged an application simply to be allowed to occupy the flat in question rather than to have [T.] evicted.” The Zaporijya Regional Court upheld that decision in a judgment of 9 December 1999. 26. In November 1999 the Melitopol procurator applied to the Melitopol City Court on the applicant's behalf, seeking to have the transfer of ownership of the flat to T. on 2 December 1998 declared unlawful, and to have T. evicted from the flat. 27. At the hearing, the executive committee of Melitopol municipal council argued that the construction of the flats belonging to the Institute had been funded by the Ministry of Education, and that any decision concerning the flat in issue would have been taken entirely by the Institute management. 28. In a judgment of 25 May 2000, the Melitopol City Court granted the procurator's application, ordering T. to vacate the flat and the Institute to provide T.'s family with alternative accommodation. In addition, the court concluded that the Institute had acted unlawfully in relation to the disputed flat, in particular in approving the transfer of ownership to T., a private individual, in 1998, while the applicant's civil claim was still pending before the court. This judgment became final on 18 August 2000. 29. In a decision of 28 December 2000, the Melitopol City Court granted T. and his family a stay of execution of the judgment of 25 May 2000 until 1 April 2001, owing to the chronic illness of one of the family members. The applicant alleges that he was not informed of the court hearing on that issue. 30. In December 2000 and January 2001, the court bailiff imposed a fine on the director of the Institute for the delays in complying with the judgment in question. 31. By orders of 13 March and 28 March 2001, the court bailiff discontinued the execution proceedings in respect of the judgments of the Melitopol City Court of 6 January 1999 and 25 May 2000, after certifying that the flat in question was unfit for human habitation. On 28 March 2001, in a measure designed to secure possession of the flat by the applicant, a committee made up of the applicant and seven witnesses, in the presence of the court bailiff, certified that the flat in question was empty and unfit for human habitation and needed substantial repairs before it could be used. Among many other things, the committee noted that the sanitary fittings and electrical wiring had been seriously damaged, that the sink and surrounding pipes had been removed, making it impossible to use any running water, and that the contents of the sewage pipes emptied into the flat, creating a powerful stench. They also recorded the refusal of T. and an official of the Institute to hand over the keys to the flat to the court bailiff. 32. On 20 January 2004 six witnesses, of whom five were engineers, accompanied by the applicant, inspected the flat and noted that, as a result of the damage recorded on 28 March 2001, the sewage pipes emptied into the kitchen and toilets, as had been the case at their inspections in 2002 and 2003, and that the applicant was unable to use the sanitary facilities or running water. A statement to that effect was drawn up for the attention of the Institute. 33. According to a statement of 16 February 2004 addressed to the Institute and the procurator's office by the applicant and four engineers who had acted as witnesses, the sewage pipes were blocked and the water pipes and sanitary fittings were out of order. The statement referred to similar findings that had been made by the Institute on 13 February 2004. The signatories contended that the situation had not changed since 28 March 2001, when the applicant had taken possession of the flat. 34. In his letter of 10 February 2004 to the Court, the applicant complained that since 28 March 2001 he had been unable to live in the flat owing to its deplorable state; however, he had visited the flat regularly in order to monitor the situation. 35. On 6 February 1996 the applicant lodged a complaint with the Melitopol department of the Ministry of the Interior, alleging that his belongings had been removed from the flat. He requested that criminal proceedings be brought against the management of the Institute and against T. for unlawful entry into his flat. In support of his complaint, the applicant submitted two statements, one from his sister, G.G.S., and the other from his niece, G.I.V., to the effect that they had seen in the flat in question several pieces of furniture, a large number of books, a television, a radio, household appliances, two mammoth tusks and gold and silver jewellery, together with 5,000 United States dollars hidden in the stove and in the basement. The applicant also submitted a statement from T.G.M., a police officer, confirming that he had assisted the applicant in July 1995 in moving his personal effects from the hall of residence where he had lived previously to the flat in question. 36. According to the Government, the investigating authorities had responded to this complaint by conducting a detailed investigation into the alleged theft. The investigation established that, after being informed of the applicant's resignation and his departure for Russia, the director of the Institute had instructed T. to enter the flat and check that the heating was in order for the winter. In an order dated 15 February 1996, the Melitopol department of the Ministry of the Interior closed the criminal proceedings, finding that no offence had been committed (за відсутністю події злочину). The order made reference to the statement of 3 November 1995, drawn up by T. and signed by four witnesses, to the effect that the flat had been empty when it was opened up. 37. Between 1996 and 1999, the applicant lodged several complaints with the Melitopol procurator's office and the Zaporijya regional procurator's office seeking to have the order of 15 February 1996 quashed. 38. In a letter of 30 October 1999, the Zaporijya regional procurator's office informed the applicant that the Melitopol procurator's office had issued an order on 29 October 1999 quashing the order of 15 February 1996, and had reopened the criminal proceedings in response to his complaints concerning the disappearance of his possessions from the flat. 39. By a letter of 18 May 2001, the Zaporijya regional procurator's office informed the applicant that the investigation set up in response to his complaints had still not been completed. 40. On 27 August 2001 the Zaporijya regional procurator's office wrote to the applicant informing him that, by an order of 3 August 2001, the Melitopol department of the Ministry of the Interior had closed the criminal proceedings relating to the disappearance of his possessions on the ground that no offence had been committed, but that the proceedings to establish the lawfulness of that order were still in progress. 41. In two letters dated 28 December 2002 and 13 January 2003, the Melitopol procurator's office informed the applicant that the criminal proceedings relating to the disappearance of his possessions were still pending. 42. On 5 February 2003 the Zaporijya regional procurator's office examined the file relating to the investigation, quashed all the earlier decisions and ordered further investigations to be carried out. 43. By a decision of 22 March 2003, the Melitopol department of the Ministry of the Interior closed the criminal proceedings, finding that no offence had been committed. On 3 April 2003 the Melitopol deputy procurator quashed that decision and reopened the investigation. 44. In an order of 27 May 2003, the Melitopol department of the Ministry of the Interior, after summarising the main findings of the investigation, closed the criminal proceedings on the ground that no offence had been committed. 45. In particular, it was observed that G.G.S. and G.I.V., on whose statements the applicant had relied, had declined to attend in person in order to provide further information to the investigating officer. In that connection it was also pointed out that the Melitopol City Court had refused to take G.I.V.'s statement into account because she was related to the applicant. 46. T.G.M. was questioned several times on the subject of his statement, on 7 December 1999, 10 July 2001 and 21 May 2003. In his submissions, T.G.M. said that he had moved the following items into the flat in question: a washing machine, a refrigerator, some chairs, a guitar, some spare parts for cars and some home-made jams. However, the investigation noted that these items had not been mentioned by the applicant in his complaints. T.G.M. also maintained that he had seen a piece of mammoth tusk in the applicant's room in the hall of residence where he had lived previously. 47. It was established that, prior to his move into the disputed flat, the applicant had rented fully furnished accommodation with a surface area of 30 sq. m in a hall of residence. However, neither T.G.M., during an attempted reconstruction, nor the applicant, was able to say precisely where so many bulky items of furniture, of the kind described in the applicant's complaints, might have been fitted into a furnished dwelling with a surface area of 30 sq. m. 48. In addition, statements were taken in the course of the investigation from six persons, including T., who lived in the same building or adjoining buildings. They all asserted that they had seen no heavy or bulky items of furniture being moved into the flat in question between August and November 1995. Taking the view that items of that nature could not have been moved in without being noticed, and on the basis of the preceding statements, the investigating officer concluded that the applicant had never moved the items into the flat, and that the alleged theft had not taken place. 49. Furthermore, the order of 27 May 2003 accused the applicant of taking insufficient interest in the investigation, having failed to attend his appointments with the investigating officer. 50. Lastly, having observed some inconsistencies in the applicant's statements concerning the date of his return to Melitopol, the investigation concluded that the applicant had lodged his complaint concerning the alleged theft on fictitious grounds and with a view to material gain. In support of this argument, the order cited some criticisms made of the applicant by previous employers. 51. Article 4 of the Ukrainian Housing Code (Житловий кодекс України – “the Code”) of 30 June 1983 (as amended) stipulates that the State's housing stock comprises State-owned houses and dwellings in other buildings. 52. Section 1 of Law no. 2482-XII of 19 June 1992 on the privatisation of the State housing stock (Закон України “Про приватизацію державного житлового фонду”) defines the State housing stock as the housing stock of the municipal councils, together with the housing managed by State-owned companies, institutions and establishments (“the institutional housing stock”). 53. Under Article 18 of the Code, the housing stock is managed by the owner or by an establishment, to the extent that powers have been delegated to it by the owner. 54. Under the terms of the second paragraph of Article 184 of the Code, work carried out on buildings that form part of the institutional housing stock (відомчий житловий фонд) is funded by the budget of the companies, institutions and establishments concerned. 55. Article 52 of the Code governs the allocation of flats from the institutional housing stock. In particular, flats are allocated by a joint decision of the authorities and the trade union branches of the companies, institutions and establishments concerned, which either submit their decision to the relevant municipal council for approval or, in some cases, simply inform the council. On the basis of that decision, the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat (ордер), which constitutes the sole legal basis for taking possession of the allocated dwelling (see Article 58 of the Code). 56. Article 29 of the Code provides that the housing stock is subject to State supervision. This consists in ensuring that all the organisations and persons concerned observe the rules on the use and maintenance of the housing stock and that the distribution of living space and allocation of flats occur in the correct order. 57. The list of functions of the executive committees of the municipal councils set out in Article 15 of the Code includes State supervision of the use and maintenance of the housing stock, monitoring of the state of repair and use of the institutional housing stock, and monitoring of the waiting list of persons in need of better housing kept by the companies, institutions and establishments concerned. | 1 |
train | 001-58109 | ENG | GBR | CHAMBER | 1,997 | CASE OF THE NATIONAL & PROVINCIAL BUILDING SOCIETY, THE LEEDS PERMANENT BUILDING SOCIETY AND THE YORKSHIRE BUILDING SOCIETY v. THE UNITED KINGDOM | 2 | No violation of P1-1;No violation of Art. 14+P1-1;No violation of Art. 6-1;No violation of Art. 14+6-1 | C. Russo;John Freeland;N. Valticos;R. Pekkanen | 6. The applicants were at all relevant times building societies within the meaning of the Building Societies Act 1986. Building societies operate under the status of “mutual societies” under English law as opposed to the status enjoyed by companies under company law. A building society’s members are made up of its investors who deposit savings with it and receive a rate of interest or a dividend in return, and its borrowers who are charged interest on their loans. By and large, loans are taken out by borrowers to buy private residential property. 7. Investors with a building society are liable to pay income tax in respect of the interest earned on their deposits. The income tax owed to the Inland Revenue for the purposes of the fiscal year running from 6 April of one year to 5 April of the following year was in practice calculated or measured with reference to a period of equal length preceding the actual fiscal year. The so-called “measurement principle” required that the period measured be always equal in length to the period taxed. The taxpayer was not in fact taxed on the income of the preceding year but assessed to tax on the income received in the current year, the amount of the current year’s income being artificially computed by reference to the income of the previous year. Accordingly, in normal circumstances, individual investors with building societies would be obliged to declare in their tax returns for the fiscal year in question the amount of interest or dividends earned on their deposits in a preceding reference period of equal length to the fiscal year, and the Inland Revenue would have to make individual assessments to tax on the strength of the information supplied by the investor. 8. However, in view of the very large number of building society investors, many of whom had only modest savings and were thus only liable to small amounts of income tax, or to no tax at all, it had for many years up to and including the fiscal year 1985/86 been the practice for the Inland Revenue to make voluntary arrangements with building societies for the payment by each society of a single annual composite amount. The effect of this payment by a building society was to discharge its investors’ liability to income tax at the basic rate on the interest which they earned. These arrangements, which were for very many years operated on a non-statutory basis, were at the relevant time given statutory recognition under section 343 (1) of the Income and Corporation Taxes Act 1970 – “the 1970 Act”. 9. The composite-rate payment under the voluntary arrangements was calculated for each fiscal year by reference to the global amount of interest paid by the society to its investors. However, in order to reflect the fact that some of the investors would not have been liable to tax at all given the modest amounts of their savings (see paragraph 8 above) a reduced rate of tax was applied. For this reason the annual payments made under this scheme were known as “reduced-rate tax” or “composite-rate tax”, or “CRT”. 10. The amount paid to investors by way of interest on their investments took account of the fact that their liability to income tax was discharged by the building society via the payment of CRT to the Inland Revenue. Investors thus received their interest net of tax. 11. In accordance with the “revenue-neutrality” principle, set out in section 26 of the Finance Act 1984, the CRT payment reflected only the amount which would have been paid by the investors themselves had they been obliged to declare and pay tax on the interest they earned through their deposits. 12. To achieve this, the Treasury, following negotiations with the Building Societies Associations, set each year, by statutory instrument, the CRT rate. In doing so, it was required to aim at a result whereby the same amount of tax was collected at source from building societies for the fiscal year in question as would have been collected from the individual depositors had they been taxed directly on the interest they received over a preceding reference period (see paragraphs 7 above and 13 below). 13. Until 1985/86, a “prior-period” system applied in respect of CRT. The amount of CRT to be paid by each building society for each fiscal year (see paragraph 12 above) was calculated by reference to the interest which it paid to its investors not during the actual year being taxed, but during the society’s own twelve months’ accounting period ending within that fiscal year. The tax was in every case paid on or around 1 January of the year of assessment. As noted above (see paragraph 8 above), the legal effect of this payment representing income tax was to discharge investors’ basic-rate liability on the interest earned in the year being taxed. 14. There was no legal requirement to have a harmonised accounting period. Different time frames were used by different building societies, but in all cases the time frames represented a period equal in length to the fiscal year, having regard to the requirements of the measurement principle (see paragraph 7 above). The following accounting periods were operated by each of the applicant societies: Thus, on or around 1 January 1986, the three applicant societies paid to the Inland Revenue, to discharge their investors’ liability to income tax at the basic rate for the fiscal year 6 April 1985–5 April 1986, sums measured by reference to the interest paid to their investors in their accounting periods ended 30 September 1985 (the Leeds) and 31 December 1985 (the National & Provincial and the Yorkshire). Under the effect of the voluntary arrangements (see paragraph 8 above), these payments completely discharged the income-tax liability of their investors in respect of the interest paid to them by the respective societies for the fiscal year 6 April 1985–5 April 1986. On that basis each of the applicant companies paid the following amounts by way of CRT to the Inland Revenue: 15. With a view to putting the taxation of the interest paid by building societies to investors on a similar footing to the scheme which had been introduced for banks by the Finance Act 1984, the Government proposed the introduction of a mandatory regime for the collection of tax on investors’ interest and the payment of the tax quarterly on the last days of February, May, August and November instead of annually in January. In his budget statement on 19 March 1985 announcing the introduction of the new scheme, the Chancellor of the Exchequer declared that it would not produce any additional revenue. The proposal was adopted by Parliament in the form of section 40 of the Finance Act 1985. 16. Section 40 amended section 343 of the 1970 Act (see paragraph 8 above) by inserting a new sub-section (1A) which had the effect of bringing to an end the long-standing voluntary arrangements as from 6 April 1986. It also empowered the Inland Revenue Commissioners to make regulations introducing a new system of accounting for the fiscal year 1986/87 and for subsequent years. Under the Income Tax (Building Society) Regulations 1986 (“the 1986 Regulations”), which came into force on 6 April 1986, tax was to be calculated on a quarterly basis on the actual interest paid during the actual year of assessment, as opposed to a prior period. 17. However the ending of the voluntary arrangements exposed a gap (“the gap period”) between the end of the applicant societies’ accounting periods in 1985/86 (see paragraph 14 above) and the start of the first quarter under the new regime. In the case of the Leeds the gap period was from 1 October 1985 to 5 April 1986, and in the case of the National & Provincial and the Yorkshire it was from 1 January 1986 to 5 April 1986. In order to ensure that each payment of interest formed the basis of an assessment to tax, transitional regulations were introduced which deemed payments falling into the “gap period” to have been made in a later accounting period, with the result that they formed the basis for an assessment to tax under the new “actual-year” arrangements. In the view of the Government the legislative intention was to ensure that the same amount of tax was collected as would have been collected if the previous arrangements had continued and that the building societies did not receive an undeserved windfall in respect of the gap period. 18. Against this background, Regulation 11 (read in conjunction with Regulation 3) of the 1986 Regulations purported to require building societies to account for tax relating to payments of interest to their investors in their respective gap periods. Regulation 11 (4) provided for tax to be charged on interest paid in the gap period at 1985/86 rates, i.e. 25.25%, the basic rate of income tax being 30% for that year. 19. Each of the applicant societies took the view that the transitional regulations ran counter to the Government’s declared intention that the new regime introduced by the Finance Act 1985 should not produce any additional revenue (see paragraph 15 above), which view was reaffirmed during the parliamentary debates on section 40 of that Act. They considered that the effect of Regulations 3 and 11 was to impose tax again on interest they had paid in 1985/86, a fiscal year for which liability on their investors’ interest had already been discharged (see paragraph 14 above). For the applicants this had the result that, for twenty-four months’ interest paid to its investors in the two fiscal years 1986/87 and 1987/88, a society like the Leeds, with a 30 September year-end, was required to pay tax on thirty months’ interest. For the National & Provincial and the Yorkshire, each would have to pay tax on twenty-seven months’ interest for the twenty-four month period covered by the fiscal years 1986/87 and 1987/88. In the view of the applicant societies these consequences ran counter to the measurement principle according to which the measurement period forming the basis of assessment to tax can never exceed the length of the fiscal year (see paragraph 7 above). Each of the three applicant societies did in fact pay the tax claimed to be due under the transitional provisions of the Regulations as follows: 20. The Government point out that the payments were made “without formal protest”. However, the applicants assert that they made clear from the outset that they disputed the lawfulness of the tax and that they associated themselves with the proceedings initiated by the Woolwich Equitable Building Society (“the Woolwich”) to challenge the lawfulness of the transitional provisions in Regulation 11. For its part the Leeds issued a press release when the Regulations were still at the draft stage, drawing attention to, inter alia, their complaint that the Regulations would have the objectionable effect of subjecting building societies to double taxation. The affidavit sworn by the Executive Vice-Chairman of the Woolwich referred to the Leeds’ support for its decision to initiate legal proceedings against the transitional arrangements. Both the National & Provincial and the Yorkshire made requests for the repayment of the amounts they had paid to the Inland Revenue. 21. On 18 June 1986 the Woolwich commenced judicial review proceedings seeking a declaration that Regulation 11 was unlawful as being outside the scope of the enabling legislation. It was further alleged that the transitional arrangements transgressed the fundamental principles of constitutional and taxation law and that the machinery adopted by the 1986 Regulations in order to implement the change in the system resulted in a double charge to tax over the gap period. 22. On 4 July 1986 the Government introduced in Parliament a measure intended to validate retrospectively the impugned Regulations and to give effect to what they claimed to be the original intention of Parliament when adopting them (see paragraphs 15 and 17 above). The responsible Government minister informed Parliament that the Regulations did not affect the amount of tax collected, only the timing of payment and reiterated that they would not bring extra tax to the Inland Revenue. On 25 July 1986 the Finance Act 1986 (“the 1986 Act”) received the Royal Assent. Section 47 of the Act retrospectively amended section 343 (1A) of the 1970 Act (see paragraph 16 above) with the purpose of authorising the Inland Revenue Commissioners to make regulations requiring the taxation in the year 1986/87 and subsequent years of assessments of sums paid to investors in the gap period and not previously brought into account. 23. On 15 July 1987 the Woolwich issued a writ against the Inland Revenue claiming repayment of the sums paid by way of tax under the transitional provisions of the Regulations, as well as interest from the date of payment. 24. On 31 July 1987 Nolan J granted the application in Woolwich 1 (see paragraph 21 above) and made a declaration that Regulation 11 was void in its entirety and that the remaining Regulations were void in so far as they purported to apply to payments made to investors prior to 6 April 1986. He held that: 25. The Inland Revenue appealed against the decision. They conceded that Regulation 11 (4) was invalid but contended that this partial invalidity did not invalidate the rest of the Regulation. 26. Towards the end of 1987, the Inland Revenue repaid to the Woolwich the sum of GBP 57,000,000 with interest from 31 July 1987 (the date of the order of Nolan J) but refused to pay interest from any earlier date. Thus, the remaining issue in the Woolwich 2 proceedings (see paragraph 23 above) came to be whether or not Woolwich had grounds for claiming interest on the payments made by them up to 31 July 1987. 27. On 12 July 1988 Nolan J dismissed the Woolwich 2 action, holding that the Woolwich was not entitled to recover the sums in issue under any general principle of restitution or as having been paid under duress. He took the view that the sums had been paid under an implied agreement that they would be repaid if and when the dispute about the validity of the 1986 Regulations was resolved in favour of the Woolwich. Thus, the Woolwich had no cause of action to recover the money until the date of his order of 31 July 1987. The Woolwich appealed against the decision and order. 28. On 12 April 1989 the Court of Appeal allowed the appeal of the Inland Revenue in the Woolwich 1 proceedings (see paragraph 25 above). The court held that: 29. On 25 October 1990 the House of Lords allowed the appeal of the Woolwich in the Woolwich 1 proceedings. The House of Lords, Lord Lowry dissenting, declared the transitional provisions in the 1986 Regulations to be ultra vires on the grounds that Regulation 11 (4), as the Inland Revenue had previously conceded, and Regulation 3, so far as it related to the period after February and before 6 April 1986, were ultra vires the empowering statute. The House of Lords considered that Regulation 11 (4) could not be severed from the rest of Regulation 11 and that the transitional provisions in the 1986 Regulations were therefore void in their entirety. 30. Lord Oliver, delivering the judgment of the majority, concluded: “... I confess that I find the conclusion irresistible that Parliament intended by these words [section 47 of the 1986 Act] to enable the Revenue to take account of and to charge to tax sums which, rightly or wrongly, it regarded as otherwise representing windfalls in the hands of building societies. One has only to look at the circumstances. The Regulations of 1986 had been made and had been objected to. They were made the subject of a direct challenge in legal proceedings, the evidence in support of which clearly adumbrated the arguments advanced before the judge and the Court of Appeal. The notion that Parliament should go to the trouble of enacting an expressly retrospective amendment in order to provide, unnecessarily, for the use of these sums as a measurement of tax liability – a matter never remotely in issue – is simply fanciful ... ... I am bound to say that I think it unfortunate that the Revenue, through Parliament, should have chosen by secondary rather than primary legislation to take what was, on ordinary principles, the very unusual course of seeking to tax more than one year’s income in a single year of assessment, but section 47 of the Finance Act 1986 is, on any analysis, a very unusual provision and I have, in the end, found myself irresistibly driven to the conclusion that this was what Parliament intended should occur. It may be – I do not know – that the legislature did not appreciate fully that the effect of the arrangements made in 1985 was to discharge all liability for tax on interest paid in the year of assessment 1985/86, including tax on interest paid after the end of a society’s accounting year, and that, accordingly, to tax those sums again in a subsequent year was, in a sense, to tax them twice. But even making that assumption it amounts to no more than saying that the legislature should not have intended to do that which it plainly set out to do. I would, for my part, therefore, reject the Woolwich’s principal argument.” This ruling declaring Regulation 11 (4) void on technical grounds meant that no mechanism existed to achieve what the Government claimed to be Parliament’s initial intention that interest payments made during the gap period should be assessed for tax. This led the Government to introduce new legislative provisions. A draft press release was circulated as early as 7 March 1991 for the approval of the Chancellor of the Exchequer. The draft indicated that the Chancellor in his budget-day speech on 19 March 1991 would introduce legislation to validate retrospectively the Regulations which had been struck down in the Woolwich 1 case (see paragraph 33 below). 31. Following the House of Lords’ decision in the Woolwich 1 proceedings, and after having made several requests for repayment, the Leeds commenced proceedings on 15 March 1991 against the Inland Revenue for the restitution of the sum of GBP 56,973,690 paid pursuant to the 1986 Regulations which had been declared void in the Woolwich 1 proceedings. 32. On 17 March 1991 the National & Provincial, which had also sought but was refused repayment, commenced proceedings against the Inland Revenue for the restitution of the sum of GBP 15,873,945 paid pursuant to the void Regulations. 33. On 19 March 1991, in his budget statement, the Chancellor of the Exchequer announced the introduction of legislation to remedy “the technical defects in the Regulations”. This legislation became section 53 of the Finance Act 1991 (“the 1991 Act”), which entered into force on 25 July 1991. Section 53 provided, inter alia: “Section 343 (1A) of the [1970 Act] ... shall be deemed to have conferred powers to make all the provisions in fact contained in [the 1986 Regulations].” 34. The provision had retrospective effect, save that by subsection (4) it had no effect “in relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986”. The Woolwich was the only building society which satisfied this condition. 35. In a letter dated 21 March 1991 the Director-General of the Building Societies Associations informed the Financial Secretary to the Treasury that the decision of the Government “[did] not come as any great surprise, although it will still be very disappointing to the societies concerned”. In fact, the concrete effect of the measure was to stifle the Leeds 1 and National & Provincial 1 proceedings (see paragraphs 31and 32 above). Although they had shown support for the Woolwich’s judicial proceedings (see paragraph 20 above) neither had formally commenced legal proceedings before 18 July 1986. At the costs hearing the Government conceded that they had no defence to the action brought by the Leeds and the National & Provincial had it not been for section 53 of the 1991 Act. Costs were awarded against the Government. 36. On 22 May 1991 the Court of Appeal, by a majority, allowed the appeal by the Woolwich in Woolwich 2 and awarded the interest claimed. 37. The majority of the Court of Appeal accepted the Woolwich’s primary submission that, where money was paid under an illegal demand for taxation by a government body, the payer had an immediate prima facie right to recover the payment. 38. On 10 July 1991 the Leeds applied for leave to commence judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and for the following years were unlawful (“Leeds 2”). The Leeds claimed that: 39. On 6 November 1991 the National & Provincial was granted leave to commence judicial review proceedings similar to those in Leeds 2 for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful because of the retrospective validation of the Regulations (“National & Provincial 2”). The application was joined with the Leeds 2 proceedings and with a similar application made by the Bradford and Bingley Building Society. 40. On 3 March 1992 the Yorkshire applied for leave to commence similar judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful (“Yorkshire 1”). 41. Further proceedings were commenced by the Yorkshire on 11 May 1992 (“Yorkshire 2”), by the Leeds on 1 June 1992 (“Leeds 3”) and by the National & Provincial on 12 June 1992 (“National & Provincial 3”). In those proceedings the applicant societies claimed restitution of the money due to them if the judicial review proceedings (Leeds 2 and National & Provincial 2, and Yorkshire 1) were successful (see paragraphs 38–40 above). 42. On 16 July 1992 section 64 of the Finance (No. 2) Act 1992 (“the 1992 Act”) entered into force. This legislation had been anticipated as from 7 May 1992 when the Financial Secretary in a reply to a parliamentary question noted that his Government intended to introduce legislation to validate retrospectively the impugned Treasury Orders. Section 64 provided, with retrospective effect, that the Treasury Orders “shall be taken to be and always to have been effective”. The Government acknowledged during the parliamentary debates on section 64 that the measure was intended to pre-empt the legal proceedings launched by the applicants to challenge the validity of the Treasury Orders and that it would result in the Woolwich being treated more favourably. However, they pointed out that the challenge to the composite rate for CRT in the fiscal years 1986/87 to 1989/90 threw into doubt the lawfulness of the collection of all sums from building societies, banks and other deposit institutions in the periods in question. While there was no doubt as to the lawfulness of the collection in respect of the vast majority of those sums, the effect of impugning the rates set would have been to render the collection of all sums unlawful. The amount at stake was in the region of GBP 15 billion. 43. The effect of section 64 was to extinguish the remaining proceedings lodged by the applicants for judicial review of the validity of the Treasury Orders and for restitution (see paragraphs 39–41 above). 44. On 20 July 1992 the House of Lords, by a majority, dismissed the Inland Revenue’s appeal in the Woolwich 2 proceedings. The House of Lords did not accept that, on the facts of the Woolwich case, there was any implied agreement for the repayment of the money paid under the invalid Regulations if and when the dispute was resolved in the taxpayer’s favour. Nevertheless, by a majority, the House of Lords held: 45. Section 343 (1A) of the 1970 Act (introduced by section 40 of the Finance Act 1985, and as amended by section 47 of the Finance Act 1986) provides as follows: “The Board may by regulations made by statutory instrument make provision with respect to the year 1986/87 and any subsequent year of assessment requiring building societies, on such sums as may be determined in accordance with the regulations (including sums paid or credited before the beginning of the year but not previously brought into account under subsection (1) above or this subsection), to account for and pay an amount representing income tax ... and any such regulations may contain such incidental and consequential provisions as appear to the Board to be appropriate, including provisions requiring the making of returns.” [The words in bold print were added by the 1986 Act.] 46. Section 53 of the Finance Act 1991 provides, so far as relevant, as follows: “(1) Section 343 (1A) of the Income and Corporation Taxes Act 1970 ... shall be deemed to have conferred power to make all the provisions in fact contained in the Income Tax (Building Societies) Regulations 1986 ... (4) In relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986, this section shall not have effect to the extent that the Regulations apply (or purport to apply) to payments or credits made before 6 April 1986.” 47. Section 64 of the Finance (No. 2) Act 1992 provides as follows: “(1) For the purposes of this section each of the following is a relevant order – (a) the Income Tax (Reduced and Composite Rate) Order 1985 ... (b) the Income Tax (Reduced and Composite Rate) Order 1986 ... (c) the Income Tax (Reduced and Composite Rate) Order 1987 ... (d) the Income Tax (Reduced and Composite Rate) Order 1988 ... (2) If apart from this section a relevant order would not be so taken, it shall be taken to be and always to have been effective to determine the rate set out in the order as the reduced rate and the composite rate for the year of assessment for which the order was made.” | 0 |
train | 001-22726 | ENG | TUR | ADMISSIBILITY | 2,002 | BASPINAR v. TURKEY | 4 | Inadmissible | Ireneu Cabral Barreto;Mark Villiger | The applicant, Mr Helmi Başpınar, is a Turkish national, who was born in 1975 and lives in Çorum. The facts of the case, as submitted by the parties, may be summarised as follows. In 1996 the applicant requested to have a social security card for his wife. This request was refused on the grounds that photography showing his wife carrying an Islamic scarf was not acceptable for the social security identity cards. 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 94(b) 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 Nakşibendi sect. He had an antisocial character and his wife carried an Islamic scarf. He adopted extreme religious ideology. His superiors considered the applicant as an undisciplined and insubordinate soldier. 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 |
train | 001-60170 | ENG | GBR | CHAMBER | 2,002 | CASE OF MORRIS v. THE UNITED KINGDOM | 1 | Violation of Art. 6-1 with regard to general structure of court martial system;No violation of Art. 6-1 with regard to specific complaints;No violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. In September 1991, at the age of 16, the applicant became a member of the British Army, joining the Life Guards regiment of the Household Cavalry. In November 1992 the applicant was posted to the Household Cavalry Mounted Regiment (“the HCMR”) where he was taught to ride a horse. The applicant alleges that during riding lessons he became the target of bullying by other soldiers, including a lance-corporal. According to the applicant, towards the end of November 1992 the lance-corporal hit him on the side of the head with his fist, causing him to fall and strike his head on the ground. On 30 November 1992, several days after the attack, the applicant reported sick and told the medical officer that the injury to his face had been caused by falling off a horse. On 26 February 1993 the applicant, who alleges to have feared a further physical attack, went absent without leave. On 17 March 1993 he wrote to the commanding officer (“CO”) of the regiment (a lieutenant-colonel), stating, inter alia, that “[his] inability to express sufficient enthusiasm during training sometimes resulted in physical abuse by certain NCOs [non-commissioned officers]”, and asking to terminate his service. He received no reply to this letter. 10. The applicant was arrested by the civilian police on 16 October 1996 and taken to the HCMR's barracks at Hyde Park, London. The following day he was charged with being absent without leave contrary to section 38(a) of the Army Act 1955. On 18 October 1996 he was remanded in close arrest by Major Kelly, acting as subordinate CO. On the “Eight Day Delay Report” dated 24 October 1996, the reason for the detention is stated: “Likely to absent himself ... – has already offered bribe to JNCO on guard to release him.” On 31 October 1996 he appeared before the CO and was remanded by him in close arrest for an abstract of evidence. He was subsequently released by the CO into open arrest on 11 November 1996. The CO remanded him for trial by district court martial on 13 March 1997. 11. In a statement dated 4 November 1996 to the Ministry of Defence Police, the applicant stated that the attack by the lance-corporal had occurred in the week prior to his going absent without leave, while in a statement dated 29 January 1997 he stated that the attack occurred sometime in February 1993. The police found that the lance-corporal had left the army and took statements from other soldiers who had been on the same riding course as the applicant. They found that there was no evidence to support his complaint. The applicant subsequently signed a statement saying, inter alia: “I have come to the conclusion that I just want to get out of the army and get on with my life ... Even though this assault happened, I do not want the Ministry of Defence Police ... to take any further action concerning the incident.” 12. Following the applicant's remand for trial, the CO appointed Captain A. as “defending officer”. Captain A. was an army officer with no legal training, serving as a troop commander with the HCMR. The applicant applied to the Army Criminal Legal Aid Authority (“the Legal Aid Authority”) for legal aid to enable him to be represented by a solicitor. On the application form he stated that his weekly income after deduction of tax, rent and national insurance was 158.13 pounds sterling (GBP), and that he had no savings or other property of value. The form was countersigned by his CO. By a letter dated 26 March 1997, the Legal Aid Authority replied that a charge of absence without leave did not normally warrant legal representation but that either the CO or the applicant should write setting out his reasons if he considered that, exceptionally, legal aid should be granted. The applicant's solicitor wrote to the Legal Aid Authority on 18 April 1997 pointing out that the applicant faced a custodial sentence and needed to be represented. The Legal Aid Authority offered the applicant legal aid subject to a down-payment of GBP 240 in a letter dated 21 April 1997. The Government maintain that he could have paid in ten weekly instalments of GBP 24 each, but this is disputed by the applicant. On 30 April 1997 the applicant's solicitor wrote asking the Legal Aid Authority to reconsider the down-payment condition, but on 2 May 1997, before the Legal Aid Authority had replied, the applicant refused the offer of legal aid and was not, therefore, represented by a solicitor at the court martial. 13. Also on 2 May 1997, the applicant signed a document, addressed “to whom it may concern”, in which he made the following statement: “This is to certify that I, 25009734 Tpr Morris D of The Life Guards no longer wish to be represented at my pending District Court Martial other than by my Defending Officer, Captain [A.]. I have made this decision of my own free will. I understand that all previous correspondence with regard to my application for legal representation will now be ignored.” 14. The applicant's court martial took place at Chelsea Barracks on 28 May 1997. The court was composed as follows: a president, Lieutenant-Colonel A.D. Hall of the Corps of Royal Electrical and Mechanical Engineers, who was a permanent president of courts martial (appointed to his post in January 1997 and due to remain until his retirement in September 2001); Captain R. Reid of the Royal Army Medical Corps, Aldershot; Captain W.D. Perks of the Second Battalion, Royal Gloucestershire, Berkshire and Wiltshire Regiment (Volunteers), Reading; and a legally qualified civilian judge advocate (see paragraph 26 below). All three military officers were outside the command area in which the applicant was serving. The president worked from home when not attending court-martial hearings. 15. Captain A. represented the applicant, who pleaded guilty to the charge of being absent without leave between 25 February 1993 and 16 October 1996. The applicant's letter of 17 March 1993 to his CO was handed to the court, but no other mention was made of the bullying allegedly suffered by him. The applicant was sentenced to dismissal from the army and nine months' detention. 16. After the hearing, Captain A. erroneously advised the applicant that if he appealed against the sentence he risked the commencement date for his sentence being put back to the date of dismissal of the appeal. On 31 May 1997 the applicant instructed a solicitor to represent him. On 19 June 1997 the solicitor lodged a petition with the Defence Council in its role as the “reviewing authority” (see paragraph 29 below), relying on the facts that the applicant had had no legal representation before the court martial and that his allegations of assault were not presented to the court, either by way of a defence of duress (which applies when a person charged with a criminal offence can show that, at the relevant time, he reasonably believed that he would be killed or seriously injured if he did not commit the offence) or in mitigation of sentence. The petition asserted that it was unlikely that the defending officer understood that the applicant might have had a defence on the basis of duress and that the defending officer had indicated that he had been “ordered” not to allude to the allegations at the court martial without indicating who had so ordered him. It also mentioned instructions which the defending officer had given about what the applicant ought to do in the event that the court martial should, of its own volition, ask the applicant about the allegations which had been made. It also indicated that the defending officer had advised the applicant that, “if he appealed, his sentence might well be increased”. On the same day the petition was introduced, the solicitor wrote to Captain A. asking for his comments on it and reminding him that he was subject to the rules of client privilege and should not disclose details of his dealings with the applicant to any third party. Despite this, Captain A. provided a statement to the Defence Council, in which he said, inter alia: “As [the applicant's] Troop Leader I was asked to represent him at Court Martial, this was the first Court Martial I have attended in any capacity. Although I have had experience in civil cases at both Magistrates' and Crown Courts. ... [The applicant] had indicated to me that he had gone absent from the Army for more than one reason. As expressed in his letter of 17 March 1993. He was showing reservations about his enthusiasm, commitment and devotion to duty. ... [T]he petition states that I assumed the petitioner had no choice but to plead guilty, as he had been Absent Without Leave. I was unaware that he could have entered a plea of not guilty to the charge on the basis of duress. [The applicant] and I did not discuss the allegations of bullying in any great detail. This was because these allegations had been withdrawn by him under interview by MOD Police. [The applicant] indicated to me that he wanted to drop all the references to the violence by the NCO during his training. This was in order that the trial date would be set significantly earlier and that the trial would be substantially shorter. This led me to advise [the applicant] to plead guilty as charged, as I had felt that this gave him his best opportunity to be discharged from the Army at the earliest date which was, after all, his overall aim. ... I discussed with the Adjutant my role as the Defending Officer. We talked about the procedural steps of the court martial and my conduct leading up to the trial. It was confirmed to me that a guilty plea would produce an earlier trial date than that of not guilty. I advised [the applicant] that references to his allegations of bullying could prolong and complicate his court martial. The mention of bullying would be introduced as part of his letter to his commanding officer dated 17 March 1993, which he agreed could be put forward for the court as mitigation. [The applicant] agreed that he did not wish to answer questions about his previous allegations, which he had dropped. I therefore advised him to refer such questions to me and I would state to the court that this was an avenue down which he did not wish to proceed. ...” 17. The petition was refused by the reviewing authority on 14 July 1997, in the following terms: “The Reviewing Authority has considered the petition submitted by your above-named client, and has denied it for the following reasons. The down payment for Legal Aid was carefully calculated, and was well in line with the amount the petitioner would have had to pay under the civil system. The certificate signed by him shows clearly that he had decided not to proceed with his application for legal representation. We cannot accept that [the applicant] was in any way forced to accept this decision. He also appears to have been content to accept Captain [A.] as his defending officer. The complaints about the petitioner being bullied were investigated by the SIB and the allegations could not be substantiated. Indeed it came to light during this investigation that the petitioner had told [another soldier] that he planned to go absent because he was merely tired of the training and the long hours being worked. In view of the SIB report, the Reviewing Authority must accept that the allegation that the petitioner was subjected to violence by a Non-Commissioned Officer cannot be substantiated, and cannot be regarded as a mitigating factor. In considering your complaint that, had the petitioner been advised by a qualified solicitor, he would have been able to plead not guilty on the basis of duress, we had to rely on the advice given by the Judge Advocate General. He stated that a person is subject to duress when words or conduct from another person cause him to fear that he will be killed or seriously injured, if he does not commit the offence. Clearly, the petitioner could never have reasonably believed that he had cause to fear that he would be killed or seriously injured. The Reviewing Authority notes that the petitioner had dropped his allegations of being subjected to violence by the time he appeared in Court. All Captain [A.] intended to do was to inform the Court that the petitioner did not wish to proceed with these allegations. In fact the Court was made aware of them because the letter from (sic) the Commanding Officer was read out to them. We accept that Captain [A.] was mistaken in referring the petitioner to the booklet 'Appeals and Petitions after conviction by Army Court Martial', which was out of date after 1 April 1997. In addition the wrong paragraph was used in his advice to the petitioner. However as we have now received a petition, in spite of this mistaken advice, we believe that no harm has been done. ...” 18. On 26 July 1997 the applicant lodged an application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court. Leave to appeal was refused by the single judge on 22 October 1997, on the grounds that the defence of duress had not been open to the applicant, that he had been properly advised to plead guilty, and that the sentence was not manifestly excessive. 19. The Armed Forces Act 1996 (“the 1996 Act”) came into effect on 1 April 1997, amending the Armed Forces Act 1955 (“the 1955 Act”). 20. Under the 1996 Act, the initial decision whether or not to bring a prosecution is taken by the higher authority, who is a senior officer who must decide whether any case referred to him by the accused's commanding officer should be dealt with summarily, referred to the prosecuting authority, or dropped. Once the higher authority has taken this decision, he has no further involvement in the case. 21. Where the accused is a member of the army, the role of prosecutor is performed by the Army Prosecuting Authority (“the prosecuting authority”). Following the higher authority's decision to refer a case to it, the prosecuting authority has absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court martial would be appropriate and precisely what charges should be brought. In addition, it conducts the prosecution (1996 Act, Schedule I, Part II). The prosecution is brought on behalf of the Attorney-General. The current prosecuting authority is the Director of Army Legal Services. In his role as prosecuting authority, the Director of Army Legal Services is answerable to the Attorney-General, while in his coexisting role as the army's senior lawyer he is answerable to the Adjutant General (the army's principal personnel and training officer, responsible, inter alia, for army disciplinary policy and a member of the Army Board). In pursuit of his latter role, the Director of Army Legal Services provides some military legal advice to the army chain of command. He does not advise the disciplinary chain of command of the army, this role being reserved to the Brigadier Advisory. 22. The Army Criminal Legal Aid Authority is also the responsibility of the Adjutant General. 23. The Court-Martial Administration Office (now the Army Court Service), independent of both the higher authority and the prosecuting authority, is responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court. Its officers are appointed by the Defence Council. Before commencement of the court-martial hearing, the power to dissolve it is vested in the responsible court-administration officer. Until early 2001 the person in charge of the Court-Martial Administration Office was a retired officer. The Army Court Service was then created in its place, the head of which is now a serving brigadier. 24. At the relevant time, a district court martial (“DCM”) was required to consist of a permanent president of courts martial, not less than two serving military officers of at least two years' military experience and a judge advocate (section 84D of the 1955 Act as amended by the 1996 Act). The court-administration officer, commanding officers of the accused, members of the higher authority, investigating officers and all other officers involved in inquiring into the charges concerned were all barred from selection to the court martial (section 84C(4) of the 1955 Act as amended by the 1996 Act). The Courts Martial (Army) Rules 1997 further provide that an officer serving under the command of: (i) the higher authority referring the case; (ii) the prosecuting authority; or (iii) the court-administration officer are ineligible for selection. The Queen's Regulations provide that a court martial is, so far as practicable, to be composed of officers from different units. 25. The post of permanent president of courts martial (“the permanent president”) was first created in 1941. Permanent presidents were routinely appointed thereafter to sit on DCMs whenever one was available until suspension of the post in 2000, around the time of a ruling by Assistant Judge Advocate Pearson on 6 March 2000 in McKendry (see paragraph 31 below) that the appointment of permanent presidents meant that courts martial did not have the necessary impartiality and independence for the purposes of Article 6 of the Convention. Permanent presidents were selected from the ranks of serving army officers of suitable age and rank. Until around the end of 1996, permanent presidents of courts martial held the rank of major. Thereafter their rank was raised to lieutenant-colonel, which resulted in permanent presidents routinely outranking the other serving officers on a DCM, who were never above the rank of major. Legal qualifications or experience were not required. Their appointment was usually expected to be for a period in excess of three years and was almost without exception the officer's last posting before his retirement from the army. The Military Secretary (a senior subordinate of the Adjutant General) had power to terminate the appointment of a permanent president, but this has never happened in practice. 26. Judge advocates are appointed by the Lord Chancellor and are civilians who must have at least seven years' experience as an advocate or five years' experience as a barrister. A judge advocate's rulings on points of law are binding on the court and he delivers a summing-up in open court before the court martial retires to consider its verdict. Once the court martial hearing has commenced, the power to dissolve it is vested in the judge advocate. He has a vote on sentence, but not on verdict. Under the 1996 Act, the Judge Advocate General lost his previous role of providing general legal advice to the Secretary of State for Defence (Schedule I, Part III, sections 19, 25 and 27). 27. Each member of a court martial has to swear the following oath: “I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to the Army Act 1955 without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court martial, unless thereunto required in the due course of law.” 28. Decisions on verdict and sentence are reached by majority vote (section 96 of the 1955 Act). The casting vote on sentence, if needed, rests with the president of the court martial, who also gives reasons for the sentence in open court. The members of the court are required to speak, and at the close of deliberations to vote on verdict and sentence, in ascending order of seniority. 29. All guilty verdicts reached and sentences imposed by a court martial must be reviewed by the “reviewing authority” (section 113 of the 1955 Act as amended by the 1996 Act). Although the ultimate responsibility rests with the Defence Council, the review is as a matter of practice generally delegated to a senior subordinate of the Adjutant General. Post-trial advice received by the reviewing authority from a judge advocate (different from the one who officiated at the court martial) is disclosed to the accused, who has the right to present a petition to the authority. The reviewing authority may quash any guilty verdict and associated sentence or make any finding of guilt which could have been made by the court martial, and may substitute any sentence (not being, in the authority's opinion, more severe than that originally passed) which was open to the court martial (section 113AA of the 1955 Act as amended by the 1996 Act). The reviewing authority gives a reasoned decision and its verdict and sentence are treated for all purposes as if they were reached or imposed by the court martial. 30. There is a right of appeal against both conviction and sentence to the Courts-Martial Appeal Court (a civilian court of appeal) (section 8 of the Courts-Martial (Appeals) Act 1968). An appeal will be allowed where the court finds that the conviction is unsafe, but dismissed in all other cases. The court has power, inter alia, to call for the production of evidence and witnesses whether or not produced at the court martial (section 28 of the Courts-Martial (Appeals) Act 1968). 31. The role of permanent president was examined by the Courts-Martial Appeal Court (which has the same composition as the civilian Court of Appeal) in R. v. Spear and another and in R. v. Boyd ([2001] Court of Appeal, Criminal Division (England and Wales) 2). The court dismissed the appellants' complaint that the position of permanent presidents on courts martial violated Article 6 § 1 of the Convention because permanent presidents lacked the necessary independence and impartiality. The court declined to follow the reasoning of Assistant Judge Advocate Pearson in McKendry. Lord Justice Laws, delivering the judgment of the court, said: “24. Mr Mackenzie of course relies on the decision of Assistant Judge Advocate General Pearson in McKendry. His judgment was given as we have said on 6 March 2000, by way of a ruling in a then current court martial upon objections raised on behalf of the defence to the PPCM [Permanent President] sitting as a member of the court. The judge advocate's essential reasoning appears at pp. 8-9 of the transcript, after he had correctly directed himself as to the Article 6 standards to be applied (the numbering attached to the judge advocate general's text is ours, not his): '1. I am concerned as to the terms of appointment of these Permanent Presidents. It seems to me that there is no fixed time limit other than a time which may be quite short – two, three or four years; certainly two years is probably too short to ensure full independence, four years may be suitable – I express no comment on that. 2. I am concerned as to their training. This reference to their visiting the APA [Army Prosecuting Authority], I suspect that is mistyping, nevertheless it is there in their current job description and I must be concerned with the perception of bias, and it does not look appropriate, in my view, for Permanent Presidents to be told they should attend a briefing from the Prosecuting Authority. 3. I am concerned obviously with their potential removal. Clearly anybody exercising judicial or quasi-judicial functions should be free from arbitrary removal, and there should be some sort of guarantee that the removal would only be on the basis of some sort of misconduct within that particular office. There is no security, therefore, it would seem to me, that applies to Permanent Presidents at the present time in their role. 4. I am also obviously concerned with the question of reporting, whether it be annual – which I doubt; it is more likely to be every two years, or perhaps on the renewal of their appointment – I cannot say, but certainly there is some reporting that appears to take place, and it seems to me again that is a significant difficulty which affects the perception of independence. Now, I have specified those three [in fact, four] as being the main concerns that I have ... those particular concerns are sufficient in my view for me to rule that in the particular circumstances of the system as it now stands, the appointments of Permanent Presidents do not give rise to an independent and impartial tribunal.' The judge advocate was at pains to insist that his ruling was 'limited to this particular case'; but its reasoning plainly applies at least to all DCMs presided over by a PPCM. 25. Mr Mackenzie sought to build on the reasoning in McKendry with a series of further points ... In particular, he submitted that (a) there were no objective regulatory provisions governing the PPCM's appointment, beyond the ordinary procedures for staff appointments; (b) 'the medium rank of PPCM prevents such officers from being immune from general Army influence' ...; (c) the PPCM is senior in rank to the other officers on the court martial ..., and would be likely to exert a substantial influence over them. 26. It is convenient to deal with this last point first. In McKendry the judge advocate stated at 6C-D (referring to junior members of a DCM): 'Speaking for myself, having of course sat in on many, many sentencing matters with Permanent Presidents, I can say that I have found that the junior members ... the fact that they happen to be junior in rank, has not prevented them from being very robust in their sentencing arguments.' As judge advocate he would not, of course, have participated in the court's deliberations upon conviction. It is to be noted that by paragraph 70(4) of the Court Martial (Army) Rules 1997 the junior officer is required to speak first in the course of any court martial's deliberations. The provision is plainly intended to ensure that junior members' genuine opinions are put forward. 27. Upon this point, Mr Mackenzie's argument does not go to the particular position of the PPCM at all, but rather to the differences in rank among the members of the court martial, whether the president is a PPCM or not. As such we doubt whether it is open to him. But we are clear in any event that there is no merit in it. If the argument were right, it would presumably mean that Article 6(1) required that the members of a court martial should be officers of the same rank. That cannot be the law. The notion, were it accepted, that it is reasonable to fear that between joint decision-makers of different rank there is a systematic likelihood that the more junior may be unduly influenced by the perceived views of the more senior would, surely, be an unlooked for and unwelcome side-effect of the Convention's beneficent regime. We consider it perfectly reasonable to suppose that junior officers would regard it as their duty to speak with their own voice, and that the modern culture of the Service would promote that very point of view. We do not think it would be reasonable for the accused soldier to entertain any different perception. This point is a bad one. 28. The argument as to the PPCM's medium rank and 'general Army influence' falls to be disposed of in like manner. But there is another point to be made. The way this argument is formulated – 'the medium rank of PPCM prevents such officers from being immune from general Army influence' – amounts, looked at rigorously, to an allegation of actual bias (whether unconscious or not). It is not, or not only, a matter of the appearance of the thing or of the presence or absence of objective guarantees. It is a delicate way of saying that such medium-ranking officers are relatively prone to take a prosecution line. That is quite a serious allegation, for which there is not a whisper of any supporting evidence. And in our view it is simply patronising to suggest that an officer in the rank of Lieutenant-Colonel ... will have his judgment on the concrete facts of a particular case affected by anything so amorphous as 'general Army influence'. 29. In our judgment Mr Mackenzie's further submission about the absence of any specific regulatory provision goes nowhere, unless it supports an argument to the effect that the PPCMs lack sufficient tenure in office for this court to be satisfied that the Article 6 requirements of independence and impartiality are met. ... 30. ... we should dispose of point (2) in McKendry. This rested in the judge advocate's understanding that Army PPCMs were required, as a training exercise, to visit and be briefed by the Army Prosecuting Authority. In fact the judge advocate himself reported (4E) the assurance given to him that no such visits took place. Lt Col Stone states in terms that he has never visited the APA. From the judge advocate's reasoning in McKendry it looks as if there must have been some rogue document or documents in circulation; but there is obviously nothing of substance in the point.” 32. Lord Justice Laws concluded as follows on the appellants' complaint about the position of permanent presidents (at paragraph 33): “... We consider that the conditions upon which PPCMs have been appointed, and held office, have involved no violation of Article 6(1), and in particular there was no violation on the facts of these cases. We should first collect the facts which have weighed with us. (1) The PPCMs effectively operated outside the ordinary chain of command. They advisedly lived their professional lives largely in isolation from their Service colleagues. (2) While Mr Havers rightly accepted that there was no 'written guarantee' against removal, there is in fact no record of a PPCM ever having been removed from that position. Removal from office, we may readily infer, would only take place in highly exceptional circumstances which have never eventuated. (3) The appointment was the officer's last posting, offering no prospect of promotion or preferment thereafter. Neither of the PPCMs in these cases entertained any such prospect, hope or expectation. ... (4) The term of these PPCMs' appointments was for no less than four years ... (5) There have been no reports on Army PPCMs since April 1997. ...” 33. In R. v. Généreux ([1992] 1 Supreme Court Reports 259), the Supreme Court of Canada examined, inter alia, the compatibility of a Canadian general court martial with section 11(d) of the Canadian Charter of Rights and Freedoms, which provides: “11. Any person charged with an offence has the right ... (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” 34. A general court martial consisted of between five and nine voting members, who were joined by a judge advocate who was called upon to determine questions of law or mixed law and fact during the trial. The judge advocate was appointed to the general court martial by the Judge Advocate General on an ad hoc basis. 35. The Supreme Court concluded that the judge advocate did not possess sufficient security of tenure to satisfy the requirement of “independence” under section 11(d) of the Charter. Lamer CJ, delivering the leading judgment of the court, commented as follows: “... the judge advocate was appointed solely on a case by case basis. As a result, there was no objective guarantee that his or her career as a military judge would not be affected by decisions tending in favour of the accused rather than the prosecution. A reasonable person might well have entertained an apprehension that a legal officer's occupation as a military judge would be affected by his or her performance in earlier cases ... [or] that the person chosen as judge advocate had been selected because he or she had satisfied the interests of the executive, or at least has not seriously disappointed the executive's expectations, in previous proceedings. ... Military judges who act periodically as judge advocates must therefore have a tenure that is beyond the interference of the executive for a fixed period of time.” He went on to note that amendments to Canadian court-martial procedures, which had come into force subsequent to the proceedings at issue in the case, had corrected deficiencies in the judge advocate's security of tenure, providing for appointment for a period of between two and four years. | 1 |
train | 001-90342 | ENG | AUT | CHAMBER | 2,008 | CASE OF SACCOCCIA v. AUSTRIA | 3 | No violation of Art. 6-1;No violation of P1-1 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1958. He is currently serving a prison term in the United States. 7. In 1992, in the context of criminal proceedings for large-scale money laundering conducted against the applicant before the United States District Court for the District of Rhode Island (“the Rhode Island District Court”), the Austrian courts were requested under letters rogatory to seize assets which had been found in two safes in Vienna rented by the applicant. On 10 February 1992 the Vienna District Criminal Court ordered the seizure and put the assets, mostly cash and bearer bonds, at the disposal of the Rhode Island District Court as evidence in the criminal proceedings against the applicant, on the condition that the assets were to be returned upon termination of the proceedings. 8. The parties disagree as to whether or not the applicant was the owner of the assets at issue. The applicant claims that the assets stemmed from lawful business activities carried out until 1988, while the Government claim that they stemmed from the money laundering in 1990 and 1991 of which he was convicted (see below) and that he was holding them as a trustee for the drug cartel for which he had worked. 9. In February 1993 the Rhode Island District Court convicted the applicant of money laundering and related charges, finding that he had headed an organisation which had laundered more than a hundred million United States dollars (USD) in 1990 and 1991, and sentenced him to 660 years’ imprisonment. Subsequently, on 30 August 1993, the court issued a preliminary forfeiture order. 10. On 28 June 1995 the United States Court of Appeals, First Circuit, dismissed an appeal by the applicant against his conviction and against the forfeiture order. The reasons, in so far as relevant in the context of the present case, were as follows. As to the applicant’s claim that he was represented at his trial by counsel (H.) who had a conflict of interest, the court noted that the applicant had been informed of his rights but had insisted on being represented by counsel H. Finally, he had executed a written waiver retaining H. as counsel and confirming that he had been fully advised and had considered the possible adverse consequences for his defence. Since counsel H. had only informed the court in vague terms that he feared being charged or called as a witness in the applicant’s case, the District Court was justified in accepting the waiver. In any event, the applicant was represented by a second, conflict-free counsel, D. As to the applicant’s complaint that he had had no hearing in the forfeiture proceedings, the appellate court noted that the applicant, represented by counsel, had waived his right to a jury hearing in the separate forfeiture proceedings on the ground that they purely concerned matters of legal argument. The case had been heard on 26 March 1993 in the presence of the applicant’s counsel. The applicant had not been present since he had to appear before another court. Counsel had requested that the applicant be heard but had refused the court’s offer to have a further hearing in the presence of the applicant before the delivery of the judgment. 11. On 25 March 1996 the United States Supreme Court rejected an appeal on points of law by the applicant. 12. On 7 November 1997 the Rhode Island District Court issued a final forfeiture order relating to a total amount of USD 136 million, including some USD 9 million in respect of the applicant, “being the proceeds of narcotics money laundering for which the following property has been partially substituted”. There followed an enumeration of cash amounts in Swiss francs, United States dollars and Austrian schillings seized in Vienna in 1992 and a list of bearer bonds issued by Austrian banks and, finally a bank account in Vienna. 13. On 9 December 1997 the Rhode Island District Court issued letters rogatory which, so far as relevant, read as follows: “... the United States District Court for the District of Rhode Island requests enforcement in Austria of the enclosed Final Forfeiture Order against said cash, bonds and other financial instruments. To the extent possible under Austrian law and consistent with any sharing agreement between the United States and Austria, please convert the cash and the proceeds of the bonds and other instruments into United States dollars and transfer those funds by wire into the above referenced United States Customs Service Account. ...” 14. The United States Department of Justice transmitted this request to the Austrian authorities on 18 December 1997. On 23 January 1998 the Austrian Ministry of Justice requested the Vienna Senior Public Prosecutor’s Office to open “exequatur” proceedings to enforce the foreign court’s decision. 15. On 12 March 1998 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), as an interim measure, ordered the confiscation of the applicant’s assets, of a total value of about 80,000,000 Austrian schillings (ATS – approximately 5,800,000 euros), in cash, bearer bonds and a bank account, for the purpose of securing the enforcement of the final forfeiture order of 7 November 1997. It referred to the above request and noted that enforcement proceedings under the Extradition and Legal Assistance Act (Auslieferungs- und Rechtshilfegesetz – “the ELAA”) were pending. 16. The applicant appealed on 26 March 1998, submitting in particular that the Regional Court’s decision amounted to an unlawful interference with his right to property, as it lacked a legal basis. Moreover, an enforcement of the forfeiture order for the benefit of the United States was not admissible in Austria as section 64(7) of the ELAA provided that any fines or forfeited assets obtained by executing a foreign decision fell to the Republic of Austria. 17. Further, the applicant claimed that the final forfeiture order also included “substitute assets”, i.e. assets not connected to or derived from criminal activity. Thus the measure requested did not correspond in any way to forfeiture (Verfall) or withdrawal of enrichment (Abschöpfung der Bereicherung) within the meaning of the Austrian Criminal Code (Strafgesetzbuch). In any event these penalties could not be applied in his case, as the relevant provisions had not been in force at the time he committed the offences. Furthermore, he had been convicted of money laundering in the United States, an offence which had not been punishable under Austrian law at the time of its commission. 18. Relying on section 64(1) of the ELAA, the applicant also argued that the forfeiture proceedings had failed to comply with the requirements of Article 6 of the Convention, since the proceedings had not been public and he had not been heard. Moreover, his defence rights had been violated in the underlying criminal proceedings, his defence lawyer having been caught in a conflict of interests. 19. Lastly, the applicant claimed that there was a lack of reciprocity as decisions of Austrian courts were not enforceable in the United States. 20. Meanwhile, on 12 March 1998, the Vienna Regional Criminal Court had made a formal request to the United States authorities to hear the applicant in connection with the request for execution of the final forfeiture order. On 16 April 1998 the United States Department of Justice transmitted the applicant’s submissions to the Austrian Ministry of Justice. 21. On 22 May 1998 the United States Department of Justice addressed a note to the Austrian Ministry of Justice concerning reciprocity in providing legal assistance in forfeiture proceedings. The applicant denies that this note contains assurances of reciprocity. 22. On 1 August 1998 the Treaty between the Government of the Republic of Austria and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters (“the 1998 Treaty”) entered into force. 23. On 12 October 1998 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal against the Regional Court’s decision of 12 March 1998. 24. The Court of Appeal found that the Regional Court’s decision was based on Article 144a of the Code of Criminal Procedure (Strafprozeßordnung). In this connection, the court noted that pursuant to section 9(1) of the ELAA, the provisions of the Code of Criminal Procedure had to be applied mutatis mutandis unless explicitly provided otherwise. 25. As to the applicant’s assertion that a forfeiture for the benefit of the United States would be contrary to section 64(7) of the ELAA, the court observed that the letters rogatory requested first and foremost that any measures required under Austrian law for the execution of the final forfeiture order be taken. Only as an additional point did they ask for the transfer of the assets, provided that this was admissible under Austrian law or any bilateral treaty. In this connection it referred to Article 17(3) of the 1998 Treaty. 26. As regards the applicant’s assertion that the final forfeiture order covered substitute assets which could not be subject to forfeiture under Austrian law, the court observed that it followed from the judgment concerning the applicant’s conviction that he had led an organisation which had laundered large sums of money derived from drug dealing and had usually received a 10% commission for each amount laundered. Between 1 January 1990 and 2 April 1991 he had transferred more than USD 136 million of drug-related money from the account of a sham company to various foreign bank accounts. Thus, there were good reasons to assume that the applicant’s Austrian assets were monies received for or derived from the commission of a crime and subject to withdrawal of enrichment under Article 20 of the Criminal Code, or monies directly obtained through drug dealing, subject to forfeiture under Article 20b of the Criminal Code, in the version in force since its 1996 amendment. The final forfeiture order made a clear link between the offence of money laundering of which the applicant had been convicted and the forfeiture of all monies obtained thereby. 27. Articles 20 and 20b in the version in force since the 1996 amendment of the Criminal Code were not regarded as penalties under Austrian law, but as measures sui generis. The fact that they had not been in force at the time of the commission of the offences was therefore not material. 28. Even if one applied the law in force at the time of the commission of the offences, the requirements for withdrawal of enrichment were met. Article 20a(1) of the Criminal Code, in the version in force at that time, provided that an offender who had unjustly enriched himself could be ordered to pay an amount equivalent to the enrichment if the latter exceeded ATS 1 million. Although there had been no offence of money laundering under Austrian law at the time, the facts constituted the offence of receiving stolen property (Hehlerei) under Article 164(1)(4) of the Criminal Code, which made it an offence to assist the perpetrator of an offence (here, the drug dealers) in concealing assets derived from or received for the commission of the offence or to acquire such assets. 29. As to the applicant’s allegation that both the criminal proceedings against him and the proceedings resulting in the final forfeiture order had failed to comply with Article 6 of the Convention, the court referred to the documents of those proceedings contained in its file and noted the following. In the criminal proceedings, the applicant had been present and had been represented by two counsel. It noted that it was the applicant who had insisted on being represented by counsel H. although the latter had voiced concerns, albeit without substantiating them, that he might himself be charged. In any case, the applicant had been represented by a second counsel, who was free from any potential conflict of interests. In the forfeiture proceedings he waived his right to a public hearing before a jury since they only concerned questions of law. On 26 March 1993 the judge had heard the case in the presence of the applicant’s counsel but without the applicant being present. The applicant’s lawyer had requested that the applicant be heard but had refused the court’s offer to hold a further hearing in the presence of the applicant before the delivery of the judgment. In sum, the Vienna Court of Appeal found no indication that the proceedings before the United States courts had failed to comply with Article 6 of the Convention. 30. As regards the alleged lack of reciprocity, the court noted that when the request for enforcement of the final forfeiture order had been made, there had been no bilateral treaty between the United States and the Republic of Austria. Thus, only the provisions of the ELAA had to be applied, section 3(1) of which required reciprocity. The Regional Court had duly investigated the issue in that it had required the United States Department of Justice to submit information as to the possibilities of enforcing an Austrian forfeiture order in the United States. Meanwhile, however, the 1998 Treaty had entered into force. Under Article 20(3) of that Treaty, it applied irrespective of whether the underlying offences were committed before or after its entry into force. Article 17 provided for mutual legal assistance in forfeiture proceedings. 31. On 25 August 1999 the United States central authority, relying on the 1998 Treaty, made a new request for enforcement of the final forfeiture order of 7 November 1997. According to the applicant, this second request for legal assistance was not served on him. 32. The applicant made submissions on 22 December 1998, on 11 March 1999 and on 11 May 2000. 33. On 14 June 2000 the Vienna Regional Criminal Court, without holding a hearing, decided to take over the enforcement of the final forfeiture order of 7 November 1997 and ordered the forfeiture of the applicant’s Austrian assets for the benefit of the United States. 34. Having regard to the 1998 Treaty, the requirement of reciprocity was fulfilled. The submissions by the applicant which disputed this were no longer relevant as they referred to the legal position before the entry into force of the 1998 Treaty. As to the question of the beneficiary of the forfeiture, it noted that Article 17(3) of the 1998 Treaty provided optionally that each State party could hand over forfeited assets to the other party. 35. Referring to the Court of Appeal’s decision of 12 October 1998, it noted that the applicant’s conduct had been punishable under Austrian law. Thus, the forfeiture was not contrary to Article 7 of the Convention. Finally, the court noted that the applicant had been given an opportunity to comment on the request for legal assistance. 36. The applicant appealed on 7 July 2000. He asserted that the 1998 Treaty provided for legal assistance in pending criminal proceedings, but did not contain a legal basis for mutual execution of final decisions. Even assuming that the 1998 Treaty applied in the present case, the enforcement of the final forfeiture order would violate Article 7 of the Convention as the said Treaty had not been in force in 1997 when the forfeiture order was issued. Moreover, money laundering had not been punishable under Austrian law at the time of the commission of the offences. Consequently, his assets could not be subject to forfeiture or withdrawal of enrichment under Austrian law. 37. Furthermore, the applicant repeated his argument that his Austrian assets were substitute assets and claimed that, at the time of the commission of the offences, such assets had not been subject to forfeiture or withdrawal of enrichment under Austrian law. 38. Relying on expert opinions submitted by him, the applicant maintained that the condition of reciprocity required by section 3(1) of the ELAA was not fulfilled, as United States constitutional law did not permit the enforcement of decisions given by foreign criminal courts. He further submitted that the five-year limitation period for enforcement had started running on 30 August 1993, when the preliminary forfeiture order was issued (as it was, despite its name, a final and enforceable decision), and not only on 7 November 1997, when the final forfeiture order was issued. 39. In addition the applicant alleged that the criminal proceedings and the forfeiture proceedings before the United States courts had not complied with the requirements of Article 6 of the Convention. He submitted the same arguments as in the proceedings relating to the preliminary confiscation of his assets. Moreover, he referred in general terms to the fact that the United States still applied the death penalty. 40. The applicant also complained about a number of procedural shortcomings as regards the proceedings in Austria. He alleged in particular that the Regional Court had refused to take into account the aforesaid expert opinions submitted by him, which showed that United States constitutional law excluded any enforcement of decisions of foreign criminal courts. Moreover, he had not been given sufficient opportunity to advance his arguments as, in his view, that would have required his personal presence in court. Finally, he complained that the Regional Court had failed to hold a public oral hearing and requested that such a hearing be held by the appellate court. 41. The Public Prosecutor’s Office also appealed. Its appeal was served on the applicant for comments, which he submitted on 21 September 2000. 42. On 7 October 2000 the Vienna Court of Appeal, sitting in camera, dismissed the applicant’s appeal. Upon the public prosecutor’s appeal, it amended the Regional Court’s decision and ordered the forfeiture to the benefit of the Republic of Austria. 43. The court noted at the outset that, pursuant to its Article 20(3), the 1998 Treaty applied irrespective of whether the underlying offences were committed before or after its entry into force. It dismissed the applicant’s argument that the said Treaty did not provide a basis for the mutual enforcement of decisions. Article 1, paragraphs (1) and (2)(h) of the Treaty, in conjunction with Article 17, governed legal assistance in forfeiture proceedings. As to the alleged lack of reciprocity, it was sufficient to refer to those provisions. It was therefore not necessary to examine questions of United States constitutional law. 44. Moreover, referring to its decision of 12 October 1998, the court reiterated that the facts underlying the applicant’s conviction for money laundering would have been punishable as receiving stolen property under Article 164(1)(4) of the Criminal Code at the time of the commission of the offences. Further, it reiterated that withdrawal of enrichment pursuant to Article 20 of the Criminal Code and forfeiture pursuant to Article 20b, both in the version in force since 1996, were not regarded as penalties, but served the purpose of neutralising proceeds of criminal activities. These measures covered any proceeds of an offence, irrespective of whether they were directly derived from the offence or given for its commission or whether they had already been converted into other assets. 45. With regard to the applicant’s complaint that the proceedings in the United States had not complied with the requirements of Article 6 of the Convention, the court referred to the reasons given in its previous decision of 12 October 1998. 46. The court dismissed the applicant’s plea that the enforcement of the final forfeiture order was time-barred, noting that the United States Supreme Court, on 25 March 1996, had refused leave to appeal against the provisional forfeiture order, whereupon the final forfeiture order had been issued on 7 November 1997. Consequently, the five-year limitation period pursuant to section 59 of the Criminal Code had not expired. 47. As to the applicant’s procedural rights, the court noted that he had been represented by counsel throughout the proceedings and had had the opportunity to submit extensive written pleadings. 48. Finally, the court considered that the public prosecutor’s appeal was well-founded in that section 64(7) of the ELAA provided that forfeited assets fell to the Republic of Austria. Thus, forfeiture to the benefit of the United States under Article 17(3) of the 1998 Treaty was not admissible. 49. The decision was served on the applicant on 30 October 2000. 50. Section 1 of the Extradition and Legal Assistance Act (Auslieferungs- und Rechtshilfegesetz, Federal Law Gazette no. 529/1979) provides that the Act applies where international or bilateral agreements do not provide otherwise. 51. 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.” 52. Section 64 is situated in the chapter on the enforcement of decisions by foreign criminal courts. It regulates the conditions for taking over the enforcement of such decisions. “(1) Enforcement or further enforcement of a decision by a foreign court with final and legal effect, in the form of a monetary 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 for the Protection of Human Rights and Fundamental Freedoms (the Convention) (Federal Law Gazette no. 210/1958); 2. the decision was taken in relation to an act that is punished by a court sentence under Austrian law; 3. the decision was not taken in relation to one of the offences listed in sections 14 and 15; 4. no time-limit has expired under Austrian law regarding enforceability; 5. the person concerned by the decision of the foreign court regarding this offence is not being prosecuted in Austria, has been finally and effectively convicted or acquitted in this matter or has otherwise been 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 monetary 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.” 53. The procedure to be followed in cases concerning the enforcement of foreign decisions is laid down in section 67 of the ELAA. It does not make any provision for the holding of hearings. 54. 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 or 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 |
train | 001-85262 | ENG | POL | CHAMBER | 2,008 | CASE OF KARPOW v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | 4. The applicant was born in 1935 and lives in Warsaw. 5. On 25 March 1987 the applicant filed for a no-fault divorce. 6. On 22 April 1987 the Warsaw District Court (Sąd Rejonowy) held a reconciliation session with the participation of the applicant and his wife. 7. On 11 May 1987 the applicant modified his petition and requested that the divorce be granted on the grounds of his wife’s fault. 8. The Warsaw District Court held two more reconciliation sessions. On 30 December 1987 it decided on the applicant’s contact rights with his minor child. 9. On 8 March 1988 the Warsaw District Court ordered the applicant to undergo a psychiatric observation. 10. Forty-five hearings were scheduled between November 1988 and March 1997. However, twenty-four of them were adjourned and one was cancelled. Two hearings were adjourned due to the applicant’s stay in a psychiatric hospital for observation. Two hearings were adjourned in connection with the examination of the applicant’s challenge to the impartiality of the presiding judge. One hearing was adjourned at the parties’ request. One hearing was adjourned because the applicant’s wife was abroad. Eighteen hearings were adjourned due to the absence of one of the parties. Finally, one hearing was cancelled since the presiding judge was ill. 11. On 16 May 1990 the Warsaw District Court issued an order determining the use of the matrimonial home and payment of child maintenance. 12. On 7 June 1993 the court referred the spouses for counselling at the Family Diagnostic and Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny). 13. On 26 March 1997 the Warsaw District Court granted a divorce on the ground of the fault of both spouses. The court also ruled on custody rights and child maintenance. The applicant appealed. 14. On 6 November 1997 the Warsaw Regional Court (Sąd Okręgowy) quashed the first-instance judgment and remitted the case to the District Court. 15. Following amendments to the applicable law, the Regional Court assumed jurisdiction to examine the case. The total number of hearings held in the renewed proceedings has not been specified by the applicant. It appears that the applicant lodged two challenges to the impartiality of a judge. They were dismissed by the Warsaw Regional Court on 10 and 25 September 2002 respectively. 16. On 29 January 2004 the Warsaw Regional Court granted a divorce on the ground of the fault of both spouses. The applicant appealed. 17. On an unspecified date the applicant asked for an exemption from court fees in the appeal proceedings. On 23 April 2004 the Warsaw Regional Court refused his request. On 9 June 2004 the applicant lodged an interlocutory appeal against that decision and asked for a full or partial exemption from court fees. It appears that the applicant was asked to complete his appeal and that, ultimately, he was granted the exemption sought. 18. On 9 February 2006 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the first-instance judgment. 19. On 14 March 2005 the applicant complained about the length of the proceedings 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”). 20. On 12 May 2005 the Warsaw Court of Appeal dismissed the complaint. The court held that the 2004 Act did not have retroactive effect and, consequently, it examined the applicant’s claim only in respect of the period between the date of entry into force of the 2004 Act (17 September 2004) and the date on which the applicant filed the complaint (14 March 2005). The Warsaw Court of Appeal found that the impugned proceedings were progressing without any undue delays. It was noted that on 29 January 2004 the Warsaw Regional Court had delivered a judgment and that the case was pending on appeal. It was emphasised that any delay in the appeal proceedings was attributable to the applicant who had twice applied for an exemption from court fees on the basis of incomplete information. 21. 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 |
train | 001-107280 | ENG | AUT | ADMISSIBILITY | 2,011 | UBLEIS v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | The applicant, Ms Gabriele Übleis, is an Austrian national who lives in Prambachkirchen. She was represented before the Court by Mr F.X. Berndorfer, a lawyer practising in Linz. 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 facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of two plots of land of about six-thousand square metres in the Wilhering municipality. The property, plot nos. 23 and 24 on the Wilhering land register, had been designated as building land since the early 1950s. By contract of 27 November 1995 the applicant’s parents transferred the property to her. At the same time they transferred other plots of building land to her sister. The applicant and her sister considered that the plots of land each of them had received were of approximately equal value and therefore made written statements waiving their right to a compulsory portion of their parents’ estate. Meanwhile, on 1 January 1994 the new Upper Austrian Land Planning Act (Raumordnungsgestz – hereinafter, “the Land Planning Act”) had entered into force. Its section 39(3) had obliged all municipalities to review existing area zoning plans (Flächenwidmungspläne) within five years. On 16 February 1995 the Wilhering Municipality, pending the review of the area zoning plan, issued a temporary building prohibition (Bausperre) for parts of the municipal area. Pursuant to the Upper Austrian Building Act the temporary building prohibition is a decree (Verordnung) which has to be made public. Based on the recommendations of land planning expert E., the review of the area zoning plan concerned forty-seven plots of land, including the two plots of land at issue, which were at that time still owned by the applicant’s parents. The temporary building prohibition was extended twice. On 23 November 1998 the mayor of the Wilhering municipality informed the applicant that a change in the area zoning plan was envisaged which would lead to the designation of her two plots of land as green land (Grünland). He gave her the opportunity to submit written comments, which she did on 19 January 1999. She opposed the change, giving arguments for maintaining the designation of her plots of land as building land. By a decision of 4 February 1999 the Wilhering municipal council (Gemeinderat) amended the area zoning plan. As a result the applicant’s property was designated as green land. In its considerations the municipal council set out on a general level that the reserve of building land by far exceeded the projected need. In respect of the applicant’s plots of land, it noted in particular: “The objection of Ms Gabriele Übleis, owner of plot nos. 23 and 24 [...] should be rejected, since in accordance with Section 21 of the Upper Austrian Land Planning Act only areas that are suitable for construction based on their natural and infrastructural conditions may be classified as building land. Such land is required in order to meet the demand of the municipality for building land which has been projected by the municipality for a planning period of 5 years. Areas that are unsuitable for appropriate construction on account of their natural conditions may not be designated as building land. This applies also to areas whose development would entail unreasonable costs. In the opinion of the local planning expert and author of the plan, the plots of land at issue lack suitability as building land (just like the rest of the areas re-designated as green land in accordance with the area zoning plan amendment) for the following reasons: building development would entail unreasonable costs owing to the steep gradient of the slope; the suitability of the property as a housing area is limited on account of the emission load of the Eferdinger Federal Road; because of its position on a northern slope with adjacent woodland, only reduced insulation is possible; in general, construction on the steep Kürnberg hills descending to the river Danube would violate section 2(1) (protection of the environment) and paragraph 10 (preservation of the typical settlement structure and landscape) of the Upper Austrian Land Planning Act.” Of the forty-seven plots of land concerned by the review of the area zoning plan, a total of thirty-seven were re-designated as green land. The area zoning plan amendment was approved on 30 March 1999 by the Upper Austrian Regional Government (Landesregierung), acting as the supervisory authority for the municipality, and entered into force on 10 April 1999. Under Austrian law a land owner cannot challenge an area zoning plan directly before the Constitutional Court, but has to raise the question of its lawfulness in the context of administrative proceedings, for instance in proceedings on a request for a building permit (Baugenehmigung) or a building-site permit (Bauplatzbewilligung) (see relevant domestic law below). On 10 April 2002 the applicant applied to the Wilhering municipality for a permit for a building site for the two plots of land at issue. She claimed in essence that the change of designation of her property had been unlawful. In support of this argument she submitted an opinion by a land planning expert, N., dated 14 February 2002. The conclusion of the latter was that the two plots of land were suitable for construction. The mayor refused the application by a decision of 24 May 2002 noting that the granting of a building-site permit would be contrary to the property’s designation as green land. The applicant appealed on 12 June 2002. She referred to the written comments she had made in the proceedings concerning the amendment of the area zoning plan and complained that the authority had failed to examine her arguments. Furthermore, she alleged that the change of designation was unlawful for the following reasons: Firstly, the re-designation of her property as green land was not an appropriate means of achieving the declared aim of reducing the despoliation of the landscape, given the position of her property close to the centre of the municipality. Secondly, changes in the area zoning plan were subject to restrictions. Only very significant public-interest reasons could prevail over the individual interest of preserving acquired rights. The main aim pursued by the change to the area zoning plan, namely to reduce the excess of building land, did not have such preponderant weight. Thirdly, there were no new facts which would justify the change of designation, since the excess of building land had existed for decades and had been aggravated by the municipality itself newly designating numerous plots of land in the past. Fourthly, the authority had failed to take the applicant’s interests into account. Her property had suffered a very considerable loss of value for which she had not been compensated under Section 38 of the Upper Austrian Land Planning Act. Finally, no uniform criteria had been applied as regards the re-designation of building land as green land, since other plots of land in a comparable position and with comparable topography, including two plots of land adjacent to hers, had not been re-designated. By a decision of 7 November 2002 the Municipal Council dismissed the applicant’s appeal. It noted that the applicant’s arguments concerned the underlying decision to amend the area zoning plan and could not be taken into account in the proceedings at issue. The applicant filed an objection (Vorstellung) against this decision in which she repeated the arguments she had submitted in her appeal. On 17 February 2003 the Upper Austrian Regional Government dismissed the applicant’s objection. It noted that the area zoning plan was a decree, that is, a binding act of subordinate legislation. While the applicant was entitled to submit arguments as regards its lawfulness, it was not for the administrative authorities but for the Constitutional Court (Verfassungsgerichthof) to examine those arguments. The applicant lodged a complaint with the Constitutional Court against the refusal of the building-site permit, challenging the lawfulness of the underlying area zoning plan. She claimed that the building authorities’ decisions violated her right to property and the principle of non-discrimination in that the refusal of a building-site permit had been based on an unlawful area zoning plan. In that regard, she repeated all the arguments she had already submitted in the course of the proceedings. On 9 December 2004 the Constitutional Court dismissed the applicant’s complaint. It noted that the municipality had based the re-designation of the applicant’s property on the undisputed excess of building land and on its lack of suitability for construction. It had adduced specific reasons for finding that the applicant’s plots of land were unsuitable for construction, such as their position on a steep slope, the unreasonable costs of development because of that position, the interests of environmental protection in preserving the woods on the slope, the emission load of the nearby Federal Road and the limited possibilities for insulation. The expert opinion of N. submitted by the applicant had supported her position only in part. In particular, it had not contested the unreasonable costs of developing the property because of its position on a steep slope. Nor had it contradicted the municipality’s argument in respect of emissions from the nearby Federal Road. In sum, the municipality had rightly come to the conclusion that the previous designation of the applicant’s property as building land was contrary to the principles laid down in section 2(1) and (10) of the Land Planning Act. In such a case Section 39(3) of the Land Planning Act obliged the municipality to change the designation of the plots of land at issue without a further weighing of interests as this task had already been carried out by the legislator. The question whether or not it was lawful to maintain the designation of two neighbouring plots of land as building land did not fall to be examined in the present proceedings. The Constitutional Court’s decision was served on the applicant’s counsel on 3 February 2005. In Upper Austria land planning is governed by the 1994 Upper Austrian Land Planning Act. Area zoning plans are issued by the municipalities. Under Austrian law area zoning plans and any amendments thereto are regarded as decrees, that is, binding acts of subordinate legislation. The lawfulness of decrees can only be reviewed by the Constitutional Court (Article 139 of the Federal Constitution). Proceedings in which area zoning plans are issued or amended are not ordinary administrative proceedings and the land owners affected by them, while having the right to submit comments, are not parties to the proceedings. They are not entitled to challenge the area zoning plan directly before the Constitutional Court if it is possible to institute administrative proceedings, for instance building proceedings. If an area zoning plan is the basis for refusing a building permit or a building-site permit, which is a preliminary decision on the suitability of land for construction purposes, the persons concerned are expected to assert their rights in the building proceedings, in which they can ultimately challenge the lawfulness of the area zoning plan before the Constitutional Court. The relevant provisions of the 1994 Upper Austrian Land Planning Act (Raumordnungsgesetz) state as follows: “(1) The objectives of the Land Planning Act are, in particular: 1. protecting the environment against adverse impact as well as safeguarding or restoring a natural balance; ... 10. preserving and shaping settlement structures, including the development of settlements, and preserving typical settlement structures and landscapes ...” “(1) In implementing its tasks of local land planning, each municipality shall issue the area zoning plan and the local development concept by a decree, and manage and review them at regular intervals. The local development concept shall be prepared for a planning period of ten years, the area zoning plan for a planning period of five years.” “(1) Only such areas may be designated as building land as are suited for construction based on their natural and infrastructural conditions. They have to meet the demand for building land of the municipality projected by the municipality for a planning period of five years. Areas lacking suitability for adequate construction owing to natural conditions (e.g. ground-water level, flood hazard, rock fall, soil characteristics, risk of avalanche) may not be designated as building land. This applies also to areas whose development would entail unreasonable costs ...” “(1) All areas not designated as building land or transport areas shall be designated as green land.” “(3) After the entry into force of this Regional Act, each municipality shall review the area zoning plan and adopt an area zoning plan together with the local development concept no later than five years after the entry into force of the Regional Act. Furthermore, the area zoning plan shall be reviewed to ascertain whether the building land areas designated in the area zoning plan but not yet used for the designated purpose still conform to the principles of this Regional Act. Building land areas whose designation contravenes the aforementioned principles shall be designated as building land or as green land, as appropriate, by changing the area zoning plan.” Under section 38(1) and (2) of the Land Planning Act, compensation for a change of designation is only available in specific circumstances, essentially when the owner of land relying on the designation of the property as building land has already incurred costs in view of intended construction which is then made impossible by the amendment of the area zoning plan, or when a plot of land which is suited for construction within the meaning of section 21(1) and is entirely or mostly surrounded by building land is not designated as building land and suffers a loss of value as a result. | 0 |
train | 001-23875 | ENG | POL | ADMISSIBILITY | 2,004 | MACHNIK v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Henryk Machnik, is a Polish national who was born in 1954 and lives in Gdynia, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. In 1991 the applicant lent USD 4,400 to M.Z. and R.Z. When the debtors failed to return the above sum, the applicant, on 31 May 1991, sued them before the Gdańsk Regional Court (Sąd Wojewódzki). On 1 October 1991 the Regional Court allowed his claim. On 4 November 1991 the applicant asked the Bailiff of the Drawsko Pomorskie District Court (Komornik Sądu Rejonowego) to institute enforcement proceedings. On 26 November 1991 the District Court partially exempted the applicant from the enforcement fee. On 6 May 1992 the applicant asked the bailiff for the second time to institute enforcement proceedings. However, the bailiff discontinued the proceedings, as the applicant had failed to pay the required fee. On 16 September 1993 the District Court exempted the applicant from the total cost of the enforcement proceedings. On 14 October 1993 the applicant again asked the bailiff to attach M.Z.'s immovable property. The bailiff requested the applicant to submit certain documents. The applicant complied with this request. On 17 November 1993 he asked the bailiff for the fourth time to institute enforcement proceedings. On 29 November 1993 the bailiff ordered the applicant to pay the court fee. As the applicant failed to pay, the bailiff dismissed his application on 11 January 1994. On 30 November 1993 the applicant lodged a complaint with the Drawsko Pomorskie District Court against the actions taken by the bailiff (skarga na czynności komornika). He submitted that those actions had been incorrect and unlawful. On 5 January 1994, the court dismissed his complaint. It held that the exemption had only concerned his application of 4 November 1991 and that the applicant had to apply again for an exemption from the court fee. On 1 February 1994 the District Court exempted the applicant from the required court fee. On 8 February 1994 the applicant asked the bailiff for the fifth time to enforce the judgment of 1 October 1991. On 14 March 1994 the bailiff attached M.Z.'s immovable property with a view to selling it at a public auction. On 12 July 1994 the bailiff made a detailed evaluation of M.Z.'s property. On 12 September 1994 the first public auction was held. It was unsuccessful, as the bailiff was not able to sell M.Z.'s property. On 7 November 1994, at the second auction, the applicant bought the property in question. However, he failed to honour the sales transaction and on 12 December 1994 the District Court held that his right to acquire the property had expired. On 23 September 1996 the bailiff discontinued the enforcement proceedings on the ground that the applicant had failed to comply with the necessary formal requirements. Subsequently, he also decided that the applicant should pay the required enforcement fee. On 29 November 1996 the Drawsko Pomorskie District Court dismissed the applicant's appeal against these decisions. On 15 December 1997 the applicant asked the Bailiff of the Drawsko Pomorskie District Court for the sixth time to institute enforcement proceedings. The bailiff replied that the application was incomplete and refused to examine it. On 22 February 1998 the applicant filed his seventh application for enforcement. On 3 April 1998 the Bailiff ordered the applicant to complete his application. On 29 April 1998 the bailiff attached the debtors' immovable property. On 11 May 1998 the Bailiff informed the applicant that he would discontinue the proceedings unless the applicant submitted information concerning the debtor's assets. It appears that on 24 January 1999 the bailiff discontinued the enforcement proceedings. Under Article 767 et seq. of the Code of Civil Procedure (Kodeks Postępowania Cywilnego), a debtor may lodge a complaint against any action taken by a bailiff in enforcement proceedings (skarga na czynności komornika). He may, in particular, seek a ruling as to whether the bailiff's actions were correct, i.e. taken in accordance with a writ of execution, and lawful, i.e. whether the means of enforcement applied in a given case were provided by law. Such a complaint is examined by a district court under the provisions of Volume II of the Code of Civil Procedure relating to enforcement proceedings. | 0 |
train | 001-101275 | ENG | SVK | ADMISSIBILITY | 2,010 | POKRIVKA AND SITTA v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicants are two Slovak nationals. The first applicant, Mr Dušan Pokrivka, was born in 1977. He is serving a term of imprisonment in the Ilava prison. The second applicant, Mr Rastislav Šitta, was born in 1972 and is serving a sentence of imprisonment in the Leopoldov prison. They were represented before the Court by Mr J. Smetana, a lawyer practising in Banská Bystrica. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 4 February 2002 a police investigator accused the applicants, together with seven other people, of founding and supporting an organised criminal group and of fraud. The accused were suspected of having organised a large-scale financial transaction scheme which resulted in a value-added tax fraud of approximately 148 million Slovak korunas. Six other people were accused of fraud in the same context. The applicants were arrested on 7 February 2002. On 9 February 2002 a judge of the Banská Bystrica Regional Court remanded them in custody with effect from 7 February 2002. The judge considered that there was a risk of the applicants' absconding, hampering the investigation into the case and committing further offences within the meaning of Article 67 § 1 (a), (b) and (c) of the Code of Criminal Procedure of 1961 (“the 1961 Code”). The applicants were subsequently accused of murder and several other offences. On 27 October 2004 a public prosecutor indicted the applicants, together with twenty-eight other people, for a number of criminal offences before the Banská Bystrica Regional Court. The offences alleged included fraud, membership of an organised criminal group, murder and robbery. On 21 July 2005 the case was transmitted to the Special Court in Pezinok. That court severed several charges against the applicants in order to conduct separate proceedings. The remaining part of the case was returned to the public prosecutor. From 4 to 14 October 2005 the Special Court held the main hearing in the case. It decided to sever several more charges against the applicants and their co-accused into separate proceedings. The remaining part of the case was adjourned with a view to taking further evidence. On 7 November 2005 the Supreme Court of Slovakia extended the applicants' detention until 7 July 2006. It accepted the Special Court's view that the case was complex and that it was necessary to obtain further evidence. The evidence available justified the suspicion that the applicants were involved in the killing of several people whose bodies had been subsequently dissolved in sulphuric acid. The risk of the applicants' absconding, influencing witnesses and committing further offences persisted. It could be seen that the case was complex as the file comprised fifty-six folders at that time, and the first-instance court had displayed due diligence when dealing with the case. Hearings before the Special Court were held on 11 and 12 January, 15 February and 21 March 2006. The accused and a number of witnesses and experts were heard and documentary evidence was taken. On 21 March 2006 the Special Court dismissed the applicants'' detention still existed within the meaning of Article 67 § 1 (a), (b) and (c) of the 1961 Code. In particular, the accused had been away from their place of residence prior to their arrest, several witnesses had made statements against them and, in view of the actions imputed to them, there was a real risk that they would commit offences in the event of their release. The decision stated that the 1961 Code continued to apply to the applicants' case and, accordingly, the maximum permissible duration of their detention was five years. Following the entry into force of the Code of Criminal Procedure of 2005 (“the 2005 Code”) on 1 January 2006, their detention during trial could not exceed two years from that date, as in the case of people detained under the provisions of the 2005 Code. On 5 April 2006 the Supreme Court dismissed the applicants' complaint against the above-mentioned decision, as it concurred with the Special Court's reasoning. The Supreme Court held that people in the position of the applicants, who had been indicted prior to the entry into force of the 2005 Code, were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by Article 76 §§ 6 and 7 of the 2005 Code. Article 564 § 5 of the 2005 Code clearly indicated that that had not been the intention of the legislature. The situation did not amount to unequal treatment, as the applicants had been remanded in custody under a different legal regime, namely that governed by the 1961 Code. However, both categories of detained persons – those whose detention was governed by the 1961 Code and those detained under the 2005 Code – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the 2005 Code. In that respect, the applicants were treated equally to the other category of detainees. Thus the detention during trial of accused persons who had been remanded and indicted prior to 1 January 2006 for offences which the Criminal Code of 2005 qualified as extremely serious crimes was permissible for a maximum duration of two years as from 1 January 2006. As to the applicants' reliance on Article 564 § 7 of the 2005 Code, the Supreme Court held that the legislator was free to choose whether the periods of maximum detention under the 2005 Code would apply to proceedings which had arisen under the law previously in force. The only situations where the legislator had allowed detained persons to benefit from the newly introduced shorter maximum periods of detention were the cases mentioned in Article 564 § 7, where criminal proceedings were at the pre-trial stage. The Supreme Court concluded that the applicants, who had been indicted prior to 1 January 2006, could in principle be detained until 7 February 2007 when the maximum permissible detention period of five years would expire. On 19 April and 10 May 2006 the applicants complained separately to the Constitutional Court that their detention had exceeded the maximum permissible period of four years. They relied on Article 76 § 6 in conjunction with Article 564 § 7 of the 2005 Code and on Article 5 §§ 1 (c) and 3 of the Convention. On 3 May 2006 the Special Court convicted the applicants of murder. It sentenced the second applicant to twenty-five years' and the first applicant to fourteen years' imprisonment. The applicants appealed. On 17 May 2006 the Constitutional Court rejected the first applicant's complaint as being manifestly ill-founded. In particular, it held that the Supreme Court's interpretation and application, in its above decision of 5 April 2006, of the relevant provisions of the two Codes of Criminal Procedure were in conformity with the Constitution and the Convention. On 28 June 2006 the Constitutional Court dismissed the second applicant's complaint for similar reasons. It held, with reference to Article 564 §§ 3, 4 and 5 of the 2005 Code, that the date of filing of the indictment was decisive in the determination of whether the 2005 Code or the 1961 Code would govern a criminal case including periods of detention. It therefore considered erroneous the interpretation which the Supreme Court had given to the relevant provisions in its decisions 2 Ntv 1/2006 of 17 January 2006 and 4 Ntv 2/2006 of 31 January 2006 and on which the second applicant had relied. The fact that in the second applicant's case the Supreme Court had decided differently from those two decisions did not run contrary to the principle of legal certainty. In particular, those two decisions had been given in January 2006, immediately after the entry into force of the 2005 Code. A difference in the interpretation of newly adopted legislation could not be avoided during a period preceding the elaboration of established practice on the issue. On 6 July 2006 the Supreme Court extended the applicants' detention until 7 December 2006. As to the lawfulness of their detention, reference was made to the above Constitutional Court's decision of 17 May 2006 on the complaint of the first applicant. Under the 1961 Code, detention during criminal proceedings was governed by the provisions of Articles 67 et seq. A person charged with a criminal offence could be detained, inter alia, where there were reasonable grounds for believing that he or she would abscond (Article 67 § 1 (a)), influence the witnesses or the co-accused or otherwise hamper the investigation (Article 67 § 1 (b)), or continue criminal activities, complete an attempted offence or commit an offence which he or she had been prepared or had threatened to commit (Article 67 § 1 (c)). The duration of detention was regulated by the provisions of Articles 71 et seq. Detention in the pretrial phase of the proceedings and during the trial, taken together, could not exceed two years. An extension could be authorised by the Supreme Court if it had been impossible to complete the proceedings earlier because of the complexity of the matter or for other important reasons and the release of the detainee would jeopardise the purpose of the proceedings. The total duration of the detention could not, however, exceed three years or, in the case of offences qualified as extremely dangerous, five years (Article 71 § 2). The new Code of Criminal Procedure was enacted on 24 May 2005 and its text was published in the Collection of Laws on 2 July 2005. It entered into force on 1 January 2006. The duration of detention is regulated by Articles 76 et seq. The total duration of detention in the pre-trial phase of the proceedings and during the trial, taken together, cannot exceed twelve months where the case concerns a lesser crime (prečin), thirty-six months in the case of a crime (zločin), and forty-eight months in the case of an extremely serious crime (obzvlášť závažný zločin) (Article 76 § 6). Detention in the pretrial phase of the proceedings and during the trial, taken separately, can last up to one half of the above periods (Article 76 § 7). As regards detention during trial, the period is to be counted from the moment when the indictment is filed (Article 76 § 5). If the detainee faces multiple charges, the offence carrying the most severe potential penalty should be used as the basis for determining the maximum permissible duration of the detention (Article 76 § 8). The temporal application of the 2005 Code is governed by the provisions of Articles 564 et seq. As a general rule, proceedings where the indictment was filed prior to the entry into force of the 2005 Code should continue under the 1961 Code (Article 564 §§ 3 and 4). This extends to proceedings in which the duration of and grounds for detention are examined including proceedings on a proposal for one's detention to be extended by the Supreme Court (Article 564 § 5). Paragraph 7 of Article 564 provides that, in cases where a person's pre-trial detention started prior to the entry into force of the 2005 Code, the time-limits within which a decision is required on the extension of such detention at the pre-trial stage of the criminal proceedings start running at the date of entry into force of the 2005 Code. Paragraph 7 does not affect the provisions governing the permissible duration of detention, with the exception of cases, where, prior to the entry into force of the 2005 Code, a final decision had been given to extend a person's detention for a period exceeding the periods mentioned in Article 76 §§ 6 or 7. In such cases, a person's detention is to end three months after the entry into force of the 2005 Code at the latest. The provisions on the temporal application of the newly introduced 2005 Code initially gave rise to differing interpretations by the benches of the Supreme Court. Thus, contrary to the above-mentioned decision on the applicants' case of 5 April 2006, the Supreme Court also found that the maximum duration of detention of a person who had been indicted prior to 1 January 2006 should be governed by the newly enacted 2005 Code. The Supreme Court stated that any other interpretation of the relevant provisions would run contrary to the constitutional principle of equality of persons before the law (Supreme Court decision 2 Ntv 1/2006 of 17 January 2006). A similar view was expressed in Supreme Court decision 4 Ntv 2/2006 of 31 January 2006. The criminal law section (kolégium) of the Supreme Court therefore adopted a practice direction indicating how Article 76 § 6 and Article 564 § 5 of the 2005 Code should be interpreted (no. Tpj 14/06, practice direction adopted on 8 December 2006 and subsequently published in the Collection of practice directions of the Supreme Court and decisions of courts, no. 2/2007). With reference to relevant provisions of the Constitution, the criminal law section of the Supreme Court held that detained persons who had been indicted prior to the entry into force of the 2005 Code were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by Article 76 §§ 6 and 7 of the 2005 Code. Article 564 § 5 of the 2005 Code clearly indicated that that had not been the intention of the legislature. The situation did not amount to unequal treatment as the individuals concerned had been remanded in detention under a different legal regime, namely that governed by the 1961 Code. However, the Supreme Court also held that both categories of detained persons – those whose detention was governed by the 1961 Code and those detained under the 2005 Code – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the 2005 Code. In practical terms, the detention during trial of individuals falling within the former category in the period after 1 January 2006 should not last longer than six, twelve or twenty-four months, depending on the nature of the offence in issue, as specified in Article 76 §§ 6 and 7 of the 2005 Code. In that respect, those individuals were treated equally to the other category of detainees. For example, the detention during trial of accused persons who had been remanded and indicted, prior to 1 January 2006, for offences which the 2005 Criminal Code qualified as extremely serious crimes, could not exceed two years from 1 January 2006. Detention of such persons after 1 January 2008 was therefore not permissible. | 0 |
train | 001-73253 | ENG | SVN | CHAMBER | 2,006 | CASE OF ROZMAN v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1964 and lives in Celje. 6. On 27 December 1996 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 8 October 1998 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,104,500 tolars (approximately 8,780 euros) for the injuries sustained. Between 15 March 1999 and 5 May 2003 the applicant made six requests that a date be set for a hearing. Between 5 September 2000 and 4 June 2004 the applicant lodged five preliminary written submissions and/or adduced evidence. Of the three hearings held between 4 December 2000 and 8 September 2004 none was adjourned at the request of the applicant. On 5 November 2001 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was transferred to a new judge. During the proceedings the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 1 December 2004. 8. On 3 December 2004 the applicant appealed to the Celje Higher Court. The proceedings are still pending. | 1 |
train | 001-102332 | ENG | IRL | GRANDCHAMBER | 2,010 | CASE OF A, B AND C v. IRELAND | 1 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;No violation of Art. 8;Violation of Art. 8;Non-pecuniary damage - award | Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Giovanni Bonello;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Luis López Guerra;Mary Finlay Geoghegan;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen | 11. The applicants reside in Ireland and are women over 18 years of age. 12. The facts, as submitted by the applicants, are summarised immediately below. The Government’s position was that these factual submissions were general, unsubstantiated and untested either by a domestic court, or through any other form of interaction with the Irish State, and they made further factual submissions as regards each applicant (summarised at paragraphs 115-18 and 122 below). 13. On 28 February 2005 the first applicant travelled to England for an abortion as she believed that she was not entitled to an abortion in Ireland. She was nine and a half weeks pregnant. 14. She had become pregnant unintentionally, believing her partner to be infertile. At the time she was unmarried, unemployed and living in poverty. She had four young children. The youngest was disabled and all four children were in foster care as a result of problems she had experienced as an alcoholic. She had a history of depression during her first four pregnancies, and was battling depression at the time of her fifth pregnancy. During the year preceding her fifth pregnancy, she had remained sober and had been in constant contact with social workers with a view to regaining custody of her children. She considered that a further child at that moment of her life (with its attendant risk of post-natal depression and to her sobriety) would jeopardise her health and the successful reunification of her family. She decided to travel to England to have an abortion. 15. Delaying the abortion for three weeks, the first applicant borrowed the minimum amount of money for treatment in a private clinic and travel from a money-lender (650 euros (EUR)) at a high interest rate. She felt she had to travel to England alone and in secrecy, without alerting the social workers and without missing a contact visit with her children. 16. She travelled back to Ireland by plane the day after the abortion for her contact visit with her youngest child. While she had initially submitted that she was afraid to seek medical advice on her return to Ireland, she subsequently clarified that on the train returning from Dublin she began to bleed profusely and an ambulance met the train. At a nearby hospital she underwent a dilation and curettage. She claims she experienced pain, nausea and bleeding for weeks thereafter but did not seek further medical advice. 17. Following the introduction of the present application, the first applicant became pregnant again and gave birth to her fifth child. She is struggling with depression and has custody of three of her children whilst two (including the disabled child) remain in care. She maintained that an abortion was the correct decision for her in 2005. 18. On 17 January 2005 the second applicant travelled to England for an abortion believing that she was not entitled to an abortion in Ireland. She was seven weeks pregnant. 19. The second applicant became pregnant unintentionally. She had taken the “morning-after pill” and was advised by two different doctors that there was a substantial risk of an ectopic pregnancy (a condition which cannot be diagnosed until six to ten weeks of pregnancy). She was certain of her decision to travel to England for an abortion since she could not care for a child on her own at that time of her life. She waited several weeks until the counselling centre in Dublin opened after Christmas. She had difficulty meeting the costs of the travel and, not having a credit card, used a friend’s credit card to book the flights. She accepted that, by the time she travelled to England, it had been confirmed that the pregnancy was not ectopic. 20. Once in England she did not list anyone as her next of kin or give an Irish address so as to be sure her family would not learn of the abortion. She travelled alone and stayed in London the night before the procedure to avoid missing her appointment as well as the night of the procedure, as she would have arrived back in Dublin too late for public transport and the medication rendered her unfit to drive home from Dublin airport. The clinic advised her to inform Irish doctors that she had had a miscarriage. 21. On her return to Ireland she started passing blood clots and two weeks later, being unsure of the legality of having travelled for an abortion, sought follow-up care in a clinic in Dublin affiliated to the English clinic. 22. On 3 March 2005 the third applicant had an abortion in England believing that she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time. 23. Prior to that, she had undergone three years of chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester. 24. The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. When she discovered she was pregnant, the applicant consulted her General Practitioner (GP) as well as several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal framework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus. 25. She therefore researched the risks on the Internet. Given the uncertainty about the risks involved, the third applicant travelled to England for an abortion. She maintained that she wanted a medical abortion (drug-induced miscarriage) as her pregnancy was at an early stage but that she could not find a clinic which would provide this treatment as she was a non-resident and because of the need for follow-up. She therefore alleged she had to wait a further eight weeks until a surgical abortion was possible. 26. On returning to Ireland after the abortion, the third applicant suffered complications as a result of an incomplete abortion, including prolonged bleeding and infection. She alleges that doctors provided inadequate medical care. She consulted her own GP several months after the abortion and her GP made no reference to the fact that she was visibly no longer pregnant. 27. The courts are the custodians of the rights set out in the Constitution and their powers are as ample as the defence of the Constitution requires (The State (Quinn) v. Ryan [1965] IR 70). In his judgment in The People v. Shaw ([1982] IR 1), Mr Justice Kenny observed: “The obligation to implement [the guarantee of Article 40.3] is imposed not on the Oireachtas [Parliament] only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws: Article 6. The word ‘laws’ in Article [40.3] is not confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges and by ministers of State when they make statutory instruments or regulations.” 28. Prior to the adoption of the Eighth Amendment to the Constitution in 1983, Article 40.3 of the Constitution read as follows: “1. The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.” 29. Certain judgments relied upon Article 40.3 and other Articles of the Constitution to recognise the right to life of the unborn and to suggest that the Constitution implicitly prohibited abortion (McGee v. the Attorney General [1974] IR 284; G v. An Bord Uchtála [1980] IR 32; and Finn v. the Attorney General [1983] IR 154). 30. Abortion is also prohibited under the criminal law by section 58 (as amended) of the Offences Against the Person Act 1861 (“the 1861 Act”): “Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life ...” Section 59 of the 1861 Act states as follows: “Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour ...” 31. Section 58 of the Civil Liability Act 1961 (“the 1961 Act”) provides that “the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive”. 32. Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory prohibition of abortion and states as follows: “Nothing in this Act shall be construed as authorising— (a) the procuring of abortion, (b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion or the supplying of drugs or instruments to procure abortion), or (c) the sale, importation into the State, manufacture, advertising or display of abortifacients.” 33. Article 50.1 of the Irish Constitution makes provision for the continuation of laws, such as the 1861 Act, which were in force on the adoption of the Constitution in 1937 as follows: “Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in [Ireland] immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of [Parliament].” 34. The meaning of section 58 of the 1861 Act was considered in England and Wales in R. v. Bourne ([1939] 1 KB 687), where the defendant had carried out an abortion on a minor, pregnant as a result of multiple rape. Macnaghten J. accepted that abortion to preserve the life of a pregnant woman was not unlawful and, further, where a doctor was of the opinion that the woman’s physical or mental health would be seriously harmed by continuing with the pregnancy, he could properly be said to be operating for the purpose of preserving the life of the mother. This principle was not, however, applied by the Irish courts. In the case of Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan and Others ([1989] IR 753), Keane J. maintained that “the preponderance of judicial opinion in this country would suggest that the Bourne approach could not have been adopted ... consistently with the Constitution prior to the Eighth Amendment”. 35. In the early 1980s there was some concern about the adequacy of existing provisions concerning abortion and the possibility of abortion being deemed lawful by judicial interpretation. There was some debate as to whether the Supreme Court would follow the course adopted in England and Wales in Bourne (cited above) or in the United States of America in Roe v. Wade (410 US 113 (1973)). 36. A referendum was held in 1983, resulting in the adoption of a provision which became Article 40.3.3 of the Irish Constitution, the Eighth Amendment (53.67% of the electorate voted with 841,233 votes in favour and 416,136 against). Article 40.3.3 reads as follows: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right ...” 37. A number of cases then came before the courts concerning the interpretation of the Eighth Amendment and the provision of information on or referral to abortion services available in other countries. 38. In 1986 the Society for the Protection of Unborn Children (SPUC) obtained an injunction restraining two organisations (Open Door Counselling and the Dublin Well Woman Centre) from furnishing women with information which encouraged or facilitated an abortion. The Supreme Court held (see The Attorney General (SPUC) v. Open Door Counselling Ltd. [1988] IR 593]) that it was unlawful to disseminate information, including contact information, about foreign abortion services, which had the effect of facilitating the commission of an abortion (see also SPUC (Ireland) v. Grogan and Others, cited above). These two organisations then complained about restraints on their freedom to impart and receive information and a violation of Article 10 of the Convention was established by this Court (see Open Door and Dublin Well Woman v. Ireland, 29 October 1992, Series A no. 246-A (“the Open Door case”)). 39. The interpretation of the Eighth Amendment was considered in the seminal judgment in the X case. X was 14 years of age when she became pregnant as a result of rape. Her parents arranged for her to have an abortion in the United Kingdom and asked the Irish police whether it would be possible to have scientific tests carried out on retrieved foetal tissue with a view to determining the identity of the rapist. The Director of Public Prosecutions was consulted who, in turn, informed the Attorney General. On 7 February 1992 an interim injunction was granted ex parte on the application of the Attorney General restraining X from leaving the jurisdiction or from arranging or carrying out a termination of the pregnancy. X and her parents returned from the United Kingdom to contest the injunction. 40. On 26 February 1992, on appeal, a majority (Finlay C.J., McCarthy J., Egan J. and O’Flaherty J., with Hederman J. dissenting) of the Supreme Court discharged the injunction. 41. The Chief Justice noted that no interpretation of the Constitution was intended to be final for all time (citing the domestic case of McGee, see paragraph 29 above), which statement was “peculiarly appropriate and illuminating in the interpretation of [the Eighth Amendment] which deals with the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life”. He went on: “36. Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, ... leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life. 37. I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article [40.3.3] of the Constitution.” 42. Considering that a suicide risk had to be taken into account in reconciling the right to life of the mother and the unborn, the Chief Justice continued: “44. I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy.” 43. Similar judgments on the substantive issue were delivered by three other judges. McCarthy J. noted that “the right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery”. He went on: “141. ... In my view, the true construction of the [Eighth] Amendment ... is that, paying due regard to the equal right to life of the mother, when there is a real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not be practicable to vindicate the right to life of the unborn. It is not a question of a risk of a different order of magnitude; it can never be otherwise than a risk of a different order of magnitude. 142. On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established; it follows that she should not be prevented from having a medical termination of pregnancy.” 44. McCarthy J. commented in some detail on the lack of legislation implementing Article 40.3.3. He noted in the above-cited Grogan case, that he had already pointed out that no relevant legislation had been enacted since the Eighth Amendment came into force, the direct criminal-law ban on abortion still deriving from the 1861 Act. He also noted that the Chief Justice had pointed out in the above-cited Open Door case that it was “unfortunate that the [Parliament] has not enacted any legislation at all in respect of this constitutionally guaranteed right”. Having noted that Article 40.3.3 envisaged a lawful abortion in the State and thereby qualified section 58 of the 1861 Act (which had made abortion for any purpose unlawful), he continued: “... I agree with the Chief Justice that the want of legislation pursuant to the amendment does not in any way inhibit the courts from exercising a function to vindicate and defend the right to life of the unborn. I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled. 147. In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction ... 148. ... The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly, at least, the role of the legislature. The courts are not equipped to regulate these procedures.” 45. The judgment of the Supreme Court gave rise to a number of questions. Certain obiter dicta of the majority in the Supreme Court implied that the constitutional right to travel could be limited so as to prevent an abortion taking place where there was no threat to the life of the mother. 46. A further referendum, in which three separate proposals were put forward, was held in November 1992. A total of 68.18% of the electorate voted. 47. The first was a proposal to amend the Constitution to provide for lawful abortion where there would otherwise be a real and substantial risk to the mother’s life, except a risk of suicide. Its acceptance would therefore have limited the impact of the X case: it was rejected (65.35% to 34.65%). 48. The second proposal was accepted and became the Thirteenth Amendment to the Constitution (added to Article 40.3.3). It was designed to ensure that a woman could not be prevented from leaving the jurisdiction for an abortion abroad and it reads as follows: “This subsection shall not limit freedom to travel between the State and another State.” 49. The third proposal was also accepted and became the Fourteenth Amendment (also added to Article 40.3.3). It allows for the provision in Ireland of information on abortion services abroad and provides as follows: “This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.” 50. Further to certain public reflection processes (see paragraphs 62-76 below), a third referendum on abortion was held in March 2002 to resolve the legal uncertainty that had existed since the X case by putting draft legislation (Protection of Human Life in Pregnancy Act, 2002) to the electorate. The intention was threefold. 51. The referendum was designed to ensure that the draft 2002 Act, once adopted by referendum, could only be changed by another referendum. 52. The proposed 2002 Act defined the crime of abortion (to replace sections 58 and 59 of the 1861 Act and to reduce the maximum penalty). It also removed the threat of suicide as a ground for a lawful abortion and thereby restricted the grounds recognised in the X case. The definition of abortion excluded “the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman’s life other than by self-destruction”. 53. The proposed 2002 Act also provided safeguards to medical procedures to protect the life of the mother by setting out the conditions which such procedures were to meet in order to be lawful: the procedures had, inter alia, to be carried out by a medical practitioner at an approved place; the practitioner had to form a reasonable opinion that the procedure was necessary to save the life of the mother; the practitioner had also to make and sign a written record of the basis for the opinion; and there would be no obligation on anyone to carry out or assist in carrying out a procedure. 54. The referendum resulted in the lowest turnout in all three abortion referenda (42.89% of the electorate) and the proposal was defeated (50.42% against and 49.58% in favour). The Referendum Commission had earlier explained that a negative vote would mean that Article 40.3.3 would remain in place as it was. Any legislation introduced thereafter would have to accord with the present interpretation of the Constitution which would mean a threat of suicide would continue to be a ground for a legal abortion. 55. Following the above-described amendments, Article 40.3 of the Constitution reads as follows: “1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. 3. The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another State. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.” 56. The 1995 Act was the legislation envisaged by the Fourteenth Amendment and constituted a response to the above-cited judgment of this Court in the Open Door case. That Act defines the conditions under which information relating to abortion services lawfully available in another State might be made available in Ireland. 57. Section 2 defines “Act information” as information that (a) is likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies; and (b) relates to such services or to persons who provide them. 58. Section 1 confirms that a “person to whom section 5 applies” means a person who engages in, or holds himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy. Section 5 of the Act provides as follows: “Where a person to whom section 5 applies is requested, by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant, to give information, advice or counselling in relation to her particular circumstances having regard to the fact that it is indicated by her or on her behalf that she is or may be pregnant— (a) it shall not be lawful for the person or the employer or principal of the person to advocate or promote the termination of pregnancy to the woman or to any person on her behalf, (b) it shall not be lawful for the person or the employer or principal of the person to give Act information to the woman or to any person on her behalf unless— (i) the information and the method and manner of its publication are in compliance with sub-paragraphs (I) and (II) of section 3(1)(a) and the information is given in a form and manner which do not advocate or promote the termination of pregnancy, (ii) at the same time, information (other than Act information), counselling and advice are given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances aforesaid, and (iii) the information, counselling and advice referred to in sub-paragraph (ii) are truthful and objective, fully inform the woman of all the courses of action that are open to her in relation to her particular circumstances aforesaid and do not advocate or promote, and are not accompanied by any advocacy or promotion of, the termination of pregnancy.” 59. Section 8 of the 1995 Act reads as follows: “(1) It shall not be lawful for a person to whom section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies. (2) Nothing in subsection (1) shall be construed as prohibiting the giving to a woman by a person to whom section 5 applies ... of any medical, surgical, clinical, social or other like records or notes relating to the woman ...” 60. Before its enactment, the 1995 Act was referred by the President to the Supreme Court for a review of its constitutionality. The Supreme Court found it to be constitutional so that the 1995 Act thereby became immune from future constitutional challenge (Article 34.3.3 of the Constitution). In so concluding, the Supreme Court examined, inter alia, whether the provisions of Articles 5 and 8 were repugnant to the Constitution namely, whether, from an objective point of view, those provisions represented “a fair and reasonable balancing by [Parliament] of the various conflicting rights and was not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons”. In this respect, the Supreme Court noted: “The [1995 Act] merely deals with information relating to services lawfully available outside the State for the termination of pregnancies and the persons who provide such services. The condition subject to which such information may be provided to a woman who indicates or on whose behalf it is indicated that she is or may be pregnant is that the person giving such information is (i) not permitted to advocate or promote the termination of pregnancy to the woman or any person on her behalf; (ii) not permitted to give the information unless it is given in a form and manner which do not advocate or promote the termination of pregnancy and is only permitted to give information relating to services which are lawfully available in the other State and to persons, who in providing them are acting lawfully in that place if (a) the information and the method and manner of its publication are in compliance with the law of that place, and (b) the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of the termination of pregnancy. At the same time information, counselling and advice must be given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances and such information, counselling and advice must not advocate or promote and must not be accompanied by any advocacy or promotion of, the termination of pregnancy. Subject to such restrictions, all information relating to services lawfully available outside the State and the persons who provide them is available to her.” 61. The Supreme Court considered that the submission, namely that a woman’s life and/or health might be placed at serious risk in the event that a doctor was unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated, was based on a misinterpretation of the provisions of section 8 of the 1995 Act: “This section prohibits a doctor or any person to whom section 5 of the [1995 Act] relates from making an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies. It does not preclude him, once such appointment is made, from communicating in the normal way with such other doctor with regard to the condition of his patient provided that such communication does not in any way advocate or promote and is not accompanied by any advocacy of the termination of pregnancy. While a doctor is precluded by the terms of the [1995 Act] from advocating or promoting the termination of pregnancy, he is not in any way precluded from giving full information to a woman with regard to her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continues and leaving to the mother the decision whether in all the circumstances the pregnancy should be terminated. The doctor is not in any way prohibited from giving to his pregnant patient all the information necessary to enable her to make an informed decision provided that he does not advocate or promote the termination of pregnancy. In addition, section 8(2) does not prohibit or in any way prevent the giving to a woman of any medical, surgical, clinical, social or other like records relating to her. ... Having regard to the obligation on [Parliament] to respect, and so far as practicable, to defend and vindicate the right to life of the unborn having regard to the equal right to life of the mother, the prohibition against the advocacy or promotion of the termination of pregnancy and the prohibition against any person to whom section 5 of the Bill applies making an appointment or any other arrangement for and on behalf of a woman with a person who provides services outside the State for the termination of pregnancies does not constitute an unjust attack on the rights of the pregnant woman. These conditions represent a fair and reasonable balancing of the rights involved and consequently sections 5 and 8 of the Bill are not repugnant to the Constitution on these grounds.” 62. Established in April 1995, the Review Group’s terms of reference were to review the Constitution and to establish those areas where constitutional change might be necessary with a view to assisting the governmental committees in their constitutional review work. 63. In its 1996 Report, the Review Group considered the substantive law on abortion in Ireland following the X case and the rejection of the Twelfth Amendment to be unclear (for example, the definition of the unborn, the scope of the admissibility of the suicidal disposition as a ground for abortion and the absence of any statutory time-limit on lawful abortion following the X case criteria). The Review Group considered the option of amending Article 40.3.3 to legalise abortion in constitutionally defined circumstances: “Although thousands of women go abroad annually for abortions without breach of domestic law, there appears to be strong opposition to any extensive legalisation of abortion in the State. There might be some disposition to concede limited permissibility in extreme cases, such, perhaps, as those of rape, incest or other grave circumstances. On the other hand, particularly difficult problems would be posed for those committed in principle to the preservation of life from its earliest stage.” 64. The Review Group concluded that, while in principle the major issues should ideally be tackled by constitutional amendment, there was no consensus as to what that amendment should be and no certainty of success for any referendum proposal for substantive constitutional change in relation to Article 40.3.3. The Review Group therefore considered that the only practical possibility at that time was the introduction of legislation to regulate the application of Article 40.3.3. Such legislation could, inter alia, include definitions (for example of the “unborn”); afford express protection for appropriate medical intervention necessary to protect the life of the mother; require written certification by appropriate medical specialists of “real and substantial risk to the life of the mother” and impose a time-limit on lawful abortion namely, in circumstances permitted by the X case. 65. A cabinet committee was established to supervise the drafting of a Green Paper on abortion and the preparatory work was carried out by an Interdepartmental Working Group of officials. In drawing up the Green Paper, submissions were invited from the public, from professional and voluntary organisations and any other parties who wished to contribute. Over 10,000 such submissions were received, as well as petitions containing 36,500 signatures. The introduction to the Green Paper 1999 noted the following: “The current situation ... is that, constitutionally, termination of pregnancy is not legal in this country unless it meets the conditions laid down by the Supreme Court in the X case; information on abortion services abroad can be provided within the terms of the [1995 Act]; and, in general, women can travel abroad for an abortion. There are strong bodies of opinion which express dissatisfaction with the current situation, whether in relation to the permissibility of abortion in the State or to the numbers of women travelling abroad for abortion. Various options have been proposed to resolve what is termed the ‘substantive issue’ of abortion but there is a wide diversity of views on how to proceed. The Taoiseach indicated shortly after the government took office in 1997 that it was intended to issue a Green Paper on the subject. The implications of the X case were again brought sharply into focus in November 1997 as a result of the C case, and a cabinet committee was established to oversee the drafting of this Green Paper, the preparatory work on which was carried out by an interdepartmental group of officials. [for a description of the C case, see paragraphs 95-96 below] While the issues surrounding abortion are extremely complex, the objective of this Green Paper is to set out the issues, to provide a brief analysis of them and to consider possible options for the resolution of the problem. The Paper does not attempt to address every single issue in relation to abortion, nor to give an exhaustive analysis of each. Every effort has been made to concentrate on the main issues and to discuss them in a clear, concise and objective way. Submissions were invited from interested members of the public, professional and voluntary organisations and any other parties who wished to contribute ...” 66. Paragraph 1.09 noted that there was no medical evidence to suggest that doctors in Ireland did not treat women with cancer or other illnesses on the grounds that the treatment would damage the unborn. 67. Chapter 7 of the Paper comprised a discussion of seven possible constitutional and legislative solutions: – an absolute constitutional ban on abortion; – an amendment of the Constitution so as to restrict the application of the X case; – the retention of the status quo; – the retention of the constitutional status quo with a legislative restatement of the prohibition of abortion; – legislation to regulate abortion as defined in the X case; – a reversion to the pre-1983 position; and – permitting abortion beyond the grounds specified in the X case. 68. As to the fifth option (legislation to regulate abortion as defined in the X case), the Green Paper 1999 noted as follows: “7.48 The objective of this approach would be to implement the X case decision by means of legislation ... This approach assumes that there would be no change in the existing wording of Article 40.3.3. 7.49 In formulating such legislation a possible approach may be not to restate the prohibition on abortion, which is already contained in section 58 of the Offences Against the Person Act, 1861, but instead to provide that a termination carried out in accordance with the legislation would not be an offence. 7.50 The detail of such legislation would require careful consideration but it could be along the lines of that discussed under the previous option (retention of the constitutional status quo with legislative restatement of the prohibition on abortion). Discussion 7.51 Since this option does not provide for a regime more liberal than the X case formulation, no constitutional amendment would be required. This option would, however, provide for abortion in defined circumstances and as such, would be certain to encounter criticism from those who are opposed to abortion on any grounds and who disagreed with the decision in the X case. Central to the criticism would be the inclusion of the threat of suicide as a ground and the difficulties inherent in assessing same. 7.52 The main advantage of this approach is that it would provide a framework within which the need for an abortion could be assessed, rather than resolving the question on a case-by-case basis before the courts, with all the attendant publicity and debate. It would allow pregnant women who establish that there is a real and substantial risk to the their life to have an abortion in Ireland rather than travelling out of the jurisdiction and would provide legal protection for medical and other personnel, such as nurses, involved in the procedure to terminate the pregnancy. The current medical ethical guidelines would not be consistent with such legislation. 7.53 It must be pointed out however that the problems of definition in the text of Article 40.3.3 would remain. A decision would be necessary on whether the proposed legislation would provide the definitions necessary to remove the current ambiguity surrounding the text of that Article. There is however a limit to what legislation can achieve by way of definitions as ultimately the interpretation of Article 40.3.3 is a matter for the Courts.” 69. As to the Seventh option (permitting abortion beyond the grounds specified in the X case), the Green Paper 1999 noted as follows: “7.65 In Chapter 4, other possible grounds for abortion are examined and set where possible in an international context. As indicated earlier, a number of submissions also sought the introduction of abortion on some or all of these grounds. Each of the possible types of provision identified has been considered separately. This does not rule out consideration of a combination of some or all of these options if this approach were to be pursued. Were this to be done, some of the difficulties identified when options are considered separately might not arise. 7.66 In all of the cases discussed in this section, abortion would be permissible only if Article 40.3.3 of the Constitution were amended. Sections 58 and 59 of the Offences Against the Person Act, 1861 may also need to be reviewed and new legislation to regulate any new arrangement would be necessary. The type of legislative model referred to in the discussion on the option of retention of the constitutional status quo with legislative restatement of the prohibition on abortion (see paragraphs 7.42-7.47) might, with appropriate adaptations, serve as a basis for regulation in other circumstances also. Issues such as criteria under which an abortion would be permissible, gestational limits, certification and counselling requirements, and possibly a waiting period after counselling, would be among the matters which legislation might address. The provisions in force in some other countries are also discussed in Chapter 4. Discussion (a) Risk to physical/mental health of mother 7.67 This option would provide for abortion on grounds of risk to a woman’s physical and/or mental health. 7.68 In 1992 the proposed Twelfth Amendment to the Constitution was the subject of some criticism on the grounds that it specifically excluded risk to health as grounds for termination of a pregnancy. The English Bourne case of 1938 involved interpretation of the Offences Against the Person Act, 1861 to permit termination of a pregnancy where a doctor thought that the probable consequence of continuing a pregnancy would be to make the woman a physical or mental wreck. 7.69 As stated earlier, this case has not been specifically followed in any decision of the Irish courts. Article 40.3.3 of the Constitution would rule out an interpretation of the Offences Against the Person Act, 1861 in the manner of the Bourne judgement. Therefore any proposal to permit abortion on the grounds of danger to a woman’s health would require amendment of this Article and possibly a review of the sections 58 and 59 of the Offences Against the Person Act, 1861. A legislative framework to regulate the operation of such arrangements would also be required. 7.70 As discussed in Chapter 4, ‘Other Grounds for Abortion, set in an International Context’, the concept of physical health used in other countries for the purposes of abortion law tends not to be very specific. If it were intended to permit abortion on grounds of risk to a woman’s health, but to confine the operation of such a provision to cases where there was a grave risk of serious and permanent damage, it would be necessary to circumscribe the provisions in an appropriate manner. The usual practice in other countries is for the issue to be treated as a medical matter. It could be anticipated that it might be difficult to arrive at provisions which would allow clinical independence and at the same time be guaranteed to operate in a very strict manner so as not to permit abortion other than on a very limited basis.” 70. The Green Paper 1999 was then referred to this Committee. The Committee consulted widely, initially seeking submissions on the options discussed in the Green Paper 1999. Over 100,000 submissions were received from individuals and organisations. Approximately 92% of these communications took the form of signatures to petitions (over 80,000 signatures were contained in one petition alone). The vast majority of communications were in favour of the first option in the Green Paper 1999 (an absolute constitutional ban on abortion). 71. Since very few medical organisations had made submissions during the preparation of the Green Paper 1999, the Committee was concerned to establish authoritatively the current medical practice in Irish hospitals as regards medical intervention during pregnancies. The Committee therefore heard the views and opinions of experts in the fields of obstetrics, gynaecology and psychiatry through public (and recorded) hearings. 72. The Chairman of the Institute of Obstetricians and Gynaecologists, which represents 90-95% of the obstetricians and gynaecologists in Ireland, gave written evidence, inter alia: “In current obstetrical practice rare complications can arise where therapeutic intervention is required at a stage in pregnancy when there will be little or no prospect for the survival of the baby, due to extreme immaturity. In these exceptional situations failure to intervene may result in the death of both the mother and baby. We consider that there is a fundamental difference between abortion carried out with the intention of taking the life of the baby, for example for social reasons, and the unavoidable death of the baby resulting from essential treatment to protect the life of the mother. We recognise our responsibility to provide aftercare for women who decide to leave the State for a termination of pregnancy. We recommend that full support and follow-up services be made available for all women whose pregnancies have been terminated, whatever the circumstances.” 73. In oral evidence, the Chairman also noted the following: “We have never regarded these interventions as abortion. It would never cross an obstetrician’s mind that intervening in a case of pre-eclampsia, cancer of the cervix or ectopic pregnancy is abortion. They are not abortion as far as the professional is concerned, these are medical treatments that are essential to protect the life of the mother. So when we interfere in the best interests of protecting a mother, and not allowing her to succumb, and we are faced with a foetus that dies, we don’t regard that as something that we have, as it were, achieved by an abortion. Abortion in the professional view to my mind is something entirely different. It is actually intervening, usually in a normal pregnancy, to get rid of the pregnancy, to get rid of the foetus. That is what we would consider the direct procurement of an abortion. In other words, it’s an unwanted baby and, therefore, you intervene to end its life. That has never been a part of the practice of Irish obstetrics and I hope it never will be. ... In dealing with complex rare situations, where there is a direct physical threat to the life of the pregnant mother, we will intervene always.” 74. In 2000 the Committee issued its Fifth Progress Report on Abortion. The Report explained that this was not a comprehensive analysis of the matters discussed in the Green Paper 1999 but rather a political assessment of questions which arose from it in the context of the submissions received and the hearings conducted. 75. The Committee on the Constitution agreed that a specific agency should be put in place to implement a strategy to reduce the number of crisis pregnancies by the provision of preventative services, to reduce the number of women with crisis pregnancies who opt for abortion by offering services which make other options more attractive and to provide post-abortion services consisting of counselling and medical check-ups. There was agreement on other matters including the need for the government to prepare a public memorandum outlining the State’s precise responsibilities under all relevant international and European Union instruments. 76. The Committee agreed that clarity in legal provisions was essential for the guidance of the medical profession so that any legal framework should ensure that doctors could carry out best medical practice to save the life of the mother. However, the Committee found that none of the seven options canvassed in the Green Paper 1999 commanded unanimous support of the Committee. Three approaches commanded substantial but not majority support: the first was to concentrate on the plan to reduce the number of crisis pregnancies and the rate of abortion and to leave the legal position unchanged; the second approach would add legislation which would protect medical intervention to safeguard the life of the mother within the existing constitutional framework; and the third approach was in addition to accommodate such legislation with a Constitutional amendment. The Committee did not therefore reach agreement on a single course of reform action. 77. Further to the Fifth Progress Report on Abortion 2000, the CPA was established by the Crisis Pregnancy Agency (Establishment) Order 2001 (S.I. No. 446 of 2001). Section 4 of that Order described the functions of the Agency in its relevant part as follows (prior to its amendment in 2007): “(i) ... to prepare a strategy to address the issue of crisis pregnancy, this strategy to provide, inter alia, for: (a) a reduction in the number of crisis pregnancies by the provision of education, advice and contraceptive services; (b) a reduction in the number of women with crisis pregnancies who opt for abortion by offering services and supports which make other options more attractive; (c) the provision of counselling and medical services after crisis pregnancy. ...” 78. The CPA implemented its first Strategy (2004-06) and is in the process of implementing its second one (2007-11). It achieves its objectives mainly through its communications programme (including media campaigns and resource materials), its research programme (promoting evidence-based practice and policy development) and its funding programme which funds projects ranging from personal development to counselling, parent supports and medical and health services. 79. Further to the Health (Miscellaneous Provisions) Act 2009, the CPA was integrated into the Health Service Executive (HSE) from 1 January 2010. Funding of the crisis pregnancy function was also transferred to the HSE. 80. The CPA Guidelines, developed in association with the Irish College of General Practitioners, outline the role of GPs in the management of crisis pregnancy. The Guidelines detail the role of GPs in the prevention of crisis pregnancies, in assisting the woman in making decisions about the outcome of her crisis pregnancy (by, inter alia, counselling on all options available to her including pregnancy, adoption and abortion) and assisting her in safely carrying out her decision (by, inter alia, advising on the importance of follow-up care, including medical care, after any abortion). GPs are advised on the importance of providing sensitive counselling to assist the decision-making process (“to minimise the risk of emotional disturbance, whatever decision is reached”) and of pre- and post-abortion counselling and medical care. GPs are reminded of their duty of care to the patient, that they should never refuse treatment on the basis of moral disapproval of the patient’s behaviour and that, where they have a conscientious objection to providing care, they should make the names of other GPs available to the patient. The Guidelines went on to note that, “[i]rrespective of what decision a woman makes in the crisis pregnancy situation, follow-up care will be important. This may include antenatal care, counselling, future contraception or medical care after abortion. The GP’s response to the initial consultation will have a profound influence on her willingness to attend for further care.” If a woman decides to proceed with an abortion, it is the GP’s main concern to ensure that she does so safely, receives proper medical care, and returns for appropriate follow-up. GPs are advised to supplement verbal advice with a written handout. 81. A Patient Information Leaflet is attached to the Guidelines. It informs women that, should they choose an abortion, they should plan to visit their GP at least three weeks after the termination to allow the GP to carry out a full check-up and allow the woman to express any questions or concerns she may have. 82. The subject of this report was the perceptions of Irish women in the general age range of 20-30 about fertility, sex and motherhood. The Report captured the meanings young women attributed to their fertility and fertility-related decisions in relation to life objectives and women’s changing roles in education, careers, relationships, and motherhood. The report uses data drawn from qualitative interviews (20 individual case studies and 12 focus groups; the total sample was 66 women with an age range of 19-34). The research reflected the views of a diverse group of women by socio-economic status, geographic location, and relationship history. The data demonstrated a need for greater support for young Irish women in the range and variety of their decision-making about fertility, sex and motherhood. 83. The significant findings included the fact that the X case and the declining role of the Catholic Church were major events in the lives of young women and shaped their attitudes and experiences. Young women had moved into adulthood more firmly convinced that sexual and reproductive decisions should be part of a person’s private actions, with the freedom to decide as they thought best. 84. The aim of the study was to establish nationally representative data on current attitudes, knowledge and experience of contraception, crisis pregnancy and related services in Ireland. It carried out a cross-sectional national survey of the young adult population using a telephone interview (in 2003) of 3,000 members of the public to include equal numbers of women and men and people aged 18-45 in order to focus on those for whom contraceptive practices, service perceptions and service usage were considered most relevant. It was also considered that the age profile of the sample meant that the results would be particularly relevant to the contemporary evaluation of services and in planning for the future. 85. Public attitudes to aspects of crisis-pregnancy outcomes were assessed to evaluate the acceptability of alternative outcomes (lone parenting, adoption and abortion). The questions were adapted from a prior survey in 1986 and the replication of these questions in the CPA study provided an opportunity to measure any changes in attitudes to abortion. In the 1986 survey, over 38% of participants indicated that they believed abortion should not be permissible under any circumstances while 58% felt that it should be allowed in certain circumstances and 4% did not express a view. 86. In the CPA study, the question was extended to include the option that a woman “should always have a choice to have an abortion, regardless of the circumstances”: 8% of participants felt that abortion should not be permissible under any circumstances, 39% felt that it should be allowed under certain circumstances, 51% felt that women should always have a choice to have an abortion and 2% were unsure. The Report stated: “Thus, a notable change in attitudes towards abortion was observed over the seventeen-year period (1986-2003), with a substantially higher proportion of the population supporting a choice of abortion in some or all circumstances in the more recent [CPA] survey ...” 87. Since many participants, who thought that a woman should have a choice in certain circumstances or who did not know, were considered to hold qualified views concerning the acceptability of abortion, those participants were asked whether they agreed or disagreed that a woman should have the choice to have an abortion in specific circumstances (based on the 1986 survey). The Report described the results as follows: “The level of agreement reported across possible circumstances under which an abortion may be acceptable varied greatly across circumstance. The majority of these participants agreed that a woman should have a choice to have an abortion if the pregnancy seriously endangered her life (96%) or her health (87%). Additionally, most agreed that a woman should have a choice to have an abortion if the pregnancy was a result of rape (87%) or incest (85%). Less than half (46%) of participants felt that a woman should have a choice if there was evidence that the child would be seriously deformed. Furthermore, the majority of participants disagreed that a woman should have a choice if she was not married (79%) or if the couple cannot afford another child (80%). There were no significant variations in attitude across gender or educational level for any of the statements. There were small but significant age differences across two items. Firstly, younger participants were more likely to favour abortion as a choice for rape victims (92% of 18-25 year olds vs. 87% of 26-35 year olds and 83% of 36-45 year olds ...). The reverse pattern was evident in the case of pregnancy where there is evidence that the baby will be seriously deformed. Here older participants were more likely to favour having the choice to have an abortion (fewer (42%) of 18-25 year olds agreed vs. 49% of 26-35 year olds and 48% of 3645 year olds ...).” 88. The findings as to the circumstances in which abortion was acceptable were compared with those reported from the 1986 survey. The percentages of those who agreed that abortion was acceptable in various circumstances were reported as a proportion of all those interviewed for the relevant study. This showed that the acceptability of abortion in various circumstances “had increased substantially in the population over time”: – if the pregnancy seriously endangered the woman’s life (57% agreement in 1986; 90% agreement in 2003); – if the pregnancy seriously endangered the woman’s health (46% in 1986; 86% in 2003); – if the pregnancy is the result of rape (51% in 1986; 86% in 2003) or incest (52% in 1986; 86% in 2003); and – where there is evidence that the child will be deformed (31% in 1986 and 70% in 2003). 89. The Medical Practitioners Act 1978 gives the Medical Council of Ireland responsibility for providing guidance to the medical profession on all matters relating to ethical conduct and behaviour. 90. Its Guide to Ethical Conduct and Behaviour (6th Edition 2004) provides (paragraph 2.5) that “treatment must never be refused on grounds of moral disapproval of the patient’s behaviour”. The Guide recognises that an abortion may be lawfully carried out in Ireland in accordance with the criteria in the X case, and provides as follows: “The Council recognises that termination of pregnancy can occur where there is real and substantial risk to the life of the mother and subscribes to the view expressed in Part 2 of the written submission of the Institute of Obstetricians and Gynaecologists to the All-Party Oireachtas Committee on the Constitution as contained in its Fifth Progress Report ...” 91. This latter written submission is Appendix C to the Guide and contains three paragraphs. In the first paragraph, the Institute of Obstetricians and Gynaecologists welcomes the Green Paper 1999 and notes that its comments were confined to the medical aspects of the question. The submission continued as cited at paragraph 72 above. 92. The 2003 Act came into force on 31 December 2003. Its long title described it as an Act to enable further effect to be given “subject to the constitution” to certain provisions of the Convention. 93. The relevant parts of section 5 of the 2003 Act reads as follows: “(1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘a declaration of incompatibility’) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions. (2) A declaration of incompatibility— (a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and (b) shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights. (3) The Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order. (4) Where— (a) a declaration of incompatibility is made, (b) a party to the proceedings concerned makes an application in writing to the Attorney General for compensation in respect of an injury or loss or damage suffered by him or her as a result of the incompatibility concerned, and (c) the Government, in their discretion, consider that it may be appropriate to make an ex gratia payment of compensation to that party (‘a payment’), the Government may request an adviser appointed by them to advise them as to the amount of such compensation (if any) and may, in their discretion, make a payment of the amount aforesaid or of such other amount as they consider appropriate in the circumstances. (5) In advising the Government on the amount of compensation for the purposes of subsection (4), an adviser shall take appropriate account of the principles and practice applied by the European Court of Human Rights in relation to affording just satisfaction to an injured party under Article 41 of the Convention.” 94. The Supreme Court (Carmody v. The Minister for Justice Equality and Law Reform Ireland and the Attorney General [2009] IESC 71) made the following comments on an application for a declaration under section 5 of the 2003 Act: “As can be seen from the foregoing the nature of the remedy, such as it is, provided by section 5 of the Act of 2003 is both limited and sui generis. It does not accord to a plaintiff any direct or enforceable judicial remedy. There are extra-judicial consequences whereby the [Prime Minister] is obliged to lay a copy of the order containing a declaration before each House of the Oireachtas within 21 days. That is the only step which is required to be taken under national law in relation to the provisions concerned. Otherwise it rests with the plaintiff who obtained the declaration to initiate an application for compensation in writing to the Attorney General for any alleged injury or loss or damage suffered by him or her as a result of the incompatibility and then it is a matter for the discretion of the government as to whether or not they should pay any such compensation on an ex gratia basis. ... [T]he Court is satisfied that when a party makes a claim that an Act or any of its provisions is invalid for being repugnant to the Constitution and at the same time makes an application for a declaration of incompatibility of such Act or some of its provisions with the State’s obligations under the Convention, the issue of constitutionality must first be decided.” 95. This case concerned a 13-year-old girl (“C”) who became pregnant following a rape. The Health Board, which had taken the girl into its care, became aware that she was pregnant and, in accordance with her wishes, obtained a interim care order (under the Child Care Act 1991) from the District Court allowing the Health Board to facilitate a termination of her pregnancy. C’s parents sought to challenge that order by judicial review. On appeal C, her parents and the Health Board were each represented by a Senior and Junior Counsel, and the Attorney General was represented by two Senior and two Junior Counsel. 96. On 28 November 1997 the High Court accepted that, where evidence had been given to the effect that the pregnant young woman might commit suicide unless allowed to terminate her pregnancy, there was a real and substantial risk to her life and such termination was therefore a permissible medical treatment of her condition where abortion was the only means of avoiding such a risk. An abortion was therefore lawful in Ireland in C’s case and the travel issue became unnecessary to resolve. It rejected the appeal on this basis. In rejecting the parents’ argument that the District Court was not competent given, inter alia, the reconciliation of constitutional rights required, the High Court found: “Furthermore, I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in the High Court. The High Court undoubtedly has a function in granting injunctions to prevent unlawful terminations taking place and it may in certain circumstances properly entertain an action brought for declarations and consequential orders if somebody is being physically prevented without just cause from having a termination. But it would be wrong to turn the High Court into some kind of licensing authority for abortions and indeed it was for this reason that I have rejected a suggestion made by counsel for C in this case that I should effectively convert the judicial review proceedings into an independent application invoking the inherent jurisdiction of the High Court and grant leave for such a termination to take place. I took the view that the case should continue in the form of a judicial review and nothing more. The Child Care Act [1991] is a perfectly appropriate umbrella under which these questions can be determined ...” 97. The parties disputed the ‘ownership’ of embryos fertilised in vitro. The High Court analysed at some length the decision of the Supreme Court in X which, it found, equated “unborn” with an embryo which was implanted in the womb or a foetus. The High Court concluded that there was no evidence that it was ever in the mind of the people voting on the Eighth Amendment to the Constitution that “unborn meant anything other than a foetus or child within the womb”. Accordingly, it could not be concluded that embryos outside the womb or in vitro fell within the scope of Article 40.3.3. As regards the Medical Council Guidelines 2004, the High Court noted as follows: “These ethical Guidelines do not have the force of law and offer only such limited protection as derives from the fear on the part of a doctor that he might be found guilty of professional misconduct with all the professional consequences that might follow.” 98. The appeal to the Supreme Court ([2009] IESC 82) was unanimously dismissed, the five judges each finding that frozen embryos did not enjoy the protection of the unborn in Article 40.3.3 of the Constitution. Hardiman and Fennelly J.J. also expressed concern about the absence of any form of statutory regulation of in vitro fertilisation in Ireland. 99. D was a minor in care who had been prevented by the local authority from going abroad for an abortion. Her foetus had been diagnosed with anencephaly, which diagnosis was accepted as being incompatible with life outside the uterus. According to a transcript of its ex tempore oral judgment, the High Court clarified that the case was “not about abortion or termination of pregnancy. It is about the right to travel, admittedly for the purposes of a pregnancy termination, but that does not convert it into an abortion case.” Accordingly, the legal circumstances in which a termination of pregnancy was available in Ireland were not in issue, and this “judgment expressly disavows any intention to interfere, whether by enlargement or curtailment, with such circumstances”. The High Court held that the right to travel guaranteed by the Thirteenth Amendment took precedence over the right of the unborn guaranteed by Article 40.3.3. There was no statutory or constitutional impediment preventing D from travelling to the United Kingdom for an abortion. 100. Efforts to preserve, inter alia, the existing Irish prohibition on abortion gave rise to Protocol No. 17 to the Maastricht Treaty on European Union which was signed in February 1992. It reads as follows: “Nothing in the Treaty on European Union, or in the treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.” 101. On 12 June 2008 the proposed constitutional amendment for the ratification of the Lisbon Treaty was rejected by referendum. The government commissioned University College Dublin to conduct independent research into the behaviour and attitudes of the electorate and, notably, to analyse why the people voted for, against or abstained in the referendum. The Report (entitled “Attitudes and Behaviour in the Referendum on the Treaty of Lisbon” prepared by professionals with expertise in political science, quantitative research methods, economics and social science data) is dated March 2009. Fieldwork was completed in July 2008 and the sample size was 2,101. The Executive Summary concluded: “The defeat by referendum of the proposal to ratify the Treaty of Lisbon ... was the product of a complex combination of factors. These included attitudes to Ireland’s membership of the EU, to Irish-only versus Irish-and-European identity and to neutrality. The defeat was heavily influenced by low levels of knowledge and by specific misperceptions in the areas of abortion, corporate taxation and conscription. Concerns about policy issues (the scope of EU decision-making and a belief in the importance of the country having a permanent commissioner) also contributed significantly and substantially to the treaty’s downfall, as did the perception that the EU means low wage rates. Social class and more specific socio-economic interests also played a role ...” 102. The government sought and obtained a legally binding decision of the heads of State or governments of the 27 member States of the European Union reflecting the Irish people’s concerns that Article 40.3.3 would be unaffected by the Lisbon Treaty (The Presidency Conclusions of the European Council of 11/12 December 2008 and of 18/19 July 2009 (172171/1/08 and 11225/2/08)). The relevant part of the decision, which came into effect on the same date as the Lisbon Treaty, reads as follows: “Nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty and the area of freedom, security and justice, affects in any way the scope and applicability of the protection of the right to life in Article 40.3.1, 40.3.4 and 40.3.3 ... provided by the Constitution of Ireland.” 103. On 2 October 2009 a referendum approved a constitutional amendment allowing for the ratification of the Treaty of Lisbon. 104. At this conference 179 countries adopted a twenty-year Programme of Action which focused on individuals’ needs and rights rather than on achieving demographic targets. The relevant parts of Article 8.25 of the Programme provided as follows: “... All governments ... are urged to strengthen their commitment to women’s health, to deal with the health impact of unsafe abortion as a major public health concern and to reduce the recourse to abortion through expanded and improved family-planning services. ... Any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process ...” 105. The Platform for Action adopted at this Conference reiterated the above-noted paragraph 8.25 of the Programme of Action of the Cairo ICPD 1994 and the governments resolved to consider reviewing laws containing punitive measures against women who have undergone illegal abortions. 106. PACE noted that some progress has been made since the Cairo ICPD 1994. However, “achievements on education enrolment, gender equity and equality, infant child and maternal mortality and morbidity and the provision of universal access to sexual and reproductive health services, including family planning and safe abortion services, remain mixed”. PACE called on European governments to “review, update and compare Council of Europe member States’ national and international population and sexual and reproductive health and rights policies and strategies”, as well as to review and compare funding to ensure the full implementation of the Programme of Action of the Cairo ICPD 1994 by 2015. 107. This Resolution was adopted by 102 votes to 69. The 4 Irish representatives to PACE voted against it, 2 of the members urging PACE to apply the Programme of Action of the Cairo ICPD 1994. 108. The Resolution reads in its relevant part as follows. “2. In most of the Council of Europe member States the law permits abortion in order to save the expectant mother’s life. Abortion is permitted in the majority of European countries for a number of reasons, mainly to preserve the mother’s physical and mental health, but also in cases of rape or incest, of foetal impairment or for economic and social reasons and, in some countries, on request. The Assembly is nonetheless concerned that, in many of these States, numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services. These restrictions have discriminatory effects, since women who are well informed and possess adequate financial means can often obtain legal and safe abortions more easily. 3. The Assembly also notes that, in member States where abortion is permitted for a number of reasons, conditions are not always such as to guarantee women effective access to this right: the lack of local health care facilities, the lack of doctors willing to carry out abortions, the repeated medical consultations required, the time allowed for changing one’s mind and the waiting time for the abortion all have the potential to make access to safe, affordable, acceptable and appropriate abortion services more difficult, or even impossible in practice. 4. The Assembly takes the view that abortion should not be banned within reasonable gestational limits. A ban on abortions does not result in fewer abortions but mainly leads to clandestine abortions, which are more traumatic and increase maternal mortality and/or lead to abortion ‘tourism’ which is costly, and delays the timing of an abortion and results in social inequities. The lawfulness of abortion does not have an effect on a woman’s need for an abortion, but only on her access to a safe abortion. 5. At the same time, evidence shows that appropriate sexual and reproductive health and rights strategies and policies, including compulsory age-appropriate, gender-sensitive sex and relationships education for young people, result in less recourse to abortion. This type of education should include teaching on self-esteem, healthy relationships, the freedom to delay sexual activity, avoiding peer pressure, contraceptive advice, and considering consequences and responsibilities. 6. The Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way. 7. The Assembly invites the member States of the Council of Europe to: 7.1. decriminalise abortion within reasonable gestational limits, if they have not already done so; 7.2. guarantee women’s effective exercise of their right of access to a safe and legal abortion; 7.3. allow women freedom of choice and offer the conditions for a free and enlightened choice without specifically promoting abortion; 7.4. lift restrictions which hinder, de jure or de facto, access to safe abortion, and, in particular, take the necessary steps to create the appropriate conditions for health, medical and psychological care and offer suitable financial cover; ...” 109. The Commissioner noted that there was still no legislation in place implementing the X judgment and, consequently, no legal certainty as to when a doctor might legally perform a life-saving abortion. He opined that, in practice, abortion was largely unavailable in Ireland in almost all circumstances. He noted the Tysiąc v. Poland judgment (no. 5410/03, ECHR 2007I) and urged the Irish authorities to ensure that legislation was enacted to resolve this problem. 110. The Report of the CEDAW of July 2005 (A/60/38(SUPP)) recorded Ireland’s introduction of its periodic report to the Committee as follows: “365. Steps had been taken to integrate a gender dimension into the health service and to make it responsive to the particular needs of women. Additional funding had been provided for family planning and pregnancy counselling services. The [CPA] had been set up in 2001. Extensive national dialogue had occurred on the issue of abortion, with five separate referendums held on three separate occasions. The representative noted that the government had no plans to put forward further proposals at the present time.” In the CEDAW’s concluding comments, it responded as follows: “396. While acknowledging positive developments ... the Committee reiterates its concern about the consequences of the very restrictive abortion laws, under which abortion is prohibited except where it is established as a matter of probability that there is a real and substantial risk to the life of the mother that can be averted only by the termination of her pregnancy. 397. The Committee urges the State Party to continue to facilitate a national dialogue on women’s right to reproductive health, including on the very restrictive abortion laws ...” 111. In the Committee’s Concluding Comments on the third periodic Report of Ireland on observance of the United Nations Covenant on Civil and Political Rights (CCPR/C/IRL/CO/3 dated 30 July 2008), it noted: “13. The Committee reiterates its concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in the State Party. While noting the establishment of the [CPA], the Committee regrets that the progress in this regard is slow ... The State Party should bring its abortion laws into line with the Covenant. It should take measures to help women avoid unwanted pregnancies so that they do not have to resort to illegal or unsafe abortions that could put their lives at risk ... or to abortions abroad (Articles 26 and 6).” 112. Abortion is available on request (according to certain criteria including gestational limits) in some 30 Contracting States. An abortion justified on health grounds is available in some 40 Contracting States and justified on well-being grounds in some 35 such States. Three Contracting States prohibit abortion in all circumstances (Andorra, Malta and San Marino). In recent years, certain States have extended the grounds on which abortion can be obtained (Monaco, Montenegro, Portugal and Spain). | 1 |
train | 001-102258 | ENG | TUR | CHAMBER | 2,010 | CASE OF KILIÇGEDİK AND OTHERS v. TURKEY | 4 | Violation of P1-3 | Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. Halkın Demokrasi Partisi (People's Democracy Party, hereafter referred to as “HADEP”) was a political party which was established on 11 May 1994. It opened branches in 47 cities and in hundreds of districts. The applicants were members of HADEP and they held executive positions within the party. 5. On 29 January 1999 the chief prosecutor at the Court of Cassation brought proceedings before the Constitutional Court and demanded that HADEP be dissolved. The prosecutor argued that HADEP had become a “centre of illegal activities against the integrity of Turkey”. In support of his allegations he referred to a number of pending criminal proceedings against HADEP members, including the applicants. 6. In its decision of 13 March 2003, which was published in the Official Gazette on 19 July 2003 and thus became final, the Constitutional Court dissolved HADEP. The Constitutional Court based its decision on sections 68 and 69 of the Constitution and sections 101 and 103 of Law no. 2820 on Political Parties. In arriving at its conclusion, the Constitutional Court took account of the actions and statements of certain leaders and members of HADEP, including the applicants. As an ancillary measure under section 69 § 9 of the Constitution and section 95 of Law no. 2820, the Constitutional Court banned the applicants and 18 other HADEP members and leaders from becoming founder members, ordinary members, leaders or auditors of any other political party for a period of five years. 7. Details of the criminal proceedings which had been brought against the applicants and which were referred to by the Constitutional Court in its decision are detailed below. In the opinion of the Constitutional Court, the actions of the applicants which are set out below, as well as the actions of the remaining 18 HADEP members and leaders, proved that a link existed between the applicants, HADEP and the PKK. 8. These applicants were executive members of HADEP's Malatya branch. In 1998 criminal proceedings were brought against them for lending assistance to an illegal organisation, namely the PKK, contrary to Article 169 of the Criminal Code then in force. The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of Abdullah Öcalan in Italy. Banners had also been displayed on HADEP's premises expressing discomfort with the arrest, as well as denigrating the Turkish state and actions of the Turkish security forces. People present on the premises had also been allowed to watch PKK propaganda broadcasts on Med TV. Various pro-PKK newspapers and journals, as well as photographs of various PKK members who had been killed in operations, were also recovered from the premises. 9. These applicants were subsequently tried by the Malatya State Security Court and were found guilty on 16 December 1999. They were sentenced to three years and nine months' imprisonment and their conviction was upheld by the Court of Cassation on 4 December 2000. 10. The execution of the applicants' prison sentences was suspended following the entry into force of Law no. 4616 on Conditional Release, Stay of Proceedings and Suspension of Punishment. 11. These applicants were executive members of HADEP's Adıyaman branch. In 1999 criminal proceedings were brought against them for lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force. The allegations against them included allowing hunger strikers to use HADEP premises in their protest against the arrest of Abdullah Öcalan in Italy and keeping a PKK flag on the same premises. 12. These applicants were subsequently tried by the Malatya State Security Court and were found guilty on 6 May 1999. They were sentenced to three years and nine months' imprisonment and their conviction was upheld by the Court of Cassation on 15 May 2000. 13. The execution of the applicants' prison sentences was suspended following the entry into force of Law no. 4616. 14. On 24 February 2000 the Ankara State Security Court found Mr Bülbül guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, in a speech he had made at a HADEP congress. He was sentenced to three years and nine months' imprisonment. While the proceedings were pending before the Court of Cassation, Law no. 4616 entered into force. The Ankara State Security Court accordingly suspended the criminal proceedings against him on 2 May 2001. 15. In 1998 another set of criminal proceedings was brought against the applicant on account of a document entitled “The Kurds who Suffered Historical Injustices, the Kurdish Problem and Recommendations for its Solution”, which had been found in his house. The proceedings were suspended following the entry into force of Law no. 4616. 16. Mr Okutan was chairman of the Ankara branch of HADEP until 1997. On 4 June 1997 the Ankara State Security Court found him guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, in a speech he had made at a HADEP congress in 1996. He was sentenced to four years and six months' imprisonment. While they were pending against him the proceedings were suspended following the entry into force of Law no. 4616. 17. Mr Gözütok was a member of the HADEP party council. A number of documents and books prepared by PKK members having been found in his law firm, on 4 June 1997 the Ankara State Security Court found him guilty of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, and sentenced him to four years and six months' imprisonment. The proceedings were suspended before the Court of Cassation following the entry into force of Law no. 4616. 18. Mr Odabaşı was the chairman of the Kırşehir branch of HADEP. On 1 December 1997 the Ankara State Security Court convicted him of “incitement to hatred and hostility by making a distinction based on race and regional identity”, in breach of Article 312 of the Criminal Code in force at the material time. 19. Mr Ateş was the chairman of the youth commission of HADEP. On 24 December 1998 the İzmir State Security Court found him guilty on two counts of spreading separatist propaganda, in breach of section 8 of the Prevention of Terrorism Act, in two speeches he had given earlier that year. In his speeches the applicant had advocated recognition of the Kurdish identity, and argued that the Kurds in Turkey were being suppressed by those ruling the country. He had also stated that the ceasefire declared by Abdullah Öcalan had raised the peoples' hopes. He was sentenced to one year and eight months' imprisonment and his conviction was upheld by the Court of Cassation on 5 March 1999. While the applicant was serving his prison sentence, Law no. 4454 entered into force and the execution of the remainder of his sentence was suspended. On 15 July 2003 section 8 of the Prevention of Terrorism Act was repealed. 20. Mr Yücedağ was the chairman of the youth council of HADEP in Malatya. On 16 December 1999 the Malatya State Security Court convicted him of lending assistance to the PKK, contrary to Article 169 of the Criminal Code then in force, and sentenced him to three years and nine months' imprisonment. The court found that the applicant had committed this offence by having organised seminars for university students, during which he had claimed that there were Kurdish people in Turkey who were experiencing a number of problems. 21. His conviction was upheld by the Court of Cassation on 4 December 2000 but the execution of the sentence was suspended following the entry into force of Law no. 4616. 22. Mr Atalay was the secretary of the Seyhan branch of HADEP. On 16 December 1998 the Adana State Security Court convicted him of incitement to hatred and hostility, contrary to Article 312 of the Criminal Code in force at the time. He was sentenced to 10 months' imprisonment. His conviction was based on a speech which he had made during a party congress. According to the Adana State Security Court, during his speech Mr Atalay had said things such as that the Kurds and Turks were different people, that the Republic of Turkey was at war with the Kurdish people and that the Kurds who were killed during that war were martyrs. 23. Mr Özata was the deputy leader of HADEP. On 17 September 1998 he was found guilty by the Ankara State Security Court of spreading separatist propaganda, contrary to Article 312 of the Criminal Code then in force. According to the Ankara State Security Court, in an article he had written in 1997 the applicant had argued that the Kurds and Turks were two different nations and that the fight the Turkish armed forces had been waging against the PKK was a “dirty war and murder”. He was sentenced to two years' imprisonment and his conviction was subsequently upheld by the Court of Cassation. On 3 September 1999 execution of the applicant's prison sentence was suspended in accordance with Law no. 4454 concerning the suspension of pending cases and penalties in media-related offences. 24. On 21 March 1997 Mr Yardımcıel made a speech during Newruz celebrations in his capacity as chairman of the Kars branch of HADEP. In his speech the applicant stated the following: “We, the Kurdish people, should join forces with the revolutionaries, workers and patriots... The Kurds like the colour red; because red is the colour of the blood they have been shedding for years for their freedom. The Kurds like the colour green; because it is the colour of getting ready for liberation. The Kurds like the colour yellow; because it is the colour of getting ready for everything”. 25. Criminal proceedings were brought against him for spreading separatist propaganda in breach of section 8 of the Prevention of Terrorism Act. On 4 June 1999 he was found guilty as charged and sentenced to ten months' imprisonment. He was also ordered to pay a fine. His conviction was upheld by the Court of Cassation on 7 October 1999. 26. On 3 September 1999 Law no. 4454 entered into force and the execution of the judgment against the applicant was suspended. On 15 July 2003 section 8 of the Prevention of Terrorism Act was repealed. 27. Article 169 of the Criminal Code in force at the relevant time provided as follows: “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years' imprisonment ...” 28. Article 312 of the Criminal Code in force at the relevant time provided as follows: “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months' and two years' imprisonment and a heavy fine of between six thousand and thirty thousand Turkish liras. A person who incites people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years' imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 29. Section 8 of the Prevention of Terrorism Act provided, in so far as relevant, as follows: “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of between one hundred million and three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.” 30. Article 69 § 9 of the Constitution provides as follows: “Founding members or ordinary members whose actions or declarations lead to the permanent dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or financial controllers of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court.” 31. Section 95 of Law no. 2820 on Political Parties provides as follows: “Founding members or ordinary members whose actions or declarations lead to the dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or financial controllers of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court...” 32. Under Law no. 4616, execution of sentences in respect of offences committed before 23 April 1999 could be suspended if no crime of the same or a more serious kind was committed by the offender within a five-year period. | 0 |
train | 001-86968 | ENG | RUS | ADMISSIBILITY | 2,008 | KHUSEIN AZIEV v. RUSSIA | 4 | Inadmissible | András Sajó;Anatoly Kovler;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky | The applicant, Mr Khusein Aziev, is a Russian national who was born on 28 September 1973 in the village of RoshniChu in the Chechen Republic and is currently serving his sentence in the Kemerovo region. He is represented before the Court by Mr I. Timishev, a lawyer practising in Nalchik, the Republic of Kabardino-Balkaria. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. The applicant was one of the applicants in the Shamayev case (Shamayev and Others v. Georgia and Russia, no. 36378/02, ECHR 2005III). In his letter of 9 October 2003 he requested that the present application be joined to his complaint in the Shamayev case, cited above. On 26 April 2005, in view of the fact that judgment had already been given in Shamayev, cited above, and that the complaints made by the applicant in the present case differed to a large extent from those raised by his Georgian representatives in Shamayev, the Court decided not to join the two cases under Rule 42 § 1 of the Rules of Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 July 2002 a group of several armed men, including the applicant, were arrested by the Georgian border guards on the Georgian-Russian border (see Shamayev and Others, cited above, §§ 57, 89 and 106). The applicant was placed in pre-trial detention by the Georgian authorities. Following that measure, the Russian Prosecutor General’s Office requested the applicant’s extradition to the Russian Federation (see Shamayev and Others, cited above, §§ 58 and 6273). The applicant was charged by the Russian authorities with terrorism and banditry with aggravating circumstances (Articles 205 § 3 and 209 § 2 of the Criminal Code); causing bodily harm to members of the police and security forces (Article 317 of the Criminal Code); organising illegal armed groups and participation in such groups, with aggravating circumstances (Article 208 § 2 of the Code); gunrunning with aggravating circumstances (Article 222 § 2 of the Criminal Code); and illegal crossing of the Russian Federation’s border in July 2002, with aggravating circumstances (Article 322 § 2 of the Code). He was extradited on 4 October 2002 (see Shamayev and Others, cited above, §§ 66, 70, 71 and 74). It appears that upon the applicant’s arrival in Russia, on 5 October 2002, he was assigned a lawyer to represent his interests, Mr Molochkov. After 31 January 2003 the applicant was defended by another lawyer, hired by his family, Mr V. On 19 August 2003 the applicant instructed Mr Timishev to represent him before the European Court. The applicant produced a letter dated 9 July 2003 which had been sent to the Court on 26 August 2003 by Mr Molochkov in connection with the Shamayev case (see Shamayev and Others, cited above, § 241). In the letter, sent in relation to a request from the Representative of the Russian Federation to the Court, Mr Molochkov stated that he had acted as Mr Aziev’s defence lawyer between 5 October 2002 and 31 January 2003 in connection with the criminal charges brought against the latter. During that period his former client had never complained of a violation of his rights under the Convention, nor had he ever expressed to him a wish to apply to the Court. In the absence of relevant instructions from the applicant, the lawyer could not contact the Court on his own initiative. He had always had adequate time and facilities to prepare his client’s defence and opportunities to meet him without prison wardens being present (ibid., §§ 232 et seq.). The applicant alleged that Mr Molochkov had taken no steps to defend him. In any event, since he did not speak Chechen, the lawyer would have been unable to hold discussions with him. He had not refused to accept Mr Molochkov’s services; nor had he lodged any complaints against the actions of Mr Molochkov with the domestic courts or any other authorities. On 24 June 2003 the preliminary investigation was closed. The applicant was committed for trial before the Supreme Court of the Chechen Republic (“the Supreme Court of Chechnya”). On 24 July 2003, citing the “lack of judges of the court available to examine this category of case”, the President of that court decided to refer the case to the Supreme Court of the Russian Federation so that the latter could designate another competent court. On 21 August 2003 the Vice-President of the Supreme Court of the Russian Federation decided to refer the case to the Stavropol Regional Court. When he was brought before the Regional Court, the applicant requested that his case be transferred to the Supreme Court of Chechnya under Article 30 § 2 of the new Code of Criminal Procedure (“CCP”). He insisted that, under the CCP, his case fell within the territorial jurisdiction of that court. By a decision of 6 October 2003 a single judge of the Stavropol Regional Court rejected the request on the ground that Article 36 of the CCP prohibited jurisdiction disputes between courts. As the case had been referred to the Regional Court by the Supreme Court of the Russian Federation following a decision to transfer jurisdiction, the applicant’s request could not be granted. The applicant lodged an application for supervisory review with the Supreme Court of the Russian Federation. On 26 November 2003 a judge of that court replied to the applicant, pointing out that decisions of the President and VicePresident of the Supreme Court of the Russian Federation were not amenable to appeal and that, accordingly, his complaint concerning the transfer of jurisdiction had been rejected without being examined on the merits. According to the judge in question, when the preliminary investigation was closed on 24 June 2003 the applicant had requested a jury trial before the Supreme Court of Chechnya (see Article 30 § 2 (b) of the CCP). As assize courts could not be introduced in Chechnya until 1 January 2007 (as provided by the federal Law of 27 December 2002), the fact that the applicant’s case had been referred to the Supreme Court of the Russian Federation with a view to transferring jurisdiction was not contrary to Article 35 of the CCP. The judge maintained that since the applicant and his representative had been informed of the decision of 21 August 2003 to refer the case to the Stavropol Regional Court for examination, there had been no violation of the applicant’s rights. After the communication of the case to the Russian authorities, the parties informed the Court that on 6 October 2003 the applicant and his representative had stated that he did not want to be tried by jury. Accordingly, the case was to be heard by a single judge. Following several decisions to adjourn the hearing, on 12 November 2004 the Stavropol Regional Court granted the applicant’s request and decided to refer the question of territorial jurisdiction to the Supreme Court. On 13 January 2005 the Supreme Court ruled that the case was to be heard by the Supreme Court of Chechnya, in view of the applicant’s withdrawal of his request to be tried by jury. On 20 June 2005 the Supreme Court of Chechnya found the applicant guilty of banditry, illegal handling of firearms, assault on police or military officers and illegal crossing of the state border. The applicant was given a custodial sentence of seventeen years, to be served in a strict-regime correctional facility. On 24 June 2005 the applicant appealed against the conviction, apparently raising a number of procedural irregularities and questioning the interpretation of certain facts by the trial court. He did not submit a copy of his appeal. On 15 September 2005 the Supreme Court upheld the conviction. Alleging that while being transferred from the SIZO to the Stavropol Regional Court on 29 October 2003 his client had been ill-treated by the guards escorting him, Mr Timishev applied to the Stavropol district prosecutor’s office to have the perpetrators placed under investigation. The prosecutor of the Promyshelnny district of Stavropol investigated the complaint. The prosecutor questioned the applicant, several guards who had been on duty on that day and the SIZO officers who had dealt with the applicant’s reception after he had been delivered into their custody after the court hearing. The prosecutor also inspected the journal of medical complaints kept in the SIZO. In his statement given to the prosecutor on 14 November 2003 the applicant stated that the guards had pushed him when he was climbing into the car and then slapped him on the back two or three times. They had also pushed him in the back on arrival at the court building, forcing him to walk faster. By a decision of 14 November 2003, the application was rejected on the ground that no confirmation of the applicant’s allegations had been established and that the latter had not requested any medical assistance in relation to the incident. The applicant did not appeal against that decision. In addition, an internal inquiry was carried out by the Stavropol Regional Department of the Interior. In those proceedings the guards in question were identified and questioned. They denied ill-treating the applicant. No complaints from or injuries to the applicant had been registered. The Department concluded that the complaint was unsubstantiated. Since 1 July 2002 matters relating to criminal procedure have been governed by the Code of Criminal Procedure (CCP) of the Russian Federation (Law no. 174-FZ of 18 December 2001). Article 30 of the CCP sets out the composition of trial courts. Part 2 (b) of that Article provides that, upon an application by the accused, the trial of serious crimes can be conducted by a bench composed of one federal judge and twelve jurors. Articles 32, 35 and Article 36 of the CCP lay down rules of territorial jurisdiction. They stipulate that if, inter alia, upon a successful application of a party to the proceedings, a decision has been taken to transfer the case to another court, that decision is final and binding on the court to which the case has been transferred. The federal Law of 27 December 2002 amended the order of entry into force of the provisions of the CCP. In particular, in so far as it concerned the introduction of jury trial, the Law provided that Article 30 part 2 (b) of the CCP would come into force in the Stavropol region as of 1 July 2002 and in Chechnya as of 1 January 2007. | 0 |
train | 001-23712 | ENG | GBR | ADMISSIBILITY | 2,004 | LATIF and OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Georg Ress;Mark Villiger;Nicolas Bratza | The applicants, Meina and Claire Latif and Mark Frank Francom, are United Kingdom nationals, who were born in April 1981, July 1978 and May 1976, respectively. They are currently detained in HMP Holloway, HMP Durham and HMP Long Lartin, respectively. They are represented before the Court by Mr J. Goodwin, a lawyer practising in Leeds. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were arrested and interviewed by police, along with two other persons, in connection with the robbery, false imprisonment and murder of a woman in April 1998. It was alleged that the victim, an eighteen-year old schizophrenic girl, had been held at the flat where two of the applicants lived and had been subjected to numerous acts of violence. According to the evidence later adduced at trial, the victim was, inter alia, punched and kicked, beaten with a snooker cue and an iron, urinated upon, forced to drink disinfectant and locked in a kitchen cupboard. Once the victim died, she had been placed in a shallow grave where she was found on 25 April 1998. During the police interviews, Meina and Clare Latif, on the advice of their solicitor, made no comment to questions put to them. In his first interview, Mark Francom admitted to disposing of the body and described the deceased’s appearance after she had been struck with an iron by another co-accused. He stated that the deceased had been put in a cupboard and described seeing the deceased with a plastic bag over her head and the same co-accused with her hands round the deceased’s neck. At his second interview, Mark Francom made no comment when the allegations of other witnesses were put to him. All three applicants were subsequently charged with murder and false imprisonment and Clare Latif was also charged with robbery. The two other persons arrested were also charged with murder, false imprisonment and one was charged with robbery. The trial of all five co-accused was held from 21 April to 28 May 1999. The evidence against the applicants consisted of forensic evidence and the statements of a number of witnesses who called at the flat while the deceased was there. The witnesses described injuries being inflicted upon the deceased by each of the applicants. There was also evidence from witnesses to admissions made by Meina and Clare Latif while they were in custody, in which they independently gave detailed descriptions of what had happened to the deceased while in the flat. One witness stated that Meina and Clare Latif had told her that they were going to try to blame it all on one co-accused and that it was Mark Francom who had placed the bag over the deceased’s head and burnt her with a cigarette. At trial, each of the applicants gave evidence and offered an account of events, admitting their presence at the flat but stating that it had been the acts of another co-accused which had killed the deceased without their encouragement or participation. The defence urged that it would not be appropriate to draw any inference from the applicants’ failure to mention during the police interviews facts later relied on in the trial as provided for by section 34 of the Criminal Justice and Public Order Act 1994. The trial judge, in the exercise of her discretion, agreed that she would direct the jury that they should not draw any adverse inference from the applicants’ silence. Leading counsel for one of the applicants told the jury that they would be directed to that effect by the trial judge. However, in her summing-up, the trial judge did not specifically direct the jury that they could not draw adverse inferences from the applicants’ silence at interview. On 28 May 1999, all three applicants were convicted of murder and false imprisonment. Clare Latif was also convicted of robbery. The applicants appealed against conviction and a single judge of the Court of Appeal granted leave to appeal on certain of the grounds of appeal relied upon. The full Court of Appeal granted leave to appeal including on the ground that the failure of the trial judge to specifically direct the jury that no adverse inference should be drawn from their silence during the police interviews rendered their trial unfair within the meaning of Article 6 of the Convention and the Court’s judgment in the case of Condron v. the United Kingdom (no. 35718/97, ECHR 2000-V). On 31 July 2000, the Court of Appeal dismissed the applicants’ appeals against conviction on the ground, inter alia, that any omission or error in the trial judge’s direction to the jury did not render their convictions unsafe or the trial unfair within the meaning of Article 6 of the Convention and the Condron case. The Court emphasised that everyone involved in the trial accepted that no adverse inference should be drawn and that nothing was said by either the trial judge or counsel which was inconsistent with this. Further, the trial wholly depended on which witnesses the jury believed and they clearly did not believe the accounts given by the applicants. The applicants subsequently applied to the Court of Appeal to certify that the case raised a point of law of general public importance and, having done so, to grant leave to appeal to the House of Lords. The Court of Appeal refused the application on 19 December 2000. Section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) provides that: “(1) Where, in any proceedings against a person for an offence, evidence is given that the accused– (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. (2) Where this subsection applies– ... (c) the court, in determining whether there is a case to answer; and (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention. ...” Section 38(3) of the 1994 Act adds that: “(3) A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...” The Judicial Studies Board has adopted several specimen directions regarding the drawing of adverse inferences from silence according to section 34 of the 1994 Act. These specimen directions offer guidance to trial judges as to the directions they should give to the jury. The specimen directions are revised from time to time in accordance with developments in statute and case-law. Prior to May 1999 specimen directions existed for the situation in which a trial judge decided that it was open to the jury to draw an adverse inference. Following the case of R v. McGarry (1999) 1 Criminal Appeal Reports 377), specimen direction no. 40, adopted in May 1999, provided that, if a trial judge decided as a matter of law that it was not open to the jury to draw an adverse inference, a specific direction (contained in specimen direction no. 44) should be given to that effect. | 0 |
train | 001-107147 | ENG | MKD | ADMISSIBILITY | 2,011 | KAMCEVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | The applicant, Ms Verka Kamčeva, is a Macedonian national who was born in 1979 and lives in Radoviš. She was represented before the Court by Mr N. Kamčev, a lawyer practising in Radoviš. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant worked, on a temporary basis, as a teacher in a State-run school K.S. in Radoviš (“the school”). In August 2006, when her contract expired, the school advertised a vacancy announcement for several posts. The school recruited Ms Z.S. for the post for which the applicant also had applied. She complained to several inspection bodies alleging procedural irregularities. These bodies issued instructions, on the basis of which the school annulled the results of the competition. On 25 September 2006 the applicant brought a civil action requesting payment of damages for having been discriminated on political grounds. She alleged that Ms Z.S., the successful candidate, had not had the required qualifications for the post. The claim was based on sections 6, 7 and 181 (6) of the Employment Act (see “Relevant domestic law” below). The Radoviš Court of First Instance (“the first-instance court”) heard oral evidence from the applicant, witnesses Ms B.Z., Mr E.Lj., Ms I.A. and Ms Z.K., as well as Mr P.J., the school’s director. In her statement, the applicant referred to a meeting with Mr P.J. in August 2006 when allegedly he admitted to her that he had been under considerable pressure from other fellow-members of his political party and that he was not able to take any decision by himself. At a next meeting, Mr P.J. confirmed that he had not taken the recruitment decision by himself. Ms B.Z., a former teacher in the school and unsuccessful candidate for one of the advertised posts, stated that during a meeting held in August 2006, Mr P.J. said that a new contract would not be concluded with some acting teachers since the decision had not been made by himself, but by those who had appointed him director. On that occasion, he also stated that Ministers and Deputy Ministers had called and suggested him to appoint other candidates. She further referred to a discussion that she had on 11 September 2006 with Mr P.J., together with 10 other unsuccessful candidates. On that meeting, Mr P.J. allegedly told them that given their qualifications he “had cried for them”, but that his political party had pressed him to dismiss them, and that 20 people had voted against their recruitment. Mr E.L. and Ms I.A., who were also former teachers in the school and unsuccessful candidates, confirmed Ms B.Z.’s statement. Ms Z.K., the applicant’s mother-in-law, stated that Mr P.J. told her that he had not made the selection, but that he had brought the list of candidates to the attention of his political party, which in fact, had taken the decision. None of 20 people present at that meeting had voted in favour of the applicant. Mr P.J. contested the statements described above. He stated that he had selected the successful candidate by himself and that no political party had been involved in the selection process. He further argued that the applicant and witnesses had invented the whole story with the aim to achieve a common objective. Lastly, he confirmed that on the basis of the instructions given by the inspection bodies, he had annulled the results of the competition. On 24 April 2007 the first-instance court dismissed the applicant’s claim as unsubstantiated. It found that the political affiliation of candidates was not specified as a post requirement in the vacancy announcement. Furthermore, the inspection bodies, on the basis of the complaints submitted by the applicant and other unsuccessful candidates, issued instructions which prompted the annulment of the announcement. The court rejected the witnesses’ statements as unsubstantiated since the vacancy announcement had not required that candidates be of any political affiliation. The applicant appealed against this decision arguing that the first-instance court had not provided adequate reasons for having ignored the witnesses’ statements that provided clear evidence that she had not been appointed due to political reasons. She asked the court why, despite the fact that she had been the only candidate who had satisfied the post requirements and had previous working experience, the school had appointed Ms Z.S., who had not had the necessary qualifications for the post. On 29 October 2007 the Štip Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. It found no grounds to depart from the facts established by the first-instance court and the reasons given. It confirmed that the announcement, on the basis of the instructions given by the inspection bodies, had been annulled. The applicant was served with this decision on 9 November 2007. Under Article 110 § 3 of the Constitution, the Constitutional Court has jurisdiction to protect human rights and freedoms concerning inter alia the prohibition of discrimination on political grounds. Section 6 (1) of the 2005 Act provides that a candidate for a post cannot be discriminated against on the basis of his or her race, colour, sex, age, health, religious, political or other opinion. Section 7 of the 2005 Act defines direct and indirect discrimination. Section 10 of the 2005 Act provides that the unsuccessful candidate can claim compensation in case of discrimination. Under section 11, if the candidate produces evidence of practice contrary to section 6 of this Act, the burden of proof is on the employer to prove that there was no discrimination. Section 181 (6) of the 2005 Act provides that the unsuccessful candidate claiming to have been discriminated against can claim compensation in proceedings before the competent court. Section 51 of the Rules of Procedure provides that a person who considers that any of his or her rights or freedoms, set forth in Section 110 § 3 of the Constitution, has been violated by an individual decision or action may seek redress before the Constitutional Court within two months from the adoption of the final decision or from the day he or she had knowledge of the action taken, but no later than five years from the day of its occurrence. Section 82 provides that in its decision for the protection of rights and freedoms, the Constitutional Court shall determine the way of eliminating the consequences from applying the individual decision or action, with which those rights and freedoms had been violated. In its decision of 20 June 2007, the Constitutional Court dismissed a constitutional appeal (барање за заштита на слободите и правата) submitted by four individuals under Article 110 § 3 of the Constitution. The complainants claimed that they had been dismissed from work due to their ethnic origin and political affiliation. The court, after having interviewed them and held a public hearing, dismissed their appeal as manifestly ill-founded. It appears that the complainants did not claim damages in civil proceedings under sections 10 and 181 (6) of the 2005 Act (U.br.227/2006). | 0 |
train | 001-114602 | ENG | POL | ADMISSIBILITY | 2,012 | PUSTELNIK v. POLAND | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Wiesław Pustelnik, is a Polish national, who was born in 1968 and lives in Czechowice-Dziedzice. His application was lodged on 26 June 2009. He was represented before the Court by Mr J. Gałkowski, a lawyer practising in Bielsko-Biała. 2. From 20 September 2006 until 17 October 2007 and from 24 October until 28 November 2007 the applicant was in pretrial detention in Mysłowice Remand Centre. 3. The applicant’s subsequent detention in several other prisons and remand centres is not the subject of the instant application. On an unspecified date, presumably in June 2011, the applicant was released and he is currently at liberty. 4. The applicant’s description of the conditions of his detention, as reproduced from the materials of his civil action, may be summarised as follows. 5. All the cells to which the applicant was assigned in Mysłowice Remand Centre at the material time, with the exception of cell no. 114, were overcrowded to the point that the applicant had less than the statutory minimum standard of 3 square metres (m²) of personal space. 6. The applicant had a one-hour period of outdoor exercise every day. He spent the remaining twentythree hours inside his cell. 7. The toilet annex in each of the applicant’s cells was one metre away from the dining table and was separated from the rest of the cell by a cloth. 8. The cells were infested with cockroaches and other bugs. 9. There was only cold running water in the tap and the applicant had to use it for his every-day toiletry needs and for washing dishes. The applicant had one hot shower per week. 10. The applicant was detained under an ordinary security regime. He was not classified as a “dangerous detainee”. He claimed that during his detention he had frequently and routinely been subjected to a personal check (kontrola osobista) by the guards of Mysłowice Remand Centre. In his submission, he had to strip naked in front of a guard and bend over to show his anus. In the applicant’s view the “visual penetration” by the guard could be compared to sexual harassment and he felt humiliated each time he had undergone a personal check. 11. As submitted by the penitentiary authorities in the course of the civil proceedings, the applicant, just like any other detainee in Mysłowice Remand Centre, had been subjected to a body search each time he left or returned to the remand centre’s main wing (pawilon główny). That practice was aimed at preventing the distribution of dangerous or illicit objects among detainees. It was stressed that body searches had always been performed in an enclosed room and without the presence of unauthorised persons. 12. The applicant did not give any further details about the practice of body checks. He did not indicate the dates of the impugned incidents or their total number. He did not submit how often he had left the remand centre’s main wing and whether he had been subjected to a personal check when going to his outdoor exercise, a visit or on other occasions. 13. During his detention, the applicant did not file any formal complaints with the penitentiary authorities about the impugned practice of subjecting him to body checks. 14. On 18 November 2007 the applicant lodged a civil action in tort, seeking 500,000 Polish zlotys (PLN) (approximately 120,000 euros (EUR)) in compensation for the suffering which he claimed to have experienced in Mysłowice Remand Centre due to the inadequate living conditions and body searches. 15. The applicant’s submissions to the domestic court about the conditions of his detention and the manner of performing personal checks by the guards were similar to the above description (see paragraphs 513 above). The applicant claimed that, when he had been detained in Mysłowice Remand Centre, he had felt “traumatised” and had difficulties sleeping. 16. On 14 January 2008 the respondent party, namely the State Treasury and Mysłowice Remand Centre, asked that the case be dismissed. 17. They submitted that the maximum allowed capacity had, at the relevant time, been exceeded in Mysłowice Remand Centre. As a consequence, the remand centre’s governor, acting under the 2006 Ordinance, decided to reduce the statutory minimum standard of 3 m². He informed a competent penitentiary judge of that decision. The governor acted, therefore, within the law. 18. Furthermore, the authorities confirmed, to a large extent, the applicant’s submissions as to the overall living and sanitary conditions in the remand centre. They stressed, however, that the cells had always been sufficiently ventilated and that the furniture, such as tables, could be freely moved around the cell so that detainees could have their meals in a more comfortable atmosphere, further away from the toilet annex. It was also submitted that the remand centre was disinfected twice a month by a specialised independent company. Sanitary inspections carried out on a regular basis did not reveal any irregularities. 19. As to the applicant’s body searches, the authorities invoked Article 116 § 2 (3) of the Code of Execution of Criminal Sentences and section 72 of the 2003 Ordinance, which laid down the rules concerning body searches of detainees and convicted persons. It was further noted that the applicant, just like any other detainee in Mysłowice Remand Centre, had been subjected to a body search each time he left or returned to the remand centre’s main wing. That practice was aimed at preventing the distribution of dangerous or illicit objects among detainees. It was stressed that body searches had always been performed in an enclosed room and without the presence of unauthorised persons. 20. Lastly, the remand centre’s authorities argued that the applicant had not experienced mental suffering due to the conditions of his detention. He had been under the constant supervision of a psychiatrist and neurologist because he had in the past been diagnosed with personality disorders and alcoholism. During his medical consultations the applicant did not complain about any negative effects of his detention. 21. On 23 October 2008 the Katowice Regional Court (Sąd Okręgowy) gave judgment partly in the applicant’s favour and awarded him compensation in the amount of PLN 3,000 (approximately EUR 716). 22. The domestic court established that, at the relevant time, Mysłowice Remand Centre, which had a maximum allowed capacity of 399 places, had been severely overcrowded. For example, as of 22 November 2006, 571 detainees and as of 14 November 2007, 478 detainees were held there. Throughout his detention in the remand centre, the applicant was assigned subsequently to fifteen different cells. In each of those cells, with the single exception of cell no. 114, the available space per person was below the statutory minimum standard of 3 m². Between September 2006 and December 2007 the remand centre’s governor sent monthly reports to the penitentiary authorities informing them about the rates of overcrowding at any given time. 23. The domestic court further established that, as a result of the overcrowding, not all detainees could fit around the dining table inside the cell. Many had to have their meals sitting on the bed. The table in the applicant’s cell was situated one metre away from the toilet annex. The particular position and certain technical problems with the windows limited air circulation and access to natural light. As a result the applicant’s cells were insufficiently ventilated and lit. 24. It was also confirmed that the toilet annexes in Mysłowice Remand Centre were either not separated from the rest of the cell or separated by a cloth hung over a metal rod which was permanently attached to the walls. In the applicant’s cells the toilet annexes were separated with a bed sheet. In the court’s opinion, such separation did not provide sufficient privacy because the toilet was very near the beds and dining tables. 25. The domestic court also established that, despite the efforts of the remand centre’s administration, the applicant’s cells had been infested with cockroaches. 26. As to the practice of body searches, the domestic court found the explanations provided by the remand centre to be true. In consequence, the applicant’s claim for compensation on this account was considered unjustified. 27. Having analysed the applicant’s medical history, the domestic court agreed that the living conditions in the remand centre had not been the cause of the applicant’s anxiety and sleeping difficulties. 28. In its reasoning on the merits, the Katowice Regional Court relied on the judgments of the Supreme Court of 28 February 2007 and of the Constitutional Court of 26 May 2008, as well as the jurisprudence of the European Court of Human Rights. 29. It concluded that the applicant’s detention in overcrowded cells (during 348 out of a total of 458 days), in inadequate sanitary conditions (cockroaches and the lack of sufficient separation of the toilet annex), with insufficient ventilation and lighting, had given rise to suffering and humiliation which had exceeded the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. That, in turn, constituted an infringement of the plaintiff’s personal rights protected by Article 24 of the Civil Code (Kodeks Cywilny). Moreover, the domestic court held that the requirement of Article 24 of the Civil Code, namely that the act or omission leading to the infringement of a personal right had to be unlawful, was satisfied in the light of the finding of the Constitutional Court that Article 248 of the Code of Execution of Criminal Sentences was unconstitutional. 30. In its analysis concerning compensation, the domestic court reiterated that according to Article 448 of the Civil Code and the established domestic practice, compensation for a breach of a personal right should be “just” and, therefore, it should be of an economically significant value and not merely symbolic. 3,000 (approximately EUR 715). 31. The domestic court decided not to order the applicant to bear any of the costs of the proceedings (koszty procesu) and waived his court fee (koszty sądowe). 32. The applicant did not appeal against that judgment. 33. On 13 February 2009 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed the appeal brought by the respondent party. The appellate court upheld the first-instance judgment. 34. A cassation appeal to the Supreme Court (Sąd Najwyższy) was not available due to the low amount of the claim. 35. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 7585 and §§ 4588 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54). 36. The socalled personal check (kontrola osobista) of convicted persons is authorised and defined by Article 116 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy), which in its relevant part reads as follows: “§ 1 A convicted person must obey the regulations concerning ... prison order and execute the orders of supervisors and other authorised persons, in particular: ... § 2 In cases justified by internal order and security a convicted person will be subjected to a personal check. § 3 A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.” 37. Moreover, section 72 (1) of the Ordinance of the Minister of Justice of 31 October 2003 on the security of the establishments of the Prison Service (Rozporządzenie Ministra Sprawiedliwości w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej), authorises a personal or cursory (kontrola pobieżna) check of a convicted person in a detention facility in order to find dangerous or illicit objects or to foil an escape, or in any other justified cases. | 0 |
train | 001-72350 | ENG | CZE | CHAMBER | 2,006 | CASE OF HAVLICKOVA v. THE CZECH REPUBLIC | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | null | 4. The applicant lives in Frýdlant v Čechách. 5. On 21 November 1988 the applicant, having been divorced on 27 June 1988, lodged an action with the Liberec District Court (okresní soud) for the separation of the matrimonial property. 6. On 13 January and 13 February 1989 the court held two hearings. On 28 April and 8 June 1989 it appointed two experts with a view to evaluating real estate, antiques and jewellery. Subsequent hearings were held on 13 December 1989, 29 November 1990 and 5 March 1991. In the meantime, the expert in real estate delivered his opinion. Another hearing was scheduled for 28 June 1991. 7. On 15 March 1992 a new expert opinion concerning the real estate was submitted to the court, which had appointed another expert in antiques and jewellery. 8. On 20 August 1993 the District Court ordered a new expert opinion concerning the real estate. The expert submitted his report on 6 September 1993. 9. On 4 January 1994 the case was transmitted to another judge at the District Court. 10. Two hearings were held on 19 May and 9 June 1999. The parties expressed their wish to reach a friendly settlement. The last hearing was therefore adjourned sine die. 11. As the parties had not informed the court about a friendly settlement, a hearing was held on 7 February 2002. It was adjourned in order to evaluate the antiques and jewellery claim. Moreover, the applicant was invited to submit the address of a witness she had suggested be heard. 12. On 4 October 2002 the court appointed a new expert in real estate. The expert submitted his opinion in February 2003. 13. On 31 October 2002 and 29 April 2003, the District Court held hearings. The applicant did not attend the last hearing, being in the United States of America. The court therefore adjourned the hearing sine die. 14. On 17 July 2003 the applicant’s lawyer informed the court that her client had returned to the Czech Republic and that a friendly settlement of the case was not excluded. On 3 September 2003 she informed the court of the continuation of the dispute. On 16 October 2003 the applicant notified the court that she would be abroad until December 2003. 15. A hearing scheduled for 4 May 2004 was adjourned at the request of the applicant’s lawyer until 18 May 2004. At this hearing, the defendant challenged the judge for bias. On 15 July 2004 the Ústí nad Labem Regional Court (krajský soud) decided that the judge was not biased, and remitted the case to the District Court. 16. A hearing scheduled for 2 November 2004 was adjourned, the defendant being ill. 17. A hearing held on 25 January 2005 was adjourned sine die, the parties not agreeing on the value of the antiques and jewellery. The court requested the Czech Insurance and Police Office to submit written opinions as the defendant claimed that certain antiques had been stolen in 1995. 18. It appears that the proceedings are still pending at first instance. | 1 |
train | 001-101491 | ENG | ROU | CHAMBER | 2,010 | CASE OF ŞTEFĂNICĂ AND OTHERS v. ROMANIA | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 5. The applicants are all Romanian citizens. 6. The facts, as submitted by the parties, may be summarised as follows. 7. The applicants are all former employees of B., a bank, which was involved in a large restructuring process of State-owned companies in Romania, entailing collective dismissals. 8. The collective dismissal of employees of B. took place in different stages between September 1998 and October 1999. It affected hundreds of persons across Romania working either in the central office or in the local branches of the bank as follows: 632 persons dismissed in September 1998, seventy persons dismissed in February 1999 and 725 persons dismissed in May 1999. No precise numbers were available for the final stages of the dismissal process. From the case file, it appears that the applicants were dismissed during the period September 1998-October 1999. 9. The applicants made several attempts to receive compensatory sums for collective dismissal (see paragraph 14 below) before the Bucharest Employment and Vocational Training Agency (“the agency”), a State agency entrusted with the disbursement of these payments, but did not have any success. 10. On 3 December 2000, they brought an action against the agency, seeking to be granted the compensatory payments. They argued that according to the applicable law, their right had arisen on the date on which their contracts had been terminated. The fact that B. had failed to submit to the agency a list of the persons whose contracts had been terminated could not be imputed to the employees. Moreover, there was established case-law upholding applications submitted by other former employees in a similar situation from the same court of first instance in Bucharest and in final decisions of higher courts across the country. 11. By a judgment of 9 August 2001, Bucharest District Court upheld the applicants' claim. It established that B. had only submitted to the local agency a list of persons dismissed after 8 October 1999 and had failed to send a list of persons dismissed before that date, even though they were part of the same collective dismissal process. The court considered that this failure gave rise to inequalities among the people dismissed. 12. Allowing an appeal by the agency, the Bucharest County Court, by a final decision of 25 March 2002 (drafted on 1st July 2002), reversed the first-instance decision and concluded that the applicants did not meet the requirements for receiving the compensatory payments. For the applicants dismissed between September 1998 and May 1999, the appellate court referred to another condition provided by the national legislation, namely that the State Property Fund (FPS) should have mandated its special representatives on the board of shareholders to proceed with the reorganisation, in particular with the collective dismissal. In the case at issue, the appellate court established that such a mandate did not exist on the date when the applicants were dismissed and therefore they were not entitled to compensatory payments. For the applicants dismissed between August and October 1999, the county court established that they did not meet another condition, namely that they did not prove that they had taken part in the pre-dismissal procedures. It concluded that the applicants did not satisfy these specific conditions and dismissed their claims. 13. The applicants submitted requests to the Procurator General for leave to lodge an extraordinary appeal against the final decision, invoking, inter alia, the existence of conflicting final decisions concerning other former employees in the same situation as them, namely those dismissed before October 1999. Their requests were rejected. 14. Emergency Ordinance no. 9/1997, as modified by Emergency Ordinance no. 52/1998, provided that persons whose employment contracts were terminated due to collective dismissal procedures were entitled to compensatory payments ranging from six to twelve times the average net salary nationwide. On 24 June 1999 the newly adopted Emergency Ordinance no. 98/1999 changed the method for determining the quantum of the compensatory payments, which since then has ranged from six to twelve times the average net salary in the specific company. 15. Article 46 of Emergency Ordinance no. 98/1999 obliged the employer company to notify, in writing, the competent agencies of the collective dismissal process, as approved in the restructuring programme, and to provide lists of the staff to be dismissed. Based on those lists, the competent agencies were required to provide pre-dismissal services, including counselling and professional guidance. In order to be eligible for compensatory payments, the persons who were part of a collective dismissal had to take part in these pre-dismissal programmes. 16. In similar cases, former employees of B., dismissed before October 1999, requested recognition of their right to compensatory payments. Following the agency's refusal to pay compensation, they lodged complaints with the competent domestic courts. By different final decisions rendered by county courts between June 2000 and September 2001, their right to compensatory payments was recognised. The reasoning varied: some county courts considered that the condition regarding the special mandate of the FPS was satisfied, others did not even take this special condition into account. The condition regarding participation in the pre-dismissal procedures was indirectly taken into account into some of the decisions. In those decisions reference was made to the fact that the employer had failed to submit to the competent agencies lists of the staff dismissed before October 1999. Some decisions underline the fact that the collective dismissal took place in different stages and that the persons dismissed before October 1999 had been deprived of the social protection provided by the compensatory payments, even though the dismissal conditions had been identical and there was no objective reason for such discrimination. 17. Another group of former employees, who were dismissed between August 1998 and May 1999 and who lost their case by a final decision of the Bucharest County Court of 31 January 2002, submitted a request to the Procurator General for leave to lodge an extraordinary appeal (recurs în anulare) in their favour. The latter accepted their request and made a request in this respect to the Supreme Court of Justice. By a final decision of 1 October 2003 the Supreme Court allowed the extraordinary appeal and quashed the final decision delivered in that particular case. It concluded that the lack of the special mandate of the FPS (issued in August 1999) did not affect the right of persons whose employment contracts had been terminated in the framework of a collective dismissal to receive compensatory payments. It further explained that in the event of a contrary interpretation, the effects would be unacceptable because it would create discrimination between persons placed in the same or similar positions. It also added that in the event that the former employees were not involved in the collective pre-dismissal procedures because of the negligence of the employer, they were still entitled to receive compensatory payments. 18. Subsequent final decisions of the Bucharest Court of Appeal of 30 June 2003 and 3 September 2004 followed the same approach and recognised the right to compensatory payments for former employees dismissed during the same period of time as the applicants. 19. The Romanian Code of Civil Procedure (“the CCP”) in force at the time provided in its Article 330 that the Prosecutor General, ex officio or upon request of the minister of justice, could lodge an extraordinary appeal (“recurs in anulare”) against final judicial decisions. This extraordinary appeal was repealed from domestic law by a Government ordinance published on 26 June 2003. 20. Article 329 of the CCP regulates another type of extraordinary appeal (“recurs in interesul legii”). The provisions in force at the time provided that in order to ensure uniform interpretation and application of the law, the Prosecutor General, ex officio or at the request of the minister of justice, could request the Supreme Court of Justice to deliver a decision concerning a legal issue which had received different solutions in the lower courts. The decision thus delivered could not alter the outcome of cases already decided. Amendments were made in 2005 and it was made possible to recognise the right of the managerial boards of the courts of appeal to lodge such a request with the High Court of Cassation and Justice. 21. Article 322 § 9 of the CCP further provides that a case may be reopened in front of the domestic courts if the European Court of Human Rights has found that a specific domestic decision violated fundamental rights or liberties. | 1 |
train | 001-61876 | ENG | BGR | CHAMBER | 2,004 | CASE OF DJANGOZOV v. BULGARIA | 3 | Violation of Art. 6-1;Not necessary to examine Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award | Christos Rozakis | 9. The applicant was born in 1946 and lives in Plovdiv. 10. On 9 December 1994 a newspaper in the town of Parvomay, “Parvomay dnes”, published an article on the problems of the liquidation of State cooperative farms and the restitution of the agricultural land in the region. The article contained offensive allegations against the applicant who was a former chairman of the local commission in charge of the liquidation of the cooperative farms. The title of the article, quoting the applicant, read “Do not hassle me, I have a yellow card” („Не ме закачайте, аз съм с жълта карта“). The latter expression means that the person in question is registered as mentally ill. The article’s author commented on the poor results of the commission’s audit, stating that they could be expected since its chairman was a “person of unsound mind” („невменяем човек“). The applicant was also referred to as a “wretch” („нещастник“). 11. In February 1995 the applicant lodged with the Parvomay District Prosecutor’s Office a request for the opening of proceedings for criminal libel against the newspaper’s editor. On 6 March 1995 the competent prosecutor opened a preliminary inquiry with a view to the opening of criminal proceedings against the editor. 12. On 2 March 1995 the applicant filed a civil action against the newspaper’s editor and publisher, alleging that the article had defamed him. He claimed nonpecuniary damages for injury to his reputation. 13. The Parvomay District Court held its first hearing in the case on 13 April 1995. Counsel for the defendants requested the court to stay the proceedings, presenting a certificate from the Prosecutor’s Office to the effect that a preliminary inquiry had been opened. The court stayed the proceedings in accordance with Article 182 § 1 (d) of the Code of Civil Procedure (“CCP”), pending the outcome of the preliminary inquiry. 14. The applicant lodged an interlocutory appeal, arguing, inter alia, that the pending preliminary inquiry could not serve as grounds for the staying of the civil proceedings, the only such grounds being pending criminal proceedings. 15. On 13 July 1995 the Plovdiv Regional Court upheld the lower court’s ruling, holding that the facts alleged in the civil action constituted “criminal elements” within the meaning of Article 182 § 1 (d) of the CCP. The only bodies competent to decide whether a criminal offence had or had not been committed were the prosecutor and the criminal courts. The eventual ruling of the criminal court would be res judicata for the civil court, as provided by Article 222 of the CCP. Therefore, the proceedings had been properly stayed. 16. On 5 September 1995 the Parvomay District Prosecutor’s Office opened criminal proceedings against the journalist who had written the article against the applicant. 17. While the civil proceedings were stayed the Parvomay District Court sent numerous letters to the District Prosecutor’s Office and to the District Investigation Service, inquiring about the status of the criminal proceedings. Such letters were sent on 22 April, 9 September and 15 November 1996, 4 February and 5 and 11 December 1997, 12 May, 15 July and 18 December 1998, 12 April 1999, 25 January and 13 September 2000, and 28 February 2001. 18. Meanwhile, on 23 March 1998 the applicant’s lawyer requested the Parvomay District Prosecutor’s Office to do the necessary for the speedy conclusion of the criminal proceedings. On 4 May 1998 he filed a complaint with the Plovdiv Regional Prosecutor’s Office, alleging that the criminal proceedings had lasted unreasonably long, thus precluding the resumption of the civil proceedings. In a letter of 12 May 1998 the Parvomay District Prosecutor’s Office informed the applicant that the investigation would be completed within thirty days. On 21 May 1998 the Plovdiv Regional Prosecutor’s Office instructed the Parvomay District Prosecutor’s Office to finalise the investigation within fourteen days. 19. On 1 July 1998 the Parvomay District Prosecutor’s Office replaced the investigator in charge of the case, noting that he had failed to perform the necessary investigative steps in time. 20. On 7 November 2000 the Parvomay District Prosecutor’s Office discontinued the criminal proceedings because the relevant limitation period had expired. The Parvomay District Court affirmed the discontinuation in a decision of 22 November 2000. 21. On 1 March 2001 the Parvomay District Prosecutor’s Office sent the case file to the Parvomay District Court, which thereupon resumed the stayed civil proceedings. 22. A hearing listed for 3 May 2001 was adjourned because the defendants had not been properly summoned. 23. The next hearing was scheduled for 5 July 2001. The court noted that the defendants had again not been properly summoned and adjourned the case. As the summons sent to one of the defendants, the cooperative which had published the newspaper containing the allegedly defamatory article, was returned with a note that that cooperative had apparently been liquidated two years before that, the court instructed the applicant to produce a certificate of the cooperative’s current status. [Note: Certificates of current status are issued by the register of companies kept at the regional courts.] 24. On 21 August 2001 the Parvomay District Court discontinued the proceedings, holding that the applicant had failed to comply with its instructions. The applicant appealed and on 8 January 2002 the Plovdiv Regional Court quashed the discontinuation and remitted the case to the Parvomay District Court. 25. On 21 January 2002 the Parvomay District Court again requested the applicant to provide a certificate of current status of the defendant cooperative. 26. In a judgment of 29 April 2003 the Parvomay District Court allowed the applicant’s claim against the newspaper editor, but dismissed his claim against the cooperative. 27. The applicant appealed against the judgment to the Plovdiv Regional Court. 28. At the time of the latest information from the parties (July 2003) the proceedings were still pending before the Plovdiv Regional Court, which had not yet set the appeal down for hearing. 29. The CCP provides, in Articles 182 § 1 (d) and 183, that a court examining a civil action: “182. ... shall stay the proceedings: ... (d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings... 183. Proceedings which have been stayed shall be resumed ex officio or upon a party’s request after the respective obstacles have been removed...” Article 222 of the CCP provides: “The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator’s guilt are binding on the civil court when it examines the civil consequences of the criminal act.” In a judgment of 18 January 1980 (реш. № 3421 от 18 януари 1980 г. по гр.д. № 1366/1979 г., І г.о.) the First Civil Division of the Supreme Court held: “In principle the fact of a crime may only be established under the procedures of the Code of Criminal Procedure. That is why, when an alleged civil right derives from a fact which constitutes a crime under the Criminal Code, the civil court, according to Article 182 § 1 (d) of the [CCP], is obliged to stay the civil proceedings. This is necessary in order to respect the decision of the criminal court. It is mandatory for the civil courts regardless of the crime in issue. The mandatory binding force of the decisions of the criminal courts is set out in Article 222 of the [CCP].” 30. The new Article 217a of the CCP, adopted in July 1999, provides: “1. Each party may lodge a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed. 2. The complaint about delays shall be lodged directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The lodging of a complaint about delays shall not be limited by time. 3. The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been filed. 4. In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.” | 1 |
train | 001-61794 | ENG | AUT | CHAMBER | 2,004 | CASE OF YAVUZ v. AUSTRIA | 3 | Violation of Art. 6-1;Violation of Art. 6-3-c and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. On 28 April 1993 the Vorarlberg Regional Employment Office (Landesarbeitsamt) granted the B. company, whose executive director was the applicant, a preliminary and temporary work permit for A., another Turkish citizen. It further stated that should the B. company receive a negative decision on the request for a definitive work permit, A. would loose his right to work four weeks after the service thereof. On 25 May 1993 the Regional Employment Office refused to grant A. a definitive work permit. This decision was served on 26 May 1993. The B. company appealed against it and, referring to A.’s preliminary work permit, requested that its appeal be exceptionally granted suspensive effect. On 20 July 1993 the Constitutional Court (Verfassungsgerichtshof) refused this request. This decision was served on the applicant’s counsel on 12 August 1993. 9. On 19 August 1993 the B. company notified the Bregenz District Administrative Authority (Bezirkshauptmannschaft) of its commercial-law manager’s C. representation by counsel in possible administrative criminal proceedings against him for alleged illegal employment of a foreigner. The B. company argued that C. could not be deemed culpable for the period of time while its complaint had been pending before the Constitutional Court, as it was not until the service of that court’s decision that he learned that suspensive effect had not been granted. 10. On 28 October 1993 the Bregenz District Administrative Authority informed the applicant of its suspicion that he had illegally employed A. between 24 June and 10 August 1993. It invited the applicant either to comment in writing or to make an appointment with the authority for an oral justification within two weeks. 11. On 29 November 1993 the applicant replied to the District Administrative Authority by referring in essence to the contents of the B. company’s notification of 19 August 1993. 12. On 2 March 1994 the District Administrative Authority informed the applicant about the evidence taken in his case and attached a statement by the Vorarlberg Regional Employment Office. It invited the applicant to comment, within two weeks, either in writing or personally, at the authority’s office. 13. On 18 March 1994 the applicant submitted that he had initially employed A. on the basis of his preliminary work permit. He argued that he had not acted culpably as, prior to his case, the Constitutional Court had not ruled on the question whether an appeal against the refusal of a work permit could be granted suspensive effect in view of a prior preliminary work permit. Consequently, in such an unclear legal situation, he could not be blamed for a mistake of law either. 14. On 31 March 1994 the District Administrative Authority imposed a fine of 5,000 Austrian schilling (ATS) on the applicant for breach of Section 28 of the Employment of Foreigners Act (Ausländerbeschäftigungs-gesetz). It noted that he had illegally employed A. after his preliminary work permit had expired on 23 June 1993, i.e. four weeks after the service of the Regional Employment Office’s negative decision of 25 May 1993. It remarked that the B. company’s appeal against the latter decision had no effect on the applicant’s case. 15. On 11 May 1994 the applicant appealed against this decision, repeating in essence his submissions of 18 March 1994. 16. On 2 May 1995 the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereafter referred to as the “IAP”) summoned the applicant and his counsel to an oral hearing scheduled for 26 May 1995. The summons, which indicated that the applicant’s personal presence was required, was addressed to the applicant’s counsel and stated that counsel was obliged to inform the applicant of the date of the hearing. Further, referring to Section 51 f § 2 of the Code of Administrative Offences (Verwaltungsstrafgesetz), it noted that the hearing would be conducted in his absence if he failed to appear. 17. On 17 May 1995 counsel requested a postponement of the hearing because he planned to attend a conference on that date. 18. On 18 May 1995 the IAP refused this request on the ground that witnesses had already been summoned and that counsel was free to send a colleague as substitute. 19. On 26 May 1995 the IAP, in the absence of the applicant and his counsel, held a hearing at which it heard two witnesses, both cousins of the applicant. One of them informed the authority that the applicant was staying in Turkey and had initially asked him to help clarify the case at issue because of his good command of German. The second witness, an employee of the B. company, confirmed that A. had worked and been paid during the period at issue. 20. On 1 June 1995 the IAP sent the applicant’s counsel the minutes of the hearing and enclosed a letter of the Vorarlberg Regional Employment Office of 4 April 1995, which stated that A. had been covered by compulsory insurance for workers between 6 May and 20 August 1993. The IAP further invited him to comment in writing within one week. 21. On 7 June 1995 counsel requested a suspension of the proceedings until the applicant’s return to Austria in order to hear him in person. On the same day, the IAP informed counsel that the decision would be pronounced publicly on 22 June 1995. 22. On 19 June 1995, referring to the applicant’s right under Article 6 of the Convention, counsel requested again that the proceedings and the public pronouncement be adjourned until the applicant’s return to Austria. 23. On 22 June 1995 the IAP confirmed the District Administrative Authority’s decision. It noted that the facts had been sufficiently established by the witnesses. Thus, there was no need to hear the applicant upon his return to Austria. For the same reason the IAP had also refused the request for adjournment of 19 June 1995. Given the applicant’s representation by counsel throughout the proceedings, counsel had the possibility to attend hearings, where he could have forwarded arguments in favour of the applicant and could have examined the witnesses, thereby preserving the applicant’s defence rights. However, counsel had failed to make use of these opportunities. Moreover, since counsel had only forwarded arguments of law in defence and had never explicitly opposed the imputed fact of employment, there was no reason to hear the applicant. The IAP further held that the applicant could not enjoy impunity for having committed a mistake of law, as this only applied in the event an authority, e.g. the Employment Office, had incorrectly informed him. However, the applicant had never sought legal advice by a competent authority. 24. On 8 August 1995 the applicant lodged a complaint with the Constitutional Court invoking Article 6 of the Convention. 25. On 26 February 1996 the Constitutional Court declined to deal with the complaint on the ground that it did not raise a question of constitutional law. It noted that Article 6 would only be violated if the IAP had incorrectly applied Section 51 f § 2 of the Code of Administrative Offences and remitted the complaint to the Administrative Court (Verwaltungsgerichtshof). 26. On 23 August 1996 the applicant supplemented his complaint and requested legal aid. 27. On 13 November 1996 the Administrative Court noted that the applicant had failed to submit the forms for legal aid request within the set time-limit. 28. On 10 January 1997 the IAP submitted observations in reply, repeating in essence its findings of 22 June 1995. 29. On 1 July 1998 the Administrative Court, referring to its findings in a similar case, dismissed the complaint. It noted that counsel, without just cause, had not attended the hearing. Therefore the IAP had lawfully continued the hearing in the absence of counsel and the applicant, in accordance with Section 51 f § 2 of the Code of Administrative Offences. Consequently, the applicant’s defence rights as guaranteed under Article 6 of the Convention had not been infringed. The decision was served on the applicant’s counsel on 29 July 1998. 30. Section 51 f § 2 of the Code of Administrative Offences (Verwaltungsstrafgesetz) provides that the absence of a party at a hearing, though having been duly summoned, does not impede the holding of the hearing or the decision-taking either. | 1 |
train | 001-89123 | ENG | POL | CHAMBER | 2,008 | CASE OF GUZIUK v. POLAND | 4 | Violation of Article 5 - Right to liberty and security | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | 5. The applicant was born in 1956 and lives in Szczecin. He is currently detained in Goleniów Prison. 6. On 7 March 2000 the Szczecin – Zachód District Prosecutor filed a bill of indictment with the Szczecin District Court. The applicant, a recidivist offender, was charged with three robberies and causing minor bodily harm. On 8 September 2000 the Szczecin District Court ordered that the case be transferred to the Regional Court and joined with the second set of proceedings (see below). 7. The applicant was arrested on 7 January 1998. On 8 January 1998 the Szczecin District Court ordered him to be placed in detention pending trial on suspicion of robbery, assault and intimidating a witness. His detention was subsequently extended by the District Court on 29 January, 31 March and 1 June 1998. 8. On 30 June 1998 the Poznań Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention until 7 October 1998. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged. It further held that the gravity of the charges and the likelihood that the applicant would be given a heavy sentence justified the risk that he might obstruct the proceedings. 9. On 29 September 1998 the Court of Appeal extended the applicant’s detention until 7 January 1999. 10. On 6 January, 29 July and 13 December 1999 the Supreme Court (Sąd Najwyższy) extended the applicant’s detention. It relied on the reasonable suspicion that the applicant had committed the offences in question. It also had regard to the nature of the charges against the applicant and their number. Furthermore, it held that the applicant had refused to consent to an examination by psychiatrists, and had thus deliberately prolonged the investigation. 11. In October 1999 the applicant was transported to Łódź Prison Hospital for treatment, where he went on a hunger strike. On 17 December 1999 he was transported back to Potulice Prison Hospital. He persistently refused to undergo the relevant medical tests (except for 2 X-rays of his lungs). 12. On 7 March 2000 the Szczecin District Prosecutor filed a bill of indictment with the Szczecin Regional Court. The applicant was charged with 26 different offences, including threatening to kill a witness, intimidating a witness, uttering threats, two counts of assault, extortion and a number of robberies. The applicant was the sole defendant. On the same date the prosecutor filed another bill of indictment with the Szczecin District Court. The applicant was charged with three robberies and causing minor bodily harm. Both sets of proceedings were joined on 8 September 2000. 13. On 17 March 2000 the Supreme Court extended the applicant’s detention until 30 September 2000. It held that it was necessary in order to secure the proper conduct of the proceedings and to prevent the applicant from obstructing them. Furthermore, it found that the applicant, by deliberately refusing to cooperate with the prison health service, had aimed at compelling the court to release him. Thus, he had impeded the conduct of the investigation. 14. On 21 April 2000 the Regional Court informed the applicant, who was suspected of having contracted tuberculosis, that if he continued to refuse to undergo medical tests with a view to determining whether he could participate in the trial without posing an epidemiological danger to other persons, the court would conduct the trial in his absence. 15. On 2 June 2000 the Regional Court stayed the proceedings. It found that the applicant had refused to undergo medical tests necessary to determine whether he was suffering from TB. 16. On 21 September 2000 the Poznań Court of Appeal extended the applicant’s detention until 31 March 2001, relying on the same grounds as given in the previous decisions. 17. On 14 November 2000 the Regional Court refused an application by the applicant for his release. 18. On 6 March 2001 the Regional Court applied to the Court of Appeal for a further extension of the applicant’s detention. It specified that the applicant had been charged with numerous offences against the residents of his neighbourhood. It found that there was a very significant risk that the applicant might obstruct the proceedings, given that it had been established in the course of the investigation that he had intimidated the victims. On 20 March 2001 the Court of Appeal extended the applicant’s detention until 30 September 2001, endorsing the arguments of the Regional Court. The applicant appealed. On 24 April 2001 a different panel of the Court of Appeal dismissed his appeal. 19. On 25 May 2001 the Regional Court resumed the trial. It noted that the applicant had persistently refused to undergo the relevant medical tests, and had thus impeded the proceedings. The applicant appealed against the decision to resume the trial. On 28 June 2001 the Court of Appeal quashed that decision on procedural grounds. 20. On 18 September 2001 the Court of Appeal extended the applicant’s detention until 30 March 2002. The decision was upheld on appeal. 21. On 29 January 2002 the Regional Court refused an application by the applicant for his release. It found that for many months he had hindered the conduct of the proceedings and attempted to compel the court to release him. It further noted that the applicant had persistently refused to undergo medical tests, and that his only aim had been to use the state of his health as an argument militating in favour of his release. 22. On 14 February 2002 the Regional Court resumed the proceedings. That decision was upheld on appeal on 14 March 2002. 23. On 20 March 2002 the Court of Appeal ordered that the applicant be kept in detention until 30 September 2002, invoking the grounds given in the previous decisions. On 28 May 2002 the Regional Court refused an application by the applicant for his release. 24. The Regional Court held hearings on 17 and 19 June 2002. On the former date it decided to conduct the trial in the applicant’s absence. It found that the applicant’s obstructive behaviour was the main obstacle to the conduct of the proceedings. 25. On 25 June 2002 the Regional Court decided to hear evidence from the applicant in Potulice Prison. However, the applicant remained silent throughout and did not answer any of the judge’s questions. 26. Further hearings were held on 28 June, 9 July, 2 August, 2 September, 7 and 23 October, 14 and 22 November, 5 and 16 December 2002. They took place in the applicant’s absence given that he had continuously refused to undergo medical tests. On 19 August 2002 the Regional Court informed the applicant that he could participate in the trial if he agreed to undergo medical tests and if their results showed that he did not pose a health risk to others. 27. On 19 September 2002 the Court of Appeal extended the applicant’s detention until 30 December 2002, finding that the grounds previously given remained valid. 28. On 20 December 2002 the Szczecin Regional Court convicted the applicant of all the offences with which he had been charged, except for one count of intimidating a witness and one count of robbery. It sentenced him to twelve years’ imprisonment. 29. The applicant appealed. On 8 April 2003 the Court of Appeal upheld the first-instance judgment. 30. The applicant unsuccessfully requested the Ombudsman to file a cassation appeal on his behalf. It appears that the applicant did not lodge a cassation appeal with the Supreme Court. 31. On 26 April 2002 the applicant lodged a criminal complaint with the prosecution service, alleging that he had been ill-treated by the prison staff. On 16 June 2002 the Nakło nad Notecią District Prosecutor refused to institute criminal proceedings, finding that no offence had been committed. It noted that the applicant had persistently refused to undergo treatment for TB. It further found that any disciplinary measure taken against the applicant had resulted from breaches of the relevant prison rules. The applicant appealed. 32. On 9 December 2002 the Nakło nad Notecią District Court upheld the contested decision. It held that the actions of the prison staff had been motivated by the applicant’s illness and his refusal to undergo medical treatment, and could not be considered as ill-treatment. 33. The applicant claimed that during his detention his correspondence was censored and/or delayed by the authorities. 34. The Nakło nad Notecią District Prosecutor dispatched a letter to the applicant on 10 June 2002. That letter was delivered to Potulice Prison on 11 June 2002. The envelope bears the stamp “Potulice Prison 11-06-2002”. However, the applicant submitted that the letter had been delivered to him on 24 June 2006, after having been censored by the Regional Court. 35. On 7 November 2002 the Court’s Registry sent a letter to the applicant. That letter was first delivered to Potulice Prison on 18 November 2002 and subsequently, according to the applicant, was sent to the Szczecin Regional Court. It was re-delivered to Potulice Prison on 28 November 2002 and given to the applicant on the same day. The envelope in which the Registry’s letter was sent bears two stamps that read “Potulice Prison 18112002” and “Potulice Prison 28-11-2002” and a handwritten note in pencil “R[egional] C[ourt] Szczecin”. 36. On 27 January 2003 the Court’s Registry sent the applicant a letter in which it acknowledged receipt of his application form. That letter was first delivered to Potulice Prison on 31 January 2003 and subsequently was sent to the Szczecin Regional Court. It was re-delivered to Potulice Prison on 11 February 2003 and given to the applicant on the same day. The envelope in which that letter was sent bears two stamps that read “Potulice Prison 3101-2003” and “Potulice Prison 11-02-2003” and a handwritten note in pencil “R[egional] C[ourt] Szczecin”. 37. On 31 January 2003 the Court’s Registry sent the applicant a letter in which it had acknowledged the receipt of his letter. That letter was first delivered to the Potulice prison on 6 February 2003, and, was subsequently sent to the Szczecin Regional Court. It was re-delivered to the Potulice prison on 17 February 2003 and given to the applicant on the same day. The envelope in which that letter was sent bears two stamps that read “Potulice Prison 06-02-2003” and “Potulice Prison 17-02-2003” and a hand written note in pencil “R[egional] C[ourt] Szczecin IIIK”. 38. On 9 April 2003 the Court’s Registry sent another letter to the applicant. That letter was first delivered to Potulice Prison on 15 April 2003 and was subsequently re-delivered to Wronki Prison on 22 April 2003, where the applicant had been transferred. The applicant claims that that letter was given to him on 30 April 2003. The envelope in which that letter was sent bears two stamps that read “Potulice Prison 15-04-2003” and “Wronki Prison 22-04-2003”. 39. The applicant’s counsel posted a letter to the applicant on 26 March 2003. That letter was first delivered to Potulice Prison on 28 March 2003 and subsequently, according to the applicant, was sent to the Szczecin Regional Court. It was re-delivered to Potulice Prison on 11 April 2003 and given to the applicant on the same day. The envelope in which it was sent bears two stamps that read “Potulice Prison 28-03-2003” and “Potulice Prison 11-04-2003” and a handwritten note in pencil “R[egional] C[ourt] Szczecin”. 40. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 41. The relevant domestic law concerning the means of monitoring the correspondence of persons involved in criminal proceedings applicable at the material time is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006. | 1 |
train | 001-90360 | ENG | UKR | CHAMBER | 2,008 | CASE OF SAVINY v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva | 5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny. 6. Both applicants have been blind since childhood. 7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties. 8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water. 9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001. 10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School (Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської). 11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given. 12. Between 1998 and 2004 representatives of the Municipal Juvenile Service (Служба у справах неповнолітніх) and the Tutelage Board (Орган опіки та піклування), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S. 13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows. 14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible. 15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response. 16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response. 17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation. 18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) in financial assistance to pay for electricity. 19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up. 20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes. 21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia. 22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 in various compensatory payments in respect of the subsequent idle period. 23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care. 24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows: “ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone... The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible (жахливі) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements (антисанітарія), very poor financial state.... ... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia... The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...” 25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention. 26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia: “The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them. According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.” 27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings. 28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker (соціальний педагог) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for. 29. The relevant provisions of the Constitution of Ukraine read as follows: Article 32 “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...” Article 51 “...The family, childhood, motherhood and fatherhood are under the protection of the State.” 30. The relevant provisions of the Family Code of Ukraine read as follows: Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights “1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education. In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board. 2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents. In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights. The same claim can be lodged by the prosecutor. 3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child” 31. The relevant provisions of the Law read as follows: Section 11. A child and a family “(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care” Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child “to be brought up in a family is a fundamental principle for development of a child” The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family” Section 14. Separation of a child and family “Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment” 32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows: (...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH), which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)” 33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows: “(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty; (...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels. (...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”. 35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others: « (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child; – preventive measures of support for children and families in accordance with their special needs should be provided as far as possible; – the placement of a child should remain the exception and have as the primary objective the best interests of the child (...) ; – the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).» 36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach. | 1 |
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