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train | 001-78902 | ENG | POL | CHAMBER | 2,007 | CASE OF TROJANCZYK v. POLAND | 4 | Violation of Art. 6-1 | Nicolas Bratza | 4. The applicant was born in 1951 and lives in Warszawa. 5. On 23 June 1993 the applicant lodged a petition for divorce with the Warsaw Regional Court. 6. On 14 December 1993 the Warsaw Regional Court decided to secure the payment of the applicant’s maintenance claims on the property of the applicant’s husband pending the outcome of the divorce proceedings. On 25 August 1995 it changed its previous decision on the issue of security for the payment of the maintenance claims. The defendant, the applicant’s husband, appealed. On 14 February 1996 the Warsaw Court of Appeal dismissed the appeal. Hearings before the Regional Court were held on 4 November and 14 December 1993, 6 January, 15 February and 25 April 1994, 28 April, 2 August and 25 August 1995, 5 March 1997, 28 January, 7 April and 16 June 1999. On 17 January 2001 the Warsaw Regional Court gave a judgment ruling on the divorce petition. The applicant was served with it on 12 March 2001. The relevant domestic provisions and practice concerning the State’s liability for a tort committed by its official have been already cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, and Białas v. Poland, no. 69129/01). | 1 |
train | 001-101566 | ENG | TUR | CHAMBER | 2,010 | CASE OF LORDOS AND OTHERS v. TURKEY | 4 | Violation of P1-1;Violation of Art. 8;No violation of Art. 8 | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | 10. The applicants were born in 1940, 1941, 1938, 1952, 1946, 1953, 1925, 1940, 1929, 1952, 1926, 1948 and 1948 respectively and live in southern Cyprus. 11. The applicants alleged that their homes, as well as other immovable properties, had been in the districts of Famagusta and Kyrenia (northern Cyprus). In July 1974, as the Turkish troops were advancing, they had been forced to leave their houses and belongings. 12. The properties claimed by the applicants were described as follows in the Court's final decision on the admissibility of the application. 13. Properties of applicant no. 1, Mr Constantinos G. Lordos: (1) Kyrenia, Livera, Fyrades-Tsounni, Plot No. 1, Sheet/Plan: 5/54, Area: 47:2:335m² Use: Land, Share: 1/15; (2) Famagusta, Egkomi, Salamina, Plot No. 56/1, Sheet/Plan: 24/42, Area: 0:8:900m², Use: Land, Share: 1/12; (3) Famagusta, Trikomo, Finikoudia/Leivadia, Plot Nos. 209, 211, 199/1, Sheet/Plan: 15/43, Area: 0:3:213, 0:1:894, 1:3:409, Use: Land, Share: 1/3, 1/3, ½ respectively; (4) Famagusta, Trikomo, Pervolia Trikomou/Kokkines, Plot No. 140/1, Sheet/Plan: 15/43, Area: 1:6:92, Use: Land, Share: 1/3; (5) Famagusta, Vasili, Ammos, Plot Nos. 172, 173, 179, Sheet/Plan: 8/21, Area: 0:8:455m², 0:8:848, 0:4:977, Use: Land, Share: 1/8 in total; (6) Famagusta, Vasili, Ammos, Plot Nos. 190, 191, 193, 194, 195, 196, Sheet/Plan: 8/21, Area: 0:6:924, 0:9:912, 0:1:800, 0:1:791, 0:2:370, 0:2:568, Use: Land, Share: ½ in total; (7) Famagusta, Avgorou, Mantres tou Tzipou, Plot No. 187, Sheet/Plan: 32/40, Area: 0:6:331, Use: Land, Share: ¼; (8) Famagusta, Avgorou, Mantres tou Tzipou, Plot Nos. 204, 205, 206, 207, 208/1, 208/2, Sheet/Plan: 32/40, Area: 1:1:3, 1:3:704, 0:4:513, 0:4:696, 0:2:655, 0:2:508, Use: Land, Share: ¼; (9) Famagusta, Ayios Theodoros, Valia, Plot No. 14, Sheet/Plan: 15/24, Area: 1:1:520, Use: Land, Share: 1/5; (10) Famagusta, Ayios Nicolaos, Plot No. 1265, Sheet/Plan: 33/13.4.4, Use: Shop A Lordos Cyprian Court, Share: No. 1265, Sheet/Plan: 33/13.4.4, Use: Shop D - Lordos Cyprian Court, Share: 100%; (11) Famagusta, Chrysi Akti, Plot No. 777, Sheet/Plan: 33/21.1.2, Block A, Area: 0:1:864, Use: Land and buildings, Share: ¼; (12) Famagusta, Ayios Nicolaos, Plot No. 1009, Sheet/Plan: 33/12.6.2, Block D, Area 0:0:660, Use: Land and building 10 shops, 8 flats, 2 underground stores, Share: ¼; (13) Famagusta, Ayios Memnon, Plot Nos. 370, 379, Sheet/Plan: 33/29.3.4, Block E, Area: 0:3:821, Use: Land, Share: 7/20; (14) Famagusta, Acropolis, Plot No. 463, Sheet/Plan: 33/21/4.3, Block J, Area: 0:0:260, Use: Building site, Share: ¼; (15) Famagusta, Ayios Loucas, Plot Nos. 83, 85, Sheet/Plan: 33/3, Block C, Area: Unknown, Use: Land under development, Share: ¼; (16) Famagusta, Salamina, Plot No. 19, Sheet/Plan: 24/59, Block D, Area: 1:8:80, Use: Land in industrial area, Share: 1/6; (17) Famagusta, Salamina, Plot Nos. 1192, 1194, 1181, 1183, Sheet/Plan: 24/60, Block C, Area: 0:0:521, 0:0:535, 0:0:518, 0:0:530, Use: Building site, Share: 1/10, 1/10, ¼, ¼ respectively; (18) Famagusta, Salamina, Plot No. 49, Sheet/Plan:. 24.60, Block D, Area: 6:5:350, Use: Land, Share: 11/80; (19) Famagusta, Salamina, Plot No. 949, Sheet/Plan: 24/60, Block C, Area: 4:7:9, Use: Land under development, Share: 1/10; (20) Famagusta, Salamina, Plot Nos. 180, 181, 183, Sheet/Plan: 24/59, Block D, Area: 0:0:970, 0:0:838, 0:0:731, Use: Building sites, Share: ¼; (21) Famagusta, Salamina, Plot Nos. 192, 194, 195, Sheet/Plan: 33/3, Block D, Area: 0:0:793, 0:0:771, 0:0:801, Use: Building sites, Share: ¼; (22) Famagusta, Salamina, Plot No. 667, Sheet/Plan: 24/59, Block D, Area: 0:0:533, Use: Building site, Share: ¼; (23) Famagusta, Salamina, Plot No. 1960, Sheet/Plan: 24/59, Block D, Area: 4:5:732, Use: Land, Share: 17/100; (24) Famagusta, Ayios Loucas, Plot Nos. 1650, 1651, 1656, 1657, 1658, 1659, 1665, 1667, 1668, 1680, Sheet/Plan: 33/3, Block C, Area: Unknown, Use: Land, Share: 7/20; (25) Famagusta, Ayios Loucas, Plot No. 1703, Sheet/Plan: 33/3, Block C, Area: Unknown, Use: Building site, Share: 7/20; (26) Famagusta, Ayios Nicolaos, Plot No. 1006, Sheet/Plan: 33/12/6.2, Block D, Area: 0:0:552, Use: Land and buildings, 6 shops, 4 bedroom (offices), 2 underground stores, Share ¼; (27) Famagusta, Chrysi Akti, Plot No. 781, Sheet/Plan: 3/12.1.2. Block A, Area: 1:0:1455, Use: Golden Plage Hotel (3 star) (96 rooms, reception room, bar, cafeteria, restaurant), Share: ¼; (28) Famagusta, Chrysi Akti, Plot No. 181, Sheet/Plan: 33/21.1.2, Block A, Area: 0:0:466, Use: Building site, Share: ¼; (29) Famagusta, Kantara, Plot No. 56, Sheet/Plan: 68/39, Area: Unknown, Use: Kantara Lodge (9 double rooms, billiard room, sitting room), Share ¼; (30) Famagusta, Chrysi Akti, Plot No. 850, Sheet/Plan: 33/21.2.1, Block A, Area: Unknown, Use: Studio No. 6 Lordos des Sirenes, Share: 100%; (31) Famagusta, Chrysi Akti, Plot No. 850, Sheet/Plan: 33/21.2.1, Block A, Area: Unknown, Use: Flat No. 9 Lordos des Sirenes, Share: 100%; (32) Famagusta, Ayios Ioannis, Plot No. 645, Sheet/Plan: 33/12.3.2 Block C, Area: 0:1:815, Use: Shop No. 1- Lordos Waterfront, Share: 100%; (33) Famagusta, Ayios Ioannis, Plot No. 645, Sheet/Plan: 33/12.3.2, Block C, Area: Unknown, Use: Flat No.4 – 1st Floor Lordos Waterfront, Share: 100%; (34) Famagusta, Ayios Ioannis, Plot No. 645, Sheet/Plan: 33/12.3.2, Block C, Area: Unknown, Use: Flat No. 36 - 2 bedrooms - 5th Floor Lordos Waterfront, Share: 100%; (35) Famagusta, Ayios Ioannis, Plot No. 645, Sheet/Plan: 33/12.3.2, Block C, Area: Unknown, Use: Flat No 31 4th Floor, Lordos Waterfront, Share: ¼; (36) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13/1.1, Block C, Area: Unknown, Use: Shop B- Lordos Seagate Court, Share: 100%; (37) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 2 - 1 bedroom ground floor - Lordos Seagate Court, Share: 100%; (38) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 33 - 2 bedrooms - 7th Floor Lordos Seagate Court; (39) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 52 - 2 bedrooms - 1st Floor Lordos Seagate Court, Share: 100%; (40) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 54 - 2 bedrooms - 2nd Floor Lordos Seagate Court, Share: 100%; (41) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 62 - 2 bedrooms - Ground Floor Lordos Seagate Court, Share: 100%; (42) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 75 - 2 bedrooms - 4th Floor Lordos Seagate Court, Share: 100%; (43) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 77 - 2 bedrooms - Ground Floor Lordos Seagate Court, Share: 100%; (44) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 17 - 3 bedrooms - 3rd Floor Lordos Seagate Court, Share: 100%; (45) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 56 - 2 bedrooms - 3rd Floor Lordos Seagate Court, Share: ¼; (46) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 58 - 2 bedrooms - 4th Floor Lordos Seagate Court, Share: ¼; (47) Famagusta, Salamina, Plot No. 542, Sheet/Plan: 24/51, Block D, Area: 0:0:557, Use: Building site, Share: ¼; (48) Famagusta, Kennedy Avenue, Plot No. 982, Sheet/Plan: 33/21.2.3 +33/21.2.1, Area: Unknown, Use: Apollon Court, Flats facing sea furnished and rented as hotel apartments, Share: 100%; (49) Famagusta, Kennedy Avenue, Plot No. 850, Sheet/Plan: 33.21.2.1, Area: Unknown, Use: Shops, Share: ¼; (50) Famagusta, Kennedy Avenue, Plot No. 850, Sheet/Plan: 33/21.2.1, Area: Unknown, Use: 2 Flats facing the sea in Lordos les Sirenes Court, Share: 100%; (51) Famagusta, Stavros, Plot No. 995, Sheet/Plan: 33/13.4.IV, Area: 0:0:21, Use: Lordos Etoile Court- 1 Flat facing sea, Share: 100%; (52) Famagusta, Ayios Nicolaos Plot Nos. 561, 563, 355, Sheet/Plan: 33/13.4.IV, Area: Unknown, Use: one three bedroom flat, Share: 100%; (53) Famagusta, Salamina, Plot No - Sheet Number - Unknown, Area: Unknown, Use: Lordos Seagate Court - 2 one bedroom flats - 1 three bedroom flat - 2 two bedroom flats, Share: 100%; (54) Famagusta, Tricomo, Plot No. 89, Sheet/Plan: 15/59, Area: 0:3:711, Use: Seaside land near Nicolas Beach, Share: ½; (55) Famagusta, Ayios Sergios, Plot No. 60, Sheet/Plan: 24/11, Area: 0:3:202, Use: Seaside land, Share: ½; (56) Famagusta, Ayios Sergios, Plot Nos. 261, 262, Sheet/Plan: 24/18, Area: 0:4:770, 0:6:244, Use: Seaside land, Share: ½; (57) Famagusta, Ayios Sergios, Plot No. 68/2, Sheet/Plan: 24/10, Area: Unknown, Use: 15 Building sites, Share: ¼; (58) Famagusta, Limnia, Plot and Sheet Nos. Unknown, Area: 6 Donums, Use: Land abutting main Famagusta Nicosia new road; (59) Famagusta, Ayios Sergios, Plot and Sheet Nos. Unknown, Area: 16 Donums, Use: Orange Garden at Ayios Sergios, Apostolos Varnavas; (60) Famagusta, Ayios Loucas, Salamis Avenue, Plot Nos. 4, 25, 27, 34, 38, Sheet/Plan: 24/59.E.1, Area: Unknown, Use: 5 Building sites in Eucalyptus Plantation, Share: 100%; (61) Famagusta, Ayios Loucas, Plot No. 1960, Sheet/Plan: 24/59, Area: 34:0:2655, Use: Building land, Share: 17/100; (62) Famagusta, Neoptolemos Street, Plot Nos. 406, 1457, 1460, 1474, Sheet/Plan: 24/59, Area: unknown, 0:0:541, 0:0:523, 0:0:505, Share: 100% with exception of Plot No. 1457 where share ½; (63) Famagusta, Ayios Loucas, Salamis Avenue, Plot No. Unknown, Sheet/Plan: 24/59, Area: Unknown, Use: Building site, Eucalyptus plantation, Share: ½; (64) Famagusta, Ayios Loucas, Plot No. Unknown, Sheet/Plan: 24/59.E.1 +11, Area: Unknown, Use: Building site No. 30, Eucalyptus Plantation, Share: ¼; (65) Famagusta, Ayios Loucas, Plot Nos. 156, 324, 289, Sheet/Plan: 24/59- 33/03, Area: 5:2:939, 1:1:262, 3:0:109, Use: Building land: 90 Donums abutting main Salamis Avenue, UN Camp, Share: ½; (66) Famagusta: Ayios Loucas, Karaolos, Plot No. 1480, Sheet/Plan: 24/60, Area: 1:5:423, Use: Building land, Share: 1/10; (67) Famagusta, Karaolos, Plot No. 506, 507, Sheet/Plan: 33/4.W.1 + 24/60.W.2, Area: 16 Donums, Use: 9 Building sites, Share: ½; (68) Famagusta Ayios Loucas, Plot Nos. 204 and 205 Sheet/Plan: 33/4, Area: 1:1:814, Use: 9 Donums, Building sites in the vicinity of New Famagusta Harbour, Share: ¼; (69) Famagusta, Ayios Loucas, Plot No. 395, Sheet Plan: 33/59, Area: Unknown, Share: ¼. 14. On 8 July 2003 the representative of applicant no. 1 declared that his client wished to add further properties to those indicated above. The Government considered that the Court should not take into consideration additional claims submitted after the adoption of the decision on admissibility. 15. Properties of applicant no. 2, Mr Kikis L. Christofides: (1) Famagusta, Ayios Ioannis, Plot No. 272, Sheet/Plan: 33/12.3.4, Area: 521m², Use: Residence on 1st floor and rented shops and offices on ground Floor, Share: ½; (2) Famagusta, Kantara Davlos, Plot No. 7/50, Sheet/Plan: 68.13/1/1, Area: Unknown, Use: House with a garden, Share: 100%; (3) Famagusta, Lefkonico, Registration No. 4400, Plot No. 300/1, Sheet/Plan: 14/60, Area: 0:1:822, Use: Buildings & buildings sites all for rent, Share: 100%; (4) Famagusta, Ayios Nicolaos, Plot No. 293, Sheet/Plan: 33/13, Block E, Area: 0:1:130, Use: multi-storey building complex of hotel apartments all for rent, Share: ½; (5) Famagusta, Ayios Nicolaos, Plot No. 1002 Sheet/Plan: 33/12 Block D, Area: 736m², Use: Building & offices, one of which was the applicant's office, Share: ½; (6) Famagusta, Larnaca Road, Registration No. 5355, Plot No. 776, Sheet/Plan: 3319, Block D, Area: 1:3:3200, Use: Building site for development or sale, Share: ½; (7) Famagusta, Larnaca Road, Plot No. 782, Sheet/Plan: 33/19, Block D, Area: Unknown, Use: Building site for development or sale, Share: 100%; (8) Famagusta, Larnaca Road, Plot No. 783, Sheet/Plan: 33/19, Block D, Area: Unknown, Use: Building site for development or sale, Share: 100%; (9) Famagusta, Larnaca Road, Plot No. 784, Sheet/Plan: 33/19, Block D, Area: Unknown, Use: Building site for development or sale, Share: 100%; (10) Famagusta, Larnaca Road, Plot No. 785, Sheet/Plan: 33/19, Block D, Area: Unknown, Use: Building site for development or sale, Share: 100%; (11) Famagusta, Larnaca Road, Plot No. 786, Sheet/Plan: 33/19, Block D, Area: Unknown, Use: Building site for development or sale, Share: 100%; (12) Famagusta, Larnaca Road, Plot No. 787, Sheet/Plan: 33/19, Block D, Area: Unknown, Use: Building site for development or sale, Share: 100%; (13) Famagusta, Larnaca Road, Plot No. 788, Sheet/Plan: 33/19, Block D, Area: 0:1:2200, Use: Building site for development or sale, Share: 100%; (14) Famagusta, Larnaca Road, Plot No. 789, Sheet/Plan: 33/19, Block D, Area: 0:1:2200, Use: Building site for development or sale, Share: 100%; (15) Famagusta, Larnaca Road, Registration No. 5385, Plot No. 806, Sheet/Plan: 33/19, Block D, Area: 0:1:500, Use: Plot of land for development or sale, Share: ½; (16) Famagusta, Larnaca Road, Registration No. 5386, Plot No. 807, Sheet/Plan: 33/19, Block D, Area: 0:1:3200, Use: Plot of land for development or sale, Share: ½; (17) Famagusta, Larnaca Road, Registration No. 5394, Plot No. 815, Sheet/Plan: 33/19, Block D, Area: 1:2:400, Use: Plot of land for development or sale, Share: ½; (18) Famagusta, Ayios Lukas, Plot No. 617, Sheet/Plan: 33/11, Block B, Area: Unknown, Use: Plot of land with a well, Share: 100%. 16. Applicant no. 2 also referred to 31 properties which were registered in the name of his wife, Mrs Eleni. K. Christofides, and one property which was registered in the name of his mother, Mrs C. L. Christofides. 17. Properties of applicant no. 3, Mr Zacharias Spyridonos: - Famagusta, Monarga, Boghas, Registration No. 289, Plot No. 370/30, Sheet/Plan: 289, Area: 0:2:2000, Use: Residence along with other buildings and land, Share: 100%. 18. Applicant no. 4, Mr Stavros Ioannou, claimed that his father, Mr Yiannis Ioannou, was the owner of the following property: - Famagusta, Ayia Zoni, Plot No. 162, Sheet/Plan: 33/21.4.1, Area: 2809 m², Use: Residence, Share: 100%. 19. Properties of applicant no. 5, Mr Areti G. Ionides: (1) Famagusta, Ayios Nicolaos, Plot No. 1265, Sheet/Plan: 33/13.4.IV Block E, Area: Unknown, Use: Shop G - ground floor, Lordos Cyprian Court, Share: 100%; (2) Famagusta, Chrysi Akti, Plot No. 777, Sheet/Plan: 33/21.I.II – Block A, Area: 1:1:2063, Use: Land and buildings, Share: ¼; (3) Famagusta, Ayios Nicolaos, Plot No. 1009, Sheet/Plan: 33/12.6.II, Block D, Area: 0:1:3504, Use: 10 shops, 8 flats, 2 underground stores, Share: ¼; (4) Famagusta, Ayios Memnon, Plot Nos. 370,379, Sheet/Plan: 33/29.3.III, Block E, Area: 0:3: 821, Use: Land, Share: ¼; (5) Famagusta, Akropolis, Plot No. 463, Sheet/Plan: 33/21.4.III, Area: 0:0:2798, Use: Building site, Share: ¼; (6) Famagusta, Ayios Loucas, Plot Nos. 85, 83, Sheet/Plan: 33/3 W.2, Block C, Area: Unknown, Use: Land under development, Share: ¼; (7) Famagusta, Salamina, Plot No. 19, Sheet/Plan: 24/59.W.2, Block C, Area: 13:2:211, Use: Land in industrial area, Share: 1/6; (8) Famagusta, Salamina, Plot Nos. 1181, 1183, 1192, 1194, Sheet/Plan: 24/60. W.2, Block C, Area: 0:1:1975, 0:1:2104, 0:1:2007, 0:1:2158, Use: Building site, Share: ¼; (9) Famagusta, Salamina, Plot No. 49, Sheet/Plan: 24/60.W.2, Block D, Area: 48:3:1421, Use: Land, Share: ¼; (10) Famagusta, Salamina, Plot No. 949, Sheet/Plan: 24/60.W.2, Block C, Area: 35:0:2000, Use: Land under development, Share: ¼; (11) Famagusta, Salamina, Plot Nos. 180, 181, 183, Sheet/Plan: 24/59.E.2, Block D, Area: 0:2:3240, 0:2:1820, 0:2:668, Use: Building sites, Share: ¼; (12) Famagusta, Salamina, Plot Nos. 192, 194, 195, Sheet/Plan: 33/3.E.1, Block D, Area: 0:2:1335, 0:2:1098, 0:2:1421, Use: Building sites, Share: ¼; (13) Famagusta, Salamina, Plot No. 667, Sheet/Plan: 24/59.W.1, Block D, Area: 0:1:2137, Use: Building site, Share: ¼; (14) Famagusta, Salamina, Plot No. 1960, Sheet/Plan: 24/59.E.1, Block D, Area: 34:0:2655, Use: Land, Share: ¼; (15) Famagusta, Ayios Loucas, Plot Nos. 1650, 1651, 1656, 1657, 1658, 1659, 1665, 1667, 1668, 1680, 1703, Sheet/Plan: 33/3.E.1, Block C, Area: Unknown, Use: Building sites, Share: ¼; (16) Famagusta, Ayios Nicolaos, Plot No. 1006, Sheet/Plan: 33/12.6.II, Block D, Area: 0:1:2341, Use: 6 shops, 4 bedrooms-offices, 2 underground stores, Share: 1/8; (17) Famagusta, Chrysi Akti, Plot No. 781, Sheet/Plan: 33/21.1.2, Block A, Area: 1:0:1455, Use: Golden Plage Hotel (3 star hotel, 96 rooms, reception room, bar, cafeteria, restaurant, upper ground floor), Share: ¼; (18) Famagusta, Chrysi Akti, Plot No. 181, Sheet/Plan: 33.21.1.II, Block A, Area: 0:1:1415, Use: Building site, Share: ¼; (19) Famagusta, Kantara, Plot Nos. 56, 68/39, Sheet/Plan: VII/50.6.I, Area: Unknown, Use: Kantara Lodge (9 double rooms, billiard room, sitting room), Share: ¼; (20) Famagusta, Ayios Ioannis, Plot No. 645, Sheet/Plan: 33/12.3.II, Block C, Area: 1:1:1536, Use: Shop No. 6 - Lordos Waterfront, Share: ¼; (21) Famagusta, Ayios Ioannis, Plot No. 645, Sheet/Plan: 33/12.3.II, Block C, Area: 1:1:1536, Use: Flat No. 32 - 2 bedrooms - 4th Floor - Lordos Waterfront, Share: 100%; (22) Famagusta, Ayios Ioannis, Plot No. 645, Sheet/Plan: 33/12.3.II, Block C, Area: 1:1:1536, Use: Flat No. 31 - 2 bedrooms - 4th Floor - Lordos Waterfront, Share: ¼; (23) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Shop C - Lordos Seagate Court, Share: 100%; (24) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 11 - 1 bedroom - 2nd Floor, Lordos Seagate Court, Share: 100%; (25) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Studio No. 46 - 11th Floor - Lordos Seagate Court, Share: 100%; (26) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 38 - 2 bedrooms - 9th Floor - Lordos Seagate Court, Share: 100%; (27) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 105 - 2 bedrooms - ground floor, Lordos Seagate Court, Share: 100%; (28) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 13 - 3 bedrooms - 2nd floor, Lordos Seagate Court, Share: 100%; (29) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 56 - 2 bedrooms - 3rd floor, Lordos Seagate Court, Share: ¼; (30) Famagusta, Ayios Ioannis, Plot No. 714, Sheet/Plan: 33/13.1.1, Block C, Area: Unknown, Use: Flat No. 58 - 2 bedrooms - 4th Floor, Lordos Seagate Court, Share: ¼; (31) Famagusta, Salamina, Plot No. 542, Sheet/Plan: 24/51.E.1, Area: 0:1:2395, Use: Building site, Share: ¼. 20. On 24 July 2003 the representative of applicant no. 5 declared that his client wished to add further properties to those indicated above. The Government considered that the Court should not take into consideration additional claims submitted after the adoption of the decision on admissibility. 21. Property of applicant no. 6, Mr Michalis Evangelides: - Famagusta, Chrisi Akti, Plot No. 701, Sheet/Plan: 33//13.4.3, Area: Unknown, Use: Home, Share: 100% according to the documents submitted at the admissibility stage, ½ according to the expert report submitted with the just satisfaction claims. 22. Applicant no. 8, Mr Christos Hadjimanolis, claimed that his wife, Mrs Melani Hadjimanoli, was the owner of the following property: - Famagusta, Ayia Zoni, Registration No. 9514, Plot No. 308, Sheet/Plan: 33/20.6. IV, Area: 0:2:1152, Use: Residence, Share: 100%. 23. Properties of applicant no. 9, Mr Panayiotis Sergis: (1) Famagusta, Trikomo, Kasallos, Plot No., Area, Sheet/Plan and Registration Number could not be obtained. Use: Building site for sale or development, Share: 100%; (2) Famagusta, Trikomo, Kotsines, Registration No. 6447, Plot No. 292/6, Sheet/Plan: 283/1/2, Area: 0:1: 2400, Use: Building site for sale or development, Share: 100%; (3) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6449, Plot Nos. 283/1/4, 291/1, 292/8, Sheet/Plan: 15/43.E.II, Area: 0:1:2300, Use: Building site for sale or development, Share: 100%; (4) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6456, Plot No. 283/1/5, Sheet/Plan: 15/43.E.II, Area: 0:1:3400, Use: Building site for sale or development, Share: 100%; (5) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6457, Plot No. 283/1/6, Sheet/Plan: 15/43.E.II, Area: 0:2:0, Use: Building site for sale or development, Share: 100%; (6) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6458, Plot No. 283/1/7, Sheet/Plan: 15/43.E.II, Area: 0:2:0, Use: Building site for sale or development, Share: 100%; (7) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6452, Plot Nos. 283/1/8, 291/4 Sheet/Plan: 15/43.E.II, Area: 0:1:2300, Use: Building site for sale or development, Share: 100%; (8) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6453, Plot Nos. 283/1/9, 291/5 Sheet/Plan: 15/43.E.II, Area: 0:1:2300, Use: Building site for sale or development, Share: 100%; (9) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6459, Plot No. 283/1/10, Sheet/Plan: 15/43.E.II, Area: 0:2:0, Use: Building site for sale or development, Share: 100%; (10) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6460, Plot No. 283/2/1, Sheet/Plan: 15/43.E.II, Area: 0:2:100, Use: Building site for sale or development, Share: 100%; (11) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6461, Plot No. 283/2/1, Sheet/Plan: 15/43.E.II, Area: 0:1:2400, Use: Building site for sale or development, Share: 100%; (12) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6462, Plot No. 283/2/2, Sheet/Plan: 15/43.E.II, Area: 0:1:2800, Use: Building site for sale or development, Share: 100%; (13) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6463, Plot No. 283/2/3, Sheet/Plan: 15/43.E.II, Area: 0:1:2700, Use: Building site for sale or development, Share: 100%; (14) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6464, Plot No. 283/2/4, Sheet/Plan: 15/43.E.II, Area: 0:1:2300, Use: Building site for sale or development, Share: 100%; (15) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6465, Plot Nos. 283/2/5, 291/8, Sheet/Plan: 15/43.E.II, Area: 0:1:2300, Use: Building site for sale or development, Share: 100%; (16) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6466, Plot Nos. 283/2/6, 290/1, 291/9, Sheet/Plan: 15/43.E.II, Area: 0:1:2700, Use: Building site for sale or development, Share: 100%; (17) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6467, Plot Nos. 290/2, 291/10, Sheet/Plan: 15/43.E.II, Area: 0:1:2100, Use: Building site for sale or development, Share: 100%; (18) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6468, Plot No. 291/6, Sheet/Plan: 15/43.E.II, Area: 0:1:2300, Use: Building site for sale or development, Share: 100%; (19) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6468, Plot No. 291/7, Sheet/Plan: 15/43.E.II, Area: 0:1:1900, Use: Building site for sale or development, Share: 100%; (20) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6442, Plot Nos. 292/1, 305.3/2, Sheet/Plan: 15/43.E.II, Area: 0:1:2900, Use: Building site for sale or development, Share: 100%; (21) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6443, Plot Nos. 292/2, 305.3/3, Sheet/Plan: 15/43.E.II, Area: 0:1:3200, Use: Building site for sale or development, Share: 100%; (22) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6444, Plot Nos. 292/3, 305.3/4, Sheet/Plan: 15/43.E.II, Area: 0:2:400, Use: Building site for sale or development, Share: 100%; (23) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6445, Plot No. 292/4, Sheet/Plan: 15/43.E.II, Area: 0:1:2600, Use: Building site for sale or development, Share: 100%; (24) Famagusta, Trikomo, Kotsines, Karpasias Road, Registration No. 6441, Plot No. 305.3/1, Sheet/Plan: 15/43.E.II, Area: 0:1:2900, Use: Building site for sale or development, Share: 100%. 24. Applicant no. 10, Mr Georgios Misirlis, claimed that his wife, Mrs Mari G. Misirli, was the owner of the following property: - Famagusta, Ayios Ioannis, Plot No. 287, Sheet/Plan: 33/12.3.IV, Block B, Area: Unknown, Use: the 2nd floor was a residence and the ground floor were shops for rent, Share: 100%. 25. Property of applicant no. 12, Mrs Eleni (alias Lenia) Andoniadou: - Famagusta, Ayios Nicolaos, Plot No. 170, Sheet/Plan: 33/12, Block A, Area: 733m², Use: Residence, Share: ½. 26. Property of applicant no. 13, Mr Stelios Mandrides: - Famagusta, Chrysi Akti, Plot No. 28, Sheet/Plan: 33/21.2.3, Block C, Area: Unknown, Use: Apartment, residence (2 flats), Share: 100%; 27. Applicant no. 13 also claimed that Mandrides Properties Ltd and Famagusta Hotels Ltd, two companies of which he and his sister Athina were the sole shareholders, were the owners of the following properties: (1) Famagusta, Ayios Nicolaos, Registration No. 4186, Plot No. 97, Sheet/Plan: 33/13.4.1, Block E, Area: 0:1:1857, Use: Hotel apartments for rent (16 holiday flats) and cafeteria on ground floor; (2) Famagusta, Ayios Nicolaos, Registration No. 3253, Plot No. 112, Sheet/Plan: 33/12.6.2, Block E, Area: 0:2:1927, Use: Hotel apartments for rent (35 holiday flats) and cafeteria on ground floor; (3) Famagusta, Ayios Ioannis, Plot No. 165, Sheet/Plan: 33/13.1.4, Block C, Area: Unknown, Use: Beach hotel (2 star with 23 rooms); (4) Famagusta, Ayios Nicolaos, Plot No. 1185, Sheet/Plan: 33/12.6.2, Block D, Area: 0:1:1200, Use: Building consisting of ground floor shops, offices and apartments, investment income property; (5) Famagusta, Ayios Memnon, Plot No. 330, Sheet/Plan: 33/29.3.4, Block E, Area: 2:0:1059, Use: Plot of land on the Famagusta Beach destined for a hotel. Applicant no. 13 owned 51% of the shares in the two limited companies, while the remaining 49% belonged to Mrs Athina Mandrides. 28. In support of their claim to ownership, the applicants submitted either copies of the relevant original title deeds or copies of certificates of affirmation of ownership of Turkish-occupied immovable property issued by the Republic of Cyprus after 1974. Applicant no. 9 failed to produce evidence supporting his claim that he was the owner of the building site in Famagusta described in paragraph 23 (1) above. 29. In its final decision on the admissibility of the application the Court noted that the respondent Government did not challenge any of the titles regarding the immovable properties described above. 30. The applicants alleged that since 1974 they had not been able to return to their homes and had been continuously prevented from using and enjoying their properties. | 1 |
train | 001-80492 | ENG | BGR | CHAMBER | 2,007 | CASE OF SIRMANOV v. BULGARIA | 4 | Vilation of Art. 6-1;Violation of P1-1 | Peer Lorenzen | 4. In a judgment of 8 February 1990 the Pleven Military Court convicted the applicant of a criminal offence, which had been, according to this court, committed during the applicant's probationary period after his early release from prison, and sentenced him, inter alia, to serve the remainder of the sentence from his prior conviction, which the applicant did, between 21 December 1989 and 20 March 1990. In a judgment of 16 May 1994 the Supreme Court quashed that judgment and ruled that the applicant should not have served the remainder of his prior prison sentence. 5. In 1998 the applicant brought proceedings against the Pleven Military Court under section 2(6) the State Responsibility for Damage Act (see paragraph 16 below), seeking 25,0000,000 old Bulgarian levs (BGL) as compensation for the time he had spent in custody between 21 December 1989 and 20 March 1990. 6. In a judgment of 7 June 1999 the Pleven Regional Court found that the applicant's deprivation of liberty during that period had been unlawful within the meaning of above-mentioned provision and awarded him BGL 1,000,000 in nonpecuniary damages, together with interest at the statutory rate, from 21 December 1989 until the final settlement of the judgment debt. It dismissed the remainder of the applicant's claim. 7. As none of the parties appealed, the judgment entered into force on 17 June 1999. 8. The applicant obtained a writ of execution against the Pleven Military Court on 17 June 1999. On the same date he presented it to the chairperson of that court for payment. The chairperson made a copy of the writ and returned the original to the applicant. 9. As no payment was made, the applicant complained to numerous State agencies and bodies. 10. In a letter of 14 September 1999 the Inspectorate of the Ministry of Justice informed the applicant that the amount owed to him was BGL 6,128,316. Since this was a significant amount for the budget of the Pleven Military Court, the chairperson of that court had made an express request for funding before the Supreme Judicial Council – the body responsible for managing the judiciary's budget. The debt would be paid fully or in part, depending on the amount of the available funding. 11. On 17 April 2000 the applicant asked the Pleven Regional Court to issue him a duplicate of the writ of execution, because the original had been stolen. His request was examined at a hearing on 16 June 2000 and the duplicate was issued on 9 August 2000. 12. In the meantime, on 23 May 2000, the Supreme Judicial Council allotted to the Pleven Military Court 1,000 new Bulgarian levs (BGN) with a view to paying the debt towards the applicant. On 1 June 2000 the Pleven Military Court paid the applicant BGN 1,000, apparently intended to be imputed to the principal of the debt. However, the remainder of the debt remained outstanding. 13. The applicant subsequently complained to various authorities, such as the President of the Republic, the Supreme Cassation Prosecutor's Office, the Ministry of Finance and the Supreme Judicial Council. In a letter of 8 June 2000 the chief secretary of the Supreme Judicial Council informed the applicant that the processing of the payment had been delayed because the amount due was not a usual line item in the judiciary's budget and had to be specifically allotted to the Pleven Military Court. 14. In a further letter of 7 December 2000 the administration of the Supreme Judicial Council informed the applicant that on 29 November 2000 the chairperson of the Pleven Military Court had apprised the Council that the court lacked funding to pay the remainder of the debt towards the applicant and had requested an increase of its budget appropriation for 2001. 15. On 24 September 2003 the accountant of the Pleven Military Court paid the applicant the remainder of the judgment debt (BGN 5,262.01) and the applicant signed a declaration that he had received the amount and had no further claims against the court or the Supreme Judicial Council. 16. Section 2 of the State Responsibility for Damage Act of 1988 (formerly „Закон за отговорността на държавата за вреди, причинени на граждани“, presently „Закон за отговорността на държавата и общините за вреди“), which sets out causes of action for tort claims against the investigation and prosecution authorities and the courts, provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful: ... 6. execution of a sentence above and beyond the specified period.” 17. By paragraph 2 of Article 399 of the Code of Civil Procedure of 1952, a person who has an enforceable pecuniary claim (e.g. a judgment debt) against a state authority receives payment out of the funds earmarked for that purpose in the authority's budget. 18. The writ of execution evidencing the claim must be submitted to the authority's financial department. If there are no funds available in the authority's budget, the higher administrative authority has to ensure that funds become available in the budget for the following year. 19. Enforcement proceedings are not possible where the judgment debtor is a state authority. Until December 1997 paragraph 1 of Article 399 of the Code contained an express prohibition to that effect. Although this provision was repealed in December 1997, the legal framework remained unchanged, as paragraph 2 of Article 399 was not amended. 20. Section 66 of the Obligations and Contracts Act of 1950 („Закон за задълженията и договорите“) provides that the creditor is not bound to accept partial payment even if the obligation is severable. Section 76(2) of that Act provides that when a payment by the debtor is not sufficient to extinguish the interest, the expenses and the principal of the debt, the money paid is imputed first to the expenses, then to the interest, and at the end to the principal. This rule is in the interest of the creditor (реш. № 748 от 24 април 2001 г. по гр.д. № 2504/2000 г., V г.о. на ВКС) and reflects the idea that he or she should not be deprived of an interestbearing debt and remain only with the claim in respect of the interest (реш. № 6 от 6 януари 1956 г. по гр.д. № 7963/1955 г., I г.о. на ВС). | 0 |
train | 001-96035 | ENG | POL | CHAMBER | 2,009 | CASE OF WIECZOREK v. POLAND | 3 | Preliminary objection dismissed (Article 37-1 - Striking out applications);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1952 and lives in Cracow. 6. In a letter of 18 September 2000 to the Social Insurance Authority (Zaklad Ubezpieczeń Spolecznych) in Cracow, the applicant's husband submitted that in his view the applicant, who had been receiving a disability pension since 1985, was in fact healthy and should no longer be receiving a pension. He suggested that she be re-examined by competent doctors. Apparently divorce proceedings involving the parties were pending at that time. 7. On 10 October 2000 the Social Insurance Authority, referring to the applicant's medical records, instituted proceedings in order to reassess the applicant's condition with a view to establishing whether she complied with the conditions governing entitlement to a disability pension. 8. In reply to a query from the applicant about the legal basis on which these proceedings were instituted, on 28 November 2000 the Social Insurance Authority informed her that the proceedings had been instituted under the provisions governing the internal supervision of physicians working for the Authority. 9. Eventually, on 4 December 2000 the Social Insurance Authority gave a decision by which the applicant's right to receive a disability pension was extinguished as she was no longer unfit to work. 10. On 12 January 2001 the applicant appealed, submitting that the Social Insurance Authority had failed to assess properly the medical evidence concerning her condition. She also submitted that her condition had been reassessed in 1994, 1995 and 1997. On each of these occasions decisions had been given confirming that she was permanently unfit to work. 11. In her pleadings submitted on 18 May and 3 December 2001 the applicant submitted that there was no legal basis for conducting medical examinations in order to reassess her condition. She referred to the 1983 Ordinance, which prohibited reassessment of the medical condition of persons who had been receiving a disability pension for longer than ten years (see paragraph 25 below). The Ordinance provided that no medical examination could be conducted in respect of such persons with a view to a reassessment of their condition. She further invoked the case-law of the Supreme Court which, in the applicant's submission, supported the conclusion that no medical reassessment of a condition which had served as the basis for granting a disability pension could be ordered once ten years had elapsed from the date on which the decision awarding the entitlement to a pension became final (II URN 8/94, see paragraph 28 below). 12. The Cracow Regional Court, by a judgment of 24 September 2002, partly amended the decision of the Social Insurance Authority by granting the applicant the disability pension for a fixed period, namely from 1 January 2001 until 1 January 2003. 13. The applicant appealed, claiming that in view of her condition she was entitled to a permanent disability pension. She complained about the assessment of the medical evidence by the first-instance court. In her additional pleadings submitted to the Court of Appeal on 6 September 2004, she reiterated her arguments about the lack of legal basis for the reassessment of her condition and concluded that the first-instance judgment was therefore in breach of substantive law. 14. On 8 September 2004 the Cracow Court of Appeal dismissed the appeal. The court examined the complaint concerning the allegedly incorrect assessment of the evidence and concluded that the first-instance court had been thorough in the assessment it had carried out. It also noted that during the appellate proceedings and in view of doubts the appellate court had harboured as to the applicant's condition, it had ordered that, in addition to the evidence available in the applicant's medical records, a medical opinion should be obtained from the local centre for occupational medicine and further examinations should be carried out by specialists in cardiology, nephrology, endocrinology and gynaecology. The applicant had refused to undergo these examinations. 15. The court further observed that the first-instance judgment had maintained the applicant's pension for the period from 1 January 2001 until 1 January 2003. When that period expired, the applicant had failed to submit to the Social Insurance Authority a request to have her entitlement to the pension prolonged. 16. In response to the applicant's argument based on the 1983 Ordinance and the prohibition it imposed on the medical re-examination of persons in receipt of a disability pension for longer than ten years, the court observed: “It should be borne in mind that the proceedings concerning the applicant's case had been instituted [by the Social Insurance Authority] under the legal provisions governing the internal supervision by the principal physician of doctors working for that Authority and assessing the medical condition of persons seeking a disability pension (see Article 11 of the 1997 Ordinance of the Minister of Labour and Social Policy). Accordingly, it was of no legal relevance to the applicant's case that she had been declared permanently unfit to work in 1985. Neither was the length of time for which she had been receiving her pension of any significance for the present case.” 17. On 13 October 2004 the Cracow Court of Appeal refused to grant the applicant legal aid to lodge a cassation appeal. The written grounds for the refusal read as follows: “Under Article 117 § 1 of the Code of Civil Procedure a party to proceedings who has been exempted, fully or in part, from the obligation to pay court fees can request that a legal-aid lawyer be assigned to represent him or her in the case. The court shall allow such a request if it decides that the participation of a lawyer in the case is necessary. A legal-aid lawyer shall be so assigned where the party is unable to argue the case competently or the case is complex as to the facts or law. The crucial issue in the present case was the assessment of the [applicant's] condition and, consequently, it cannot be regarded as so complex as to warrant legal assistance. The court therefore considers that legal assistance would be unnecessary and, accordingly, dismisses the applicant's request. The mere fact that a party cannot afford to pay legal fees does not justify the granting of legal assistance; this also applies to cases where legal representation is mandatory for the preparation of the cassation appeal.” 18. At the material time Article 113 § 1 of the Code of Civil Procedure provided that parties to proceedings could ask the court competent to deal with the case to grant them an exemption from court fees provided that they submitted a declaration to the effect that the fees required would entail a substantial reduction in their standard of living and that of their family. 19. Parties to proceedings concerning social insurance allowances and pensions were exempted, under Article 463 § 1 of the Code of Civil Procedure, from the obligation to pay court fees. 20. Under Article 117 of the Code, persons exempted from court fees could request that legal aid be granted to them. This provision, in so far as relevant, provided: “1. A party [to the proceedings] exempted partly or entirely from court fees may request that an advocate or a legal adviser be appointed for him or her. ... The court shall grant that request if it considers that the participation of an advocate or a legal adviser in the case is necessary. ... 2. The provisions of the preceding paragraph are also applicable to parties who benefit from a statutory exemption from court fees, provided that they demonstrate, by way of the declaration referred to in Article 113 § 1, that the fees of the advocate or legal adviser would entail a reduction in their standard of living and that of their family. The court shall refuse to assign a lawyer to the case if it considers that the party's action or appeal is manifestly ill-founded.” 21. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court terminating the proceedings. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser were to be dismissed. 22. Article 393 1 of the Code listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: (1) a breach of substantive law on account of its erroneous interpretation or wrongful application; (2) a breach of procedural provisions if the defect in question could significantly affect the outcome of the case.” 23. Article 394 of the Code of Civil Procedure guarantees the parties to proceedings the right to appeal against a decision of the first-instance court terminating the proceedings. An interlocutory appeal (zażalenie) of this kind is also available against certain interlocutory decisions specified in this provision. An appeal lies against a refusal of exemption from court fees and likewise against a refusal of legal aid, where such decisions have been given by a first-instance court. 24. No appeal lies where such decisions are given by an appellate court. 25. Section 29(1)(a) of the 1983 Ordinance of the Minister of Labour and Social Policy of 5 August 1983 (Journal of Laws No. 47, item 214), as amended in 1990, provided that no medical examination could be organised with a view to reassessing the medical condition of persons who had been declared unfit to work and who had been in receipt of a disability pension for longer than ten years. This Ordinance was repealed with effect from 1 September 1997. 26. Since 1 January 1999 the system of social insurance has been regulated by the Social Insurance System Act of 13 October 1998 (Ustawa o systemie ubezpieczeń społecznych) and a number of other acts applying to specific occupational groups or types of benefits. Social insurance benefits are essentially paid from a single fund financed by various compulsory contributions from employees and employers and managed by the Social Insurance Authority. Entitlement to a disability pension is based on the claimant's inability to continue paid employment on grounds of illhealth, confirmed by a medical certificate by doctors working for the Authority. 27. In a number of judgments the Courts of Appeal and the Supreme Court examined whether entitlement to a disability pension which had been paid to the insured person for longer than ten years could be redetermined following a fresh medical examination and reassessment of the person's condition. 28. In its judgment of 7 April 1994 the Supreme Court (II URN 8/94) quashed a judgment of the Cracow Court of Appeal in which the latter had accepted that a fresh medical examination could be ordered in respect of the appellant, who had been in receipt of a disability pension for nineteen years. The Supreme Court found that, despite the fact that it was contained in the Ordinance, the prohibition should be regarded as being of a statutory nature. In a judgment of 21 September 1995 (II URN 28/95) the Supreme Court reached the same conclusion and quashed a judgment of the appellate court. It observed that the decision that the appellant should undergo a medical examination to reassess his condition lacked any legal basis and that, accordingly, the result was of no legal relevance to the appellant's entitlement to a disability pension. In both judgments the Supreme Court referred to its judgment of 23 November 1987 (II URN 259/87). In a judgment of 17 July 1996 (II URN 13/96) the Supreme Court allowed an extraordinary appeal brought by the Ombudsman in the case of an appellant who had been in receipt of a disability pension for nineteen years. It reiterated the conclusions previously reached by the Supreme Court and held that the medical reassessment of a person's condition after that time had no legal basis as it was contrary to section 27 of the Ordinance 1983. It would have been possible only if, prior to issuing such an order, the Social Insurance Authority had obtained evidence showing that the person's condition no longer made him or her unfit to work. In the absence of such evidence, medical reassessment breached the principle of vested rights. On 26 May 1999 (II URN 13/96) the Supreme Court reiterated its previous conclusions as to the prohibition of medical reassessment after longer than ten years. In its judgment of 27 January 2000 the Gdańsk Court of Appeal shared the view of the Supreme Court and held that in such cases the disability should be presumed to be permanent. In its judgment of 22 January 2002 ( II UKN 747/00) the Supreme Court held: “The Social Insurance Authority cannot challenge the assessment that a person entitled to a disability pension is unfit to work if that person has been recognised as disabled for a period of over ten years. The change of legal situation in 1997 [when the 1983 Ordinance was repealed] is irrelevant in this respect.” 29. In a judgment of 5 September 2000 (II UKN 696/99) the Supreme Court held that the legal changes made to the social insurance system in 1998 did not affect existing disability entitlements in so far as the applicable provisions guaranteed the permanence of entitlements which had been paid for a period exceeding ten years. 30. In its judgments of 5 and 11 May 2005 (III UK 9/05 and II UK 29/05 respectively) the Supreme Court noted that the Ordinance had been repealed with effect from 1 September 1997. It further referred to the views expressed by the Supreme Court in the judgments referred to above and disagreed with them. It was of the opinion that section 29 of the 1983 Ordinance did not create a presumption of permanent entitlement to a disability pension which had been paid for longer than ten years. It observed that the temporal scope of the application of that Ordinance and the principle stated in section 29 thereof were unclear; in particular, it was not clear whether after the entry into force of the 1998 Act the prohibition on medical re-assessment remained valid. The court took the view that this was not the case and that the right to social insurance entitlements, including disability pensions, could not be seen as being irrevocable under all circumstances. 31. On 26 January 2005 (III UZP 2/05) the Supreme Court examined a request brought by the Ombudsman for a resolution by seven judges as to whether the Social Insurance Authority could challenge the entitlement to a disability pension of persons who prior to 1 September 1997, the date on which the 1983 Ordinance was repealed, had been receiving the pension for longer than ten years. The Ombudsman pointed to discrepancies in the case-law of the various appellate courts and in the Supreme Court's case-law. In its resolution the Court retraced the history of the relevant case-law and acknowledged that diverging views had been expressed by different benches of that court. It ultimately expressed the view that the prohibition on medical reassessment contained in the 1983 Ordinance was merely of a procedural nature and as such could not be applied after the Ordinance had been repealed. In consequence, nothing prevented the Social Insurance Authority from ordering a fresh medical examination with a view to reassessing whether the person concerned continued to be unfit for work. | 1 |
train | 001-111362 | ENG | GBR | ADMISSIBILITY | 2,012 | LANG v. THE UNITED KINGDOM AND HASTIE v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | 1. These cases concern two applicants who in 2008 were convicted in separate, unrelated criminal proceedings in Scotland. The common complaint in the applications is that each applicant was interviewed by the police without access to a lawyer and the evidence obtained from that interviewed was relied on by the prosecution at trial. 2. The first applicant, Mr John Paul Lang, is a British national who was born in 1974. He is currently detained at HMP Glenochil. He is represented before the Court by Mrs Rosemary Cameron, a lawyer practising in Edinburgh with John Pryde & Co SSC. 3. The second applicant, Ms Tracey Hastie, is also a British national. She was born in 1970 and is currently detained at HMP Cornton Vale. She is represented by Jim Friel, a lawyer practising in Glasgow with Jim Friel & Co Solicitors. 4. The facts of the case, as submitted by the first applicant, may be summarised as follows. 5. In the early hours of Saturday 21 April 2007, the first applicant had a sexual encounter with a woman who was spending the night at his flat. Later that morning the woman attended a police station where she made an allegation of rape against him. The first applicant was then detained by the police and interviewed by them without the presence of a lawyer. In the interview he made a statement that he and the woman had had consensual sex. He was subsequently charged with rape and tried on indictment at the High Court of Justiciary sitting at Paisley between 7 and 11 June 2008. At trial the prosecution relied on the statement the first applicant had given to the police. On 11 June 2008, he was convicted by a majority verdict of the jury. He did not appeal against his conviction. 6. On 22 October 2010, four days before the delivery of the judgment of the Supreme Court in Cadder v. HM Advocate [2010] UKSC 43 (see paragraphs 15–17 below), the first applicant applied to the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) for an extension of time in which to lodge an appeal against conviction and sentence. In the Note of Appeal which accompanied the application for an extension of time, the first applicant submitted inter alia that his trial had been unfair because he had not been give access to a lawyer while in police custody and the prosecution had relied on the contents of his police interview at trial. 7. The application for an extension of time was initially refused by a Single Judge and then, following an oral hearing on 17 November 2010, by a bench of three judges. 8. The facts of the case, as submitted by the second applicant, may be summarised as follows. 9. On 22 July 2008, after a trial at the High Court of Justiciary sitting at Glasgow, the second applicant was convicted of murder. In the course of the trial, the prosecution had relied on statements given by the second applicant in the course of a police interview, which took place on 3 November 2006 without the presence of a lawyer. 10. The second applicant was advised by her then legal representatives that she had no grounds for appealing against her conviction and accordingly did not do so within the statutory time-limit. However, it appears that, in September 2008 and again in January and February 2009, she was granted extensions of time in which to lodge a Note of Appeal, but failed to do so. 11. On 15 November 2010, on the basis of advice from new legal representatives, the second applicant lodged an application for extension of time in which to lodge an appeal against conviction. The application and an accompanying devolution minute alleged inter alia that the second applicant’s trial had been unfair as a result of the admission of the statements she had given in her police interview. 12. The application was refused by a Single Judge on 26 November 2010. The second applicant appealed against that decision and a hearing was convened before three judges of the Appeal Court on 16 December 2010. Before the hearing senior counsel advised the second applicant that none of her grounds of appeal were arguable: in particular, he advised that the Supreme Court’s finding in Cadder that its ruling should not apply to “closed cases” (see paragraph 17 below) meant that the second applicant’s ground of appeal relating to the admission of her statements to the police could not succeed. Consequently, at the hearing on 16 December, the second applicant sought to withdraw her application for an extension of time. The Appeal Court allowed the application to be withdrawn on the same date. 13. At the time of the above judgment (and the time of the present applicants’ trial), sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provided that a person detained at a police station had the right to have the fact and place of his detention intimated to a solicitor, but did not have the automatic right of access to a solicitor either prior to or during a police interview. 14. The compatibility of sections 14 and 15 of the 1995 Act with this Court’s judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 was considered by the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) in HM Advocate v. McLean, judgment of 22 October 2009. The Appeal Court considered that it was not necessary to give effect to the Salduz judgment in Scotland, finding instead that the guarantees available under the Scottish system were sufficient to secure a fair trial of someone who was interviewed without access to a lawyer and whose responses were relied on by the prosecution. 15. Peter Cadder was detained in May 2007 following an incident in which two men had been attacked by a group of youths. He was taken to a police station and interviewed, under caution but without the presence of a lawyer, by two police officers. During the interview he made a number of admissions with regard to the offences with which he was later charged. He was then arrested, cautioned and charged with assault and breach of the peace. At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript. On 29 May 2009 he was convicted on all charges. He appealed against conviction inter alia on the ground that his interview had been relied on at trial. His appeals to the Appeal Court were refused on the papers at the first and second sift stages. He then submitted an application for special leave to appeal to the Supreme Court. 16. On 26 October 2010 the Supreme Court unanimously found that: (i) McLean had been incorrectly decided by the Appeal Court; (ii) Cadder’s case should be remitted to the Appeal Court for further consideration; (iii) and its ruling should not apply retroactively. 17. On the third issue, both Lord Hope and Lord Rodger (with whom the other Justices agreed) held that, in the interests of legal certainty, the ruling should not permit the re-opening of closed cases, but rather only apply to cases which had not yet gone to trial, to cases where the trial was still in progress and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission. 18. Immediately after the Cadder ruling, the above Act (“the 2010 Act) was passed by the Scottish Parliament. It amends the Criminal Procedure (Scotland) Act 1995 to allow a suspect the right to have intimation sent to a solicitor inter alia that the solicitor’s professional assistance is required by the suspect. It also provides for the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning. Consultation includes, for example, consultation by means of telephone. The 2010 Act also provides that a suspect must be informed of these rights. 19. The Scottish Criminal Cases Review Commission is a public body with the task of reviewing and investigating cases where it is alleged a miscarriage of justice has occurred. The 2010 Act amends the provisions of the 1995 Act which give the Commission the power to refer cases to the Appeal Court. The 2010 Act directs the Commission, in determining whether or not it is in the interests of justice that a reference should be made, to have regard to the need for finality and certainty in the determination of criminal proceedings. The 2010 Act also gives the Appeal Court the power to reject a case which has been referred to it by the Commission if the court considers that it is not in the interests of justice that any appeal arising from the reference should proceed. The Act provides that, in determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the Appeal Court must have regard to the need for finality and certainty in the determination of criminal proceedings. | 0 |
train | 001-126915 | ENG | HRV | CHAMBER | 2,013 | CASE OF HORVATIĆ v. CROATIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1941 and lives in Garešnica, Croatia. 6. On 8 February 1996, at around 6.55 p.m., a bank robbery was committed in Garešnica. The bank robber was disguised, wearing an improvised mask made of a winter cap and a winter scarf, a skirt over his trousers, an overcoat, and rubber gloves on his hands. Using a handgun the bank robber forced the bank employees to put money in a crate, after which he fled the scene. 7. Police Station no. 4 of the Bjelovarsko-bilogorska Police Department in Garešnica (Policijska uprava Bjelovarsko-bilogorska, IV Policijska postaja Garešnica – “the police”) was immediately informed of the incident. Police officers were sent to secure the scene and at 8.10 p.m. an in situ inspection was carried out. No evidence was found inside the bank, but there were a number of footprints in the snow outside the bank. 8. On the same day a number of persons, including the applicant, were brought in for questioning by the police. The applicant was released from the police station after denying any involvement in the crime. 9. In the meantime, in the basement of a residential building in Garešnica the police found clothes which they suspected had been worn and then discarded by the bank robber. 10. On 9 February 1996, at 12.50 p.m., the police carried out an on-site inspection of the basement, where they found and seized a stack of money, an improvised mask made from a blue winter cap, a green winter scarf, a crate with 500 Croatian kunas inside it, a pair of green rubber gloves, a blue overcoat and a purple skirt. A police dog was used in the inspection of the scene. 11. On the same day the applicant was again taken to the police station for questioning. In the course of the applicant’s stay at the police station the police dog was shown the applicant and, according to the police report, the dog’s behaviour associated the applicant with the objects found in the basement. 12. At 4.00 p.m. the applicant was arrested on suspicion of having committed the bank robbery. 13. The applicant was asked to take off his trousers and t-shirt. He complied with the request and signed a seizure record. The seizure record only indicates that the trousers and t-shirt were taken from the applicant. The police also took samples from the applicant’s hair, body hair and nails. There is no specific record in this regard. 14. According to the applicant, he was then removed from the room while the police officers packed up the clothes and the samples taken from him. According to the Government, the clothes and the samples were packed by a forensic technician in the presence of a police officer and the applicant, and the police officer simultaneously drafted the seizure record in respect of the applicant’s clothes, which the applicant then signed. 15. In course of the further investigation the police interviewed a number of persons and searched the applicant’s flat. No objects connected with the bank robbery were found. 16. On 10 February 1996 employees of the bank identified items found and seized in the basement of the residential building (see paragraphs 9 and 10) as the clothes worn by the bank robber. 17. On the same day the police sent the items from the basement, together with the applicant’s clothes and samples of his hair and nails, to the Ministry of the Interior’s Centre for Forensic Analysis in Zagreb (Ministarstvo unutarnjih poslova, Centar za kriminalistička vještačenja – “the Forensic Centre”) and commissioned a forensic report. In their request the police indicated that the samples had been taken and packed using gloves and that a new pair of gloves had been used each time a different item had been packed. 18. A preliminary forensic report was drawn up by the Forensic Centre on the same day. The Forensic Centre found strands of the applicant’s hair on the blue overcoat and winter cap worn by the bank robber. It also found fibres from the skirt worn by the bank robber on the applicant’s t-shirt and fibres from the winter scarf on his trousers. 19. On 11 February 1996 the applicant was brought before the investigating judge of the Bjelovar County Court (Županijski sud u Bjelovaru) for questioning, but he decided to remain silent because his defence lawyer was not present. On the same day the investigating judge ordered the applicant’s pre-trial detention. 20. The investigating judge questioned the applicant again on 12 February 1996 in the presence of his defence lawyer, but the applicant remained silent. 21. On 14 February 1996 the police forwarded to the investigating judge two forensic reports drawn up on 11 and 13 February 1996 by the Forensic Centre. 22. According to the Forensic Centre’s report of 11 February 1996 strands of the applicant’s hair had been found on the winter cap, the scarf and the overcoat worn by the bank robber; the report of 13 February 1996 indicated that fibres from the applicant’s t-shirt and trousers had been found on the crate, the skirt and the overcoat used by the bank robber. The latter report also indicated that fibres from the overcoat, the skirt and the scarf had been found on the applicant’s trousers and t-shirt. 23. On 14 February 1996 the Bjelovar County State Attorney’s Office (Županijsko državno odvjetništvo u Bjelovaru) asked the investigating judge at the Bjelovar County Court to open an investigation in respect of the applicant on suspicion that he had committed the bank robbery. 24. The investigating judge opened the investigation on the same day. During the investigation, the investigating judge questioned bank employees Z.S., M.Kol. and M.Kom., and a witness, M.S. The bank employees Z.S. and M.Kol. testified that they had seen the applicant before and that his physical appearance resembled that of the bank robber. 25. On 4 March 1996 the applicant gave his oral evidence. He denied that he had committed the bank robbery and complained that he had been ill-treated at the police station and pressured to confess to the charges. The police had also shown him a blue winter cap and a green scarf and asked him to confirm that they belonged to him. As to the manner in which the police had taken and packed the samples of his hair, nails and clothes, the applicant stated: “When I was taken to the police station for the second time for questioning, the police took my trousers and shirt and [samples of] my hair for forensic analysis. I pulled out a couple of locks of hair myself. I was not present while they packed my clothes and hair for analysis. They also cut my nails and pulled some hair from my arm and sent them for analysis. ... ... The items that were taken from me, namely the clothes and the samples of hair, were taken in a separate room, not the room were I was held waiting for questioning. ... Every sample was taken in another room and the sample which I gave in each room remained in that room. I don’t know where my clothes and the samples of my hair were then taken.” 26. On 5 March 1996 the Bjelovar County State Attorney’s Office indicted the applicant in the Bjelovar County Court on charges of armed robbery. 27. At a hearing on 3 April 1996 the applicant denied all the charges against him. He reiterated his allegations of ill-treatment by the police and complained that the manner in which the samples had been taken and packed for the forensic analysis had allowed for the possibility of tampering with the evidence. The applicant also explained that the samples of his hair had been first taken in one room by police officer T.L. and another police officer whose name he did not know, and then again in another room by police officers T.H., Z.N. and M. 28. At the same hearing the bank employees Z.S., M.Kol. and M.Kom. gave their oral evidence. 29. Z.S. testified that she knew the applicant and that the applicant’s voice was not similar to that of the bank robber. M.Kol. testified that she had seen the skin on a small part of the bank robber’s face and that it had been skin of a younger person; in any event younger and different from the applicant’s facial skin, although the part of the face which she had seen through the mask could have been the applicant’s. She also stated that she had seen some of the bank robber’s hair, which had been similar to the applicant’s. The witness M.Kom. testified that the applicant’s physical appearance was similar to the bank robber’s. 30. The applicant contended before the trial court that the records of the on-site inspection and the taking of the samples were not complete in that not all the actions had been documented. He therefore requested that the police be ordered to provide the names of all the forensic technicians involved and that they be summoned as witnesses. The applicant also requested that the forensic experts who had drafted the forensic reports be called to give evidence about the possibility of contamination between one seized item and another. Furthermore, he asked the trial court to order a reconstruction of the events so that an identification could be made in the setting in which the event had taken place, and that his alibi be verified. Finally, the applicant asked that the rubber gloves used by the bank robber be inspected at the hearing. 31. The trial court refused the applicant’s requests regarding the taking of evidence as irrelevant, and concluded the hearing. 32. On the same day the Bjelovar County Court found the applicant guilty of the bank robbery and sentenced him to five years’ imprisonment, imposing a confiscation order on him in the amounts of 8,410 Croatian kunas, 1,000 Austrian schillings, 3,490 German marks, 100 Australian dollars, 100,000 Italian liras, 12 Canadian dollars, and 20 Swedish kronas. The relevant part of the judgment reads: “The accused stated that ... on the critical occasion he had ... arrived at the Nazaret bar in Garešnica at 9.30 p.m., and there he had heard that a bank in Garešnica had been robbed that same night. Soon afterwards the police had arrived and asked him to come with them. He had been kept in a police station that whole night and had been released at 5 a.m. the next morning. At about 2 p.m. the next day he had again been asked to come to the police station, and the police officers had asked him to confess that he had robbed the bank. He had been ill-treated, they had beaten him, but he could not confess to something he had not done. His clothes had then been taken from him, as well as samples of his hair, but he had not been present when the samples had been taken from the clothes and when they had been packed and sent for analysis. He argued that the fibres [from his clothes] had been transferred to the other clothes by the items being rubbed against each other ... so the evidence thus obtained had been planted by the police. ... The request by the defence to obtain from the Garešnica Police Station the names of the officers who carried out the on-site inspection and took the samples, and for them to be heard as witnesses ... was refused because the case file contains written records on the on-site inspection and written reports on all steps carried out at the preliminary stage of these proceedings, so that there is no need to hear the officers who carried out those acts. The request by the defence for forensic experts D.K. and J.K. to be heard concerning the possibility that there was a transmission of fibres from one item to another was also refused because it is well known that such traces can be transmitted through various means such as by rubbing etc., so it was not necessary to hear expert witnesses on this. The court also took into account the fact that there had been no objection to the forensic reports. ... Witnesses Z.S., M.Kol. and M. Kom., the bank employees, gave identical descriptions of the conduct of the disguised person who had entered the bank at the relevant time, shortly before 7.00 p.m., and [they gave identical descriptions of] the clothes he had been wearing. They stated that the person at issue had been disguised, wearing an improvised mask made from a cap. Around his neck he had had a winter scarf, and he had been wearing a dark women’s overcoat. Underneath the overcoat he had been wearing a purple skirt and trousers. This person had pointed a gun and started shouting that this was a bank robbery; he had demanded money and threatened to kill [the bank employees]. He had then put a crate on the counter and asked for the money. M.Kol. had given him the money, putting it in the crate, after which the disguised person had left the bank. The said witnesses also testified that the person in question resembled the accused in his physical appearance, but that they had not recognised him as the accused, although the accused was known to them. Moreover, the witness M.Kol. testified that she had momentarily seen a part of the disguised person’s face but she thought that that person was younger than the accused. ... In view of the evidence given by the witnesses as to what the disguised bank robber had been wearing when he entered the bank, and the Forensic Centre’s report concerning the fibres and strands of hair found on the items and clothes seized from the accused, there is no doubt that the accused is the disguised person who entered the bank at the time of the events, and that he was disguised in the clothes which were found during the on-site investigation in a nearby residential building. ... This court cannot accept the applicant’s argument that this evidence was planted by the police, because the relevant laws prescribe in detail the procedure in such situations as regards the taking of samples, packing them and sending them for forensic analysis, and there are written records on all the steps taken, so that any doubt as to whether, intentionally or unintentionally, fabric fibres or hairs were transferred from one set of clothes to another is excluded, and this court considers that there is no reason to question the authenticity of this evidence. ...” 33. On 3 May 1996 the applicant lodged an appeal before the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating his previous arguments regarding the evidence in issue. He contended that although when the samples of his hair and clothes were packed for the analysis he was detained at the police station, the police had not allowed him to be present during the packing of the samples and therefore the relevant evidence could have been planted and otherwise tampered with. 34. On 7 January 1998 the Supreme Court dismissed the applicant’s appeal, endorsing the findings of the first-instance court. 35. On 9 February 1998 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating his previous arguments about the manner in which the evidence had been gathered by the trial court. In his constitutional complaint the applicant gave his address in Garešnica but stated that he was detained in Bjelovar Prison (Zatvor u Bjelovaru). 36. On 11 February 1998 the applicant began a five-year prison sentence to which he had been sentenced in another set of criminal proceedings. He was transferred from Bjelovar Prison to Zagreb Prison (Zatvor u Zagrebu). He was detained in Zagreb Prison until 6 March 1998, when he was transferred to Lepoglava State Prison (Kaznionica u Lepoglavi). 37. On 9 March 1998 the applicant lodged a request for the extraordinary mitigation of his sentence (zahtjev za izvanredno ublažavanje kazne) and a request for extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude). 38. In course of the Bjelovar County Court’s examination of the circumstances surrounding the applicant’s request for the extraordinary mitigation of his sentence, on 13 March 1998 Lepoglava State Prison informed the Bjelovar County Court that the applicant was detained in that prison. 39. On 16 March 1998 the Constitutional Court informed the Bjelovar County Court that the applicant had lodged a constitutional complaint and asked for the case file to be forwarded to it. 40. On 19 March 1998 the Bjelovar County Court declared the applicant’s request for extraordinary review of a final judgment inadmissible since it had been lodged against the judgment of the Supreme Court, which was not possible under the relevant domestic law. 41. On 2 April 1998 the Bjelovar County Court forwarded the case file to the Supreme Court in connection with the applicant’s request for the extraordinary mitigation of his sentence and recommended that the request be dismissed as ill-founded. 42. A copy of the entire case file was also sent to the Constitutional Court on 3 April 1998. 43. On 17 June 1998 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. 44. The decision of the Constitutional Court was sent to the applicant’s address in Garešnica on 6 July 1998 but it was returned to the Constitutional Court with a note that it had not been possible to serve it since the applicant was not at that address. 45. On 12 August 1998 the Supreme Court dismissed the applicant’s request for the extraordinary mitigation of his sentence as ill-founded. 46. On 4 and 17 September 1998 the Constitutional Court again attempted to serve its decision of 17 June 1998 on the applicant at his address in Garešnica. Each time the correspondence was returned, with a note that the applicant was not at that address. 47. The Constitutional Court placed the decision on its public notice board on 22 September 1998, where it remained until 30 September 1998. 48. On 19 January 1999 the Garešnica Municipal Court (Općinski sud u Garešnici) instituted enforcement proceedings in respect of an order for the confiscation of the proceeds of crime. However, on 24 June 1999 the enforcement proceedings were discontinued since it had been impossible to enforce the order on account of the applicant’s lack of any financial means. 49. On 26 September 2001 the applicant was released from Lepoglava State Prison on parole. 50. Since he had not received any decision from it, on 19 September 2002 the applicant urged the Constitutional Court to decide on his constitutional complaint 51. On 20 March 2009 the applicant’s lawyer requested the Constitutional Court to inform him as to the status of the applicant’s constitutional complaint. 52. On 27 March 2009 the Constitutional Court served its decision of 17 June 1998 on the applicant’s representative. 53. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) reads as follows: “(1) Everyone suspected of or charged with a criminal offence shall have the right to: - a fair hearing before the competent court established by law; ... (2) Evidence unlawfully obtained cannot be used in court proceedings.” 54. The relevant provision of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows: “(1) The Constitutional Court shall serve a certified copy of its decision on the parties to the proceedings. (2) When a decision or other act of the Constitutional Court, for any reason whatsoever, cannot be served on the parties, it shall be put on the public notice board of the Constitutional Court. (3) It shall be considered that the decision has been served after it has been displayed on the Constitutional Court’s public notice board for eight days. ...” 55. The relevant provision of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 32/1993, and 98/1993) provides: “(1) Whoever by the use of force against another person or by the threat of the use of direct force against life or limb, takes another’s movable property with the intent of keeping it for himself or of acquiring pecuniary gain for another, shall be punished by imprisonment for one to twelve years. ... ” 56. The relevant provisions of the Code of Criminal Procedure (Zakon o krivičnom postupku, Official Gazette nos. 53/1991, 91/1992, 34/1993, 38/1993, and 28/1996) provide: “(1) A simultaneous record shall be drafted in respect of every action taken in the course of criminal proceedings, while the action is taking place, or, if that is not feasible, then immediately after. ... ” “(1) The record shall state the name of the state authority taking the action, the place of the action, the day and time when the action begins and ends, the first and last names of all the persons present, and the capacity in which they are participating in the action, as well as an indication of the criminal case in respect of which the action is being taken. (2) The record has to contain all necessary information on the progress and the subject matter of the action. ... If in the course of the action certain objects or files have been seized, it shall be noted on the record, and the seized items shall be appended to the record or it shall be noted where these items are stored. (3) In the course of an action such as on-site inspection, the search of a flat or a person, or a line-up (Article 223), shall be recorded on the record all information which is important for such action or for the identification of the objects (description, the measurements of the objects or traces, markings on the objects, etc.), and any sketches, drawings, plans, photographs, video recordings, etc. made shall be noted on the record and appended to it.” “(1) The defendant, persons participating in the action, parties, defence counsel and the victim, if they are present, shall have the right to read the record or to have it read to them. ... “ “(1) The court’s judgment shall be based only on the facts and the evidence taken during the hearing. ... ” 57. The relevant provisions of the amended Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012) provide: Article 502 “... (2) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final courts’ decision in connection with the final judgment of the European Court of Human Rights by which, in respect of the defendant, a violation of the rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found. (3) The request for reopening of the proceedings in connection with the final judgment of the European Court of Human Rights can be lodged within a thirty-day time limit starting from the moment of the finality of the judgment of the European Court of Human Rights.” Article 574 “... (2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [in which the decision was adopted], ..., the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code. (3) Articles 497-508 of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006).” | 1 |
train | 001-77655 | ENG | MLT | CHAMBER | 2,006 | CASE OF EDWARDS v. MALTA | 3 | P1-1 applicable;Violation of P1-1;Just satisfaction partially reserved | Nicolas Bratza | 4. The applicant was born in 1919 and lives in London. 5. The applicant claimed to be the owner of four tenements in Malta. Before the Court he produced a statement made on 19 July 2006 by a notary public, which reads as follows: “I the undersigned Dr. Paul Pullicino, Notary Public, do hereby certify that in virtue of a secret will made on the 4th day of October, 1966, by Charles Edwards, and published by me on the 9th November, 1996, Major Joseph John Edwards [the applicant] was nominated and appointed by his father, the late Mr Charles Edwards as his sole universal heir and Testamentary Executor of his estate to whom he bequeathed 21/25ths undivided parts of tenements situated at numbers 96 to 100 Tonna Street, Sliema, - of which 2/25ths had been inherited by his wife from her late brother Sir Augustus Bartolo and the further 16/25ths purchased by him from her brother's family in the mid 1950's – all of which were owned in common with the remaining 4/25ths undivided and equal parts owned by four further members of the Bartolo family residing somewhere in South America, the administration of which had been passed on to him by their eldest brother Captain Albert Borg Falzon who had been their family administrator until he emigrated from Malta on the 4th June, 1956.” 6. In March 1941 the four tenements were requisitioned for the purpose of providing housing for homeless people. The requisition order was served on the applicant's ancestor, Mr Charles Edwards. Further correspondence about the premises was addressed to Mr Charles Edwards, as trustee of the estate of the late Sir Augustus Bartolo. 7. On 2 June 1949 a judicial letter was sent to Mr Charles Edwards “as owner” of the premises, demanding recognition of the tenants. He replied that he was only the trustee of the estate and could not therefore recognise the tenants. This position was confirmed in a court application of 14 July 1949. 8. The top floor of one of the tenements was allocated to Mr P. and his family, while family S. had been allotted the ground floor. The requisition of this tenement, composed of two floors, was contested on the ground that the ground floor provided the only access to a field, which belonged to the same owner and which had not been requisitioned. After these tenants had been recognised, on 16 December 1949 the premises were derequisitioned. 9. The premises were again requisitioned on 18 July 1957 from Mr Charles Edwards. They were derequisitioned on 5 March 1963. 10. On 10 September 1975 a fresh requisition order concerning the same tenement was issued to Mr. Charles Edwards. The authorities instructed that family P. be allotted both floors. The housekeeper, who was in correspondence about the matter with the applicant (Mr Joseph John Edwards), handed over all the keys of the tenement. 11. On 14 November 1975 the applicant wrote to the Housing Department asking for reconsideration of the order of 10 September 1975. He reiterated the argument concerning access to the field. The Department acknowledged receipt of this letter but did not reply to it. On an unspecified date in 1976, an amended requisition order, including the field adjacent to the applicant's tenement, was issued. 12. The applicant alleged that he had sought the assistance of the Minister of Housing and of the Attorney General in order to restore the situation and that on further meetings with the authorities he had been made to believe that the situation would be remedied. However, this had not been the case and he did not obtain any satisfaction. 13. On 28 March 1996 the applicant instituted proceedings before the Civil Court (First Hall) against the Director of Social Accommodation. He alleged that the requisition order of 10 September 1975 had been issued as a result of an abuse of power and was therefore null and void. He also claimed an infringement of his right to the enjoyment of his property as guaranteed by Article 1 of Protocol No. 1 by reason that the requisition order had not been made in accordance with the public interest and that he had not received adequate and appropriate compensation. 14. In a judgment of 3 October 2003, the Civil Court dismissed the applicant's claim. It declared that the tenement should be considered 'quid unum' and therefore as a single entity, including the field. It also found that the applicant's submission that the requisition order had been made in excess of power was unsubstantiated. 15. The Civil Court held that the existence of a public interest should be assessed in the light of the particular features of each individual case. In the applicant's case, the requisition was aimed at ensuring a fair distribution of homes. The benefit enjoyed by the son of Mr P. and his family, who were still using the tenement as a place of habitation, was far superior to that of the applicant. In fact, the latter made sporadic use of the garden or field, which, according to certain witnesses, was used as a rubbish dump. 16. The Civil Court furthermore observed that the applicant had brought his complaints twenty years after the issuing of the requisition order and that during this period he had apparently accepted the rent that he was being paid. This rent had been established by the Land Valuation Officer and had the applicant wanted to review the amount of the rent he could have applied to the Rent Regulation Board. 17. The Civil Court found that it had no jurisdiction to deal with the alleged violation of Article 1 of Protocol No. 1 since the requisition order had been issued in 1975. According to Article 4 of Chapter 319 of the Laws of Malta, the Convention could not be applied retroactively and thus only breaches which occurred after 30 April 1987 fell within the jurisdiction of the domestic courts. 18. The applicant appealed to the Constitutional Court. 19. He observed that had the tenement been a single entity, this should have been the case from the original requisition order made in 1941. However, the field only became accessory to the tenement according to the 1975 requisition order. The applicant moreover claimed that the tenant was making use of the land to further his gardening hobby, which could not be considered an essential part of his accommodation needs. The applicant recalled that he had been deprived of his property for almost thirty years and complained about the amount of rent (28 Maltese Liras (MTL) per year – approximately 67 euros (EUR)), which he considered to be ridiculous in comparison with the market value of the property. 20. In a judgment of 25 February 2005, the Constitutional Court rejected the applicant's appeal. 21. It held that the applicant's tenement should be considered one whole property, especially since the only access to the field was through the ground floor. Furthermore, the applicant had never made any serious attempt to question this and had kept unreservedly receiving the rent due. In any case, if he had not been satisfied with the amount of the rent, the applicant should have applied to the Rent Regulation Board, thus using the ordinary remedy available in such circumstances. 22. The Constitutional Court found that the applicant's claim regarding a violation of his right to the enjoyment of property was inadmissible ratione temporis as the requisition order had been issued and executed before 1987. However, since the complaint concerning the absence of adequate compensation referred to a continuing situation, the Constitutional Court went on to consider its merits. 23. It recalled that the applicant had always accepted rent from the tenants, which meant that there was a regular lease between the two. The Constitutional Court held that the Government enjoyed a wide margin of appreciation in assessing what was in the public interest and which measures were proportionate to the aims sought to be achieved. It quoted van Dijk's and van Hoof's book Theory and Practice of the European Convention stating that social and economic policy in the field of housing constituted an aim in the general interest. 24. Finally, the requisition and the amount of rent were in accordance with the Strasbourg case-law. The Constitutional Court referred, on these points, to the cases of Pine Valley Developments and Others v. Ireland (judgment of 29 November 1991, Series A no. 222), Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52), The Holy Monasteries v. Greece (judgment of 9 December 1994, Series A no. 301-A) and James and Others v. United Kingdom (judgment of 21 February 1986, Series A no. 98). 25. According to section 2 of the Housing Act requisition means: “ to take possession of a building or require the building to be placed at the disposal of the requisitioning authority.” 26. Until 1989 the Housing Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest for providing living accommodation to certain persons or for ensuring a fair distribution of living accommodation. As in force at the time of the requisition of the applicant's tenement, section 3(1) of the Housing Act read as follows: “The Secretary, if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation, may requisition any building, and may give such directions as appears to him to be necessary or expedient in order that the requisition may be put into effect or complied with.” 27. After 1989 the authority to issue requisition orders was given to the Director of Social Housing. 28. A requisition order imposes on the owner of the requisitioned premises a landlord-tenant relationship. According to section 8(1) of the Housing Act, the Director of Social Housing may require the owner to recognise the person accommodated in his property as his tenant or sub-tenant. 29. The owner of the premises may seek authorisation for non-compliance with this request in accordance with section 8(2) and (3) of the Housing Act, which, in so far as relevant, provides: “(2) Within thirty days of service on him of a judicial letter under the last preceding sub-section, the requisitionee, by application to the First Hall of the Civil Court in contestation of the Director, may pray for an authorisation of non-compliance with that request ... (3) The court shall not grant the authorisation of non-compliance mentioned in the last preceding sub-section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request: Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub-article.” 30. According to the Housing Act, the owner of the premises has a right to compensation, which is calculated and payable pursuant to the criteria established in section 11, which, in so far as relevant, reads as follows: “(1) Subject as hereinafter provided, the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums, that is to say- (a) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this Act, under a letting granted immediately before the beginning of that period: Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of the Rent Restriction (Dwelling Houses) Ordinance, the rent shall not exceed the fair rent as defined in article 2 of the aforesaid Ordinance; (b) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained (except in so far as the damage has been made good during that period by the occupant of the requisitioned premises or by a person acting on behalf of the Director), no account being taken of damage which, under the provisions of this Act, is the responsibility of the requisitionee; (c) a sum equal to the amount of expenses reasonably incurred, otherwise than on behalf of the Director, for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building .” 31. According to Article 2 of the Rent Restriction (Dwelling Houses) Ordinance, “fair rent” means: “i) in respect of an old house, the rent which might reasonably be expected in respect of an old house, regard being had to the average rents prevalent on the 31st March, 1939, as shown on the registers of the Land Valuation Office in respect of comparable dwelling houses in the same or in comparable localities: Provided that where, after the 31st March, 1939, structural alterations or additions in a house, whether old or new, have been carried out which, in the opinion of the Board, have enhanced the rental value of the house and in respect of which or, as the case may be, of a part of which, no compensation has been paid or is payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of a grant by the Government of Malta, the rent shall be increased by an amount which, in the opinion of the Board, corresponds to the enhancement of the rental value and which shall in no case exceed a return of three and one quarter per centum a year on the capital outlay on the alterations or additions (excluding any interest on loans or in respect of idle capital) or, as the case may be, on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of grant by the Government of Malta, in every case as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board; and ii) in respect of a new house, a sum equivalent to a return of three per centum a year on the freehold value of the site and of three and one quarter per centum on the capital outlay on construction (excluding any sum which has been paid or is payable by way of a grant by the Government of Malta and any interest on loans or in respect of idle capital) as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board: Provided that where a payment under the War Damage Ordinance 1943, is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part, for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed one year's fair rent of the former building as on 31st March,1939, or three and one quarter per centum for one year on that part of the capital outlay, whichever is the less; iii) in respect of a scheme house, an annual sum to be determined by agreement ...” | 0 |
train | 001-101889 | ENG | FIN | ADMISSIBILITY | 2,010 | AHLSKOG v. FINLAND | 3 | Inadmissible | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 1. The applicant, Mr Lars Johan Ahlskog, is a Finnish national who was born in 1929 and lives in Kokkola. He was represented before the Court by Mr Jukka Autio, a lawyer practising in Espoo. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 25 October 2000 the bankruptcy estate of Oy Maple House Ab requested the local police to investigate whether the applicant had committed debtor’s dishonesty by using company funds for his own private purposes between 1994 and 1999. The police recorded the criminal complaint and searched the applicant’s premises on the same day in order to find documents needed for the administration of the bankruptcy estate and to deliver them to the liquidator. The head of investigation ordered an interim measure on 23 November 2000 and requested on 29 November 2000 that the District Court issue an injunction in respect of the disposal of the applicant’s property. On 18 December 2000 the District Court ordered that the applicant’s property to a value of 1,100,000 Finnish Marks (some 185,000 euros) be frozen. 4. The applicant was interrogated for the first time on 19 March 2001. The pre-trial investigation ended on 2 August 2001 when the investigation material was forwarded to the prosecutor. 5. The prosecutor received the investigation material on 10 August 2001. 6. The case was referred further to the Office of the Prosecutor General (valtakunnansyyttäjänvirasto, riksåklagarämbetet). It appears from the first State prosecutor’s application of 22 August 2001 for an extension of the time prescribed for bringing charges and from the investigator’s letter that the final statement of the applicant was received as late as 14 August 2001. The prosecutor filed the application for a summons on 13 November 2001. 7. A second State prosecutor was assigned to this case and to another case concerning the applicant in January 2004. 8. The case became pending before the Kokkola District Court (käräjäoikeus, tingsrätten) on 13 November 2001. In December 2001 the District Court requested the complainant to present his claims. In January 2002 the summons was served on the applicant and he filed his response on 27 February 2002. 9. In spring 2002 the applicant started to involve himself in the work of his legal counsel, for example by challenging it, filing submissions with the District Court without informing the (first) counsel and alleging that the latter was guilty of criminal conduct. In spring and summer 2002 the applicant filed more than 200 pages of submissions regarding counsel’s alleged criminal activity and the alleged violation of official duty by the prosecutor. 10. On 20 September 2002 the applicant’s (first) counsel was dismissed, and the District Court started to look for new counsel, but none was appointed because of a lack of candidates. The court tried to solve the counsel problem during spring and summer 2003 and finally on 15 September 2003 appointed new (second) counsel. 11. On 19 September 2002 the applicant’s spouse informed the District Court that the applicant had become very ill and she filed a medical certificate to that effect on 10 October 2002. On 10 March 2003 the applicant filed additional medical certificates with the court. On 11 March 2003 the court requested the applicant to provide further information about the certificates, according to which his medical examination and treatment were still ongoing between March and June 2003. 12. On 9 September 2003 the District Court held a consultation which the applicant also attended. 13. Before ruling on the case, the District Court waited for judgment in another case. The latter case was heard in December 2003 and decided on 6 February 2004. 14. In April 2004 the District Court drew up a timetable for processing the case and sent it to the applicant for information. 15. On 19 May 2004 the court also held an internal consultation. 16. At the preparatory session on 26 August 2004 the District Court found that extensive additional preparation in writing was necessary. 17. During the additional preparation, which lasted the whole of autumn 2004, the applicant requested an extension of the time prescribed for issuing the defendant’s statement. Further, the applicant requested that another pending case be joined to the case. The District Court rejected the latter request. 18. On 20 January 2005 the District Court adopted a procedural decision in view of the procedural motions and claims presented during the preparation in writing. At the same time, the court decided that the proceedings would be continued in respect of one count only. Another count was left to await the judgments of the Supreme Court (korkein oikeus, högsta domstolen) and the European Court of Human Rights (application no. 75619/01). 19. For the count to be processed, the District Court prepared a proposal in February 2005 regarding the main hearing and sent it to the parties for comment. In April 2005 the applicant requested that the main hearing should not be held on the date proposed. On 20 April 2005 the court rejected the request, confirmed the procedure, and decided to hold the main hearing on 15 to 16 and 20 to 22 June 2005. 20. On 15 June 2005 the applicant was brought by the police before the District Court. When arriving in the courtroom he announced that he had an appointment with a doctor and left the court using that excuse. He failed to appear at the main hearing the next day and could not be contacted. 21. On 20 June 2005 the District Court received a medical certificate according to which the applicant was unable to work between 16 and 30 June 2005. The District Court set 11 July 2005 as the new hearing date. 22. During the main hearing on 22 June 2005, a witness testimony pointed to a new fact, which caused the applicant to request an additional investigation. 23. On 5 July 2005 the District Court asked the applicant’s counsel about the possibility of hearing the applicant at his home. The applicant declined, stating that that course of action would be unreasonable. 24. On 11 July 2005 the applicant did not appear at the main hearing. During the hearing, the applicant’s counsel successfully requested interim measures and a new hearing date. The District Court set 4 August 2005 as the new hearing date. 25. On 4 August 2005 the applicant again failed to appear at the hearing. The court then made a consolidated procedural decision concerning the applicant’s repeated absence, holding that he had intentionally evaded the proceedings. 26. On 11 August 2005 the District Court dismissed the charges of aggravated debtor’s dishonesty but imposed a fine on the applicant due to his repeated absence from court. The injunction remained in force. 27. The prosecutor appealed against the judgment of the District Court and presented an alternative description of the alleged criminal act before the Vaasa Court of Appeal (hovioikeus, hovrätten). The applicant also appealed to the Court of Appeal in respect of the fine imposed by the District Court. 28. On 2 March 2006 the Court of Appeal decided to refer the case back to the District Court. The court found that as the prosecutor had provided the court with an alternative description of the criminal act and an alternative victim, new documentary evidence and new witnesses, a new hearing was required. In addition, the court noted on its own initiative that the applicant had not been heard in person before the District Court, even though he risked being sentenced to imprisonment. The fact that the charges were later dismissed was not known at the time of the main hearing and the applicant should therefore have been heard in person. In addition, the precautionary measure was quashed. 29. On an unspecified date the applicant sought leave to appeal to the Supreme Court. 30. The Supreme Court refused leave to appeal on 20 December 2006. 31. The case became pending for the second time before the District Court on 31 January 2007. The case was assigned to a judge who took office on 1 July 2007. The case could not be assigned to another judge as they had all been either processing or had already adjudicated the applicant’s, his son’s or their companies’ cases which all were interconnected in one way or another. The applicant had entered several disqualification pleas and made several procedural and criminal complaints against the judges. 32. The District Court judge responsible for the case had telephone contacts with the applicant and his spouse in summer and early autumn 2007. At that time, a number of other cases concerning the applicant were pending before the District Court. The applicant proposed that his other pending cases should not be heard simultaneously because of his state of health. The judge agreed that the proposal was justified. The court did not start to hear the case immediately but heard another criminal case of the applicant first. When the court passed judgment in the other case on 17 December 2007, the applicant requested that the judgment be supplemented or rectified. 33. In February 2008 a summary of the case was sent to the parties for statements. During March and April 2008 the District Court made efforts to agree on the date of the preparatory session with the prosecutor and counsel of the parties. On 15 April 2008 the parties were summoned to the preparatory session to be held on 17 June 2008. In order to accelerate the preparatory session, the court sent the applicant’s counsel on 13 May 2008 a request to reply and on 10 June 2008 a request to supplement the reply given to the court. 34. During the preparatory session on 17 June 2008, the District Court and the parties discussed the possibility of joining certain cases. It was agreed unanimously that at least two weeks should be reserved for the main hearing. 35. On 4 and 14 November 2008 the District Court decided to extend the time prescribed for the applicant’s submissions. 36. On 12 November 2008 the court decided not to withdraw the assignment of the applicant’s counsel. It appears from the case file that the applicant opposed on occasion withdrawing counsel’s assignment, sometimes himself requesting that the assignment be withdrawn. 37. On 5 December 2008 the District Court decided to join some of the applicant’s cases. On that date the court also rejected the applicant’s request for an expert opinion. 38. On 2 February 2009 the applicant brought charges for violation of official duty against the judge responsible for his case just before the beginning of the main hearing. Moreover, he entered disqualification pleas against nearly all actors in the proceedings just before the start of the main hearing. 39. On 2 February 2009, when the main hearing was to begin, the applicant failed to appear in court. On 3 February 2009 the court ordered that the applicant be brought to the courtroom. The applicant requested that the main hearing be cancelled and challenged the jurisdiction of the court to try his case. 40. On 20 March 2009 the District Court convicted the applicant on five different counts, inter alia, for aggravated debtor’s dishonesty and sentenced him to a conditional term of imprisonment of 1 year and 2 months. The District Court expressly took into account the length of the proceedings when passing sentence. 41. The applicant, invoking the nature and scope of the case, requested that the time for appeal to the Court of Appeal be extended. On 8 April 2009 the District Court agreed to the request and set 30 April 2009 as the new date for the appeal. The date for the counter-appeal was fixed for 14 May 2009. 42. On 14 May 2009 the case became pending before the Court of Appeal. 43. On an unspecified date the Court of Appeal adopted a partial decision concerning the withdrawal of the order appointing the applicant’s counsel. The applicant requested leave to appeal to the Supreme Court against the said decision. 44. On 29 October 2009 the Supreme Court refused the applicant leave to appeal. 45. The proceedings in the Court of Appeal are still pending. 46. According to Chapter 6, section 7, of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 515/2003), "[i]n addition to what is provided above in Section 6, grounds mitigating the punishment that are also to be taken into consideration are; [...] (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reason lead to an unreasonable or exceptionally detrimental result." 47. In its judgment of 11 June 2004 (KKO:2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably lengthy proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case in that precedent case. In considering whether there were grounds for applying Chapter 6, section 7, subsection 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (in the precedent case over 5 and a half years) had been unreasonable. It concluded that in this case there were no grounds to waive a sentence or to mitigate the sentence owing to the duration of the proceedings. 48. In its judgment of 15 June 2005 (KKO:2005:73), the Supreme Court, applying Chapter 6, section 7, subsection 3, of the Penal Code, reduced the sentence imposed upon the applicant by six months owing to the length of the proceedings that had lasted some ten years. The court imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to mitigate the sentence further by suspending the term of imprisonment. 49. A new Chapter 19 has been added to the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; as amended by Act no. 363/2009) which entered into force on 1 January 2010. This Chapter provides for a possibility to accelerate pending proceedings if there are specific reasons for so doing, inter aliaAny application for acceleration must be addressed to the District Court before which the case is pending and shall be examined by a single judge formation. A case which has been granted priority must be examined by the District Court without delay and before any other cases. The decision to grant or refuse priority cannot be separately appealed. 50. The Act on Compensation for Excessive Duration of Judicial Proceedings (laki oikeudenkäynnin viivästymisen hyvittämisestä, lagen om gottgörelse för dröjsmål vid rättegång; Act no. 362/2009) entered into force on 1 January 2010. The Act provides for a party a right to receive compensation from State funds whenever judicial proceedings concerning that party have been excessively long. 51. As to its scope of application, section 2 of the Act provides as follows: “This Act is applicable by general courts to litigious, non-contentious and criminal actions. Reduction of a penal sanction on the basis of excessive length of judicial proceedings is provided for in the Penal Code (39/1889). Irrespective of this Act, compensation for damage caused by excessive duration of judicial proceedings can be obtained as provided in the Tort Liability Act (412/1974).” 52. The right to compensation is set out in section 3 of the Act which provides the following: “A private party is entitled to receive a reasonable amount of compensation as referred to in section 6 from the State funds if judicial proceedings last an excessively long time resulting in a violation of the party’s right to a trial within a reasonable time.” 53. When evaluating the length of the proceedings, in addition to the length itself, the nature and scope of the subject-matter, the actions of the parties, authorities and courts in respect of the proceedings as well as the importance of the subject-matter to a party are to be taken into consideration pursuant to section 4 of the Act. Moreover, the case-law under Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the European Court of Human Rights of the Council of Europe is also to be taken into account. 54. According to section 5 of the Act, the period to be taken into account starts in civil and non-contentious civil matters when action is initiated before a court; in criminal matters when the competent authority has notified the defendant of a crime suspected to have been committed by him or when a crime suspicion directed at him has had an essential bearing on his position; or when a claim made by a party has become pending before a court. 55. As to the amount of compensation, section 6 of the Act provides the following: “The purpose of compensation is to compensate for the anxiety, uncertainty or other comparable harm caused to a party by excessive duration of proceedings. The amount of compensation is 1,500 euros per year for each year that the proceedings have been delayed for reasons attributable to the State. The total amount of compensation shall be increased by a maximum of 2,000 euros if the merits are particularly important to the party. A matter shall be considered particularly important if it has a direct bearing on the person’s health, income, legal position or some other comparable consideration. The compensation may be reduced or increased on the basis of a consideration referred to section 4 or for some other comparable consideration. The compensation amount shall not exceed 10,000 euros. This maximum amount of compensation may be exceeded in special circumstances. There is no entitlement to monetary compensation as far as a sanction imposed has been mitigated due to the excessive duration of proceedings. If compensation has been awarded earlier by a final decision in the same matter, it shall be taken into account as a reduction when determining the new compensation.” 56. As to the procedure for claiming compensation, section 7 of the Act provides as follows: “A claim for compensation shall be lodged with the general court in charge of the case before the consideration of the merits is closed under the pain of loss of the right of action. Such a claim cannot be lodged as late as at the Supreme Court stage without a valid reason. A claim may be made in writing or orally. Justifications for the claim shall be presented.” 57. According to section 8 of the Act, the public prosecutor shall use in criminal matters the right of action on behalf of the State in respect of a compensation matter while the Ministry of Justice shall use it in respect of other matters. The Ministry of Justice shall not be provided with an opportunity to be heard in respect of the compensation claim unless there is a special reason for this. 58. As to the decision-making, section 9 of the Act provides that the court shall decide on the compensation claim when it decides on the merits of a case. The composition competent for deciding on the merits shall also be competent for deciding on the issue of compensation. The court must notify the Ministry of Justice of the decision on compensation without delay. 59. Section 10 of the Act concerns costs. It provides as follows: “If a party is awarded compensation, reimbursement of the necessary and reasonable costs incurred by him for claiming compensation shall be ordered to be paid to him from State funds unless otherwise reimbursed from State funds. No fee is charged for the processing of the compensation claim.” 60. According to section 11 of the Act, a decision rendered by a court on the compensation claim can be appealed against in the same manner as the decision on the merits. The Ministry of Justice can appeal against the District Court decision without having to register its intent to appeal. 61. As concerns the payment of compensation, section 12 of the Act provides that the compensation shall be paid to a party within a month of the date on which the compensation decision became final. The compensation shall be paid by the Ministry of Justice. A prohibition on attaching the compensation and its tax-fee nature is provided for by a separate provision. 62. The Act has already been applied by the domestic courts. On 1 February 2010 the Pirkanmaa District Court rejected a compensation complaint as the length of the proceedings had not been excessive (one year and ten months at one level of jurisdiction). In its judgment of 8 March 2010 the Vantaa District Court rejected a compensation complaint as it had been filed too late. On 1 March 2010 the Turku Court of Appeal found in a case that proceedings had been too lengthy when they had lasted six years and four months at two levels of jurisdiction, and awarded the applicants 1,500 and 2,000 euros respectively. | 0 |
train | 001-101704 | ENG | BGR | ADMISSIBILITY | 2,010 | ALEKSEY PETROV v. BULGARIA | 4 | Inadmissible | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Aleksey Iliev Petrov, is a Bulgarian national who was born in 1962 and lives in Sofia. He is widely known in Bulgarian society, as a former officer of the national antiterrorist squad and as later being connected with a number of insurance and other companies. He was represented before the Court by Mr A.V. Lukanov and Ms R. Radkova, lawyers practising in Sofia. An outline of the background to the case may be found in paragraphs 683 (more specifically, paragraphs 18, 51 and 75-80) of the Court’s recent judgment in the case of Kolevi v. Bulgaria (no. 1108/02, 5 November 2009), which concerns, among other things, the investigation of the assassination of a highranking prosecutor, Mr Kolev, who had previously made a number of serious allegations against the Chief Prosecutor. Mr E.S. is a poet, literary critic, former member of Parliament, and prominent public figure widely known for his publications on crimes allegedly committed by highranking officials. In 2002 he published an open letter to the Supreme Judicial Council and other institutions, stating that the Chief Prosecutor had committed crimes and had a mental disorder. On 4 December 2002 Mr E.S. called on the Minister of Justice and handed him one hundred and five documents allegedly incriminating the Chief Prosecutor, Mr N.F., in various misdeeds and offences. He asked the Minister to pass those documents to the Supreme Judicial Council. One of the documents was a photocopy of a document entitled “[Mr G.T.]’s explanations”. In it Mr G.T., the former branch manager of a private bank, described his curriculum vitae, his business ventures and his dealings with the applicant between 1997 and 2000, and alleged that the applicant had been blackmailing him and threatening him and his family with violence, and on one occasion had even assaulted him physically, all in order to force him to enter into transactions beneficial to the applicant or to companies with which he was connected. The next day, 5 December 2002, Mr E.S. gave an interview for Trud, a daily newspaper. He said that the documents that he had handed to the Minister concerned a number of cases. One of them was the case of Mr G.T., which the prosecuting authorities had tried to conceal. The documents made it clear why. The interviewer asked “Why?” and Mr E.S. replied “Simply because this man has been racketeered and robbed by [the applicant]. Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention.” In the evening of 28 December 2002 Mr Kolev (see above) was shot dead by an unknown assailant in front of his home in Sofia. In the morning of 29 December 2002 Mr E.S. went to the police to give a statement in connection with the assassination. In the afternoon he gave a similar statement to the investigator in charge of the case. The full content of that statement may be found in paragraphs 7580 of the Court’s judgment in the case of Kolevi (cited above). Between his interviews with the police and with the investigating authorities Mr E.S. was interviewed by Darik Radio, a radio broadcaster. The main topic was Mr Kolev’s assassination and the probable reasons for it. In the course of the show the host asked Mr E.S. about the content of his earlier statement to the police. Mr E.S. replied “Well, I shared my version that, first, this is a political assassination, in the sense that it concerns the interests of the Chief Prosecutor, and second, that persons probably behind it were Mr N.F., the Chief Prosecutor, and possibly [the applicant].” The host asked him whether that would be the content of his testimony, and Mr E.S. replied “Yes, it would be, in connection with the cases at hand. Now, I made the acquaintance of [Mr] Kolev during the summer of this year, we have had at least fifteen meetings, and during the last of those he shared with me that he expected [the applicant] to snatch him.” In reply to a question about the content of the conversation during that last meeting, Mr E.S. said “The meeting had to do, like all the other meetings, with issues relating to the Chief Prosecutor. It was about the murder of [Ms N.G.] in 2000. We were discussing the possibility of finding a witness who would be able to confirm that on the evening of the murder [Ms N.G.] had been expecting [the Chief Prosecutor]. The thing is, she was in fact an intermediary between the Chief Prosecutor’s Office and the criminal world. She was used for money transfers and she had compromising recordings of such meetings. She probably tried to use them preventively on that occasion. You know that she was working for [the applicant] and actually...” The host interrupted Mr E.S., saying that nothing was known about Ms N.G. Mr E.S. continued “In fact, strong dependence and the connection between the Chief Prosecutor and [the applicant] is linked with that murder”. After that the conversation moved on to the authorities’ reaction to Mr E.S.’s statements, and then to the relations between Mr Kolev and the Chief Prosecutor and the reasons for Mr Kolev’s assassination. Mr E.S. said “[Mr] Kolev was trying to uncover the truth about a very bizarre case. I will tell you his version, but I must add that a very serious investigation will be necessary to dig out the truth about that version. The case concerns [Mr S.J.], the Yugoslav national who was arrested in Bulgaria ... [Mr Kolev]’s version was that the Serbian mafia had sought contacts in Bulgaria, people who would be able to arrange his escape. They came across [the applicant] who told them ‘I am close to the Chief Prosecutor, I can arrange that’. The Serbian mafia paid about three million dollars...” Asked by the host to whom the money had been paid, Mr E.S. replied “To [the applicant], who gave one million to [Colonel] F.S. [, head of the special antiterrorism squad] and one million to [Mr] N.F. [, the Chief Prosecutor]” Then Mr E.S. described how an attempt to get Mr S.J. out of prison had been foiled and that this, coupled with the failure to return the money, had been the probable reason for an assassination attempt on the applicant in the summer of 2003. The host interrupted him, saying that he was raising serious allegations against the Chief Prosecutor. Mr E.S. replied “I am not making allegations, I am saying what I know about the case. I am not maintaining that this is the truth, I am saying what I have heard from [Mr] Kolev. I would like that to be well understood ...” The same day Mr E.S. gave an interview for BTV, a television network, in which he repeated the story about the alleged attempt to arrange Mr S.J.’s escape. In reply to a question, he said “I am saying that this is the version that I have learned from [Mr] Kolev and in respect of which he was seeking proof. ...” Later that day and the following day Trud and another daily newspaper, 24 Hours, printed articles summarising and commenting on Mr E.S.’s interviews with Darik Radio and BTV. On 16 December 2002 the applicant lodged a criminal complaint with Sofia District Court (Софийски районен съд) against Mr E.S.. He alleged that in his interview for Trud Mr E.S. had disseminated injurious statements about him and had imputed an offence to him. More specifically, he took issue with the phrases “Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]” and “Instead of acting on [Mr G.T.’s] complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention”. In the applicant’s view, by making those statements Mr E.S. had defamed him, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see Relevant domestic law below) and had injured his reputation as a wellknown public figure. He sought compensation in the amount of 30,000 Bulgarian levs (BGN), plus interest. The Sofia District Court examined the case at three hearings. The first, due to take place on 24 February 2003, was adjourned because Mr E.S. was absent. The other hearings were held on 21 April and 16 June 2003. The applicant did not appear in person at either of those. On both occasions his counsel expressly stated that the applicant was prevented from attending on account of illness, but did not insist on his attendance and wished the case to proceed despite his absence. Having regard to those declarations, on both occasions the court decided to proceed with the case. On 21 April 2003 it heard Mr G.T., who had been called as a witness by the applicant. At the request of counsel for the applicant, the court admitted in evidence “Mr G.T.’s explanations” (see above), which Mr E.S. had produced as an attachment to his reply to the applicant’s complaint, and presented them to Mr G.T. In a judgment of 16 June 2003 (reported on p. 153 of an unofficial collection of the Sofia District Court and Sofia City Court caselaw in defamation cases, Обида и клевета в практиката на Софийския районен съд, Сиби, 2005 г.) the Sofia District Court acquitted Mr E.S. and rejected the applicant’s claim for compensation. The court described its findings of fact and the manner in which it has assessed the evidence, and held as follows: “The accused [Mr E.S.] has not committed [the offence of defamation] of which he has been accused. [He] is the author of the two impugned statements in the interview that he gave for Trud on 5 December 2002. However, by [making those statements] he did not carry out the actus reus of the offence of defamation. The court reached this conclusion in view of the following. A literal reading of the publication shows that the impugned statements were an answer by the accused to a question as to how the documents which he had handed to the Minister of Justice made it clear that there had been [the prosecuting authorities’] attempt to ‘conceal’ the case with [Mr G.T.]. In reply to the journalist’s question, the accused summarised the contents of one of the documents and explained his reasons for handing the documents to the Minister of Justice. Indeed, the reason for the publication was that the accused had handed one hundred and five documents to the Supreme Judicial Council through the Minister of Justice. As can be seen from the initial exposé made by the journalist, this was simply because of the existing public interest in the allegations made by the accused against the Chief Prosecutor Mr N.F., which the publication characterised as ‘scandalous allegations’. For the court, those facts are essential for the proper resolution of the case. Firstly, they indicate that the accused’s interview concerned an issue which, in as much as it relates to the prosecuting authorities in their capacity as a public authority empowered under the Constitution to bring offenders to justice and to prosecute publicly prosecutable offences, is part of the considerable public interest in combating crime. This is undoubtedly sufficient to accept that the publication of information concerning that issue was in the public interest. The documents which the accused handed to the Supreme Judicial Council contain, according to him, information about the prosecuting authorities’ failure to investigate offences. The court is therefore satisfied that the stated goal of allowing those documents to be studied by the public is in the public interest. The first impugned statement – ‘Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ – sheds plenty of light on the accused’s position. That phrase does not contain any information which could, directly or even indirectly, in the context of the whole interview, injure the [applicant]. Therefore, it cannot harm his honour or dignity. The accused actually criticises the authorities competent to verify the information about an offence featuring in ‘[Mr G.T.]’s explanations’ for failing to do so. The court therefore finds that by saying ‘Instead of acting on [Mr G.T.]’s complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ the accused did not carry out the actus reus of the offence of defamation. Secondly, the court accepts that the accused [Mr E.S.], in his capacity as a public figure engaged in politics, has certain obligations and duties towards the public and the proper functioning of the State authorities. Therefore, when he discovered documents showing that the prosecuting authorities were not functioning properly due to misconduct by some of their officials, the accused was under a duty greater than that of the ordinary citizen to hand those documents to the competent authorities. In its judgment in the case of Thorgeir Thorgeirson v. Iceland [25 June 1992, Series A no. 239] the European Court of Human Rights reiterated a principle established in its caselaw – that ‘freedom of expression constitutes one of the essential foundations of a democratic society ... and is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10 [of the Convention], is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established’. In the same judgment the European Court of Human Rights emphasised the preeminent role of the press in a State governed by the rule of law, and noted that while that press must not overstep the bounds set, inter alia, for ‘the protection of the reputation of ... others’, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’. In the case at hand the information published by the accused in the press was important for maintaining the rule of law and for exercising democratic control over the judicial power. It should therefore enjoy heightened protection. The Constitutional Court ... has emphasised that a distinction needs to be made between, on the one hand, information relating to political matters and other matters in the public interest, and, on the other, information satisfying curiosity about a person’s private life, which should be protected by barriers reflecting the morals and the mentality of reasonable people. Following this line of reasoning, the Constitutional Court, in interpreting Articles 3941 of the Constitution, has said that ‘information falling into the first category clearly enjoys heightened protection. Therefore, critical opinions and statements of fact which could harm the reputation of a given person should not be ruled out ... they can be regarded differently on account of their object and direction, and may be treated differently.’ Next, the court finds it unequivocally established that one of the documents to which the accused refers in his interview contains statements of fact about criminal offences [allegedly] committed by the [applicant]. The statement in ‘[Mr G.T.]’s explanations’ that the [applicant] racketeered and robbed him undoubtedly amounts to the imputation of an offence. The content of those ‘explanations’ shows that they impute to the [applicant] specific acts, sufficiently individualised as to their time, place and manner of execution. The unidentified author of the document has used the word ‘robbery’ (on p. 3), which does not refer to the offence of robbery, as defined in Article 198 of the Criminal Code, but has been used in the colloquial and not strictly legal sense of the term. It refers to coercing someone through force or threats to transfer assets or to incur a pecuniary obligation. Those acts constitute the actus reus of the offence of extortion, as defined in Article 213a of the Criminal Code. Descriptions of offences of the same kind (threats of violence with a view to coercing [Mr G.T.] to contribute assets to the capital of [an insurance company]) feature on p. 4; on p. 5 (the same threats, this time in relation to the transferring of shares in [a company]); on p. 6 (use of force to lift impediments to the licensing of [that company]). Therefore, by saying ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ [Mr E.S.] correctly summarised the contents of the document entitled ‘[Mr G.T.]’s explanations’. The photocopy which the accused had is a document in the general meaning of that term – an object manifesting a statement through written signs. The question to be answered is therefore whether – in addition to announcing in public, before the media, that he has performed his civic duty to inform the authorities about offences which had come to his knowledge – the accused could have committed defamation by relating the information about those crimes contained in his sources. In principle, the actus reus of defamation ... consists in the dissemination of untrue and injurious statements of fact about another person or in the imputation of an offence that the other person has not committed, something [the accused] has not done. The narrow interpretation of the penal law – the only one permissible – makes it clear that the act is criminal only when the injurious statements of fact emanate from the offender, or when the offender, in order to present his statement as the mere recitation of somebody else’s statement before third parties, ostensibly relies on sources of information which in fact do not exist. The correctness of this interpretation is confirmed by the legislature’s difference of approach in formulating the right to information under Article 41 § 1 of the [Constitution] and its permissible restrictions, and the wider communication right under Article 39 § 1 of the Constitution to express one’s opinion. Article 41 § 1 of the Constitution provides that everyone has the right to seek, receive and impart information, but that the exercise of that right may not be directed against the rights and the good name of other citizens or against national security, public order, public health or morals. The limitations on the communication rights (the expression used by the Constitutional Court ... to describe the rights under Articles 3941 of the Constitution) consist in statutory penalties. The criminalisation of defamation is one of the legal devices protecting personal dignity against abuse of the constitutional rights to information and to express one’s opinion, in those cases where the statement amounts not to a qualification or a value judgment but to a statement presented as fact. However, the right to information, as defined in Article 41 § 1 of the Constitution, is wider than the one whose exercise in breach of the envisaged limitations is contrary to Articles 147 and 148 § 2 of the Criminal Code. The criminalisation of defamation is an interference by the State, provided for by law, with a person’s right to communicate specific statements about another person when they are injurious or impute an offence to that other person, and are not true that is, when they unlawfully impinge on someone’s reputation. Therefore, the criminalisation of defamation protects a person’s right to honour and dignity against the unscrupulous exercise of the right to freedom of expression, when the viewpoint and the statement emanate from the alleged defamer. The actus reus of defamation as an unlawful personal conduct does not include seeking, receiving or disseminating information ... already created by someone else. The salient point in the case at hand is that the accused is not the author of the statement that [Mr G.T.] has been racketeered and robbed by the [applicant]. The accused is not the source of the statement about the offences allegedly committed by the [applicant]. By making that statement in front of the journalist – and thus before the readers of Trud – the accused actually correctly relayed the contents of the document, which is the material source of the information. The accused thus took part in the dissemination of [that] source of information. In fact, in as much as by interviewing Mr E.S. for the newspaper the [journalist] gave him the opportunity to describe the contents of the source, she for her part was also party to the dissemination of the impugned statement. However, neither the accused [Mr E.S.] nor the [journalist] has carried out the actus reus of defamation. To hold otherwise would unduly limit the right to information and thus endanger the free flow of information and journalism in general, and would discourage people from discussing matters of public interest. Such an interpretation, apart from being contrary to the law, would not be necessary in a democratic society, as required under Article 10 of [the Convention]. No evidence has been put forward, and it has not been alleged in the criminal complaint, that the accused is the author of the document entitled ‘[Mr G.T.]’s explanations’. On the contrary, those ‘explanations’ and the testimony of [Mr G.T.] before this court show that the accused [Mr E.S.] is not the author of the document. The accused is not personally acquainted with [Mr G.T.] and could not be aware of his personal and biographical background at the level of detail set out in the ‘explanations’. No evidence has been put forward to prove that the accused would be interested or able to obtain such information. In its caselaw the European Court of Human Rights always carefully distinguishes between cases in which [applicants] have been punished in respect of their own statements and those in which they have disseminated statements made by others. For instance, in its judgment in the case of Jersild v. Denmark [23 September 1994, Series A no. 298] the European Court [of Human Rights] found that a central feature of the case was the fact that the applicant had not made the impugned statements himself, but had merely facilitated their dissemination in his capacity as a television journalist. In that connection, the judgment lays down another essential principle of presentday regulation of the right to information disseminated though the press or [other] media: ‘The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’. In conclusion, the European Court [of Human Rights] held that the applicant’s criminal conviction had amounted to a breach of his right to freedom of expression, enshrined in Article 10 of [the Convention]. The European Court [of Human Rights] made a similar distinction in its judgment in the case of Thorgeir Thorgeirson [cited above], where it again held that there had been a breach of the applicant’s right to freedom of expression resulting from his conviction for defamation by the national courts for having, in his capacity of author of a press publication, disseminated information received from others about brutality in the Reykjavik police. The European Court [of Human Rights] thus, on the one hand, clarified the difference between liability for one’s own statements of fact and for statements of fact emanating from another source of information, and, on the other, emphasised that the necessity for any restrictions must be convincingly established. Even though those principles were formulated chiefly in respect of the press and the audiovisual media, the court finds that they are fully applicable in respect of information of public interest disseminated by public figures and politicians. In view of the foregoing reasons, the court finds that only the author of the document called ‘[Mr G.T.]’s explanations’ can be held liable for defamation. The court therefore finds that by saying ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ the accused [Mr E.S.] has not carried out the actus reus of the offence ... under Article 147 of the Criminal Code, or, a fortiori, of the aggravated offence under Article 148 [§§ 1 (1) and 2] in conjunction with Article 147 § 1 of [the Code]. Even though the accused’s act is objectively unable to constitute defamation, because it amounts to the correct reproduction of text written by another person, the court finds it necessary, for the sake of completeness ... to give additional reasons in respect of the veracity of the statements contained in the ‘explanations’. The accused acted in good faith in respect of the wellfoundedness of his statements. He made them in pursuit of his democratic aims: to expose weaknesses in the work of the prosecuting authorities with a view to achieving greater transparency in their functioning and to eliminating any irregularities. The court accepts that his actions could actually contribute to the achievement of those aims because they allowed the competent authorities to check the documents presented carefully and to determine whether they contained information about official misconduct or offences committed by representatives of the prosecuting authorities or others. The accused was not able to carry out such checks himself because he did not have the authority to conduct an independent and comprehensive investigation. Even if he had had a conversation with [Mr G.T.] and the latter had denied being the author of the ‘explanations’, that would not have been sufficient to accept that the allegations in those ‘explanations’ were false. This is because, if there is any truth in the allegations in the ‘explanations’ about links between certain departments of the Ministry of Internal Affairs and the prosecuting authorities and criminal organisations, [Mr G.T.], if he is indeed the ‘explanations’’s author, could justifiably fear for his life and limb because the threat against him stems from the State itself. A comprehensive, objective and complete check on the truthfulness of the ‘explanations’ would entail tracking down individuals and taking a number of measures in the context of a preliminary inquiry: interviewing all those mentioned in the ‘explanations’, checking the register of companies for information about companies mentioned in the ‘explanations’ and changes in their capital, identifying the officials of the National Service for Combating Organised Crime and of the Ministry of Internal Affairs with whom [Mr G.T.] has discussed his relations with the [applicant], checking whether [Mr G.T.] has complained to the Ministry of Internal Affairs, and so on. The court finds that it does not have to elucidate those matters in the present proceedings, because they would not alter its final conclusion that the offence [of which Mr E.S. has been accused] has not been committed. It should however be mentioned that the statements of the accused in his interview for Trud about the existence of such documents should prompt the investigating and the prosecuting authorities to check whether offences have been committed on the occasions mentioned in the interview. The testimony of [Mr G.T.] shows that he had thus far not been interviewed about those matters. In the abovementioned case of [Thorgeir Thorgeirson] the Reykjavik police had accused the applicant of an offence partly because of his failure to justify what it considered to be his own allegations. In its judgment the European Court [of Human Rights] emphasised that in so far as the applicant had been required to establish the truth of his statements, he had been faced with an unreasonable, if not impossible task. ‘[Mr G.T.]’s explanations’ in addition contain comprehensive and accurate personal and biographical information, a detailed description of the companies in which [Mr G.T.] has been a shareholder, descriptions of specific events, and details about other individuals identified with their personal and family names. [Mr G.T.] also points out that the assertions about his relations with the [applicant] are accurate, except for the allegations of physical violence. His testimony shows that the ‘explanations’ are signed in a manner that is at least similar to his signature. The court therefore finds that the accused had at his disposal enough objective elements to form the belief that those explanations emanated purported to be their author. In [its caselaw] the Supreme Court of Cassation points out that when a publication mentions matters based on objective facts, the person concerned is acting in good faith, and this precludes criminal or civil liability for defamation. The court finds that the accused’s failure to establish the manner in which he obtained ‘[Mr G.T.]’s explanations’ is irrelevant to the proper resolution of the case. In its judgment in the case of Goodwin v. the United Kingdom [27 March 1996, Reports of Judgments and Decisions 1996II] the European Court of Human Rights held that the protection of journalistic sources is one of the basic conditions for press freedom and of freedom of speech. It is true that as a result of the publication the public learned that there exists a document accusing the [applicant] of committing an offence. However, that assertion is true, such a document exists, and there is therefore no room for the assertion to be rebutted. At the same time the [applicant], protesting his innocence, is the one who should be most interested in the carrying out of a detailed investigation into the matter by an independent commission of the Supreme Judicial Council and the public announcement of its results. Indeed, that is the proper forum where he can vindicate his reputation. Given that the actus reus of the offence of defamation with which the accused is charged is lacking, there is no point in discussing mens rea. In view of the foregoing, the court finds that ... the accused [Mr E.S.] has not imputed to the [applicant] publicly prosecutable offences under Articles 19899 and 213a14 of the Criminal Code ... The court finds that the claim for compensation brought by the [applicant] against the accused [Mr E.S.] is illfounded. The accused has not committed an unlawful act, which is one of the necessary preconditions for [a tort to exist]. It is therefore pointless to discuss the questions of damage, causal connection and fault. For these reasons, the court rejects the claim ...” On 27 June 2003 the applicant appealed to Sofia City Court (Софийски градски съд). The appeal was assigned to a three-judge panel which comprised two judges who earlier had taken part in the examination of an interlocutory appeal which the applicant had lodged in the second case (see below). In an additional pleading dated 12 October 2003 the applicant argued that Sofia District Court had erred by relying on “Mr G.T.’s explanations” to acquit Mr E.S., because of the dubious value of that document and because Mr G.T., called as a witness, denied the statements made in it. The applicant also argued that the lower court had erred in interpreting the substantive law and the caselaw of the Supreme Court of Cassation, thus rendering nugatory the presumption of falsity under Article 147 § 2 of the Criminal Code. On 3 November 2003 the court set the appeal down for hearing. It found no need to hear witnesses. In an additional submission of 27 November 2003 newly retained counsel for the applicant argued that (a) the case should have been examined in the first instance by Sofia City Court and not Sofia District Court; (b) by hearing Mr G.T. as a witness and questioning him about irrelevant matters, Sofia District Court had breached the rules of procedure and had shown bias in favour of Mr E.S.; (c) by proceeding with the case on 21 April and 16 June 2003 in the applicant’s absence, the lower court had breached the rules of procedure and had infringed his right to take part in the proceedings; (d) by admitting in evidence a photocopy of “Mr G.T.’s explanations” and by refusing to admit evidence adduced by the applicant the lower court had breached the rules of evidence; (e) the lower court had incorrectly identified the allegedly defamatory statements; (f) the lower court had erroneously failed to analyse evidence establishing his good reputation; (g) the lower court had analysed erroneously a number of points of fact and law. He requested the court to oblige Mr E.S. to answer a number of questions, to appoint a psychiatric expert to assess his mental capacity, to appoint an expert with a view to determining the exact tenor of Mr E.S.’s interview, to call as a witness the journalist who had taken the interview, and to request a copy of a prosecutorial case file. At the hearing on 8 December 2003 counsel for the applicant reiterated his evidentiary requests. The court refused to call the journalist as a witness, finding that the facts had been sufficiently established and that her testimony would not add anything. It refused to appoint experts, finding that it did not need expert knowledge to assess the relevant facts. It held that it did not need to obtain a copy of the prosecutorial case file because it would be irrelevant. It went on to say that there was no problem in admitting “Mr G.T.’s explanations” in evidence. Lastly, the court noted that, in view of the criminal character of the proceedings, it could not compel Mr E.S. to answer questions, because that would infringe his protection against selfincrimination. After that the court heard the parties’ closing statements and reserved judgment. On 9 December 2003 counsel for the applicant requested that the case be assigned to a different bench, citing his suspicion that the judges hearing the appeal were not impartial in view of their participation in the examination of the interlocutory appeal in the other case (see below) and in view of unofficial pressure to decide in favour of Mr E.S. It seems that he did not receive a reply. In a final judgment of 29 January 2004 Sofia City Court upheld the Sofia District Court judgment in the following terms: “[This court] fully shares the firstinstance court’s findings of fact and law. Firstly, Sofia District Court has correctly established the facts of the case. This court also finds that the accused [Mr E.S.] made the impugned statements in the course of his interview with the journalist from Trud given on 5 December 2002. It is not in dispute that his replies, as printed in the newspaper, were identical to those made to the [journalist]. The [lower] court also correctly found that the occasion for the interview had been the fact that [Mr E.S.] had handed the Minister of Justice one hundred and five documents supporting his earlier allegations relating to the Chief Prosecutor [Mr N.F.]. This can be seen both from the tenor of the questions put to [Mr E.S.] and from the introductory part of the publication, where these matters are described. Sofia District Court correctly found that the accused was in possession of a photocopy of a document whose introductory part named the witness [Mr G.T.] as its author. It also correctly found that this piece of evidence must be admitted and analysed, even though it was a photocopy whose author was not identified in the course of the proceedings. One has to bear in mind that this evidence contains printed text which contains objective information. Neither the fact that the document is not an original nor the fact that, being a photocopy, it cannot be graphologically tested with a view to identifying its author, can serve as grounds not to admit it in evidence. Moreover, its existence directly relates to the question whether the impugned act is criminal or not. That photocopy contains text which can lead to the conclusion that [Mr G.T.] had been forced by the [applicant] to enter into transactions, sign documents, convey and contribute assets for the benefit of [an insurance company] connected with the [applicant]. The [lower] court correctly found that the document’s text reflects statements made by its author and sets out statements which can lead to the conclusion that [Mr G.T.] has been the victim of a criminal offence. It also correctly found that that offence (if what is said in the document is true) should be characterised as extortion, contrary to Article 213a of the Criminal Code. This court is likewise certain that the impugned statement ‘Simply because this man [, Mr G.T.,] has been racketeered and robbed by [the applicant]’ constitutes a correct reproduction of the allegations made in that document. The charges [against Mr E.S.] are under Article 148 § 2 read in conjunction with § 1 and with Article 147 § 1 of the Criminal Code, the actus reus of the offence consisting in the imputation of a criminal offence to [the applicant]. It is indisputable that one of the impugned statements made by [Mr E.S.] (and later printed in the newspaper) amounts to an allegation that [the applicant] has committed an offence. However, the proper interpretation of Article 147 § 1 of the Criminal Code and more specifically of the second actus reus envisaged by that provision shows that, for an allegation to be defamatory, it must originate from the accused. This court firmly believes that it is absolutely inadmissible to engage the criminal liability of a person who quotes (in the event correctly) information or statements made by another. This conclusion finds support in the text of the [Code], where the legislature, when characterising the offence, used the word ‘impute’ to define the actus reus. The grammatical interpretation of that word also leads to the categorical conclusion that, for there to exist an imputation of an offence, it must originate from the accused, not from a third party. A different construction would, firstly, run counter to the Criminal Code and, secondly, lead to a complete impossibility of exchanging information (characteristic of a democratic society). In as much as there is no evidence showing that the accused is the author of the impugned statement, but on the contrary – it has been established that he discovered that information (a document which contained it), this court likewise finds that the accused [Mr E.S.] has not carried out the actus reus of the offence [of which he is accused]. The court fully shares the conclusions of the Sofia District Court concerning the nature of the information which the accused laid out before the media and the nature of his actions. The [lower] court correctly found that the occasion for the interview had not been [the applicant]. During the course of the entire interview [Mr E.S.] answered questions relating to his handing over of documents concerning the prosecuting authorities as an organ of the State. The accused shared his view about certain actions or omissions of representatives of the prosecuting authorities. He gave an assessment of the functioning of that institution and revealed the information which he knew (contained, in his view, in documents that he had handed to the Minister of Justice) and which corroborated his assertions. The two impugned phrases were part of one such example. It should here be pointed out that matters touching upon the functioning of the prosecuting authorities, as a body authorised under the Constitution to perform certain functions in a democratic State, are not and cannot be matters which are personal or which touch upon the individual’s private life. On the contrary, those are matters relating to an essential institution which is of great public importance and enjoys heightened public interest. The [lower] court correctly found that the caselaw under the [Convention] and the Constitutional Court’s [caselaw] show that such information concerns a matter of public interest and not the individual’s private life. It is absolutely impermissible to prevent any person from disseminating and making public information which he or she knows and which relates to the functioning of a State institution. To hold otherwise would unduly circumscribe the right freely to express opinions, and would in turn hamper the functioning of a democratic society. It is precisely the opportunity to disseminate and discuss such information that allows society to exercise control over the authorities. Even if the court were to refrain from holding that the actus reus of the offence has not been carried out because the accused is not the author of the impugned statement but has merely disseminated it during the course of a public appearance, the accused should still not be held criminally liable, because of the absence of mens rea. It is not in dispute that the offence of defamation can be committed only with intent (direct or oblique). The act is criminal if the accused realises the criminal character of the act that he imputes to the victim and also realises that that act has not been perpetrated. In the case at hand, [Mr E.S.] was in possession of a detailed document containing information which unequivocally showed that more than one criminal offence had been committed. On its face, the document contained all the necessary features. It was entitled ‘explanation’, which is typical of criminal proceedings, its author (a real person) was named, the document was comprehensive, dated and signed. It is true that it was a photocopy, but this is completely normal in view of the fact that it looked like a document that naturally belonged in a criminal case file. There is no evidence whatsoever that [Mr E.S.] was aware that the document might be false or that it might not have been drawn up by the person purporting to be its author, or that the information in it was false. It would therefore be completely unwarranted to find that the accused has committed in intentional offence. It should be observed that the evidence gathered in criminal proceedings should establish ... unequivocally and categorically both the actus reus and the mens rea. [The latter] has not been so established; indeed, it was not proven by any of the available evidence. On the contrary, in as much as it was found that [Mr E.S.] was in possession of the document (it was produced by him in the course of the proceedings) and that its contents were correctly reproduced, there is no reason to assume that that he had the intention of imputing an offence to [the applicant] while knowing for certain or believing that he had not committed one. This court finds that it should examine whether the accused disseminated the information contained in the document after having tried to verify its veracity. It is true that there is no evidence that [Mr E.S.] checked the information that he had received, but in view of the nature of the document whose photocopy he had obtained he could not have checked it. As already mentioned, that document bore all the marks of a document produced within the framework of a criminal investigation. Since the accused is [merely] a social figure, he could not have checked whether that document was genuine or what it contained. He did not have official powers, nor did he have the opportunity of acquainting himself with the materials in a potential criminal case. He did not therefore have any opportunity to check the document’s contents. It is not disputed that it was the responsibility of the authorities to check whether the allegations in that document were true (that is, the prosecuting authorities), not of a private individual. That is also an argument in support of the proposition that the accused had good reason to reveal and make public the information that he had received, not hide it. Even if it is accepted that he should have checked (which he did not do), it is beyond doubt that the failure to do so cannot lead to the conclusion that his act was intentional. As regards the second impugned statement (which was in fact made first) – ‘Instead of acting on [Mr G.T.’s] complaint, [the authorities], without looking into it, charged him with false accusation and he spent several months in detention’ –, this court also finds that it does not contain any information concerning [the applicant]. Therefore, by saying those words [Mr E.S.] carried out neither the actus reus nor the mens rea of the offence under Article 147 [§ 1] of the Criminal Code. The arguments given by Sofia District Court on this point are entirely correct and do not need to be repeated here. The court cannot accept the argument made by counsel for [the applicant] that the Supreme Court of Cassation’s constant caselaw in similar cases clearly shows that the accused did commit the offence. Firstly, the case does not concern the spreading of rumours, because rumours are what are generated when the information which is being disseminated does not have a source. Here, the source was clearly identified; the case concerns the reproduction of an independently existing document. It is immaterial that the caselaw relied on by [the applicant] runs counter to the constant case-law on the application of [the Convention] (which has priority over the caselaw applying our domestic law), which says that the normal exchange of information in a democratic society does not oblige those who disseminate information to reveal their sources. Secondly, the court cannot agree with [the applicant]’s argument that the accused was expressing his own opinion. On the contrary, he reproduced – correctly – the contents of a document which was in his possession. His statement does not contain a personal assessment of the facts and does not reflect an opinion. The impugned phrases support his assertions concerning the actions of a State authority and not [the applicant] personally. Those assertions are outside the ambit of the present case. The court does not accept that the accused sought to achieve the unlawful and noxious result proscribed by Article 147 § 1 of the Criminal Code. There is not a single piece of evidence to support that proposition, and, as explained in detail above, the aim of [his] media appearance was not connected with [the applicant]’s personality or activities. As regards the argument ... that the caselaw cited by the [lower] court relates to the activities of persons exercising the profession of journalist, whereas [Mr E.S.] was not a journalist, this court finds that the accused’s profession is irrelevant. Whether an individual is a journalist or something else makes no difference to the criminality or otherwise of his or her act. It cannot be accepted that an act can amount to a criminal offence depending on the profession of its perpetrator. Concerning the argument that the above-mentioned document is false, one should bear in mind that if the veracity of the assertions contained therein had been established, we would have been in the situation envisaged in paragraph 2 of Article 147 of the Criminal Code. In the case at hand, it was not indisputably and categorically established whether the assertions in the document are true or not. However, the question whether they are true is relevant solely for the purposes of Article 147 § 2 of the Criminal Code. The court should pursue that point only if it finds that the actus reus of the offence under paragraph 1 [of Article 147] has been carried out. Since this is not the case, the court does not find it necessary to give reasons or gather evidence concerning the veracity of the assertions made in the document. In view of its conclusion that the impugned act is not criminal, the court does not need to discuss the [applicant]’s arguments concerning the existence of the various aggravating factors enumerated in Article 148. ... In view of the foregoing and given that the accused has not carried out the actus reus of the offence, [the lower court] was right to dismiss the claim for compensation. ...” On 10 February 2004 counsel for the applicant obtained a copy of the judgment and of the transcript of the hearing of 8 December 2003. On 13 February 2004 he requested that the transcript be rectified, arguing that it did not adequately reflect the tenor of his closing speech. It seems that he received no reply to his request. On 29 January 2003 the applicant lodged a criminal complaint against Mr E.S. with Sofia District Court. He alleged that in his interviews for Darik Radio and BTV Mr E.S. had disseminated injurious statements about him. More specifically, he took issue with the allegation that in 2002 the Serbian mafia had given him three million United States dollars to prevent the extradition of Mr S.J. to the Netherlands. In the applicant’s view, by making those statements Mr E.S. had defamed him, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see Relevant domestic law below) and had injured his reputation as a wellknown public figure. He sought compensation in the amount of BGN 50,000, plus interest. In a second criminal complaint, dated 20 February 2003, the applicant accused Mr E.S. of libelling him, again in the interviews with Darik Radio and BTV. More specifically, he took issue with the allegation that he had been involved in Mr Kolev’s and Ms N.G.’s murders. In the applicant’s view, by making this allegation Mr E.S. had defamed him, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see Relevant domestic law below) and had injured his reputation as a wellknown public figure. He sought compensation in the amount of BGN 50,000, plus interest. The first criminal complaint was assigned to Bench 13, Sofia District Court. The second criminal complaint was assigned to Bench 8. Bench 13, which consisted of a single judge, examined the case at several hearings. At a hearing held on 24 March 2003 the court requested the Sofia Bar to nominate a person to be appointed ex officio counsel for Mr E.S. At the next hearing, held on 30 April 2003, the applicant did not appear in person. His counsel, both of whom were present, presented a medical certificate saying that he could not attend for health reasons. Mr E.S. was also absent. However, shortly before the hearing a lawyer presenting herself as acting on behalf of Mr E.S. had requested the court to examine the two criminal complaints jointly. Counsel for the applicant opposed the request and pointed out that the lawyer in question had not presented a power of attorney authorising her to act for Mr E.S. They also noted that the Sofia Bar had nominated ex officio counsel for Mr E.S., and urged the court to proceed with the case despite Mr E.S.’s absence. The court, noting that there were indications that Mr E.S. wished to retain counsel and not be represented by a courtappointed one, decided to adjourn the case to allow him to do so properly. It also noted that, while it could not formally rule on the joinder request because it emanated from an unauthorised representative, it could unofficially request the Bench 8 registry to provide a copy of the second criminal complaint. At the next hearing, which took place on 28 August 2003, the applicant was again absent but represented by counsel. The court, at the request of counsel for Mr E.S. and over the objection of counsel for the applicant, decided to examine the two criminal complaints jointly. It held that there existed a link between the two complaints and that to avert contradictory rulings it was bound to examine them together. Indeed, the rules of criminal procedure mandated such a joinder, which would not prejudice the rights of the applicant because he would still obtain judicial pronouncement on both charges brought by him. In reaction, counsel for the applicant requested the judge to withdraw from the case. They argued that by adjourning the case on 20 April 2003, by requesting, without a proper application by Mr E.S., a copy of the second criminal complaint from Bench 8, and by deciding to examine the two criminal complaints jointly, the judge had shown bias in favour of Mr E.S. The judge dismissed the request, saying that procedural rulings could not serve as grounds for requesting a judge’s withdrawal unless they plainly expressed bias. Her decision not to proceed with the case on 30 April 2003 had been fully warranted in view of Mr E.S.’s wish to retain counsel. Her decision to request a copy of the second criminal complaint had been a fully warranted case management decision in the interests of procedural economy. Nor had her decision to examine the two criminal complaints been indicative of bias. On 4 September 2003 the applicant appealed against the judge’s decision to join the two complaints and not to withdraw from the case. He argued that the joinder of the two complaints would be an error and could delay the examination of the case. It also showed that the judge to whom the case had been assigned was biased in favour of Mr E.S. On 15 October 2003 the Sofia City Court declared the appeal inadmissible, observing that the lower court’s decision to examine the two criminal complaints jointly had been an interim case management decision which did not restrict the procedural rights of the parties and was therefore not subject to appeal separately from the final decision. The judge’s refusal to withdraw was likewise not amenable to interlocutory appeal. The Sofia District Court held its last hearing in the case on 27 October 2003. In a judgment of the same date (reported on p. 260 of the abovecited unofficial collection of the Sofia District Court and Sofia City Court caselaw in defamation cases) it acquitted Mr E.S. and rejected the applicant’s claim for compensation. In the reasons for its judgment the court described the procedural history of the case, summarised the parties’ written and oral submissions, and set out in detail its findings of fact and the manner in which it had assessed the evidence. It went on to say that several injurious statements made in the course of one publication constituted one single offence and not several separate offences. Therefore, by making separate allegations in the course of the same interview Mr E.S. had not allegedly committed several offences but only one. The court also found that Mr E.S. could not be held liable for his words being republished by newspapers. Having clarified those preliminary points, the court continued as follows: “The accused has not performed the actus reus of the offence of defamation. The actus reus of that offence consists in the dissemination of an injurious statement of fact about another or in the imputation of an offence to him or her. The criminal complaint alleges that [Mr E.S.] has disseminated an injurious statement about the [applicant], consisting in his assertion on radio and television that the latter had connections with the Serbian mafia, that that mafia had ordered him to foil the extradition of the Serbian citizen [Mr S.J.], paying him three million United States dollars to do so, and that he had split that sum between himself, Colonel F.S. and the Chief Prosecutor, but, as the order had not been carried out and the money had not been returned, there had been an attempt on the [applicant’s] life. It should firstly be noted that the law requires the explicit dissemination of an injurious statement of fact, that is, an assertion that an event has occurred which is injurious for the person concerned. The assertion must be clear and contain information presented by the asserter as certain, indubitable information about the matters presented. Thus, the actus reus presupposes dissemination (clear and precise) of a statement of fact which is injurious to another. The act of ‘disseminating’, as relating to the person committing that act, requires the asserter to make his own assertions; assertions which emanate from him personally and which he backs by his words, pretending to be certain that those events have occurred. In this respect, the logic of the law [of defamation] simply reflects one of the general principles of the criminal law: that a person can and should be liable only for his own acts. In the case at hand, the accused did not disseminate his own assertions and on several occasions expressly said that the information which he related were versions put forward by the murdered [Mr] Kolev, which the latter had sought to back by evidence. The accused moreover declared that he did not purport to state the truth, but only what he had heard from the murdered [Mr] Kolev, and would like that to be understood well. The overall content of the interviews that he gave shows that he never stated that he was certain that the events he related had indeed occurred, and that he did not present those matters as information emanating from him, because that information had been relayed to him by another person. In his interview for Darik Radio, in reply to a question by the host, the accused specified that the version was not his but belonged to the late [Mr] Kolev, and that he wished to add that the truth about that version (concerning [Mr S.J.]’s case) could be exposed only after a comprehensive investigation. Presented in such a way, the information put forward by the accused does not even amount to the dissemination of a statement of fact about another which the accused presented as true. He did not claim that the other person’s assertion was accurate; on the contrary, he expressly cast doubt on the truthfulness of the allegations that had come to his attention – firstly he characterised them as others’ ‘versions’, and secondly pointed out that they needed to be checked. The accused in fact acted as a sort of intermediary – he brought to the attention of third parties information contained in the words of another. Each viewer and listener who saw and heard the two interviews, if later relating to others the accused’s words, would likewise be an intermediary, disseminating another’s assertions and not his own, in respect of which act he cannot of course be held liable. In sum, the court comes to the following conclusion: a person who relates another’s and not his own assertions and expressly indicates that should not be liable for defamation because he does not perform the actus reus of that offence; he merely relates the words of another, cites his source, that is, the person who has disseminated the statement. The relating person is thus a ‘means’ through which the statements made by another become known to others. The disseminator should be liable only if it is established that the statements in fact emanate from him and not from the person to whom they are ascribed. In the case at hand, in view of its findings of fact, the court finds that the accused was not the author of the statement disseminated by him, and has therefore not performed the actus reus of the offence of defamation. In this connection, the court finds unhelpful the argument of counsel for the [applicant] that it would be absurd to accept the accused’s assertions as true, because the person to whom he ascribes them is dead and it cannot therefore be checked whether they really emanated from him. It would be absurd to reach a definitive conclusion as to whether an event has or has not occurred merely on the basis of the possibilities of proving it. The logic of counsel for the [applicant] leads to the conclusion that if the assertion’s source can be verified and it can be confirmed that he or she is the author of the information, the asserter should not be liable because the information emanated from another, but that in the specific situation where the assertion’s purported author has died the asserter should he held liable. The court cannot agree with that proposition and finds it absurd. An assertion cannot be attributed to a person who has specified that his knowledge about certain facts comes from another merely because that other person has died. This is a matter of proof; in the event that the accused’s assertions have been proved because they have not been duly refuted, he cannot be expected to endure negative consequences on account of a matter outside his control such as the death of the assertion’s author. The next point is that the [accused] did not disseminate statements of fact, but hypotheses, versions and conjectures which were presented as such and not as uncontroverted facts. He asserted as a fact that he had known [Mr] Kolev and had had many conversations with him, but that fact has nothing to do with the [applicant]. The accused contends simply that [Mr] Kolev told him about versions on which he had worked and the content of those versions, and not that he knew whether such events had indeed occurred. With such a caveat the assertion does not amount to the dissemination of injurious statements of fact about the [applicant], but of suppositions relating to him. Therefore, the accused has not performed the actus reus of the offence of defamation, because by uttering the impugned phrases he did not disseminate an injurious statement of fact. He is not the source of the information which he disseminated. The actus reus of the offence defamation does not include searching for or receiving information or its dissemination after it has been created by someone else. In that connection, this court would point out that in its judgment in Thorgeir Thorgeirson [cited above] the European Court [of Human Rights] made a distinction and held that the applicant’s conviction for defamation for disseminating in the press information which he had learned from others was in breach of Article 10 of the Convention. The European Court [of Human Rights] made that distinction, explaining the difference between liability for one’s own statements of fact and liability for relating statements coming from another source of information. The [C]ourt also emphasised that the necessity for any restrictions must be convincingly established, in consideration of the fact that dissemination of information on matters of public interest is connected with the public’s right to receive information on important matters. Secondly, the accused has not imputed the offence of murder to the [applicant]. In addition to what has already been said about him not making his own assertions, the court would add the following. The interview broadcast on Darik Radio and quoted in the press does not contain words used by the accused that could be characterised as assertions. He said that the ‘persons probably behind it were Mr N.F. (the Chief Prosecutor) and possibly [the applicant]’, and later that [Mr] Kolev had told him at their last meeting that he ‘expected [the applicant] to snatch him’. The use of the words ‘probably’ and, in connection with the [applicant], ‘possibly’, categorically show that the words were a supposition and not a statement of fact or an imputation of an offence. Moreover, the phrase has to be seen against the backdrop of the interview as a whole and not in isolation, because otherwise one may lose sight of the overall picture. Seen in context, that phrase was also one of the versions which [Mr] Kolev had shared with the accused and which concerned his relations with the Chief Prosecutor and the [applicant]. As regards the expression ‘to snatch him’, the court finds that it cannot amount to the imputation of an offence. The phrase obviously suggests negative actions and aggressive conduct, but cannot be unequivocally connected with a specific act (it could refer to various encroachments, such as extortion, coercion, bodily injury, etc.). It is possible only to surmise [about its meaning], and the conjectures of the different members of the audience in front of which the statement was made may vary. As regards [Ms N.G.]’s murder, the words said by the accused during the interview do not indicate that he imputed that offence to [the applicant]. He merely said that she had been working for [the applicant], but did not make any other assertions relating to [him]. He next said ‘... in fact, the strong dependence and the connection between the Chief Prosecutor and [the applicant] is linked with that murder’. A literal interpretation of that phrase shows that the accused did not state that the [applicant] had committed murder. He stated that there existed a dependence and a link between [the applicant] and the Chief Prosecutor, but did not specify whether those were negative or which one of them could be connected with the murder. In order to have performed the actus reus of the offence of defamation, the accused must have made statements indicating unequivocally and clearly that the allegedly defamed person has committed an offence. Since the accused did no such thing, the court finds that he did not impute an offence to the [applicant] and did not perform the actus reus of the offence of defamation. The lack of actus reus shows that no offence has been committed, and it would therefore be superfluous to discuss mens rea. However, for the sake of completeness the court finds it necessary to address the lack of mens rea. The accused declared clearly and many times that he was relating the content of his statement [to the police], which he later intended to repeat before [the investigating authorities], that is, in both interviews the accused related his testimony. At the same time he replied to journalists’ questions aiming to shed light and inform the public about the outrageous assassination of a public prosecutor. It is well known that the case was reported not only in the Bulgarian but also in the international media, and gave rise to a number of statements, with many public figures commenting on it in public. This clearly shows that the case was a matter of public importance. Therefore, any information relating to it is of public importance as well. Through his acts the accused was aiming to impart such information; his statements were not seeking to vilify [the applicant]; his goal was not to accuse him of committing an offence or to discredit him; the accused presented information relating to the actions through which he was trying to assist the investigation. His sense of civic duty impelled him to give a statement to the authorities and publicly to announce his perspective on the event, informing the public about what he had done. In this context, it should be noted that the accused is likewise a public figure – he is a politician and engages in public activities. This explains why he chose to express in public his position in relation to an acute civic problem. The mens rea of the offence of defamation can be only direct intent – the perpetrator must know that the injurious statement of fact or imputation is untrue and wish to vilify the person concerned. In the case at hand, both knowledge and desire are lacking, because the accused specified that he did not know whether the allegations which he was making public were true, and did not wish to vilify the [applicant] but simply to inform the public about a widely publicised case. Therefore, by relating the content of his statement to the authorities, the accused did not commit the offence of defamation. In view of the foregoing, the court finds that the accused has not committed an offence [and therefore] acquits him of both charges brought [against him]. ... The claims for compensation are illfounded, because the accused against whom they have been brought has not committed the offences in respect of which he was brought to trial, and hence did not act unlawfully. The court accepts that the [applicant] must have felt negative emotions, but a person can be liable in tort only if all elements of the tort – unlawful conduct, damage, causal link between the conduct and the damage and fault – are in place. In the case at hand, there has been no unlawful conduct. It is therefore pointless to discuss the other elements, because the lack of even one element is equivalent to the lack of a tort. For these reasons, the court dismisses both claims as ill-founded and unproven. ...” On 7 November 2003 the applicant appealed. Sofia City Court heard the appeal on 29 March and 3 May 2004. At the second of those hearings the applicant was not personally present but was represented by counsel, who asked the court to proceed with the case. In a final judgment of 17 May 2004 Sofia City Court upheld the Sofia District Court judgment. One of the judges who took part in the examination of the case was the judge who earlier, as a judge at Sofia District Court, had examined the first case against Mr E.S. (see above). The court held as follows: “The actus reus of the offence has not been carried out, either in the form of an imputation of an offence or in the form of dissemination of an injurious statement of fact, in either interview – for Darik Radio or BTV. When deciding whether the impugned statements were defamatory and amounted to the imputation of an offence, the court must analyse three separate statements made by the accused. The first concerns the worries of [Mr] Kolev about the prospect of [the applicant] ’snatch[ing] him’. The second were the stories ... about money received from the Serbian mafia in order to foil the extradition of [Mr S.J.]. The third was the statement before Darik Radio that the [applicant] had been implicated in [Ms N.G.]’s murder. [This court] finds that the first expression – ‘snatch him’ – does not amount to an imputation of an offence or to a statement of something injurious. ... There would be defamation if [the asserter] points to specific matters which lead to the conclusion that the defamed person has either committed an offence or has engaged in morally reprehensible acts. Only the dissemination of statements presented as fact, not as opinion, amounts to defamation. There is constant caselaw to the effect that the impugned events must have occurred in the past or be occurring in the present, and not in the future. The impugned statement does not purport to present facts, but merely expectations on the part of the late [Mr] Kolev. (In fact, the impugned statement relates to the fact that the late [Mr] Kolev was worried about hypothetical and, according to him, probable actions [the applicant] might take against him. The meaning of the word ‘snatch’, although not standard Bulgarian, comes close to the meaning of the words ‘grab’ and ‘press’ and demonstrates [Mr] Kolev’s misgivings about the [applicant] putting him, in an unforeseeable manner, in an unfavourable situation in the near future.) The exact purport of those misgivings is unclear, because the meaning of the word ‘snatch’ cannot be ascertained because there is no such word in the literary Bulgarian language or jargon. In [this court]’s view, the second and the third impugned statements contain sufficiently specific information about the [applicant]’s possible participation in the commission of criminal offences. Relying on [the Supreme Court’s caselaw], this court does not share the lower court’s view that the allegations do not clearly and unequivocally point to the commission of an offence. In both cases the criminal offences have been sufficiently spelled out. Those to whom the statement was addressed can clearly understand the allegation which has been made – that the [applicant] received a large sum of money and gave some of it to highranking officials with a view to inducing them to commit another offence. The time, the accomplices and the intended offence – helping a criminal to evade justice – are all clear. In the second case the audience likewise understood that [Ms N.G.] had been an intermediary in the giving and taking of bribes between individuals engaged in criminal activities and public prosecutors, and that the contacts necessary for that activity had been made as a result of the close relations between [the applicant] and the Chief Prosecutor. Again, the statement points to a specific criminal offence – continuously acting as an intermediary in the giving and taking of bribes with an accomplice – [Ms N.G.]. Even though Mr E.S. described the information put forward by him as [Mr] Kolev’s versions, it was specific enough and must be regarded as a statement presented as fact. Unlike a fact, a version is not something that has really happened but a mere conjecture about one of the possible ways in which the events have unfolded and the reasons for it; it is not subject to proof. Nonetheless, the accused’s statements do not amount to the imputation of an offence, because they do not contain his own allegations. Two facts are of particular relevance in this connection – that Mr E.S. did not make his own allegations but repeated allegations [made by Mr] Kolev, and that he declared that he did not know whether they were true. The imputation of an offence – as well as the dissemination of an injurious statement of fact – consists in the making of untrue statements presented as fact. The statement made by [Mr E.S.] was that before his death [Mr] Kolev had had several conversations with him and that during those conversations [Mr] Kolev had told him that he was investigating possible versions of events as regards the participation of [the applicant] in the abovementioned events and had learned the information described above. That is a fact. For the reasons set out in the ‘facts’ part of this judgment, [this court] finds that this has been clearly established. It is also clear that [Mr E.S.] described this not only to the audience of the two medias but also to the authorities, under penalty of perjury. It must therefore be concluded that [he] did not disseminate untrue statements of fact but the content of his conversations with [Mr] Kolev. It is not unlawful to report the words of another. Apart from those cases where the thing which is being reported is a rumour and where the assertion that the statement belongs to someone else is not true, the disseminated statement has an author who is different from the reporter; it is that author who should bear liability for defamation, if all required elements are in place. Put differently, [Mr E.S.] is not the author of the offence, but merely a third party before whom [the applicant] was defamed by [Mr] Kolev. The latter’s subsequent death, which amounts to a bar to the institution of criminal proceedings ... and to holding him liable for his statements, does not change the fact that he was their author. There is a substantial difference between disseminating a statement about an offence and disseminating a statement that a specific person has committed an offence. Only an untrue statement can be defamatory. Only those who impute offences to others are liable for the truth of their statements. In contrast, those who merely relate statements made by others are not so liable, and not only if they manage to prove the truth of the statement, but also if they clearly identify the person who has made the injurious statement of fact or has imputed the offence. Such a distinction between the author of a statement and its reporter was made even in the Constitution [of 1879], which specifically provided, in Article 79 § 2, that ‘[i]f the writer is known and lives in the realm, the publisher, the printer and the distributor shall not be prosecuted’. The constitutionally guaranteed right to express opinions and impart information is not absolute or unrestricted. The restrictions under Article 10 § 2 of the [Convention] call for a balance between two protected values – the public’s right to receive information and the individual’s right to inviolability of his honour and dignity. The matter about which the public has the right to be informed in the instant case is of vital importance – it concerns the assassination, in the centre of [Sofia], of a public prosecutor of the Chief Prosecutor’s Office. There are good reasons for the media to subject the investigation of that offence to intense public scrutiny. Even before the assassination the victim’s name was widely known and was associated by the public with his overt confrontation with the Chief Prosecutor. The content of the impugned statements shows that the [applicant]’s name is mentioned alongside the name of the Chief Prosecutor and the assertions concerning [the applicant] equally concern the Chief Prosecutor, due to the close link between the two. Domestic and European caselaw both state categorically that public officials are subject to wider limits of acceptable criticism than private individuals. Therefore, the [lower court’s] judgment is fully consonant with the view expressed by the Constitutional Court ... that the degree to which it is permissible to limit the right to express opinions freely depends on the importance of the countervailing interest deemed worthy of constitutional protection. In support of their position counsel for the [applicant] argue that [Mr E.S.] on several occasions used the words ‘my version’, which in their view refutes the [lower] court’s finding that he had reported another person’s words. After analysing the two impugned interviews, [this court] finds that this argument is illfounded. It is true that the accused spoke of his versions and of the versions of the late [Mr] Kolev, but those versions concern different issues. [Mr] Kolev’s versions concern the link between the [applicant], the extradition of [Mr S.J.] and the murder of [Ms N.G.], whereas [Mr E.S.]’s version concerns the reasons for [Mr] Kolev’s murder. The accused is not the author of the allegedly defamatory statements in the two publications in Trud and 24 Hours. The articles are editorial, they have not been signed by a named individual, but their content makes it clear that the accused was not their author and has not been interviewed by their authors. Those authors referred to the [radio and television] programmes which had already been broadcast. The accused is therefore not the perpetrator of that act, which is moreover not criminal. It is impossible to commit defamation by omission. ... There are no grounds for finding the accused liable in tort either. The lower court correctly found the [tort] claims to be illfounded, because [Mr E.S.] has not perpetrated an unlawful act.” The relevant provisions of the 1991 Constitution read as follows: “The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour, dignity and reputation.” “1. Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way. 2. That right shall not be exercised to the detriment of the rights and reputation of others, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or enmity or violence against anyone.” “The press and the other mass media shall be free and not subject to censorship.” “Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens or against national security, public order, public health or morals.” Article 147 of the 1968 Criminal Code, as in force since March 2000, provides as follows: “1. Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by public reprimand. 2. The perpetrator shall not be punished if he or she can show that the said statement or imputation is true.” If defamation is committed in public or through the printed press, it is punishable by a fine ranging from BGN 5,000 to BGN 15,000, as well as by public reprimand (Article 148 § 1 (1) and (2) and § 2, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161, as in force since March 2000). The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4)). Article 349 of the 1974 Code of Criminal Procedure, as in force at the material time, provided that appellate judgments were subject to appeal on points of law only in (a) cases concerning publicly prosecutable offences or (b) cases concerning serious (that is, punishable by more than five years’ imprisonment) privately prosecutable offences. | 0 |
train | 001-89361 | ENG | UKR | ADMISSIBILITY | 2,008 | VAVRENYUK v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych | The applicant, Mr Stanislav Oleksandrovych Vavrenyuk, is a Ukrainian national who was born in 1939 and lives in Kirovograd. The Ukrainian Government (“the Government”) were represented by Mr. Y. Zaytsev, their Agent. On 4 March 2002 the applicant instituted proceedings in the Leninskyy District Court of Kirovograd against the local welfare department challenging the refusal of the latter to increase his pension in accordance with the Constitution and the Pensions Act. On 5 July 2002 the Leninskyy District Court of Kirovograd rejected the applicant's claim as unsubstantiated, stating, inter alia, that the applicant's pension had been determined correctly. The applicant appealed against this decision, claiming that the first-instance court had failed to apply the relevant pension law and had disregarded Article 46 of the Constitution. On 12 November 2002 the Kirovograd Regional Court of Appeal upheld the judgment of the first-instance court. In reply to the applicant's argument about the applicability of Article 46 of the Constitution instead of relevant pension law the court of appeal noted that the local welfare department had acted in accordance with the applicable provisions of the pension legislation, while the question of compliance of such legal provisions with the Constitution fell within the competence of the Constitutional Court rather than the ordinary courts. On 13 November 2004 the Supreme Court rejected the applicant's request for leave to appeal in cassation. The applicant did not ask any of the courts dealing with his case to suspend the proceedings in the case and take measures to bring the above issue of constitutionality before the Constitutional Court. The relevant domestic law and practice are set out in the Court's judgment in the case of Pronina v. Ukraine (no. 63566/00, 18 July 2006) and the decision in the case of Tatenko v. Ukraine (no. 14198/02, decision of 2 October 2007). | 0 |
train | 001-72864 | ENG | ITA | CHAMBER | 2,006 | CASE OF CAMPAGNANO v. ITALY | 1 | No 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 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election;Vote);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele;Lucius Caflisch;Margarita Tsatsa-Nikolovska;Vladimiro Zagrebelsky | 8. The applicant was born in 1933 and lives in Amorosi (Benevento). 9. In a judgment deposited with the court's registry on 30 June 1997, the Benevento District Court made a winding-up order in respect of the applicant's company, a beverage company, and also declared the applicant personally bankrupt. 10. On 15 October 1997 the trustee in bankruptcy filed a report. 11. On 9 April 1998 the bankruptcy judge (“the judge”) checked the statement of liabilities of the bankrupt estate and on 7 June 1999 declared it judicially established (esecutivo). 12. On 1, 5 and 9 July 1999 respectively the companies C.D.O., C.C.C. and F.C. instituted proceedings contesting the statement of liabilities. 13. At a hearing held on 14 April 2000, the judge ordered the striking out of the action brought by the company F.C. as being out of time. 14. On 18 December 2000 the trustee in bankruptcy requested the creditors' committee to give its opinion on the possible sale of two lorries in very poor condition which were listed in the statement of assets. 15. On 8 January 2001 the trustee in bankruptcy requested the judge to declare the lorries unfit for sale (illiquidabili) so that the proceedings could be terminated. 16. On 5 February 2001 the trustee in bankruptcy filed the revenue and expenditure account, which the judge approved on 12 March 2001. 17. By a decision deposited with the registry on 20 March 2001, the judge terminated the bankruptcy proceedings for lack of any further assets to distribute. 18. The decision was posted in the District Court on 23 March 2001. It became final on 7 April 2001. 19. The Bankruptcy Act (Royal Decree no. 267 of 16 March 1942) provides, inter alia: “An appeal shall lie against the decisions of the bankruptcy judge ... to the district court within three days of their adoption, and may be lodged by the trustee in bankruptcy, the bankrupt, the creditors' committee or any other person with an interest. The district court shall deliberate in private and give a reasoned decision. The appeal shall not have suspensive effect in relation to the impugned decision.” “An appeal shall lie against measures taken by the trustee in bankruptcy. Such appeals may be lodged by the bankrupt, or any other person with an interest, with the bankruptcy judge, who shall give a reasoned decision. An appeal against that decision may be lodged within three days with the district court. That court shall give a reasoned decision after hearing evidence from the trustee in bankruptcy and the appellant.” “The bankruptcy order shall divest the bankrupt of the rights to administer or to deal with assets that were in existence at the date of the said order. ...” “Correspondence addressed to the bankrupt shall be passed to the trustee in bankruptcy, who shall be empowered to retain correspondence concerning property interests. The bankrupt may consult the correspondence. The trustee in bankruptcy shall keep the content of correspondence not relating to such interests confidential.” “The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge, the trustee in bankruptcy or the creditors' committee each time he is duly summoned, except where he is unable to appear on legitimate grounds and the judge gives him leave to send a representative. If the bankrupt fails to comply with a summons, the judge may order that he be brought by the police.” “A public register of the names of bankrupts shall be held at the registry of each district court. Names shall be deleted from the register by order of the district court. A bankrupt shall be subject to the restrictions laid down by law until such time as his name is deleted from the register.” “The bankruptcy proceedings shall be terminated by means of a reasoned decision of the court ... An appeal against that decision may be lodged with the court of appeal within fifteen days of its being posted in the court ...” “Rehabilitation may be granted to bankrupts who 1. have paid in full the debts included in the bankruptcy, including interest and expenses; 2. have complied with the terms of the composition with creditors if the court considers them eligible for such a measure, taking into account the causes and circumstances of the bankruptcy, the terms of the composition and the percentage agreed. Rehabilitation may not be granted in cases where the percentage agreed for unsecured creditors is below 25% ...; 3. have shown proof of effective and consistent good conduct for at least five years following the end of the bankruptcy proceedings.” 20. Article 2 § 1 (a) of Presidential Decree no. 223 of 20 March 1967, as amended by Law no. 15 of 16 January 1992, provides essentially for the suspension of the bankrupt's electoral rights for the duration of the bankruptcy proceedings and, in any event, for a period not exceeding five years from the date of the bankruptcy order. 21. Legislative Decree (decreto legislativo) no. 5 of 9 January 2006 on the reform of the Bankruptcy Act provides, inter alia, as follows: “Article 48 of Royal Decree no. 267 of 16 March 1942 is hereby replaced by the following: 'Article 48 (correspondence addressed to bankrupts): Entrepreneurs who are declared bankrupt and the directors or liquidators of companies or corporations which are the subject of bankruptcy proceedings shall be required to hand over to the trustee in bankruptcy all correspondence, and in particular electronic correspondence, concerning property interests [rapporti] included in the bankruptcy.' ” “Article 49 of Royal Decree no. 267 of 16 March 1942 is hereby replaced by the following: 'Article 49 (obligations of bankrupts): Entrepreneurs who are declared bankrupt and the directors or liquidators of companies or corporations which are the subject of bankruptcy proceedings shall be required to inform the trustee in bankruptcy of any change of residence or address. Where information or clarification is needed for the conduct of the proceedings, the above-mentioned individuals must report in person to the bankruptcy judge, the trustee in bankruptcy or the creditors' committee. If they are unable to do so, the judge may give leave to the entrepreneur or the legal representative of the company or corporation which is the subject of the bankruptcy proceedings to send a representative.' ” “Article 50 of Royal Decree no. 267 of 16 March 1942 is hereby repealed.” “The following provisions are hereby repealed: (a) Article 2 § 1 (a) ... of Presidential Decree no. 223 of 20 March 1967; ...” 22. According to legal commentators, the institution of bankruptcy has its origins in the Middle Ages (thirteenth century), an era when merchants (in the broad sense, encompassing traders, entrepreneurs and bankers) formed the nucleus of a new social class. In this context, in which the public interest coincided at times with the interests of the merchant class, bankruptcy was designed to impose stringent measures on insolvent merchants. Hence, bankruptcy was subject to criminal penalties (such as banishment, arrest and, in some cases, torture or death) or civil penalties such as the entry of the bankrupt's name in a register, forcing bankrupts to wear distinguishing marks (such as a green beret), loss of citizenship, and other restrictions (see A. Jorio, La crisi d'impresa, il fallimento, Guiffré, 2000, p. 364; S. Bonfatti and P.F. Censoni, Manuale di diritto fallimentare, Cedam, 2004, pp. 1-2 and 72-73; and L. Guglielmucci, Lezioni di diritto fallimentare, G. Giappichelli, Turin, 2004, p. 122). | 1 |
train | 001-78524 | ENG | UKR | CHAMBER | 2,006 | CASE OF POPOV v. UKRAINE | 4 | Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 4;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Peer Lorenzen | 4. The applicant was born in 1946 and resides in the town of Zhovti Vody, Dnipropetrovsk region, Ukraine. 5. On an unspecified date the applicant instituted proceedings in the Zhovtovodskyy Town Court of Dnipropetrovsk Region against his employer, a State-owned company, the Zhovti Vody Construction Department (Жовтоводське управління будівництва), in order to receive salary arrears and other payments. 6. On 21 December 2000 the court found for the applicant and awarded him 5,329.30 Ukrainian hryvnias (“UAH”) (Рішення Жовтоводського міського суду). 7. On 19 January 2001 the Zhovti Vody Town Bailiffs' Service (Відділ Державної виконавчої служби Жовтоводського міського управління юстиції) initiated the enforcement proceedings. 8. On an unspecified date the applicant instituted new proceedings in the same court against the same enterprise for further payments and compensation. 9. On 20 February 2002 the court found for the applicant and awarded him UAH 2,093.49. 10. The applicant received UAH 650, but, according to him, the rest of the awards remain unpaid. 11. By letter of 4 April 2003, the Bailiffs' Service informed the applicant that the enforcement proceedings had been stayed because of the bankruptcy proceedings initiated against the debtor by a decision of 27 December 2001 of the Commercial Court of the Dnipropetrovsk Region. The Bailiffs' Service also stated that, according to the Law on the Introduction of a Moratorium on the Forced Sale of Property, on 26 December 2001 a ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital had been introduced. 12. By the decree of 5 October 2004 the Ministry of Fuel and Energy of Ukraine liquidated the debtor company. 13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). | 1 |
train | 001-96168 | ENG | POL | ADMISSIBILITY | 2,009 | IWANCZUK v. POLAND | 4 | Inadmissible | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Krzysztof Iwańczuk, is a Polish national who was born in 1962 and lives in Konstancin-Jeziorna. He was represented before the Court by Mr J. Brydak, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 April 1993 the prosecution filed a bill of indictment against the applicant with the Wrocław Regional Court. He was charged with several financial offences. The case was heard by the panel composed of Judge A.W. and two lay judges. A hearing scheduled for 22 December 1998 was cancelled due to the illness of one of the lay judges. On 11 August 1999 the lay judge died. In addition, Judge A.W. was due to leave the Wrocław Regional Court to take up a post at the Supreme Administrative Court on 17 January 2000. As a result the applicant’s case had to be heard de novo by a newly composed panel. On 13 September 1999 the Minister of Justice seconded Judge J.M. from the Oleśnica District Court to serve as a judge of the Wrocław Regional Court from 1 October 1999 to 31 March 2000. On 13 September 1999 Judge J.M. was put on a list of judges of the 3rd Criminal Division of the Wrocław Regional Court. On the same day the President of the 3rd Criminal Division assigned Judge J.M. to the applicant’s case under Article 351 § 1 of the Code of Criminal Procedure. He noted that the judge who had been previously assigned to the case was due to take up a different judicial post. Furthermore, it was necessary to divide work evenly between judges in the division. On 18 October 1999 Judge J.M. scheduled the first hearing in the applicant’s case for 17 November 1999. It appears that subsequently Judge J.M. was appointed a regional court judge. On 5 May 2003 the Wrocław Regional Court, composed of Judge J.M. and two lay judges, convicted the applicant of fraud. It sentenced him to five years’ imprisonment and a fine. The applicant appealed. On 1 April 2004 the Wrocław Court of Appeal upheld the first-instance judgment. The applicant lodged a cassation appeal, arguing that the panel of the Wrocław Regional Court had been composed in breach of Article 351 § 1 of the Code of Criminal Procedure. He submitted that the President of the 3rd Criminal Division should have assigned his case to the next judge on the list of judges and not to Judge J.M. Since that was not the case, the composition of the court was decided in an administrative manner. The applicant further relied on Article 6 § 1 of the Convention, arguing the lack of objective impartiality of the Regional Court. On 10 December 2004 the Supreme Court requested the President of the 3rd Criminal Section of the Wrocław Regional Court to provide a list of judges, referred to in Article 351 § 1 of the Code of Criminal Procedure, which had been valid on 13 September 1999. On 17 December 2004 the requested list of judges together with an explanation as to the composition of the panel was received by the Supreme Court. The list of judges adjudicating in the 3rd Criminal Division of the Wrocław Regional Court valid on 13 September 1999 included Judge J.M. The list contained eleven judges listed in numerical order. Judge A.W. was fifth on the list and Judge J.M. was eleventh on the list. He was indicated as having been seconded to the Regional Court by a decision of the Minister of Justice of 13 September 1999. It was further stated that on 13 September 1999 the applicant’s case was assigned to Judge J.M. The reasons for this decision were even distribution of work between judges in the division and the necessity to provide Judge J.M., a newly-seconded judge, with cases to examine. The Supreme Court was further informed that A.W., the judge previously assigned to the case, had been due to be transferred to the Supreme Administrative Court on 17 January 2000. On 29 April 2005 the Supreme Court held a hearing. It dismissed the applicant’s cassation appeal as manifestly ill-founded and pronounced the most relevant reasons for its decision. The Supreme Court further informed the parties that due to the manifestly ill-founded character of the cassation appeal, it was not required to provide written grounds for its decision (Article 535 § 2 of the Code of Criminal Procedure). Article 351 § 1 of the Code of Criminal Procedure (,,CCP”) stated at the material time as follows: “A judge (...) is assigned [to a case] in the order in which the case was filed and by reference to a list of judges of a given court or division which is accessible to the parties. A departure from this rule is permissible only by way of omitting a judge on the ground of his/her illness or on other important grounds and [that circumstance] should be specified in a decision on holding a hearing” Article 351 § 2 of the CCP provides that in cases concerning the most serious charges the composition of a panel is decided – on request of a prosecutor or a defence counsel – by drawing lots. In a decision of 23 November 2004 (case no. V KK 195/04) the Supreme Court held that the notion of “other important grounds” within the meaning of this provision comprised “a heavy workload of a judge which made it impossible for him/her to decide on a case before the expiry of a limitation period”. The Supreme Court noted that the rule established in Article 351 § 1 of the CCP was not absolute and could be subject to limitations which took account of practical necessities. In a resolution of 17 November 2005 (case no. I KZP 43/05) the Supreme Court found that Article 351 § 1 of the CCP would be breached if a different judge than the judge next on the list of judges was assigned to hear a case and if no important ground had been invoked to justify the departure from the rule. The Ordinance of the Minister of Justice of 12 August 1998 on particular rules concerning assignment and drawing of judicial panels came into force on 1 September 1998. Paragraph 2 (1) of the Ordinance required that in each division there had to be a list of judges in alphabetical order. In addition, the list should include annotations about any circumstances constituting grounds for departure from the rules of assignment of judges specified in Article 351 § 1 of the CCP. | 0 |
train | 001-60644 | ENG | FIN | CHAMBER | 2,002 | CASE OF POSTI AND RAHKO v. FINLAND | 1 | Preliminary objection partially allowed (six months);Preliminary objections partially rejected (six months, non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 8. The applicants are fishermen operating in the coastal region of the Gulf of Bothnia on the basis of leases contracted with the State in 1989 and renewed in 1995 (for a further period ending in 1999) as well as in 2000 (for the period 2000-04). 9. By virtue of section 116, subsection 3, of the 1982 Fishing Act (kalastuslaki, lag om fiske 286/1982) the Ministry of Agriculture and Forestry may restrict fishing, inter alia, if this is deemed necessary in order to safeguard future fish stocks. Since 1986 the Ministry has imposed such restrictions by issuing decrees. The restrictions have varied to some degree as regards their timing, territorial scope, the fish species in question and the prohibited fishing gear. The restrictions may also extend to private waters. 10. In 1991 Mr Rahko and others challenged the lawfulness of Decree no. 684/1991 (“the 1991 Decree”), whereby fishing with certain gear had been prohibited, inter alia, in waters leased by him. In its judgment of 14 June 1991 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) declined to examine the merits of the appeal, considering that it lacked jurisdiction to consider the appellants' demands that the decree be revoked and the implementation thereof stayed. 11. By Decree no. 231/1994, which entered into force on 1 April 1994 (“the 1994 Decree”), the Ministry prohibited salmon fishing with certain gear during certain periods in the main basin of the Baltic Sea, in the Gulf of Bothnia and in the Simojoki River. The restrictions concerned the fishing of salmon between certain latitudes in the open sea and in coastal waters as well as in certain rivers and their estuaries, and extended to the fishing waters which the applicants were leasing from the State. The decree was later repealed and replaced by Decree no. 258/1996 (“the 1996 Decree”). The date of entry into force of the last-mentioned decree (29 April 1996) was specified by Decree no. 262/1996. In so far as the restriction concerned the applicants, it was maintained on substantially similar terms by Decree no. 266/1998, which entered into force on 16 April 1998 (“the 1998 Decree”). 12. On 25 November 1994, in response to a petition lodged by the applicants and others, the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) found no indication that the Ministry of Agriculture and Forestry had, in restricting the salmon fishing in certain waters, acted contrary to, inter alia, the Supreme Administrative Court's decision of 30 May 1980 (see paragraph 25 below) or otherwise incorrectly. 13. On 21 March 1995 the applicants and the State extended their respective leases up to the end of 1999. In so far as relevant to the present case, the leases referred back to the terms of the 1989 leases. 14. In a further decision of 26 May 1995, in response to a petition by others, the Ombudsman considered that, in issuing the 1994 Decree, the Ministry had not exceeded the powers which the Fishing Act had conferred upon it. After hearing submissions from the Ministry he concluded that the restrictions set forth in the decree had been justified in order to safeguard the fish stocks. In so far as the petitioners had complained of discriminatory treatment, the Ombudsman noted that the restrictions had differed from area to area in order to take into account the spawning routes of the salmon. He therefore accepted that there had been sufficient justification for the different timing of the prohibition in the respective water areas and for prohibiting different fishing gear in different areas. 15. Having reviewed the territorial scope of the restrictions, the Ombudsman considered, however, that the Ministry had not sufficiently taken into account the need for equal treatment of fishermen in different areas. He noted that the decree had been based on a report of the Working Group on salmon fishing in the open sea which the Ministry had appointed in 1993 (avomerilohityöryhmä, havslaxarbetsgruppen 1993:15). The Working Group had found certain fishing restrictions necessary so as to enable the salmon to reach the northernmost rivers and thereby to safeguard the fish stocks. It had been of the further opinion that in order to be non-discriminatory in character the restrictions should apply equally to fishing in the open sea and to coastal fishing (within village boundaries) within the whole of the areas located between certain latitudes. The Ombudsman noted that the terms of the decree had differed from the opinion of the Working Group, without any convincing reasons having been given therefor. The resultant differential treatment, without any generally acceptable grounds, of certain water owners and fishermen who had contracted leases, was therefore in violation of section 5 of the Constitution. 16. On 19 September 1996 the Lapland District for the Economic Development of the Countryside (maaseutuelinkeinopiiri, landsbygds-näringsdistrikt) granted Mr Posti 20,274 Finnish markkas (FIM) (3,405 euros (EUR)) and Mr Rahko FIM 32,464 (EUR 5,460) in compensation for losses suffered as a result of the fishing prohibition imposed by the 1996 Decree. Their average salmon catch per year during the periods in 1990-94 when a fishing prohibition had been in force was estimated at 2,150 kg and 3,848 kg respectively, at the price of FIM 15.93 per kg. The applicants' average catch of whitefish was estimated at 257 kg and 110 kg respectively, at the price of FIM 12.85 per kg. The overall compensation amounts were reduced by 15% in order to accommodate the awards within the funds foreseen in the State budget. An appeal lay to the Appellate Board for Countryside Commerce but the applicants did not avail themselves of that possibility. 17. On 2 May 2000 the applicants' respective leases were further prolonged until the end of 2004. The leases stipulated, inter alia, that salmon fishing was allowed within the leased areas “in so far as prescribed in the ... decree on salmon fishing or other provisions”. 18. According to the Constitution of 1919 (Suomen hallitusmuoto, Regeringsform för Finland 94/1919), as in force up to 1 March 2000, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 6). A judge or other officer was under an obligation not to apply a provision in a decree which conflicted with constitutional or other laws of Parliament (section 92, subsection 2). The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law (Law no. 438/1990). 19. Under the Constitution of 1919, anyone who had suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant was entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the Constitution of 1919 was amended by Law no. 969/1995, which entered into force on 1 August 1995. The new Chapter 2 includes, inter alia, the right to property (section 12; as from 1 March 2000 section 15) and has been incorporated as such into the Constitution of 2000. Under the current Constitution a court of law must give precedence to a provision therein if the application of a provision of ordinary law would be in evident conflict with the Constitution. If a provision in a decree or any other statute of lower rank than an Act of Parliament is in conflict with the Constitution or ordinary law, that provision shall not be applied by a court of law or any other public authority (sections 106-07). 20. Under the Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings for damages may be initiated against the State on the basis of its vicarious liability for mistakes or omissions in the exercise of public authority. The State's vicarious liability comes into play only if the responsible official fails in his or her duty to take a measure or perform a task that could reasonably be required in the light of the nature and purpose of the activity in question (Chapters 3 and 4). The claim for damages must be made within ten years from the date when the damage occurred, unless a shorter limitation period applies (Chapter 7, section 2). 21. According to the 1961 Water Act (vesilaki, vattenlag 264/1961), the holder of a building permit relating to a water area may, if the construction would clearly damage the fish stocks, be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters (Chapter 2, section 22, subsection 1). 22. An application concerning a measure alleged to be in violation of the Water Act whereby it is sought to have such a measure prohibited, the previous conditions re-established or damage compensated may be lodged with the competent water court (Chapter 16, section 33, subsection 1). 23. The general right to fish in public water areas and within the Finnish fishing zone does not include the right to fish for salmon and sea trout (see, for example, section 6, subsection 3, and section 12 of the Fishing Act). According to section 31 of the Fishing Act, provisions restricting fishing with certain gear may be introduced by decree. Restrictions on fishing within or outside the territorial waters of Finland may likewise be imposed by decree for the purpose of fulfilling obligations set in an international agreement binding on Finland, for safeguarding fish stocks or for any other comparable special reason (section 116). The decrees of 1994, 1996 and 1998 which are of relevance to the present case (see paragraph 11 above) were issued on the basis of section 31. Non-compliance with a fishing restriction may be subject to prosecution (sections 107-09). 24. The provisions concerning the State's fishing waters and fishing rights can now be found in Chapter 5 of the Fishing Decree (no. 1116/1992). 25. On 28 December 1979 the Water Court of Northern Finland (Pohjois-Suomen vesioikeus, Norra Finlands vattendomstol) ordered that certain companies permitted to construct hydroelectric power stations in the Kemijoki River should annually restock its estuary with an average of 615,000 young salmon. This compensation order aimed at safeguarding the future salmon stocks in the waters affected by the construction. (The Kemijoki River flows into the Gulf of Bothnia at Kemi, not far from Tornio.) The Water Court's decision was upheld by the Supreme Administrative Court on 30 May 1980. 26. In a judgment of 9 June 1982 (no. 33/1982) the Supreme Water Court (vesiylioikeus, vattenöverdomstolen) found that since time immemorial the owners of fishing waters in the Kemijoki River and its estuary had been engaged in fishing for salmon and sea trout without any State interference and with its de facto consent. Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area, provided they had been using legal fishing gear. The Supreme Water Court further found that the State too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters. In addition, compensation was awarded to the State for its loss of income from leasing out those waters. 27. The Supreme Court (korkein oikeus, högsta domstolen) found in its decision of 3 February 1983 (no. 1983 II 28) that the damage which a company had caused by setting up timber floating routes in the Simojoki River had caused the private owners of water areas to suffer losses which were to be compensated under the Water Act. The State, which traditionally had the right to fish for salmon in the river, had not used that right for decades, either by leasing out its waters or in any other way. 28. By a judgment of 7 September 1995 (no. 133/1995) the Supreme Water Court upheld a decision of the Water Court of Northern Finland of 14 April 1994 which had dismissed various fishery associations' claim for compensation for the alleged failure to restock the estuary of the Kemijoki River as ordered on 28 December 1979. The Water Court had found that the defendants had complied with the obligations imposed on them in 1979 for the purpose of safeguarding the relevant fish stocks. In such circumstances the defendants could not be held responsible for the reduction in catches for which compensation had been sought. 29. In its precedent 2000:97 the Supreme Court examined an action for damages which a hydroelectric power company had brought against the State on the grounds that a contract between the two with a view to establishing three power plants along the Kyrönjoki River could not be implemented in full, as Parliament had enacted legislation for the protection of the river (1139/1991). The company had sought compensation for wasted planning costs in so far as those had exceeded the amount paid out following the assessment procedure provided for in the Act on the Redemption of Immovable Property and Special Rights (603/1977). The Supreme Court declined to examine this part of the claim, as the costs to be compensated had already been finally determined in the procedure under the 1977 Act. 30. In so far as the company had claimed compensation for projected profit and related losses, the Supreme Court dismissed the action after having examined its merits. The Supreme Court reasoned, inter alia, as follows: “... The contract did not bind the legislative arm. Possible legislative changes and the possibility that no building permit would be granted were specifically taken into account in the contract. The government is therefore under no obligation to compensate the company for the economic losses it suffered on account of the fact that the contract for the construction of the power plant was never implemented. The company is therefore not entitled to any compensation ... other than that stipulated in [Law no. 1139/1991 on the protection of the river]. ...” | 1 |
train | 001-107669 | ENG | MDA | CHAMBER | 2,011 | CASE OF TARABURCA v. MOLDOVA | 3 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 5. The applicant was born in 1988 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 5 April 2009 general elections took place in Moldova. The preliminary results of those elections were announced on 6 April 2009. According to them, the ruling Communist Party of Moldova had narrowly won the elections. 8. On 6 April 2009 growing discontent with the results of the elections and with alleged electoral fraud was felt, notably in various online forums. At 6 p.m. several hundred people, mostly young, gathered in front of the Stephen the Great (Ştefan cel Mare) monument in the centre of Chişinău. Half an hour later there were already 3-4,000 people assembled, who began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and Parliament buildings and then returning to the Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day. 9. On 7 April 2009 the protest restarted with the participation of some 56,000 people. While the demonstration was peaceful at the beginning, several hundred of the participants gradually became violent. As established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”), two incidents of poorly planned intervention by a fire truck and riot police brought the crowd to a point beyond which massive violent acts could no longer be prevented. Following violent attacks and stone throwing, which met very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and Parliament buildings. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building, some of them breaking out after full control over the building was recovered by the authorities at around 11 p.m. 10. At approximately 1 a.m. on 8 April 2009 various police and special forces units started a massive operation aimed at re-establishing public order. However, as established by the Commission, excessive force was used and all those still present in the main square were arrested, regardless of whether they had acted violently or not. The arrests continued for several days. The media reported cases and showed video footage of young people being arrested and/or beaten by both uniformed police and plain-clothed officers in the city centre during 8 April and thereafter, long after the protests ended on the evening of 7 April 2009. 11. According to the applicant, on 7 April 2009 he and his friend S. went to the centre of Chişinău to see the protests. 12. Having spent some time peacefully attending the protests, they stopped a taxi with the intention of returning home. However, they were forced into the taxi by three plain-clothed police officers who did not identify themselves. The officers ordered the driver to drive to Botanica police station. The applicant and S. were taken to that police station and locked in a cell which was cold, unfurnished and lacked access to daylight. 13. At around 1 a.m. on 8 April 2009 an officer in police uniform entered the cell. He was accompanied by the three arresting officers, who started beating the applicant and S. for no reason. The applicant lost consciousness and woke up with blood running from his nose and upper lip. No medical help was given to him. 14. According to the record of the applicant’s arrest, he was arrested on 8 April 2009 at 2 p.m. The reason indicated in the record was that he had been “caught in the act and the investigating authority suspects that he may abscond”. No further details were given. 15. On 8 April 2009 the applicant was transferred to the detention facility of the General Police Directorate (“the GPD”), where he was held together with ten other people in a cell measuring 5 x 4 metres, was given meagre quantities of inedible food and was denied water. The cell lacked access to daylight and ventilation. According to the Government, the applicant was examined by a prison doctor on 8 April 2009. No signs of ill-treatment were noted. 16. On 10 April 2009 an investigating judge from the Buiucani District Court, Judge M. D., accepted a prosecutor’s request to order the applicant’s detention pending trial for thirty days. The hearing took place at the GPD’s premises. On the same night, the applicant was transferred to prison no. 13. On the way there, he was allegedly made to pass through a “death corridor” formed of police officers, each of whom hit him as he passed by. 17. On 16 April 2009 the Chişinău Court of Appeal quashed the investigating judge’s decision of 10 April 2009 and ordered the applicant’s release. 18. According to the Government, the applicant was not ill-treated during his detention or his transfers to other detention facilities. Despite being assisted by a lawyer, he made no complaints of such ill-treatment until several days later. 19. On 14 April 2009 the applicant complained to the Botanica prosecutor’s office of his ill-treatment. He made a similar complaint to the military prosecutor’s office on 15 May 2009, describing in detail his ill-treatment and the conditions of his detention. He relied on Articles 3 and 5 of the Convention and noted that he had not received any reply to his complaint of 14 April 2009. The stamps present on his complaint of 14 April 2009 reveal that the case file was received by the military prosecutor’s office on 21 April 2009. 20. Also on 14 April 2009 the applicant was examined by a doctor, who found an abrasion on his face which had formed a scab and a bruise accompanying an abrasion on his upper lip on the right side, which were considered to be injuries that had not caused damage to his health. According to the applicant, he was not told to take off his clothes, and for this reason the doctor did not establish the presence of other injuries, notably on his back. 21. In a report dated 30 April 2009 the military prosecutor dealing with the applicant’s complaint noted that requests had been made to the Ministry of Internal Affairs (without specifying the nature of the requests) but that no answer had been received. In the absence of such materials no decision as to next steps could be made. The prosecutor therefore asked for an extension of the period for finalising the case until 15 May 2009. This request was granted. 22. On 15 May 2009 the same prosecutor noted that on 5 May 2009 the Ministry of Internal Affairs had been asked to carry out an internal investigation to identify the officers who had allegedly ill-treated the applicant. As no officers from Botanica police station had been heard, the prosecutor asked for an extension of the period for finalising the case until 29 May 2009. This request was granted. 23and his friend S. had been heard. The officers who were on duty at Botanica police station on 8 April 2009 were still to be heard. In such circumstances, the prosecutor asked for an extension of the period for finalising the case until 12 June 2009. This request was granted. 24. On 12 June 2009 the military prosecutor decided not to initiate a criminal investigation into the applicant’s allegations of ill-treatment. He noted that S. had not confirmed having been ill-treated or having seen the applicant being ill-treated. All the police officers had denied any wrongdoing and the officer on guard had denied that anyone had entered the applicant’s cell during the night of 7 April 2009. That officer had not seen any injuries on the applicant’s body when the applicant had returned from his interview with the investigators concerning his alleged participation in mass disorder on 7 April 2009. The three officers who had arrested the applicant (R.P., E.G. and V.T.) stated that they had brought him and S. to Botanica police station and had then returned to the centre of Chişinău, where they had guarded Government buildings until 7 a.m. on 8 April 2009. They had not returned to the police station and had not entered any cells there. Moreover, according to a report concerning a medical examination of the applicant on 8 April 2009, no injuries had been noted on the applicant’s body. The prosecutor considered that the injuries on the applicant’s face could have been caused during his participation in the riots in the centre of Chişinău. 25. By letter dated 16 July 2009 the military prosecutor’s office informed the applicant of the decision taken on 12 June 2009. 26. On 20 August 2009 the applicant complained about the prosecutor’s decision to the military prosecutor’s office. He noted that he had been in police custody between 7 and 16 April 2009 and that his injuries had appeared during that period. Moreover, none of the arresting officers had noted any injuries on his body at the time of his arrest. He noted the discrepancies between the two medical reports of 8 and 14 April 2009 and called into question the professionalism and independence of the doctor who had filed the report of the examination on 8 April 2009. He also noted that S. was a former police officer and might have given a statement in support of his former colleagues, either out of solidarity with them or after having been threatened. The applicant referred to his complaint, in which he had noted that he could identify the people who had ill-treated him, but that no identity parade had been organised to verify his claim in that regard. 27. On 21 August 2009 the military prosecutor’s office rejected the applicant’s complaint as ill-founded. The prosecutor referred to S.’s statement that he had not seen any ill-treatment occurring. 28. On 10 September 2009 the applicant complained to the Buiucani District Court about the decision not to initiate criminal proceedings. He considered that the investigation had been protracted, given that his complaint of 14 April 2009 had reached the military prosecutor’s office only a week later. Having received no response to his complaint, he had made another complaint on 15 May 2009. After a decision had been taken on 12 June 2009 – two months after his initial complaint – not to initiate a criminal investigation, he had been informed of it another month later. The applicant repeated his arguments made in his complaint of 20 August 2009 and added that the prosecution had not ordered any additional medical examination in order to dispel the doubts concerning the discrepancies between the medical reports of 8 and 14 April 2009. The applicant also noted that he had been undergoing a series of extensive medical examinations which would confirm his ill-treatment. 29. On 21 September 2009 the Memoria Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT), issued an Extract of the medical file (Extras din Fişa Medicală) concerning the applicant’s examination during the period 22 April – 1 June 2009. He appears to have undergone detailed medical tests and examinations by various medical specialists. According to the document, the applicant had suffered, inter alia, the consequences of a head injury including intracranial hypertension syndrome and post-traumatic stress disorder, which had had both physical and psychological effects on him. The document was submitted to the Buiucani District Court. 30. On 29 September 2009 the Buiucani District Court rejected the applicant’s complaint as unfounded. It found that the prosecutor had interviewed all those concerned and noted that S. had not confirmed the applicant’s allegations. The prosecutors’ decisions having been adopted in full compliance with the law, there was no reason to quash the decisions taken. 31. On 12 January 2010 the Supreme Council of Magistrates (“the Council”) refused to extend the appointment of Judge M. D. of the Buiucani District Court, following which he was dismissed from his position as a judge by the acting President of Moldova. The reason for the Council’s decision was that the judge had examined a number of cases concerning the events of 7 April 2009 outside the courtroom and at the premises of the General Police Directorate, which was “a grave violation of the Constitution and of the Code of Criminal Procedure”. 32. On 4 February 2010 the criminal case against the applicant was discontinued for lack of evidence that he had committed a crime. 33. The relevant parts of the report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Moldova from 25 to 28 April 2009, read as follows: “... Commissioner Thomas Hammarberg and his delegation visited Moldova two and a half weeks after the post-electoral demonstrations of 6-7 April 2009. The specific issue of the treatment of the people detained in relation to the events was the central focus of the Commissioner’s attention. The majority of the persons interviewed by the Commissioner’s delegation, who had been arrested in connection with the April 2009 post-electoral demonstrations, alleged that they had been beaten – some of them severely - by police officers. In several cases, the medical expert accompanying the Commissioner directly observed physical marks consistent with those allegations. Moreover, the medical files in the establishments visited contained records of injuries which were consistent with the persons’ accounts. ... Representatives of the Moldovan authorities accepted that police had abused their powers in the aftermath of the protests when dealing with persons deprived of their liberty, and expressed their resolve to overcome the problem of ill-treatment by the police. It was strongly underlined by the Commissioner that such large-scale violations of the fundamental right to be free of ill-treatment must never be allowed to recur, and that active steps must be taken to pursue accountability whenever individual cases of ill-treatment emerge... ... 10. The Minister of the Interior informed the Commissioner that 106 people were detained in the aftermath of the 6-7 April 2009 demonstrations on suspicion that they had committed criminal offences. Nine of those persons were still in custody as of 28 April 2009, remanded in Prison No. 13, an institution under the authority of the Ministry of Justice. Moreover, 216 people, including ten young women, had been detained on administrative charges related to the events in question; all of those persons had been released by the time of the Commissioner’s visit. 11. Based on the information at the Commissioner’s disposal, the persons apprehended in the aftermath of the demonstrations were brought to one of the following police establishments in Chisinau: the General Police Directorate, or the Centru (Centre), Botanica, Ciocana, Rîşcani and Buiucani district police stations. People who were initially detained in one of the district police stations were then transferred to the detention facility at the General Police Directorate. 12. The Commissioner received no complaints regarding the treatment of persons in Prison No. 13. However, the majority of the persons interviewed by the Commissioner’s delegation, who had been arrested in connection with the April 2009 post-electoral demonstrations, alleged that they had been physically ill-treated by police officers. In most cases, the persons who were subjected to the alleged ill-treatment were relatively young (under 25). As the Prosecutor General has himself observed, the alleged ill-treatment broadly related to three different situations: 1) at the time of apprehension; 2) during transport to a detention facility; and 3) ill-treatment within the detention facility, including during questioning with the objective of extracting a confession. 13. The physical ill-treatment alleged included punches, kicks and blows with rubber batons, wooden sticks, the butts of firearms, or other blunt and hard objects. Certain persons claimed that the ill-treatment was sufficiently severe or prolonged so as to make them lose consciousness at least once and/or to result in fractures or permanent nerve damage. Many persons also alleged that they had been threatened with physical violence or even with summary execution, verbally abused, and/or subjected to humiliating treatment... 14. According to the Minister of Justice, of the 111 persons admitted to Prison No. 13 following a period of deprivation of liberty by the police, 28 persons displayed various degrees of injuries. The Minister of the Interior informed the Commissioner that, as of 28 April 2009, 54 complaints concerning ill-treatment were being processed. The Prosecutor General indicated that his office had received 37 complaints as of that date, and that investigations in 30 further cases had been initiated ex officio. In addition, one criminal prosecution had been initiated. 15. In several cases, the medical expert accompanying the Commissioner directly observed physical marks consistent with allegations of ill-treatment, despite the fact that more than two weeks had elapsed since the time the alleged ill-treatment occurred. Moreover, the files studied by the Commissioner’s medical expert contained records of injuries which were consistent with the accounts of physical ill-treatment given by the persons who had been in police custody. For instance, the records in the Emergency Hospital in Chisinau revealed that 115 persons had sought medical attention during the relevant period because of injuries they sustained due to use of force by the police. Of those, 24 had to be hospitalised because of severe injuries, including concussions, contusions of the kidneys, fractured limbs or ribs, and/or multiple soft tissue injuries... 22. In contrast to the prison and hospital medical records, the Commissioner’s medical expert observed that the records of injuries kept in the detention facility at the General Police Directorate in Chisinau were extremely cursory and superficial. The explanation given for this was that the feldsher (paramedic) employed in that facility was not a forensic doctor. These deficiencies in the recording of injuries in police establishments have already been highlighted by the European Committee for the Prevention of Torture (CPT) in the report on the Committee’s 2007 visit to Moldova. ...The CPT made a detailed recommendation on screening for injuries of persons within 24 hours of their admission to a police detention facility outside the presence of police officers, and on the imperative to record any injuries in a thorough manner. If the injuries recorded are consistent with allegations of ill-treatment, they should immediately be brought to the attention of the relevant prosecutor and an examination should be ordered by a recognised forensic doctor. In the interests of preventing ill-treatment, the Commissioner strongly urges the Moldovan authorities to provide for proper screening, recording and reporting of injuries, in light of the CPT’s recommendations on this subject. ... 24. ... representatives of the Consultative Council for the Prevention of Torture (the National Preventive Mechanism under the UN OPCAT) were reportedly prevented on 11 April 2009 from visiting certain police establishments in Chisinau where persons were being held, including the General Police Directorate and the Centru District Police Station. 25. The Commissioner received many complaints about the conditions of detention in police establishments following the large-scale arrests; most of these involved reports of serious overcrowding, very poor hygiene, lighting and ventilation, as well as the lack of provision of food, clean bedding, and personal hygiene or sanitary items. As already noted, the Commissioner only visited one police detention facility, i.e. the one at the General Police Directorate in Chisinau. The Commissioner observed that the material conditions in the cells were poor, with very dim lighting and bad ventilation; in general, the conditions corresponded quite closely to the descriptions provided by the persons who had been held in those cells. As for the issue of overcrowding, it was confirmed by the staff that the capacity of the establishment was exceeded during the dates in question. ... 39. It is of great concern to the Commissioner that a large number of the more than three hundred persons – certain of whom were minors - arrested in the context of or following the protests were subjected to ill-treatment by the police, some of it severe. ... 45. The Commissioner’s official interlocutors accepted that police had abused their powers in the aftermath of the protests when dealing with persons deprived of their liberty. The Commissioner underlined strongly that such large-scale violations of the fundamental right to be protected from ill-treatment must never be allowed to recur, and that active steps must be taken to pursue accountability whenever individual cases of ill-treatment emerge. 46. The Prosecutor General stated that he will investigate each case brought to his attention and also take initiatives himself upon information indicative of ill-treatment even in the absence of a complaint. According to him, special prosecutors which have not had working relations with police departments implicated in the events were being assigned to the cases.” 34. The relevant part of the report of the visit to Moldova carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 27 to 31 July 2009 read as follows: “3. The main purpose of the visit was to assess the manner in which investigations were being carried out into cases possibly involving ill-treatment by the police in the context of post-election events in April 2009 in Chişinău. The visit also provided an opportunity to review the treatment of persons detained by the police. In the course of April 2009, the CPT received reports from various sources according to which, following the parliamentary elections of 5 April 2009, hundreds of persons had been apprehended by the police after violent incidents occurred during public protests in front of the Presidency, Parliament and Government buildings in Chişinău. Those reports referred to severe physical ill-treatment at the time of apprehension, during transportation and/or during subsequent police custody. The Committee also received information indicating that some persons had died as a result of police action on 7-8 April 2009. ... 10. During the 2009 visit, the delegation observed that the practice of holding remand prisoners in police temporary detention facilities (izolatoare de detenţie preventivă, abbreviated “IDP”) continued unabated. In the report on the 2007 visit, the CPT called upon the Moldovan authorities to give the highest priority to the implementation of the decision to transfer the responsibility for persons remanded in custody to the Ministry of Justice. In response, the Ministry of Internal Affairs indicated that it was in favour of a temporary transfer of responsibility for IDPs to the Ministry of Justice, pending the building of pre-trial establishments under the latter Ministry’s authority. However, at the end of the 2009 visit, the Minister of Justice indicated that the responsibility for the IDPs could not be taken over by his Ministry because conditions of detention in these facilities were substandard. The CPT shares the view that IDPs do not offer suitable conditions for holding persons remanded in custody. The Committee would nevertheless like to stress that, in the interests of the prevention of ill-treatment, the sooner a criminal suspect passes into the hands of a custodial authority which is functionally and institutionally separate from the police, the better. The delegation’s findings from the 2009 visit support that; most cases of alleged police ill-treatment in the context of the April events had emerged only after the persons concerned had been transferred to an establishment under the Ministry of Justice or released. ... ... 12. In the course of the 2009 visit, the CPT’s delegation heard a remarkably large number of credible and consistent allegations of police ill-treatment in the context of the post-election events in April 2009. Many persons interviewed referred to the remarks made by police staff, which suggested that the alleged ill-treatment was inflicted in retaliation for acts of violence against the police during the day of 7 April. ... 14. The delegation also heard numerous accounts, from women, men and juveniles alike, of physical ill-treatment whilst in police custody in the course of 8 April and/or during the following days. Most persons interviewed who had not been released shortly after apprehension complained of repeated or prolonged beatings during the initial questioning by operational police officers or between interrogation sessions (e.g. kicks and blows with a truncheon or with a plastic bottle filled with water). The delegation also heard widespread allegations of threats of physical ill-treatment (including rape) and killing during the initial police questioning. The persons interviewed referred not only to the retaliatory nature of the alleged ill-treatment, but also claimed that it was aimed at extracting statements from them. Many persons interviewed also alleged that they had been hit with truncheons and kicked when going through a “corridor” of police officers before entering a police establishment or transfer. Further, the delegation received a few allegations of ill-treatment by custodial staff (e.g. kicks) upon admission to the IDP of the General Police Directorate in Chişinău. 15. Most of the above allegations were supported by forensic or other medical evidence. In some cases, the competent prosecuting authorities considered that the ill-treatment alleged was such that it could amount to torture ... The CPT shares this view. Moreover, the above findings lead the Committee to the conclusion that, rather than isolated incidents, there were patterns of alleged ill-treatment. ... 22. In its previous visit report, the CPT stressed that effective screening for injuries by health-care staff can make a significant contribution to the prevention of ill-treatment of persons detained by the police, and it made a series of recommendations designed to improve the procedures followed by feldshers working in IDPs. During the 2009 visit, the delegation observed the same shortcomings as those identified in the past. There were undue delays in the examination of newly admitted detainees (i.e. of up to several days). The screening for injuries was generally superficial and was routinely carried out in the presence of custodial or operational staff, and a copy of the report drawn up following an examination was accessible to police staff. Not surprisingly, the injuries sustained by detained persons in the context of the April 2009 events had frequently been detected and/or recorded only after release or transfer to a penitentiary establishment. In contrast, the screening for injuries on arrival at Penitentiary establishment No. 13 in Chişinău was generally of a better standard: newly arrived remand prisoners were examined by prison health-care staff shortly after admission and reports describing injuries observed during medical screening were forwarded to the prosecuting authorities. However, the recording of injuries was not fully satisfactory: in a number of instances, the description of lesions was succinct and the records rarely contained the prisoners’ accounts as to the origin of their injuries. ... 28. ... A new system of free legal assistance for indigent criminal suspects came into operation in mid-2008, following the entry into force of the Law on Legal Aid of 26 July 2007. However, a considerable number of detained persons interviewed by the delegation complained about the quality of ex officio lawyers. The inaction of certain ex officio lawyers during the April 2009 events when their clients displayed visible injuries or alleged ill-treatment provoked scepticism about their independence from the police and the prosecuting authorities. 29. The right of persons in police custody to have access to a doctor (including to one of their own choice), is still not expressly guaranteed by law... Many persons who were in police custody in the context of the April 2009 events complained that, despite repeated requests for independent medical assistance, they had been refused such assistance. In some cases, police staff allegedly denied access to a doctor in order to obtain a confession or other statement from the injured detained persons concerned. Further, it appeared in a few cases of persons who had presented visible injuries that medical care had not been provided to them on the grounds that they had not specifically requested it. Such situations not only deprive detained persons of a safeguard which can play a significant role in the prevention of ill-treatment, but it may also have serious repercussions on the health of persons in police custody. Clearly, access to an independent doctor should not be left to the discretion of police officers. ... 40. Control of police establishments by public prosecutors has been reinforced over the years since the first CPT visit to Moldova in 1998. Shortly after the post-election events in April 2009, prosecutors paid visits to police detention facilities. The delegation was informed that they had received and processed a number of complaints of ill-treatment in the context of such inspections. However, most persons met by the delegation who had been detained at the time claimed that, before such visits, they had been warned by police staff not to make any complaints to the visiting prosecutors. Further, prosecutors were apparently accompanied by police staff and did not seek to have private interviews with detained persons. ... 43. ... In the aftermath of the April events, a number of persons met by the delegation had been interviewed in private by members of the [Consultative Council for the Prevention of Torture] while in detention. ... Further, between 9 and 23 April 2009, on eight occasions, members of the Council had reportedly not been able to carry out their tasks; denial of access (on 9 and 11 April), delays in access (of up to two hours) and refusal to allow them to consult custody registers were among the major problems encountered. Police officers met by the delegation excused the problems of access by a lack of information, in particular as regards the composition of the Council. 44. In short, the post-election period in April 2009 had been a litmus test of the ability of independent visiting bodies to carry out their functions effectively. However, the delegation’s findings suggest that there had been serious shortcomings in their operation. ... 61. The CPT recognises that the high number of cases possibly involving police ill-treatment in relation to the April events constituted a significant challenge for the prosecuting authorities in carrying out their task. However, this should have prompted them to adopt a more proactive and holistic approach, with a particular emphasis on establishing a timeline of the incidents, including all the police officers involved, and all the alleged victims, potential witnesses and outside professionals (e.g. medical staff). Indeed, many complaints and other information indicative of ill-treatment consistently referred to the same incidents, at the same locations, with the same patterns of alleged ill-treatment and, possibly, the same police officers involved. It is clearly a flawed approach to carry out individual investigations into such cases while treating them as unrelated episodes and without proper co-ordination. ... 63. In almost all the cases examined at the time of the visit, the action taken had still not led to the identification of the perpetrators of alleged ill-treatment and/or any officials who may have condoned or encouraged it. Prosecutors met by the delegation explained this situation by the impossibility in most cases to identify suspects because police officers were wearing balaclavas, or the fact that the position of the victims did not allow them to see the police officers allegedly inflicting blows. However, it clearly appeared during the 2009 visit that no steps had been taken by the prosecuting authorities in a number of cases where victims indicated that they would recognise the police officers involved in the alleged ill-treatment... Further, key information that could have led to the identification of potential suspects and witnesses among members of the BPDS “Fulger” (such as apprehension reports) had not yet been examined in the context of investigations into alleged ill-treatment; by contrast, such information was being reviewed by prosecutors investigating mass disorder and usurpation of power on 7 April 2009. It is also noteworthy that the responsibility of senior Internal Affairs officials and police officers was not being addressed by the prosecutors dealing with cases of alleged ill-treatment; in the CPT’s view, the fact that such an important issue was being dealt with by prosecutors investigating mass disorder and usurpation of power could seriously undermine the impartiality of any investigative action taken in this respect. 66. When investigating cases possibly involving ill-treatment, the prosecuting authorities do not have an obligation of result; however, they are under an obligation to take appropriate investigative action. Efforts had generally been made by the prosecuting authorities to react to allegations of police ill-treatment in relation to the April 2009 events, even in the absence of a formal complaint, when this had been brought to their attention. However, the above findings suggest that in many cases the competent prosecutors had not taken all reasonable steps in good time to secure evidence and had failed to make genuine efforts to identify those responsible. It should also be stressed that many alleged victims interviewed by the delegation, including those who had not yet lodged official complaints, as well as their lawyers, expressed a general lack of confidence in the capability and determination of the prosecuting authorities, including military prosecutors, to carry out effective investigations into cases of police ill-treatment. In the CPT’s view, if a police complaints mechanism is to enjoy public confidence, it should not only be independent but should be seen to be independent of the police. In their letter of 26 October 2009, the Moldovan authorities informed the Committee that, following the visit, the prosecuting authorities “moved to other investigation tactics”, placing a particular emphasis on the accountability of senior police officers for their actions or lack of action...” 35. The relevant parts of the Report of the parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”) read as follows: “IV. 2.1.1. Number and profile of detainees ... in accordance with the registers held by [establishments belonging to the Ministry of Internal Affairs], 571 individuals were arrested on 7-12 April 2009. ... [The] majority of these individuals were arrested on 7-9 April 2009. In addition, an analysis of various detention records and other data provided by the State authorities revealed that the arrest of almost 70 people had not been reflected in the detention centre records. In a number of cases, the registers did not reflect that the detainee had been taken to hospital due to [his or her] injuries suffered. Many of the entries as to the reason for the arrest made during 7-12 April 2009 noted simply “from Stephen the Great (Ştefan cel Mare) St.”, “from Parliament”, “from the Presidential Palace”, “near Government [offices]” or even “for clarification” and “from office no. ...” (probably the office number in the relevant police station from which the detainee had been transferred) without any further details. Even though the authorities declared that 274 police and other officers had been injured during the events of 7 April 2009, only three people were arrested for causing such injuries, most others being accused of minor hooliganism and refusing to obey or insulting the police. The Commission concluded that “the simple presence of people in the perimeter of the [relevant few] streets and buildings amounted to ‘sufficient grounds’ for arresting [them] and bringing them to the police stations.” The Commission found that “all the concerns expressed by international organisations, the media, NGOs and society as a whole concerning the inadequate and disproportionate actions of the police after the events of April 2009 have been fully justified. Most people were detained by the police arbitrarily, in the absence of any reasonable suspicion of having committed a crime; the operative services of the Ministry of Internal Affairs have failed to identify the people who committed violent acts against their own colleagues from the Ministry of Internal Affairs; the police committed ill-treatment and acts of torture against individuals held in detention and allowed serious violations of procedural rights guaranteed by the Constitution...” IV. 2.2. Actions of the courts For the first time in the modern history of the Republic of Moldova, cases against detainees whom the police suspected of having committed administrative or criminal offences connected with the 7 April events were examined inside police sections. ... M. D., a former investigating Judge of the Buiucani District Court, [stated to the Commission that he] only examined cases concerning administrative offences on 10 April 2009 at the GPD, between approximately 13:00 and 16:40. [He] examined nine cases at the GPD... Nobody complained of ill-treatment and neither did their lawyers. Moreover, no signs of ill-treatment were apparent.” The Commission also drew up statistical data, according to which the judges accepted 80% of all the requests made by the prosecutors for the ordering of the detention of individuals accused of various criminal offences in relation to the April 2009 events. Of the total of 148 such requests, 88% were examined outside courtrooms, and a majority of such cases were examined on the GPD’s premises. According to the data in the Commission’s possession, Judge M. D. examined 15 cases on 10 April 2009 at the GPD. He accepted all the prosecutor’s requests, spending between 22 and 30 minutes on each case. Most of the decisions taken by each investigating judge in the cases connected with the April 2009 events were virtually identical. Of the 60 appeals lodged by defence lawyers against the decisions remanding their clients, 95% were accepted by the Court of Appeal and the detainees were either released or subjected to preventive measures not involving detention. All the judges who had examined cases connected with the April 2009 events declared to the Commission that they had not seen any evident signs of ill-treatment on the persons brought before them. Only in one case had a detainee and his lawyer complained of ill-treatment. The Commission noted the discrepancy of these statements with the statements of a number of victims, who had allegedly complained of ill-treatment to the judges, to no avail. According to a reply from the Prosecutor General’s Office, 105 complaints were received concerning alleged ill-treatment by the police during 7 and 8 April 2009. Following medical examinations in respect of 100 of them, 64 were found to have injuries of various degrees of seriousness. In 33 cases criminal investigations have been initiated as a result. The Commission found that “the actions of prosecutors in identifying, investigating and punishing cases of torture and ill-treatment during the initial phase were “reserved”, sometimes even suggesting that detainees had painted injuries on their bodies... At the same time ... it was established that prosecutors, as well as judges, did not take firm action to stop acts of torture, even when signs of violence had been visible.” The Commission concluded, inter alia, that “the actions of the police on the night of 7 April 2009 were disproportionate and unlawful.”” 36. In their report “Liberty, Security and Torture: April 2009 events in Moldova”, the Institute for Human Rights in Moldova (IDOM) and the Resource Centre for Human Rights (CReDO) found, inter alia, that: “Police [had] responded with blunt brutality and untargeted, largely unjustified arrests, beatings and intimidation; Arrests and detention in the Ministry of Interior custody ha[d] been widely and systematically used as a response by the police; Comprehensions and detentions went in a substantial number of cases with no explanations of the motives and reasons;” The authors of the report also found that 64% of those detained had claimed that they had been beaten by the police during their detention, and 81% had been beaten during their apprehension. This police brutality resulted in at least two confirmed deaths, with ten more suspected cases. Some 40% of those detained during the April 2009 events were not given access to a lawyer within reasonable time and 79% of all legal representation had been entrusted to State-appointed legal aid lawyers. 37. The relevant part of the Declaration of the Moldovan Bar Association (“the MBA”) of 17 April 2009 reads as follows: “[The MBA] condemns both the violent actions of certain persons during the protests of 7 April 2009 and the disproportionally violent and repressive actions of the State authorities after 7 April 2009. ... [The MBA] declares unacceptable and condemns instances of refusing lawyers access to their clients and to the materials in the relevant case files and [the fact] that many arrestees were refused access to a lawyer of their own choice, having been offered, against their will, legal assistance by lawyers [appointed under the legal aid scheme], some of whom had had a purely formal role and who, by their participation, validated the unlawful acts committed in respect of the detainees...”. | 1 |
train | 001-86355 | ENG | TUR | CHAMBER | 2,008 | CASE OF ŞENOL ULUSLARARASI NAKLİYAT, İHRACAT VE TİCARET LİMİTED ŞİRKETİ v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial | Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 5. The applicant company is a Turkish company specialising in international highway transportation. 6. On 1 June 1992 at Trieste port the Italian police discovered thirty kilograms of heroin stashed in a lorry which had been hired by the applicant company for the purpose of transporting walnut logs from Turkey to Italy. The driver of the vehicle escaped. As soon as they found out about the incident the applicant company informed the Istanbul Police Headquarters and submitted all the documents in their possession concerning the transportation. 7. On 31 December 1992 the applicant company’s licence for international highway transportation was extended until 31 December 1994. 8. On 23 June 1994 the Ministry of Transport (“the Ministry”) revoked the applicant company’s licence pursuant to Article 53 (g) of International Highway Transportation Regulations, on account of the incident in Italy. 9. On 12 July 1994 the applicant company brought an action before the Ankara Administrative Court (“the Administrative Court”) and requested the annulment of the Ministry’s decision of 23 June 1994. It also requested the Administrative Court to grant an interim decision to suspend the execution of the Ministry’s decision. 10. The Ministry submitted written defence arguments, together with a number of supporting documents, to the Administrative Court on 12 August 1994. The Administrative Court forwarded the Ministry’s written defence arguments to the applicant company. The documents attached to the Ministry’s written defence arguments, however, were not forwarded to the applicant company but were placed in the case file of the Administrative Court. 11. On 31 August 1994 the applicant company submitted observations in response to those of the Ministry. In their observations the lawyers for the applicant company referred to a number of documents which had been appended to the Ministry’s written defence arguments of 12 August 1994 but which had not been communicated to them. 12. The applicant company’s request for the interim measure was refused by the Administrative Court on 14 September 1994. 13. On 13 April 1995 the Administrative Court dismissed the case. In the proceedings the applicant company had submitted that the drug trafficking had been carried out by the driver of the hired vehicle and that the company could not, therefore, be held responsible for the driver’s actions. In its decision the Administrative Court held, inter alia, that since the impugned transportation had been undertaken by the applicant company under its licence, it was responsible for the transportation and therefore the Ministry had acted lawfully when revoking the licence. 14. An appeal lodged by the applicant company on 13 October 1995 was dismissed by the Supreme Administrative Court on 8 October 1997. 15. On 19 October 2000 the Supreme Administrative Court refused the applicant company’s request of 6 February 1998 for a rectification of the decision. That decision was served on the applicant company on 11 December 2000. | 1 |
train | 001-93157 | ENG | SRB | CHAMBER | 2,009 | CASE OF BODROZIC AND VUJIN v. SERBIA | 3 | Violation of Art. 10 | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicants were born in 1970 and 1966 respectively and live in Kikinda. 6. The applicants are journalists and were employed by the local weekly newspaper Kikindske. 7. On 9 April 2004 the first applicant published an article criticising several criminal convictions he and another journalist had incurred for defamation. The article was entitled ‘They have not punished us much for what we are’ (‘Malo su nas kaznili, kakvi smo’) and, in so far as relevant, read as follows: “Where will our souls go, we wonder. Are we Superhiks [the most prominent villain from the ‘Alan Ford’ comic book] of Kikinda, who take from the poor and give to the rich? Are we arrogant spendthrifts who waste money belonging to all Kikinda citizens, so that poor people have to pay our fines for offensive writing? Has the judge D.K.... punished us too mildly and shouldn’t he have satisfied the request of the lawyer S.K. and deservedly ripped us off to the tune of 150,000 dinars? But couldn’t our prosecutor, who is surely not a blonde, but is being whistled at by workers on strike, have asked for more, since [another column in the K. newspaper] ruined his reputation acquired over decades, and in particular over the past year or two, when he so ‘skilfully’ drafted dismissals to all the [‘]non-workers[‘] and the opposition from [a local factory]? And what should the citizens who finance our public company do and think? Could they also wonder who gave us the right to write insulting texts so that the judges of Kikinda must punish us?... Do we have the right to deny that people are tired of such a behaviour of ours...? Do we have the right to deny our fellow citizens their wish for a quiet life, free of stress and various court proceedings? Do we have a soul, we wonder out loud, and if we do, where will it go after we’ve prepared another scandal? We should be ashamed of ourselves.” 8. In the same issue, the second applicant was the editor of the page entitled ‘Amusement’, consisting of anagrams, jokes, a crossword and a horoscope. In the top middle section of the page there was a photo of a blonde woman in her underwear, next to which there was a text, which, in its relevant part, read as follows: “JPICK and the manager were visited by a blonde the other day. For that occasion the blonde was whistled at by the workers who were not on strike. And she wasn’t even a lawyer...” On the left of the photograph, there was a small box containing three anagrams, the first of which was an anagram of S.K.’s name. 9. Shortly after publication of the above, S.K. instituted private criminal proceedings for insult against the applicants in the Kikinda Municipal Court. 10. On 14 February 2005 the court convicted the applicants of insult. The court fined each of them 12,000 dinars (RSD, approximately EUR 150), ordering them jointly to pay S.K. another RSD 16,000 (approximately EUR 200) in respect of the costs of the proceedings. 11. In its judgment, the first-instance court defined insult as a statement or an action objectively humiliating to a certain individual, constituting an attack on his or her honour. Acknowledging that S.K. was a public figure, the court explained that under domestic law an action done by way of a joke was not a criminal offence as long as that joke did not overstep acceptable boundaries and become insulting. The applicants must have known that S.K. considered their articles insulting, since they had previously been convicted of using identical terms about him. The court took particular note of the fact that the applicants mentioned S.K. directly and indirectly on several different pages of the same newspaper, and concluded that S.K. had proved that those texts had insulted him just by instituting the private criminal proceedings. In particular, the court held as follows: “Such writing by the defendants demonstrates the intention to demean the private prosecutor [S.K.]. This is so because it is clear that the defendants, in different ways and in different sections [of the newspaper], compared the private prosecutor to a female, which comparison is objectively insulting in society. Namely, in our mentality it is insulting to feminise a man, and jokes about blondes are not in the least flattering, because they portray blondes as stupid people subject to mockery.” 12. On appeal, on 4 May 2005 the Zrenjanin District Court upheld the first-instance judgment and its reasoning. 13. The relevant provisions of the Constitution of the Republic of Serbia 2006 (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06) read as follows: “A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” 14. The Criminal Code of the Republic of Serbia (Krivični zakon Republike Srbije; published in OG RS nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, 21/90, 16/90, 49/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03), in so far as relevant, reads as follows: “1. Whoever insults another shall be fined or punished by imprisonment not exceeding three months. 2. Whoever commits an act described in [the above] paragraph ... through the press ... or at a public meeting shall be fined or punished by imprisonment not exceeding six months.” “1. ... [no one] ... shall ... be punished for insulting another person if he [or she] does so in a scientific, literary or artistic work or a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it is clear that there was no [underlying] intent to disparage. 2. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ... , if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...” 15. The General Criminal Code (Osnovni krivični zakon; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90, the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 35/92, 37/93, 24/94, 61/01 and OG RS no. 39/03), in so far as relevant, reads as follows: “... 3. If the fine cannot be collected, the court shall order a day of imprisonment for each 200 dinars of the fine, provided that the overall term of imprisonment does not exceed six months. 4. If the convicted person pays only a part of the fine [imposed], the rest shall ... be converted into imprisonment, and if the convicted person [subsequently] pays the remainder of the fine, his [or her] imprisonment shall be discontinued.” | 1 |
train | 001-4602 | ENG | NLD | ADMISSIBILITY | 1,999 | WOLFF METTERNICH v. THE NETHERLANDS | 3 | Inadmissible | Gaukur Jörundsson;Josep Casadevall | The applicant is a Dutch national, born in 1948 and living in Amsterdam. He is represented before the Court by Mr R.A.U. Baron von Quast-Juchter a lawyer practising in The Hague. a. Particular circumstances of the present case The family of the applicant’s mother belongs to the Dutch nobility. Her family is entitled to carry the Dutch noble title of Count (Graaf). The family of the applicant’s father does not belong to the Dutch nobility. Following his parents’ divorce, the applicant officially changed his family name to his mother’s maiden name. It appears that the applicant has added “Graaf” as the last of his first names. On 4 February 1994, he requested the Minister for the Interior (Minister van Binnenlandse Zaken) to include him in the Netherlands ancestry register (filiatieregister), which would entitle him to carry a noble title. However, as in the Netherlands nobility is only transferred through the paternal line, the Minister rejected his request on 1 July 1994. The applicant’s objection (bezwaar) against this decision was rejected by the Minister on 12 November 1996. The applicant’s appeal against this decision was dismissed by the Regional Court (Arrondissementsrechtbank) of Amsterdam on 21 January 1998. The applicant filed a further appeal with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State. In an article published on 4 July 1998 in the weekly “Elsevier”, it was reported that the Queen of the Netherlands, who is the formal President of the Council of State, and the Minister for the Interior pursue a policy of not intervening in the natural decrease of the number of persons belonging to the Dutch nobility. On 2 October 1998, the applicant’s case was heard before the Administrative Law Division. One of its members, Mr L., repeatedly interrupted the applicant’s lawyer and only displayed a negative interest in the applicant’s submissions. On 8 October 1998, the applicant challenged (wraking) Mr L. on grounds of bias. On 19 October 1998, the applicant further challenged all members of the Challenge Chamber (Wrakingskamer) of the Council of State, arguing that the entire Administrative Law Division cannot be regarded as impartial. On 12 November 1998, the Administrative Law Division rejected the applicant’s request of 8 October 1998 and, as the applicant apparently sought to obtain a decision from the Administrative Law Division, did not deal with his request of 19 October 1998. On 16 March 1999, the Administrative Law Division rejected the applicant’s appeal against the Regional Court’s decision of 21 January 1998. Insofar as the applicant complained that the Dutch rules on transferral of noble titles is contrary to the prohibition of discrimination under the relevant provisions in a number of international instruments, the Administrative Law Division held that there is an objective and reasonable ground for the difference in treatment as regards transferral of noble titles which lies in the circumstance that it concerns a historical institution which derives its right of existence solely from that historical character and therefore does not lend itself for adaptation to more recent views on equal treatment. The Administrative Law Division further noted that this difference in treatment applies equally to both men and women. b. Relevant domestic law Pursuant to the Act on Nobility (Wet op de Adeldom), and apart from the situation in which a Dutch noble title is transmitted via the paternal line at birth, ennoblement can only take place by elevation (verheffing) or incorporation (inlijving). Elevation is only possible for members of the Netherlands royal family. Incorporation is only possible for persons belonging to a foreign family with a recognised noble status in their country of origin and only where a request for incorporation has been made on the moment the person concerned obtains Dutch nationality. Ennoblement takes place by a Royal Decree (Koninklijk Besluit). Under the relevant provisions of Dutch law governing names, noble titles and predicates form a part of a noble person’s family name. The unlawful carrying of a noble title may attract consequences under Dutch criminal law. In a decision of 21 February 1995 (Case no. R01.92.0559), the Administrative Law Division held that noble status is to be regarded as a historically grown institute to which, since 1848, no longer any rights and freedoms pertain. | 0 |
train | 001-70957 | ENG | DEU | CHAMBER | 2,005 | CASE OF SUSS v. GERMANY (No. 1) | 3 | No violation of Art. 8;No violation of Art. 6-1 | Mark Villiger | 9. The applicant was born in 1940 and lives in Berlin. 10. The applicant married G.S. in August 1984. Their daughter F. was born on 29 November 1984. In August 1989 G.S. moved out of the matrimonial home together with F. who has been living with her mother since then. 11. On 6 December 1992 the applicant had his last contact with F. The mother subsequently denied the applicant any further contact. 12. Three sets of court proceedings concerning the custody of F., the applicant’s right of access and the spouses’ divorce opened before the Charlottenburg District Court (later Tempelhof-Kreuzberg District Court), namely 13. On 7 September 1989, in the context of proceedings before the Charlottenburg District Court concerning custody of F. during the period of separation (Getrenntleben) of the spouses, the question of the applicant’s right of access (Umgangsrecht) to F. was settled. According to the spouses’ agreement, the applicant was entitled to see his daughter once per week on a weekday and from Sunday until Monday morning every second week-end. 14. Subsequently F.’s mother denied the applicant any contact with F. and the applicant asked the District Court for assistance in this matter. 15. On 7 November 1989 Judge S. of the Charlottenburg District Court, having heard F. and her mother, informed the applicant that contacts between him and his daughter should take place regularly every second week-end and at Christmas. He noted that F. was on very good terms with her father. However, further contacts would worsen the very strained relations between the parents and were presently not in the child’s best interest. On 17 November 1989 G.S. declared that she no longer wished to comply with the settlement of 7 September 1989, as she had been terrorised by the applicant. 16. On 2 January 1990 the District Court noted that G.S. had not complied with the terms of the friendly settlement of 7 September 1989. It observed that G.S. had failed to furnish evidence for her allegations that the applicant had threatened or sexually harassed G.S. or F. in several letters. 17. On 25 April 1990 the District Court decided that during the period of separation of the spouses G.S. shall have custody of F. 18. On 4 October 1990 the Berlin Court of Appeal, having regard to the parents’ statements made in court and a report of the Tempelhof District Youth Office, dismissed the applicant’s appeal against this decision. 19. On 16 November 1989 the applicant filed a petition for divorce with the Charlottenburg District Court and requested to be granted custody of F. In the subsequent proceedings, both parties, that is, G.S. and the applicant, were assisted by counsel. 20. On 13 March 1990 the Charlottenburg District Court, granting the applicant’s motion, issued an interim injunction. Judge S., sitting alone, ordered that the applicant had a right of access to F. once a week on a weekday and that F. should stay overnight from Sunday until Monday morning every second week. This order replaced the regulation of the applicant’s right of access by the friendly settlement agreement concluded on 7 September 1989. The court considered that contacts between the applicant and F., as provided for in the said agreement, were in the child’s best interest. For months, G.S. had, however, advanced factual or personal pretexts to prevent contacts. The court noted that it had heard the parties on the question of access on 8 March 1990. 21. G.S. objected to the interim injunction. 22. On 2 April 1990, at a hearing before the District Court, the parties arrived at a new settlement on the applicant’s access to F. which replaced the court order of 13 March 1990. According to this agreement, the applicant was entitled to spend every second week-end and certain fixed holidays with F. This arrangement was subsequently only partly observed by G.S., and the applicant asked for the enforcement of his right of access under the terms of the settlement. 23. On 21 September 1990 the District Court dismissed one of the applicant’s motions to order G.S. to pay a coercive penalty, as G.S. had not deliberately failed to comply with the terms of the settlement dated 2 April 1990 on the relevant occasion. The applicant’s appeal was to no avail. On 17 December 1990 G.S. asked for the suspension of the applicant’s access to F. Apparently no decision has been rendered upon this motion. 24. On 6 May 1991 the District Court, following a hearing in the presence of G.S. and the applicant, adjourned the proceedings concerning the parties’ divorce and related family matters, as the parties failed to reach an agreement concerning the custody of and the access to F. 25. In August and September 1991 the applicant asked for the preparation of an psychological expert opinion concerning custody of and access to F., to which G.S. objected. 26. The applicant’s first motion dated 20 September 1991 to challenge the single District Court Judge S. for bias, inter alia because the judge refused to order a psychologiacal expert opinion about the question of access, was dismissed by the Berlin Court of Appeal on 25 October 1991. The applicant’s second motion dated 14 November 1991 to challenge Judge S. for similar reasons was rejected on 23 December 1991. 27. On 16 April 1992 the District Court dismissed the applicant’s request for an interim injunction granting him access to his child during the Easter holidays. 28. On 25 May 1992 the District Court, following a hearing in which the parties persistently cursed at each other and at the judge, ordered the preparation of a psychological expert opinion regarding the child. The expert notably was to address the question whether the applicant’s access to F. should be broadened in order to secure permanent contacts between them. 29. The court-appointed psychological expert L.L. rendered her report on 28 April 1993. According to the expert, it was in the child’s best interest to limit contacts with the applicant to four hours every fortnight or even to exclude the applicant’s access to F. for a year. She argued in particular that the applicant failed to realise his daughter’s increasing objections against close physical contacts with him. In her view, the applicant was out of touch with reality and showed signs of querulance and delusion; however, G.S. also tried to influence F. in her favour. 30. On 18 December 1992 G.S. announced that she retracted her consent to the settlement on access dated 2 April 1990 and that she would no longer allow contacts between F. and the applicant, because F. no longer wished to meet the applicant. 31. Meanwhile, in a letter dated 18 January 1993, Judge S., referring to all three sets of proceedings, informed the parties’ representatives that the files were out of control and that it was intended to deal with the parties’ numerous motions soon. Judge S. also announced that the enforcement of previous agreements and decisions would be secured. 32. On 21 June 1993 the Charlottenburg District Court, with Judge S. sitting alone, held a further hearing on divorce, custody and related family matters. It notably heard the applicant and G.S., assisted by their respective counsel, on the question of the applicant’s contacts with F. G.S. refused to accept the court’s proposal of a friendly settlement regulating, inter alia, the applicant’s access to his daughter. 33. On 26 July 1993 the applicant lodged a motion for an interim injunction granting him access to F. on one day every second week-end. 34. Subsequently, the case, which had until then been processed by single Judge S., was assigned to Judge H., when S. fell ill and retired. H. subsequently explained that it was not necessary to render a decision upon the applicant’s motion for an interim injunction granting access, as the case was altogether ready for decision. 35. On 3 and 20 September 1993 the applicant objected to the expert L.L. on grounds of bias. He argued that the expert had accused him of having sexually abused F. 36. On 29 October 1993 the District Court dismissed the applicant’s motion objecting to the expert for bias as inadmissible. On 21 January 1994 the Berlin Court of Appeal dismissed the applicant’s appeal, finding that it had been lodged out of time. 37. The hearing on 31 March 1994 was preceded by a questioning of the child in which F. had indicated that she did not want to meet her father. At the hearing, which was attended by the applicant, G.S. and their respective counsels, the applicant challenged Judge H. on grounds of bias. The hearing was adjourned because of this motion. The applicant withdrew his motion on 3 April 1994. His repeated further motions of 5 May 1994, because of which another hearing before the District Court had to be adjourned, and of 16, 18, 20 and 23 June 1994 were to no avail. In its respective decisions, the Berlin Court of Appeal found in particular that the delays in the proceedings had been caused by the applicant’s various motions challenging the District Court judge and the expert for bias. This had necessitated the adjournment of the proceedings before the District Court until the decision of the Court of Appeal. 38. After the District Court had fixed another date for a hearing on 6 October 1994, the applicant filed further motions for bias against Judge H. on 25 September 1994 and on 23 and 27 October 1994. He argued, inter alia, that H. wanted to cover up G.S.’s ill-treatment of her son, had refused to consult another expert and that her treatment of the case was comparable to offences committed by a former official of the GDR, from which H. originated. On 4 November 1994 the Berlin Court of Appeal, having regard to Judge H.’s official statement in which she had disqualified herself following the applicant’s persistent allegations, decided that she was disqualified. 39. In a hearing in camera before Judge R. of the Berlin Tempelhof-Kreuzberg District Court on 9 January 1995, F. indicated that she no longer wanted to visit her father. Confronted with her former positive statements about her father, she replied that she did not love him anymore and that she would not care if he died. She expressed the fear that her father might commit suicide and might kill her as well. She stated that she wanted to live together with her mother and that she felt happy with her mother, her mother’s new partner and her brothers. She emphasised that she would refuse to see her father even if the Court ordered her to do so. Half of her lifetime had been dominated by her parents’ quarrel, and she was sick of constantly having to appear in court because of this. 40. In letters dated 6, 8 and 9 January 1995 the applicant challenged Judge R. for bias, inter alia because she had refused to order another expert report, and requested to adjourn the hearing. On 10 January 1995 the District Court, with Judge R. sitting alone, dismissed the applicant’s motions for bias against her as inadmissible, arguing that they had merely been lodged to protract the proceedings. 41. At the hearing on 10 January 1995, at which the applicant and G.S. were present, Judge R. gave a copy of the minutes of F.’s hearing on the previous day to the applicant. The hearing then had to be adjourned following the applicant’s appeal against the decision on his motion for bias. In a statement of 12 January 1995, Judge R. declared that she was not biased but that she was convinced that a settlement with the applicant was impossible. The applicant then lodged two further motions challenging Judge R. for bias. 42. On 14 February 1995 the Berlin Court of Appeal dismissed the applicant’s appeal against the District Court’s decision of 10 January 1995 and his further motions challenging R. On 29 March 1995 the Federal Court of Justice dismissed the applicant’s appeals against the decisions of the Berlin Court of Appeal of 4 November 1994 and 14 February 1995 as inadmissible, as no appeal lay against these decisions. In several further submissions to the District Court, the applicant again requested the court to order another expert report, arguing that his daughter had been indoctrinated by G.S., and again challenged Judge R. for bias. 43. On 23 May 1995 the Berlin Tempelhof-Kreuzberg District Court, with Judge R. sitting alone, held a further hearing attended by the applicant, G.S. and their respective counsel. The court dismissed the applicant’s two motions challenging R. for bias as inadmissible, as they were merely aimed at preventing a decision. It noted that the applicant, who was awarded the opportunity to lodge motions and comment on G.S.’s motions, refused to make any statements at the hearing, but had set out his views in numerous detailed written submissions to the court. The applicant then requested to grant him custody of F. or at least an ample right of access. 44. The District Court granted the divorce and awarded G.S. custody of F. and her half-brother, born in wedlock but stemming from the relationship between G.S. and her new partner. The applicant’s access to F. was suspended. In reaching its decision, the court had regard to the statements made by both parties at their hearings on 6 May 1991 and on 21 June 1993 before Judge S., as well as to the hearing of G.S. on 23 May 1995. 45. As regards custody of F., the District Court noted that the applicant had not objected to G.S.’s motion to be granted custody. It considered that F., then aged ten, had shown close links to her mother and her new family. There was no indication of any danger to her further development if she remained with her mother. It was, therefore, not necessary to take into account outdated expert reports or to hear witnesses. 46. As to the applicant’s right of access, the court deemed it necessary, in the interest of the child’s well-being, to prohibit any contacts with F. It noted that the persistent quarrel between her parents constituted a heavy burden on F. The child now attempted to cope with this conflict by suppressing her memory of meetings with her father and by seeking as much distance as possible from him. The court found that it could not ignore the determined wish of the child as expressed at the hearing of 9 January 1995. It was therefore obliged to suspend the applicant’s access to F. It argued that a child’s welfare was more important than a father’s right of access. 47. The applicant’s further two motions challenging Judge R. for bias were to no avail. 48. On 3 July 1995 the applicant lodged an appeal against the District Court’s judgment delivered on 23 May 1995 with the Berlin Court of Appeal. His requests on 31 October 1995 and 17 June 1996 for an interim injunction ordering access were, following hearings, dismissed on 24 November 1995 and 23 July 1996 respectively by the Berlin Court of Appeal. That court found that, given F.’s express resistance against meeting the applicant and the time which had elapsed since their last contact, a decision on the applicant’s access to F. necessitated further findings of fact, notably the report of a psychological expert. 49. On 22 March 1996 the Berlin Court of Appeal ordered an expert report on the question if and to what extent contacts between the applicant and his daughter were in F.’s best interest. It appointed as expert T.S., a certified psychologist acting as expert for different family courts since 1987. 50. On 4 March 1997 (decision served on 20 March 1997) the Berlin Court of Appeal, following an oral hearing on 7 February 1997 in the presence of the applicant, his counsel, G.S.’s counsel and the expert T.S., dismissed the applicant’s appeal. 51. The Court of Appeal notably found that it was in F.’s best interest to exclude the applicant’s right of access pursuant to Section 1634 § 2, second sentence, of the Civil Code (see paragraph 63 below). In reaching this conclusion, the court relied on the report dated 30 December 1996, comprising fifty-six pages, and the oral hearing on 7 February 1997 of the psychological expert T.S. The expert had questioned and examined F. on five occasions and each of her parents on eight occasions respectively. Given the refusal of both F. and G.S. to meet the applicant in the presence of the expert, the latter had questioned them all separately. Having regard to the findings of this expert, the court noted that F., then aged twelve, had a negative attitude towards her father. The court, like the expert, considered that the negative attitude of the child towards the applicant might have partly been caused by the mother’s influence, though not to the extent believed by the applicant. The court noted that according to the expert, the parents’ ongoing quarrels had placed a great strain on the child. The court acceded to the findings of the expert that, in view of F.’s intensive resistance against any contact with her father, enforcing such contacts might cause her serious psychological harm. The court further found that the expert opinion on the question whether it was in F.’s best interest to have contacts with her father was exhaustive and conclusive. Accordingly, it had not been necessary to appoint a second expert or a psychiatric expert as requested by the applicant. 52. The Court of Appeal further explained that it did not consider it suitable to limit in time the prohibition on access, as it could not be foreseen whether, if at all, F. might give up her resistance. Both parents were under an obligation to contribute to a change in her attitude. The main responsibility lay with F.’s mother, who would have to overcome her own negative feelings towards the applicant in order to influence F. and to improve her father’s image. If the applicant respected his daughter’s wish to keep distance for a longer period of time, there would be a possibility to resume contacts carefully at a later stage. The Court of Appeal, referring to Sections 50 a § 3, first sentence, and 50 b § 3, first sentence, of the Act on Non-Contentious Proceedings (see paragraphs 64-65 below) considered that it had not been required to hear F. and her mother personally. 53. In a letter to the applicant dated 6 April 1997, the presiding judge of the Court of Appeal explained, inter alia, that G.S.’s allegations that F. had been sexually abused by the applicant had not been addressed in the court’s judgment as they had been irrelevant. Moreover, he informed the applicant that the court had refrained from hearing F. again pursuant to Section 50 b § 3, first sentence, of the Act on Non-Contentious Proceedings. Given the lengthy and embittered dispute, the court had not considered it justifiable to subject F. to the strains caused by yet another hearing, as she had repeatedly expressed her will in an unequivocal manner. 54. On 17 February 1998 the Berlin Court of Appeal dismissed the applicant’s objection against the decision that the costs of the proceedings before the Regional Court of some 8,000 Deutschmarks, which notably comprised the expenses of the expert T.S., be borne by him. On 20 December 1999 the Berlin Court of Appeal dismissed the applicant’s objection against the decision that half of the costs for the expert report rendered by L.L. be borne by him. Several further objections and appeals concerning the costs of the proceedings, including a motion to challenge a judge of the Berlin Court of Appeal for bias, were to no avail. 55. In the context of separate proceedings concerning the applicant’s request of 23 July 1992 for the enforcement of his right of access under the terms of the agreement of 2 April 1990, the District Court held a hearing on 9 November 1992, with Judge S. sitting alone. Following the hearing, the District Court stated that the parties had agreed that the applicant should have contact with F. on her birthday and on Christmas for three hours respectively, and on three days during the Christmas holidays. 56. On 28 November 1992 the District Court, with Judge G. sitting alone, granted the applicant access to F. for three hours on her birthday by way of an interim injunction. G.S. subsequently withdrew her appeal against this injunction. 57. On 11 March 1993 the District Court informed the parties that the request for enforcement of access had been settled at the hearing on 9 November 1992. 58. The applicant repeated requests for enforcement measures and for an amendment of the decision on access. The mother suggested to join the proceedings no. 159 F 13061/89 and no. 159 F 10373/92. On 22 June 1993 the District Court informed the parties that all motions concerning access be processed in the context of the proceedings no. 159 F 13061/89. 59. On 21 April 1997 the applicant, represented by counsel, lodged a complaint with the Federal Constitutional Court. Referring to the Court of Appeal’s decision of 4 March 1997 in the proceedings no. 159 F 13061/89, he complained in his two-page submissions that the suspension of access to his child violated his parental rights and was contrary to the child’s well-being. He complained that the expert appointed in the appeal proceedings had been misled by G.S. and that further expertise had been necessary. He also noted that G.S. had not appeared at the court hearing. In his view, he was blamed for his lengthy struggle to secure his right of access. Subsequently, upon query, the applicant filed a further document. On 11 May 1997 the applicant filed further submissions in support of his lawyer’s observations. 60. On 15 September 1997 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. 61. On 30 August 2000 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint concerning his request for further information about his daughter, notably her current address. The said proceedings are the subject matter of the application no. 63309/00 before the Court. Moreover, on 16 July 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint concerning the rejection of his renewed request for access to F. In the course of these proceedings, the applicant met his daughter once in May 1999. The latter proceedings are the subject matter of the application no. 32299/02 before the Court. 62. On 29 November 2002 F. attained the age of majority. The applicant had not been granted a right of access to her until then. 63. At the relevant time, i.e. before the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the relevant provision of the Civil Code concerning access to a child born in wedlock was worded as follows: Section 1634 “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.” 64. Proceedings in family matters are governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to Section 50 a § 1 of that Act, in its version in force at the relevant time, in proceedings concerning parental custody the family court shall, as a rule, hear a child’s parents in person. Section 50 a § 3 provides that the family courts may dispense with such a hearing only for sound reasons. 65. Pursuant to Section 50 b § 1 of the said Act, in proceedings concerning parental custody the family court hears the child concerned in person if the child’s affinities, ties or will are relevant for the decision. It also does so if it is necessary to obtain a direct impression of the child in order to establish the facts of the case. Pursuant to Section 50 b § 2, in proceedings concerning parental custody the family court always hears in person a child who has attained the age of fourteen and is not legally incapacitated. The family courts may dispense with such a hearing only for sound reasons (Section 50 b § 3). | 0 |
train | 001-69506 | ENG | POL | ADMISSIBILITY | 2,005 | KOWALSKI v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Higin Kowalski, is a Polish national who was born in 1936 and lives in Warsaw, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 August 1990 the applicant sued the Halinów Municipality before the Warsaw Regional Court (Sąd Wojewódzki), seeking payment. The proceedings were terminated on 22 June 2001. On 1 August 1999, the date on which the application was lodged with the Court, they were pending before the Supreme Court (Sąd Najwyższy). 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 | 001-57911 | ENG | FIN | CHAMBER | 1,994 | CASE OF HOKKANEN v. FINLAND | 2 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | C. Russo;R. Pekkanen | 8. Mr Hokkanen, a Finnish citizen, was born in 1953. He lives at Tuusula. He has a daughter, Sini, who was born in September 1983. Following the death in April 1985 of Mrs Tuula Hokkanen (the child’s mother, to whom the applicant had been married since 11 June 1983), Sini was looked after by her maternal grandparents, Mr Reino and Mrs Sinikka Nick (hereinafter referred to as "the grandparents"). According to the applicant, he had agreed to this as a provisional arrangement so that he could deal with various problems caused by his wife’s death, including the reorganisation of his farming activities. In late 1985 the grandparents informed the applicant that they did not intend to restore Sini to him. Efforts, involving the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Tuusula, were made to achieve reconciliation between the applicant and the grandparents, but to no avail. 9. On 2 May 1986 the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa as the competent Chief Bailiff (ulosotonhaltija, överexekutor; see paragraph 44 below) rejected a request by the applicant to have Sini returned in accordance with section 8(2) of the 1975 Act on the Enforcement of Decisions concerning Custody of and the Right of Access to Children (laki 523/75 lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag 523/75 om verkställighet av beslut som gäller vårdnad om barn och umgängesrätt - "the 1975 Act"). It observed that the applicant had consented to the arrangement leaving Sini in the care of the grandparents. In view of the time which had elapsed since she had moved to them and of the little contact Sini had had with the applicant, returning her could be contrary to her own interests; both parties should therefore institute custody proceedings before the District Court (kihlakunnanoikeus, häradsrätten) of Tuusula. They did so. 10. Following a hearing on 16 July 1986, the District Court ordered provisionally that Sini should remain with her grandparents; at the same time it granted the applicant access rights, according to which Sini was to stay with him every fourth weekend and, from 8 August 1986, every fourth week. 11. On 30 September 1986 the County Administrative Board ordered the grandparents to respect the applicant’s visiting rights on pain of an administrative fine (uhkasakko, vite) of 2,000 Finnish marks each. However, they did not comply. 12. On 31 October 1986 the District Court held a further hearing. It adjourned the case and again provisionally granted the applicant access rights: as from 5 November he could visit his daughter at her grandparents’ home for two hours every Wednesday and six hours every Sunday and, as from 1 December, she was to visit him at the same times and for the same periods at his home. The grandparents refused to comply with these arrangements. 13. On 21 January 1987 the County Administrative Board rejected a request from the applicant asking it to enforce the right of access granted to him by the District Court on 16 July 1986. It observed that the District Court, in its decision of 31 October 1986, had varied his right of access. The County Administrative Board was therefore of the view that its decision of 30 September 1986 that the grandparents would be liable to pay fines should they fail to comply with the access order (see paragraph 11 above) no longer applied. 14. By judgment of 26 January 1987, the District Court confirmed the applicant’s custody and ordered that Sini be handed over to him. It took into account, among other things, a report of 22 January 1987 by the Child Guidance Centre (kasvatusneuvola, uppfostrings- rådgivningen - "the Centre") of Central Uusimaa. 15. On 10 March 1987 the County Administrative Board ordered the grandparents to comply with the District Court’s judgment of 26 January on pain of a fine of 8,000 marks each should they fail to do so. The grandparents persisted in not complying. 16. On 6 May 1987, on an appeal by the grandparents, the Court of Appeal (hovioikeus, hovrätten) of Helsinki upheld the District Court’s judgment of 26 January. On 23 June it dismissed their appeal against the County Administrative Board’s decision of 10 March. 17. On 7 May 1987 the County Administrative Board had again ordered the grandparents to return Sini to the applicant within a week and to pay 2,000 marks each of the fines imposed on them previously. The Board further ordered that, in the event of the grandparents’ failure to return her, the Bailiff should use coercion to ensure that she was so returned. 18. On 30 July 1987 the Supreme Court (korkein oikeus, högsta domstolen) granted the grandparents leave to appeal against the Court of Appeal’s judgments of 6 May and 23 June 1987. It ordered a stay, or alternatively suspension, of both judgments (see paragraph 16 above). The Supreme Court, in two separate judgments of 17 May 1988, dismissed the appeal and lifted the two decisions staying execution. 19. The grandparents asked the local Social Welfare Board to investigate whether execution of the Supreme Court’s judgments would be in Sini’s interests. The Board referred the matter to the National Social Welfare Board (sosiaalihallitus, socialstyrelsen). At the same time, the grandparents requested the Supreme Court to stay the execution of, and annul, its judgments of 17 May 1988, which it refused to do on 13 September. 20. In the meantime, on 13 and 18 May 1987, the applicant had asked the District Chief of Police of Järvenpää to execute the County Administrative Board’s decision of 7 May (see paragraph 17 above). On 28 May the authorities discovered that the grandparents had moved Sini and that her whereabouts were unknown. The Järvenpää police then contacted their counterpart in Mäntyharju, where the grandparents had a summer home. Subsequently Sini was found to be with her grandparents at their summer home. On 10 June the applicant requested the Chief of Police of Mäntyharju to return her, but the latter official refused to do so, finding it contrary to the child’s interests to interrupt her summer vacation. 21. On 29 May 1987 the applicant complained to the Chancellor of Justice (oikeuskansleri, justitiekanslern), alleging that the authorities had failed to take sufficient action to find and return Sini. The Chancellor replied on 6 July 1988 that he did not consider that any measures were called for in view of, firstly, the steps taken to execute the County Administrative Board’s decision of 7 May 1987; secondly, the Supreme Court’s subsequent decision to stay the execution of the Court of Appeal’s judgments of 6 May and 23 June 1987 (see paragraphs 16 and 18 above) and, thirdly, the grandparents’ request for a stay and annulment in respect of the Supreme Court’s judgments of 17 May 1988 (see paragraph 19 above). 22. On 30 May 1990 the National Social Welfare Board recommended that the Social Welfare Board in Tuusula take steps to have custody of Sini transferred from Mr Hokkanen to the grandparents, to obtain access for the applicant and to have a person other than him appointed Sini’s guardian. On 25 July 1990, at the Social Welfare Board’s request, the Guardianship Board (holhouslautakunta, förmyndarenämnden) of Tuusula submitted an opinion on the above matter, stating that the applicant had performed his duties as a guardian in a satisfactory manner. It did not consider the transfer of custody and guardianship advisable and concluded that he should continue as Sini’s custodian and guardian. 23. On 13 August 1990 the Social Welfare Board of Tuusula asked the District Court to transfer custody to the grandparents. The Board noted that the applicant was a fit person to bring Sini up and was able to offer her a good home environment. The Board placed emphasis on the fact that since 1985 she had been living with the grandparents, with whom she had close relations. In view of the fact that Sini had not met her father for many years it was necessary for their meetings in the autumn of 1990 to be well prepared and that they should take place in a neutral environment. It also recommended that the applicant remain Sini’s guardian. 24. On 19 September 1990 the District Court held a hearing but adjourned the case until 14 November after deciding to obtain an opinion from the Guardianship Board. The Board submitted a report on 31 October, recommending that the applicant cease to be the child’s guardian. At the hearing scheduled for 14 November 1990 the District Court again adjourned the case, this time until 8 May 1991, pending an opinion from the Child Guidance Centre of Central Uusimaa. On 7 May 1991 the Child and Family Guidance Centre (perhe- ja kasvatusneuvola, familje - och uppfostringsrådgivningen) of Tuusula, which had taken over the former’s functions, confirmed the views expressed by that Centre in its opinion of 22 January 1987 (see paragraph 14 above). It observed that the grandparents had refused to allow Sini to be subjected to an examination (requested by the National Board of Social Welfare) and to participate in related interviews. It also referred to a statement of 13 December 1989 by a working group of the Lastenlinna Children’s Hospital that, although Sini related to the grandparents as her psychological parents, there were no psychological obstacles as far as she was concerned to her meeting the applicant; on the contrary, such meetings were in her interests. 25. During the proceedings before it the District Court had, on 14 November 1990, provisionally ordered that Sini remain with the grandparents and granted the applicant certain rights of access: in December 1990 and January 1991 he was to be permitted to meet his daughter for six hours on the first Sunday of the month at a place chosen by the Board and in the presence of one of its officials; as from January they were in addition to meet from Saturday noon to Sunday noon on the third weekend of the month and, as from February, also the first weekend. However, the grandparents would not allow the applicant to meet the child outside their home. On 20 December 1990 he asked the County Administrative Board to take enforcement measures. He renewed this request on 31 January 1991. 26. On 28 March 1991 the Board ordered the grandparents to comply with the District Court’s provisional order of 14 November 1990 and decided that failure to do so would make them liable to pay an administrative fine of 5,000 marks each. The grandparents persisted in their refusal to comply. The applicant did not request the enforcement of the fines, such a request being a legal condition for their imposition. 27. The District Court, by judgment of 8 May 1991, rejected the Social Welfare Board’s request to transfer custody and guardianship. It moreover noted that its provisional access order of 14 November 1990 no longer applied. 28. On 24 July 1991, on separate appeals by the grandparents and the Social Welfare Board, the Court of Appeal ordered a stay of execution of the District Court’s judgment of 8 May 1991 (see paragraph 24 above). 29. By judgment of 25 September 1991 the Court of Appeal, by a majority, held that the applicant should remain Sini’s guardian but transferred custody to the grandparents, finding that the fact that she had lived with them since 30 April 1985 militated strongly in favour of her remaining in their care. It referred to the above-mentioned opinion of 13 December 1989 by the Children’s Hospital (see paragraph 24 above), according to which she had strong ties of security, confidence and affection with her grandparents and perceived their home as her own. No substantial changes should be made to this situation. She should be able to meet the applicant and develop a normal relationship with him. In view of her low age (eight at the time) and the fact that she had not been in a position to form her views independently, the Court of Appeal considered that no significant importance could be attached to Sini’s own wish not to see the applicant, mentioned in the Child and Family Guidance Centre’s opinion of 7 May 1991 (see paragraph 24 above). The judgment prescribed the following access arrangements: during the first three months the applicant and his daughter were to meet for four hours one Saturday each month, at a place chosen by the Tuusula Social Welfare Office, in the presence of one of its officers and, after that, every other weekend between Saturday noon and Sunday noon. She was to spend Christmas with her grandparents and two weeks of the following summer with the applicant; subsequently her stays during holidays should alternate between the applicant and the grandparents. 30. On 19 December 1991 the Court of Appeal quashed the County Administrative Board’s order of 28 March 1991 requiring the grandparents to comply with the District Court’s provisional order of 14 November 1990 regarding access (see paragraph 25 above). The Court of Appeal had regard to the lower court’s decision of 8 May 1991 (see paragraph 27 above), which in effect revoked its decision of 14 November 1990. 31. On 21 January 1992 the Supreme Court refused the applicant leave to appeal. 32. On 25 June 1992 the Social Welfare Board of Järvenpää replied to an enforcement request by the applicant. It observed that the Child and Family Guidance Centre of Järvenpää had offered the grandparents "an opportunity to obtain assistance and to discuss the matter concerning visiting rights" but they had refused to contact the Centre. The latter had, in a letter to the Board of 16 June 1992, stated that in those circumstances "nothing else could be done by the Centre". 33. In the meantime, on 22 June 1992 the applicant asked the County Administrative Board to take steps to execute the Court of Appeal’s judgment of 25 September 1991 (see paragraph 29 above). He referred to the fact that in 1991 all three meetings planned between him and Sini had failed to take place, as the grandparents had refused to bring her. They had moreover declined to respond to attempts to arrange further meetings. 34. On 23 June 1992 the County Administrative Board gave an interim decision ordering the applicant to communicate the documents in the case to the grandparents in order to enable them to comment on his request to the Board. This they did on 21 July. The decision further indicated that the case would be struck off the list if the applicant did not renew his enforcement request within a year. On 10 November 1992 the applicant renewed his request of 22 June to the County Administrative Board. Following this, the Board, as required by the relevant legislation, referred the matter to the conciliator for mediation (see paragraph 45 below). The latter submitted a report to the Board on 2 December and the applicant filed his comments on 7 December. 35. On 31 December 1992 the County Administrative Board ordered the grandparents to comply with the Court of Appeal’s decision of 25 September 1991, on pain of having to pay an administrative fine of 5,000 marks. On the other hand, the Board dismissed a request by the applicant for Sini to be transferred to him; such a measure could only be taken in enforcement of a custody order. However, it noted that the grandparents had totally refused to co-operate in attempts to arrange for the applicant to meet his daughter. Bearing in mind her age and the grandparents’ strong influence over her, she could not be considered sufficiently mature for her views to be taken into account. The County Administrative Board had regard also to the conciliator’s above-mentioned report (see paragraph 34 above), submitted by the Social Welfare Board of Järvenpää. According to that report the grandparents had agreed to allow the applicant to see Sini in their own home, whilst the applicant had categorically refused to have anything to do with them. The conciliator in question had met Sini only in the grandparents’ presence in their home on 27 November 1992. On being questioned about her father she had been very reserved but had said that she objected to seeing him. The conciliator was of the view that Sini’s wishes in this regard should be taken into consideration. 36. The grandparents refused to bring Sini to a meeting with the applicant which the Social Welfare Board of Järvenpää had arranged to take place on 3 April 1993. 37. By judgment of 21 October 1993 the Court of Appeal, referring to section 6 of the 1975 Act (see paragraph 47 below), upheld an appeal lodged by the grandparents against the County Administrative Board’s decision of 31 December 1992 (see paragraph 35 above). The Court of Appeal noted that, according to a medical report of 8 September 1992 by Dr Arajärvi, Sini was physically and mentally healthy and a psychological test had shown that she was clearly of above average intelligence for a twelve-year-old; she should not therefore be forced to meet the applicant but be allowed to decide for herself. Moreover, the conciliator’s report (see paragraphs 34 and 35 above) stated that she had clearly and consistently refused to meet the applicant and was sufficiently mature for her wishes to be taken into account. The judgment concluded that in view of the child’s maturity, access could not be enforced against her wishes and lifted the fines imposed on the grandparents. On 4 February 1994 the Supreme Court refused the applicant leave to appeal. 38. The applicant visited Sini in the grandparents’ home on a few occasions until 1986. The last time he met her was on 14 January 1987. 39. Custody of children is governed by the 1983 Act on Custody and Access Rights 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. The custodian represents the child in his or her personal matters, unless the law provides otherwise (section 4). 40. The parents, or any other person to whom care of the child has been entrusted, are his or her custodians (section 3). Parents who are married to each other at the time of the child’s birth are the latter’s custodians (section 6). 41. The District Court may order that custody of a child be entrusted to one or more persons together with, or instead of, the parents (section 9 para. 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 para. 2). The District Court is moreover 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). 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 para. 4 and section 10 para. 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 otherwise 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). 42. Pending court decisions on matters of custody and access, the competent court may issue an interim order as to where the child should live, access arrangements and, in special circumstances, custody (section 17 paras. 1 and 2). 43. A decision on custody, access or a child’s place of residence is, unless it states otherwise, immediately enforceable (section 19). 44. According to section 1 of the 1975 Act (for references, see paragraph 9 above), the Act applies to the enforcement of a court decision, including an interim order, regarding custody and access. It may also apply to the enforcement of an order that a child should live with a particular person or that it should be handed over to its custodian. A request for enforcement may be submitted to the Chief Bailiff in the area where the child lives (section 2), which authority is vested in the County Administrative Board (section 1 of the 1895 Act on Enforcement - ulosotto laki 1895/37, utsökningslagen 1895/37). 45. Pursuant to section 4, as amended by Act no. 366/83, before ordering enforcement the Chief Bailiff must assign as a conciliator a person appointed by the Social Welfare Board or another suitable person to mediate between the parties with a view to enforcing the decision. Such mediation is aimed at persuading the person taking care of the child to comply voluntarily with his obligations under the relevant decision. Conciliation may not be ordered if it is evident from previous attempts that it would be unsuccessful or, in the case of a custody decision, if immediate enforcement is in the child’s interests and dictated by strong reasons. 46. The Chief Bailiff may impose an administrative fine in connection with an enforcement decision or, when the matter relates to the custody of a child or the handing over of a child to its custodian, he may order the Bailiff to transfer the child (section 5). A fine as mentioned above must be fixed on the basis of the means of the person concerned (chapter 2, section 4 (b) para. 2, of the 1889 Penal Code). If the fine cannot be collected, it must be converted into a prison sentence (section 5 para. 1, as amended by Act no. 650/86). 47. Enforcement must not take place against a child’s own wishes if he or she is twelve years of age or is sufficiently mature for her wishes to be taken into account (section 6 of the 1975 Act, as amended by Act no. 366/83). 48. A decision by the Chief Bailiff under the 1975 Act may, unless otherwise stated therein, be enforced immediately (section 13 para. 1). | 1 |
train | 001-94833 | ENG | RUS | CHAMBER | 2,009 | CASE OF MERZHOYEV v. RUSSIA | 3 | Preliminary objections dismissed (non-exhaustion of domestic remedies, ratione personae);Preliminary objection allowed (ratione temporis);No violation of P1-1 | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1949 and lives in Moscow. 7. On 15 May 1990, 13 March 1991 and 20 February 1992 the applicant, then a resident of Grozny, Chechnya, deposited 31,881.47, 30,000 and 24,500 Soviet roubles on behalf of his son, his daughter and himself respectively in three savings accounts with the Grozny branch of the Chechen Savings Bank, which was an integral part of the USSR Savings Bank. 8. In late 1994 hostilities began in Chechnya and the applicant left for Ingushetia. On 5 January 1995 he was registered as an internally displaced person by the Migration Service of the Sunzhenskiy District of Ingushetia. 9. It appears that at some point the applicant moved and settled in Moscow. 10. In early 1999 the applicant unsuccessfully requested the Savings Bank of Russia, the successor of the USSR Savings Bank, to transfer his indexed deposits to a branch in Moscow. 11. Following the bank's refusal, the applicant brought a court action, seeking to have his deposits restored, indexed and transferred to the Moscow branch of the Savings Bank of Russia. 12. On 13 October 2000 the Gagarinskiy District Court of Moscow found against the applicant. The court confirmed the fact that during the period from 15 May 1990 until 20 February 1992 the applicant had made deposits on behalf of himself and his two children with the Grozny branch of the USSR Savings Bank and came to a conclusion acknowledging “the existence of obligations under the bank deposit agreements between the applicant and the Savings Bank”. The court continued: “According to telegram no. 26-3-2/281a of the Central Bank of Russia dated 22 December 1997, branches of the Chechen Savings Bank were closed by virtue of a decision of the Management Board of the Savings Bank of Russia. These branches were removed from the State Register of Lending Agencies. ... It is clear from the case file that all the branches of the Savings Bank of Russia in the territory of the Chechen Republic were wound up, and powers of attorney issued to the managers of [these branches] were revoked and annulled. The aforementioned circumstances are confirmed by decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996. At present there is no [legal] mechanism which could enable the transfer of deposits from branches of the Savings Bank of the Chechen Republic to the Moscow branch of the Savings Bank of Russia. In such circumstances [the applicant's] claim to restore and transfer his indexed deposits from ... the Chechen [Savings] Bank to the Moscow branch of the Savings Bank of Russia should be denied.” 13. On 26 December 2000 the Civil Section of the Moscow City Court upheld the judgment of 13 October 2000 on appeal. 14. Thereafter the applicant applied for supervisory review, but to no avail. 15. In their memorial of 1 April 2005 the Government informed the Court that between 21 January and 22 April 2002 the Government of the Chechen Republic within the territory of this republic, and the branches of the Savings Bank of Russia in any other regions of Russia, had made a list of the former depositors of the Chechen Savings Bank who had produced their savings books (сберегательные книжки). 16. On 15 April 2003 the Savings Bank of Russia commenced payment of compensation to those included on the list. As provided by governmental decree no. 117 of 19 February 2003, this procedure was applied in respect of savings deposited with the Chechen Savings Bank prior to 20 June 1991. 17. From 1 October 2003 until 31 March 2004 the authorities made an additional list of former depositors of the Chechen Savings Bank. In the Government's submission, “repayment of deposits to those included on the additional list would be made in the near future”. 18. In their additional memorial of 31 March 2008 the Government informed the Court, in reply to its specific request to that end, that if the applicant's deposits had been paid to him on 13 October 2000, the date on which the Gagarinskiy District Court of Moscow had confirmed “the existence of obligations under the bank deposit agreements between the applicant and the Savings Bank”, he would have received the following amounts. 19. In respect of the deposit made on 15 May 1990, the applicant would have received 2,521.60 Russian roubles (RUB, approximately 60 euros (EUR)), comprising the sum of the original deposit and 40 per cent compensation totalling RUB 32.08, plus accrued interest of RUB 2,489.52. 20. As regards the deposit made on 13 March 1991, the applicant would have received a total of RUB 557.58 (approximately EUR 13), comprising the sum of the initial deposit of RUB 30 plus accrued interest of RUB 527.58. 21. In respect of the deposit made on 20 February 1992 the amount payable to the applicant would have been RUB 56.66 (approximately EUR 1.30), of which RUB 24.50 was the amount of the deposit and RUB 32.16 the accrued interest. 22. The Government further submitted a letter dated 21 March 2005 which the Savings Bank had addressed to the applicant, informing him that it was ready to pay all his deposits, along with the accrued interest, as well as preliminary compensation in respect of the deposit made on 15 May 1991, in accordance with governmental decree no. 343 of 9 July 2004 (see paragraph 27 below). 23. The Government also submitted a letter of 25 March 2003 addressed by the Savings Bank to the then Representative of the Russian Federation at the European Court of Human Rights. The letter stated that on 21 March 2005 a representative of the bank had had a telephone conversation with the applicant and had invited him to go to the bank to settle the question of the payment of his deposits; however, the applicant had refused to accept the amounts due to him, deeming them insufficient, and had stated that he had been prepared to resolve the issue only on condition that he would be paid compensation equal to 19,282 United States dollars (USD). 24. In August 1996 the President of the Management Board of the Savings Bank of Russia (Председатель правления Сберегательного Банка России) ordered that all operations in respect of deposits with the Chechen Savings Bank be suspended until further notice. 25. By virtue of decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996, the branches of the Savings Bank of Russia in the territory of the Chechen Republic were wound up and removed from the State Register of Lending Agencies. Powers of attorney issued to the managers of those branches were revoked and annulled. 26. By section 12 of decree no. 117 on payment to certain categories of citizens of the Russian Federation in 2003 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations, dated 19 February 2003, the Government of Russia entitled the former depositors of the Chechen Savings Bank to compensation for deposits they had made prior to 20 June 1991. In particular, individuals who lived outside the territory of the Chechen Republic could obtain compensation in those branches of the Savings Bank which had put them on the list of former depositors of the Chechen Savings Bank. 27. Section 15 of governmental decree no. 343 on payment to certain categories of citizens of the Russian Federation in 2004 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations, dated 9 July 2004, reproduces the provisions of section 12 of decree no. 117 of 19 February 2003 concerning compensation for deposits made prior to 20 June 1991 in the territory of the Chechen Republic. It contains no provisions relating to deposits made after 20 June 1991. | 0 |
train | 001-71034 | ENG | GBR | CHAMBER | 2,005 | CASE OF J.A. PYE (OXFORD) LTD AND J.A. PYE (OXFORD) LAND LTD v. THE UNITED KINGDOM | 2 | Violation of P1-1;Just satisfaction reserved | Matti Pellonpää;Nicolas Bratza | 9. The second applicant company is the registered owner of a plot of 23 hectares of agricultural land in Berkshire. The first applicant company was its predecessor in title. The owners of a property adjacent to the land, Mr. and Mrs. Graham (“the Grahams”) occupied the land under a grazing agreement until 31 December 1983. On 30 December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. In January 1984 the applicants refused a request for a further grazing agreement for 1984 because they anticipated seeking planning permission for the development of all or part of the land and considered that continued grazing might damage the prospects of obtaining such permission. 10. Notwithstanding the requirement to vacate the land at the expiry of the 1983 agreement, the Grahams remained in occupation at all times, continuing to use it for grazing. No request to vacate the land or to pay for the grazing which was taking place was made. If it had been, the evidence was that the Grahams would happily have paid. 11. In June 1984 an agreement was reached whereby the applicants agreed to sell to the Grahams the standing crop of grass on the land for £1,100. The cut was completed by 31 August 1984. In December 1984 an inquiry was made of the applicants as to whether the Grahams could take another cut of hay or be granted a further grazing agreement. No reply to this letter or to subsequent letters sent in May 1985 was received from the applicants and thereafter the Grahams made no further attempt to contact the applicants. From September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicants. 12. In 1997, Mr Graham registered cautions at the Land Registry against the applicant companies’ title on the ground that he had obtained title by adverse possession. 13. On 30 April 1998 the applicant companies issued an originating summons in the High Court seeking cancellation of the cautions. On 20 January 1999 the applicant companies issued further proceedings seeking possession of the disputed land. 14. The Grahams challenged the applicant companies’ claims under the Limitation Act 1980 (“the 1980 Act”) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and which provided that, after the expiry of the 12-year period, the registered proprietor was deemed to hold the land in trust for the squatter. 15. Judgment was given in favour of the Grahams on 4 February 2000 ([2000]Ch 676). Mr Justice Neuberger held that since the Grahams enjoyed factual possession of the land from January 1984, and adverse possession took effect from September 1984, the applicant companies’ title was extinguished pursuant to the 1980 Act, and the Grahams were entitled to be registered as proprietors of the land. At the conclusion of his 30-page judgment, Neuberger J. remarked that the result he had reached did not accord with justice and could not be justified by practical considerations: the justification advanced for the right to acquire title to land by adverse possession – namely the avoidance of uncertainty – had in his view little relevance to the use of registered land where the owner was readily identifiable by inspecting the register of the relevant title at the Land Registry. The fact that an owner who had sat on his rights for 12 years should be deprived of the land was in his view “illogical and disproportionate”: as he expressed the point, “it does seem draconian to the owner and a windfall for the squatter that, just because the owner has taken no step to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever”. 16. The applicant companies appealed and on 6 February 2001, the Court of Appeal reversed the High Court decision on the ground that the Grahams did not have the necessary intention to possess the land, and the applicant companies were therefore not “dispossessed” of it within the meaning of the 1980 Act ([2001]EWCA Civ 117, [2001]Ch 804). Although this conclusion was sufficient to dispose of the appeal, two members of the Court of Appeal went on to address the question whether the applicants’ loss of title to the land could also have given rise to a violation of Article 1 of Protocol No. 1 as applied in domestic law by the Human Rights Act 1998. 17. Lord Justice Mummery held that Article 1 did not impinge on the relevant provisions of the Limitation Act 1980, which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for 12 years or more after being dispossessed by another. The extinction of the applicants’ title was not, in his view, a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate, but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period. In the alternative, Mummery L.J found that any deprivation was justified in the public interest, the conditions laid down in the 1980 Act being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title: those conditions were not disproportionate, the period of 12 years being reasonable and not imposing an excessively difficult burden on the landowner. 18. Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention. This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol. 19. The Grahams appealed to the House of Lords, which, on 4 July 2002, allowed their appeal and restored the order of the High Court ([2002] UKHL 30, [2002] 3 All ER 865). Lord Browne-Wilkinson, with whom Lord Mackay of Clashfern and Lord Hutton agreed, held that the Grahams did have “possession” of the land in the ordinary sense of the word, and therefore the applicant companies had been “dispossessed” of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime. Lord Browne-Wilkinson referred to the European Convention on Human Rights only to note that there was no ambiguity in the 1980 Act which called for resolution. 20. Lord Bingham of Cornhill, agreeing with Lord Browne-Wilkinson, made the following statement in the course of his judgment: “[The Grahams] sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye’s inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]...) ‘arrive at with no enthusiasm’.” [JA Pye (Oxford) Ltd and another v. Graham and another [2000] 3 All ER 865, at 867] 21. The question whether the result was incompatible with the applicants’ rights under Article 1 of Protocol No. 1 to the Convention was not pursued before the House of Lords, it being conceded that the Human Rights Act 1998 had no retrospective effect. However, in his judgment Lord Hope of Craighead, who also agreed with Lord Browne-Wilkinson on the reasons for dismissing the appeal, observed that the question under the Convention: “....is not an easy one, as one would have expected the law - in the context of a statutory regime where compensation is not available - to lean in favour of the protection of a registered proprietor against the actions of persons who cannot show a competing title on the register. Fortunately.......a much more rigorous regime has now been enacted in Schedule 6 to the 2002 Act. Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain title against the wishes of the proprietor. The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor.” 22. Section 15 of the Limitation Act 1980, a consolidating Act, provides: “(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person... (6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.” 23. Paragraph 1 of Schedule 1 provides: “Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.” 24. In the case of unregistered land, section 17 of the 1980 Act provides that, on the expiration of the limitation period regulating the recovery of land, the title of the paper owner is extinguished. In the case of registered land, section 75(1) of the Land Registration Act 1925 provides that, on the expiry of the limitation period the title is not extinguished but the registered proprietor is deemed to hold the land thereafter in trust for the squatter. 25. The Law Reform Committee considered the law on limitation periods in its report of 1977 (Cmnd 6923). It commented negatively on the courts’ practice of granting an implied licence to the would-be adverse possessor, which had the effect of stopping time running against the owner, and proposed no change to the existing limitation periods, and agreed that the expiration of the limitation period should serve to extinguish the claimant’s title. 26. A Law Commission Consultation Paper on Limitation of Actions in 1988 (Law Com 151) gave a number of general policy aims of the law on limitations. The Consultation Paper noted that defendants have a legitimate interest in having cases brought to court reasonably promptly as evidence may not be available indefinitely, and because defendants should be able to rely on their assumed entitlement to enjoy an unchallenged right. The State, too, has an interest in ensuring that claims are made and determined within a reasonable time in order to deliver a fair trial, and as guarantor of legal certainty. Finally, limitation periods were seen to have a salutary effect on plaintiffs in encouraging them to bring claims reasonably promptly. 27. A separate Law Commission Consultative Document on land registration in 1998 (prepared with the Land Registry; Law Com 254) noted that although the original intention of the system of land registration was to apply the principles of unregistered land to a registered format, there were certain areas where this was not wholly true. One example given was the position of the rights of adverse possessors (section 75(1) of the Land Registration Act 1925 was referred to). The Consultative Document set out and commented on four particularly cogent reasons often given for the law on adverse possession: (i) Because it is part of the law on limitation of actions. It noted: “... because adverse possession is an aspect of the law of limitation, it is of course customary to account for it, at least in part, in terms of the policy of limitation statutes generally, namely to prevent defendants from stale claims and to encourage defendants not to sleep on their rights. However, adverse possession does not merely bar claims. Its effect is positive: ‘a squatter does in the end get title by his possession and the indirect operation of the Limitation Act ..’. This can only be justified by factors over and above those which explain the law on limitation ... this particular justification has much greater force in relation to unregistered land than it does for land with registered title. Unregistered title ultimately depends on possession. It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights. ... where title is registered (...) the basis of title is primarily the fact of registration rather than possession. Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate ...” (ii) Because if land and its ownership are out of kilter, the land may become unmarketable. Where the registered owner has disappeared, and cannot be traced, and a squatter takes possession, the doctrine of adverse possession “does at least ensure that in such cases land remains in commerce and is not rendered sterile”. Where there have been dealings “off the register”, such as where a farmer agrees to a land swap with a neighbour under a “gentleman’s agreement” but does not register the change, “adverse possession fulfils a useful function”. (iii) Because in case of mistake the innocent but mistaken squatter of land may have incurred expenditure. In such circumstances adverse possession can be justified on grounds of hardship, and there are parallels with the principles of proprietary estoppel. (iv) Because it facilitates and cheapens investigation of title to land. The Law Commission accepted this last reason as being very strong for unregistered land, but considered that for registered land, where title depends on the contents of the register rather than possession, it was not applicable. 28. The Law Commission proposed, provisionally, that the system of adverse possession as it applied to registered land should be recast to reflect the principles of title registration, and that it should be limited to very few, exceptional cases. 29. Two Reports, on Limitation of Actions (Law Com 270) and on registered land (Law Com 271), followed the Consultation Papers, and were published in July 2001. 30. The Law Commission Report on Limitation of Actions recommended that the general limitation period for actions in respect of land should be ten years. It added that if the proposals made on registered land in Law Com 254 were accepted, the proposal would relate only to interests in unregistered land (and unregistrable interests in registered land). 31. The Report on registered land (Law Com 271) proposed that a squatter should be able to apply to be registered as proprietor after 10 years’ adverse possession, and that the registered proprietor should be notified of that application. If the proprietor objected to the registration, the application by the adverse possessor for registration would be rejected. The registered proprietor would then be required to regularise the position (for example by evicting the squatter) within two years, failing which the squatter would be entitled to be registered as proprietor. 32. The Land Registration Act 2002, which does not have retroactive effect, implemented the proposals in Law Com 271. 33. On 23 March 2005, Deputy Judge Strauss in the Chancery Division gave judgment in the case of Beaulane Properties Ltd v. Palmer (Times Law Reports, 13 April 2005). The case concerned a licensee who had remained in possession of registered land for over 12 years after the expiry of his licence. Applying the judgment of the House of Lords in the present case, the judge found that under English law as it stood up to the entry into force of the Human Rights Act 1998, the registered owner of the land lost all claim to it. However, on analysing the facts on a Convention basis, he found that there was no real public or general interest in the law on adverse possession in the case of registered land, and that the adverse consequences for the landowner were disproportionate. By re-interpreting the relevant legislation in accordance with Section 3 of the Human Rights Act, the judge found that the claim by the former licensee to have acquired the disputed land failed. | 0 |
train | 001-82846 | ENG | FRA | GRANDCHAMBER | 2,007 | CASE OF LINDON, OTCHAKOVSKY-LAURENS AND JULY v. FRANCE | 1 | No violation of Art. 10;No violation of Art. 6-1 | Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens | 9. The first applicant is a writer and the second is the chairman of the board of directors of the publishing company P.O.L.; the third was the publication director of the daily newspaper Libération. They were born in 1955, 1944 and 1949 respectively and live in Paris. 10. The first applicant is the author of a book presented as a novel under the title Le Procès de Jean-Marie Le Pen (“Jean-Marie Le Pen on Trial”), published in August 1998 by P.O.L. 11. The novel recounts the trial of a Front National militant, Ronald Blistier, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. He is defended by a Jewish, left-wing and homosexual lawyer, Pierre Mine. The novel is based on real events and in particular the murders, in 1995, of Brahim Bouaram, a young Moroccan who was thrown into the Seine by skinheads during a Front National march, and of Ibrahim Ali, a young Frenchman of Comorian origin who was killed in Marseilles by militants of the same party. Those militants were convicted in June 1998 after a trial in the Assize Court during which Front National leaders, Mr Le Pen included, declared that the case was no more than a provocation and a put-up job through which the party’s enemies sought to harm it. The author builds the plot around the lawyer, the main protagonist, who throughout the trial finds himself embroiled in a political debate. At the very beginning he raises the question of Mr Le Pen’s responsibility: “Isn’t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric?” (page 7). The novel focuses on a number of figures who are characterised by their moral or political positions in relation to the ideology and political party of the far right. The work also seeks to highlight the difficulties and contradictions of certain “anti-racist” stances. 12. The text on the back cover of the book describes the novel as follows: “How can Jean-Marie Le Pen be fought effectively? The youth Ronald Blistier, member of the Front National, has committed a cold-blooded racist murder, killing an Arab youth in the open street. The case has caused an outcry and it is generally agreed that Blistier’s trial should really be that of his mentor. Thirty-year-old Jewish lawyer Pierre Mine is defending the murderer. He has certain ideas about how best to fight Jean-Marie Le Pen. – Set a trap for Le Pen? But it would backfire on all of us, warns his boyfriend Mahmoud Mammoudi. Pierre Mine pursues his fight regardless. His strategy is unfathomable. Won’t he become the punchbag of the anti-racists and the champion of those he seeks to defeat? Jean-Marie Le Pen pretends to show him some respect. He is beset with troubles on all sides – it’s as if those who have no real success in their fight against the Front National are nevertheless suspicious of anyone trying a different approach.” 13. By originating summonses of 20 and 27 November 1998, the Front National and Mr Le Pen brought proceedings against the first two applicants in the Paris Criminal Court for the offence of public defamation against a private individual, as a result of the novel’s publication, under sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881. Six extracts from the novel were the subject of particular complaint: those (on pages 10, 86, 105-06 and 136) that were reproduced in a judgment delivered by the Paris Court of Appeal on 13 September 2000 (see paragraph 18 below), and the following two passages: On page 28 the author attributes the following remarks to Mrs Blistier, Ronald’s mother: “It might have crossed his mind, but he was never much good at shooting – my husband didn’t like Ronald using his rifle. But maybe the lad was humiliated because he’d never beaten anyone up, when all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates.” On page 118, concerning a Front National demonstration, the author writes: “The crowd assembled on Place de la Bastille, now whipped up by their master ranter, mostly consists of youths. If you searched them you’d find handguns by their hundreds. They’re ready for a fight – they’re only too pleased if far-left organisations think it’s a good strategy to confront them. The atmosphere is in some ways one of pre-insurrection, but as the journalists present have observed, the feeling on the side of the democrats is more one of disgust than of panic. A fascist coup d’état isn’t yet on the cards, there is more a fear of gangrene setting in – a social disease that can occasionally be stopped from spreading or curbed temporarily.” 14. In a judgment of 11 October 1999, the Paris Criminal Court convicted the second applicant of defamation and the first applicant of complicity in that offence, taking account, however, of only four of the six offending extracts, namely those on pages 10, 86, 105-06 and 136 of the book. They were each sentenced to pay a fine of 15,000 French francs (FRF) (equivalent to 2,286.74 euros (EUR)) and ordered jointly and severally to pay FRF 25,000 (EUR 3,811.23) in damages to each of the civil parties, together with the cost of publishing an announcement of the judgment. In its judgment the court found as follows: “Whether the publication was defamatory: It should first be noted that, whilst the author chose to write a ‘novel’, as indicated on the front cover of the book, he portrays, along with a number of fictional characters, an actual and living political figure, namely Jean-Marie Le Pen, and his party, the Front National. In addition, the author announces the subject matter of his work in the title itself, ‘Jean-Marie Le Pen on Trial’. On the back cover he asks the question ‘How can Jean-Marie Le Pen be fought effectively?’ and in the first few lines of the book he raises another question: ‘Isn’t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric?’ The reader thus immediately becomes aware that the fictional trial is a vector for direct criticism of Jean-Marie Le Pen, especially since the facts described are largely, and obviously, inspired by actual events which have had a great impact on public opinion. Accordingly, although it is a novel, and although the offending remarks are only made by fictional characters, it can nevertheless be observed that the work seeks to impart clearly expressed ideas and to communicate a certain image of Jean-Marie Le Pen, his party and their behaviour. The classification of the charge cannot therefore be ruled out purely on the basis of the technique used to that end. The text, regardless of its literary genre, is capable of harming the honour and reputation of the civil parties and it is appropriate to examine each of the offending extracts to establish their meaning and significance and to determine whether, for the charge of defamation to be made out, they are precise enough for the issue of proof to be addressed. First passage, page 10: To allege that Jean-Marie Le Pen is the chief of a gang of killers – in other words, that he heads a group of murderers – constitutes, in the context of the book, an evidently defamatory allegation of sufficiently precise conduct, reference being made to the racist crime committed by the novel’s protagonist, a young Front National member whose criminal act is said to have been inspired by the ideas advocated by Jean-Marie Le Pen. It is of no consequence that the crime of ‘Ronald Blistier’ is not real, because the author’s intention is not to write a satire about an impossible event but, on the contrary, to make the reader believe that, given Jean-Marie Le Pen’s ideology, such a scenario is quite plausible and that he would be accountable for it. The story also evokes – inevitably, for the reader – the trial in June 1998 of the Front National billstickers accused of killing a Comorian youth, Ibrahim Ali, in Marseilles. Similarly, when the author, a few passages further on, recounts the killing of a black youth called ‘Julien Thoris’, who is thrown into the Seine during a demonstration at which the Front National is present, the reader is bound to recall the real murder of Brahim Bouaram, whose killers were taking part in a march held by that party. The precision of the facts described in the offending extract is thus sufficient to constitute defamation against the civil parties, and the facts thus alluded to were susceptible of proof. Second passage, page 28: The assertion that ‘all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates’ is not clarified by other remarks or illustrated by any given facts. It may stem from the boastfulness attributed to the character in the novel and is too vague to justify prosecution. Third passage, page 86: The Front National is accused of using violence against those who leave the party. The author has one of his characters warn Ronald Blistier’s lawyer against ‘the Front National’s common strategy’ of ‘battering’ anyone who leaves it (‘to beat you up ... ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house’). This extract, which concerns facts that are precise and susceptible of proof, namely the attacking or even killing of anyone who dares to betray and leave the party, damages the honour of the Front National. Fourth passage, pages 105-06: To accuse Jean-Marie Le Pen of making statements ‘with racist overtones that are barely concealed at best’ and to write that ‘from behind each of his assertions looms the spectre of the worst abominations of the history of mankind’ constitutes defamation against him in that he is accused of a form of racism that reminds the reader of the worst atrocities ever perpetrated. The author moreover explains a few lines further on that Jean-Marie Le Pen can put the idea of a racist murder into simple minds like that of Ronald Blistier, who ‘would not have had a gun in his hand and a North African kid at the end of it if Jean-Marie Le Pen had not made it possible’ (p. 106). Fifth passage, page 118: This passage, which describes the young Front National militants firstly as being whipped up by their ‘master ranter’ and secondly as being armed by the hundreds and of creating an atmosphere of ‘pre-insurrection’, is certainly insulting to Jean-Marie Le Pen, but too imprecise to constitute defamation; the subsequent remarks do not concern the Front National but participants in that party’s demonstrations and cannot therefore be taken into account. Sixth passage, page 136: Jean-Marie Le Pen is accused of being a ‘vampire’ who thrives on ‘the bitterness of his electorate’ and ‘the blood of his enemies’, and of being a liar, defaming his opponents to protect himself from the accusations against him. The author develops this image and the term ‘vampire’ by writing, just after the offending passage: ‘... Jean-Marie Le Pen used Ronald Blistier’s life and is now using his death to stir up other Ronald Blistiers, to transform other lost youths into puppets who will have their lives and deaths manipulated by this ruthless puppeteer.’ These allegations about using the life and death of young militants, in driving them to murder and suicide, for personal political ends, are precise and damage the honour and reputation of Jean-Marie Le Pen. As to the existence of good faith: Defamatory allegations are, in law, deemed to have been made with the intention of causing harm, but they can be justified if the writer shows that he was acting in good faith. The court observes in this connection that the author did not simply write a work of fiction. He portrayed to his readers Jean-Marie Le Pen, engaged in his usual activities as Chairman of the Front National, with the intention of criticising him and his party and of challenging their ideas. Mathieu Lindon indeed stated at the hearing that he had made much use of information in the news and, as a result, the reader may not be able to distinguish clearly between fact and fiction, so clear was the intention to associate the situations and remarks with recent events. Although, in the sphere of political polemics and ideological debate, the greatest freedom of expression must be afforded to the author, that freedom is not unrestricted, and stops when it comes to personal attacks, whether they are made directly by the author or through the intermediary of fictional characters, and is discredited by the distortion of facts and by immoderate language. Whereas the defence has asserted that this story reflects reality and does not twist it, the documents produced, which are mainly press articles, being devoid of evidentiary value, are insufficient to substantiate the defamatory allegations taken into account by the court concerning the criminal conduct imputed to the civil parties. No relevant judicial decision against them, which might have justified such assertions, was produced in the proceedings, and in the absence of documents the court can only find that Mathieu Lindon distorted the facts to reinforce the hostility of his readers towards Jean-Marie Le Pen and his party. Furthermore, whilst authors and polemicists are afforded freedom to use a specific register, this does not authorise the particularly excessive remarks that appear in the text. It cannot therefore be accepted that the defendants acted in good faith and the charge of defamation to the detriment of Jean-Marie Le Pen and the Front National is accordingly made out ...” 15. The first two applicants appealed against the above judgment in the Paris Court of Appeal. They challenged the finding that the offending extracts were defamatory in nature. They argued that it was simply a work of fiction portraying fictional characters, as the reader could see from the very first page. They also argued that the remarks merely amounted to value judgments about the claimants, reflecting a public debate, treated with distance and irony, about how best to combat the rise of the far right. In the alternative, pleading good faith, they submitted that the ideas of Mr Le Pen and the Front National had not been distorted by the book and its characters, and that the offending passages consisted exclusively of remarks made by the fictional characters without reflecting the ideas of the author, who, for his part, had sought to criticise the strategy adopted by anti-racist associations and left-wing intellectuals in general, in their fight against the Front National. The applicants relied on Article 10 of the Convention, claiming that this provision precluded any conviction because a work of fiction was entitled to reflect debate as to the moral responsibility borne by the Front National and its leader’s ideas in the commission of racist crimes. They emphasised that the freedom to hold opinions would be infringed if the author of a value judgment were to be penalised on the pretext that he could not prove the pertinence of his opinion, and referred in this connection to the Lingens v. Austria judgment (8 July 1986, Series A no. 103). Lastly, they argued that equally aggressive and defamatory remarks against the civil parties had been made in the past by politicians or journalists, and that Mr Le Pen himself had been convicted several times of incitement to racial hatred. 16. In a judgment of 13 September 2000, the Paris Court of Appeal (Eleventh Division, consisting of Mr Charvet, President, Mr Blanc and Mr Deletang) upheld the judgment of 11 October 1999 as regards the defamatory nature of three out of the four passages taken into account by the Criminal Court, together with the fines imposed and the damages awarded by that court. 17. In its judgment the Court of Appeal considered, firstly, that the work in question was a “novel”, “a ‘creation of the imagination’ as defined by the Petit Robert dictionary”, whose story line was constructed around the dilemma facing the main character: “The author has developed a plot, based on that framework, running from the beginning of the proceedings against the young defendant until his suicide in prison before counsel’s address and the prosecution speech, and has given expression to many characters who mainly appear as stereotypes characterised by their moral or political position in relation to the civil parties, who themselves are explicitly real people.” It further observed that Mr Le Pen and the Front National, both appearing under their real and current identities, were constantly at the forefront not only of the debate conducted in open court but also of the exchanges between the various characters, “and even at the heart of the intimate contradictions facing the main protagonist”. The court then noted that, on a number of occasions, words had been put into the mouth of Mr Le Pen, who “express[ed] views that [were] close or identical to those [that he took] in reality, but which [had not been] regarded by the civil parties as impugning his honour and reputation or those of the party of which he [was] the leader”. It further considered that the subject of the book was the question set out on the back cover, “How can Jean-Marie Le Pen be fought effectively?”, adding that “to ask that question, even in a novel, [was] not per se defamatory against him”. 18. The court went on to point out that section 29 of the Act of 29 July 1881 defined defamation as “any statement or allegation of a fact that impugns the honour or reputation of [a] person” and that the law made no distinction based on the nature of the writing in issue. On that basis, any writing, whether political, philosophical, novelistic or even poetical, was governed by the applicable rules in such matters, with regard both to public order and to the protection of individuals. However, the court added that “the application of the rules on defamation in respect of a press article or other text directly expressing the view of its author requires, if the text is a work of fiction, an examination of the question whether the civil parties are actually the individuals concerned by the offending remarks, and then of the meaning attributed by the author to the words of his characters in the light of the ideas that he expounds in reality in his work”. As to the second point – the first being manifestly established – the court found as follows: “... a distinction has to be made between the offending passages on pages 10, 86, 105, and, lastly, 136, the only extracts now to be taken into account: some of them express the view of the narrator and coincide with the author’s ideas as they emerge from the work as a whole, whilst others can be attributed only to the character making the remarks in question, in so far as the author genuinely distances himself from those remarks throughout the work, either through the narrator or by other means.” Using that method the court ruled as follows on the four passages in question: “1. Page 10: ‘... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn’t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too’ [this view is attributed by the author to anti-racist demonstrators who have gathered outside the law courts]. This segment of text is preceded by another, which has not been mentioned by the civil parties: ‘For them, it’s not sufficient to call Ronald Blistier the murderer’, following the narrator’s description of the crowd of ‘anti-racists’ which assembles in front of the law courts during the trial of Ronald Blistier. To assert that Jean-Marie Le Pen is not the Chairman of a political party but the chief of a gang of killers, and then in addition to equate him with Al Capone, is clearly defamatory, as was quite rightly observed by the court below. There is nothing in the preceding or following sentences to suggest that any distance has been taken by the narrator – and therefore, in view of the book’s literary construction, by the author himself – from this statement, which is attributed to the demonstrators gathered outside the law courts, and which, moreover, echoes the question presented on the back cover as the subject of the book: ‘How can Jean-Marie Le Pen be fought effectively?’ This extract accordingly constitutes defamation against the civil parties. 2. Page 86: ‘He (Blistier [the accused]) wants to frighten you, Pierrot [the lawyer]. He wants to brand you as a member of his clan: that’s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they’ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don’t try and be clever, Pierrot. I don’t want them to kill you.’ These words are spoken by the boyfriend of the lawyer, Mr Mine, the main protagonist. The speaker is giving his own explanation about the defendant’s attitude towards his counsel during the hearing, in response to a question from Mine. This passage contains comments that are specific to the fictional character, albeit derogatory with regard to the civil parties, as observed by the court below. Nevertheless, and contrary to the assessment of the lower court, they do not appear to be susceptible of proof within the meaning of the Act of 29 July 1881: being attributed to a fictional character, in a situation which is itself fictional, the text does not suggest that they may necessarily be regarded as corresponding to the author’s opinion. This passage is not found to be defamatory. 3. Pages 105-06: ‘Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt’ [here the lawyer is addressing the court]. It is clearly defamatory to accuse Jean-Marie Le Pen of ‘proffering words or assertions with racist overtones that are barely concealed at best and from behind which looms the spectre of the worst abominations of the history of mankind’. Such an accusation is susceptible of debate as to whether or not it holds true in relation to the actual discourse of Jean-Marie Le Pen and the Front National. The defendants cannot legitimately claim impunity for such remarks on the grounds that they derive from novelistic fiction and at the same time that they are covered by the statutory impunity concerning statements made during a judicial hearing. The allegation by the character Mr Mine, the lawyer, that ‘what Ronald Blistier did was precisely what Jean-Marie Le Pen advocates’, following the narrator’s comment – just before the paragraph containing the passage in question – that ‘once again, everyone agrees that this trial should be that of Jean-Marie Le Pen rather than that of Ronald Blistier, otherwise it would never have had such an impact’, shows that through the remarks attributed to his main protagonist it is in fact Mathieu Lindon who is expressing himself here with reference to the civil parties. This extract constitutes defamation against the civil parties. 4. Page 136: After the defendant’s suicide in prison, his lawyer gives the following statement on television: ‘How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier’s suicide? Isn’t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn’t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself.’ To describe Jean-Marie Le Pen, Chairman of the Front National, as ‘a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies’, impugns the honour and reputation of the two civil parties. This passage is part of a long television appearance by the main protagonist – the only one who, apart from his boyfriend, is portrayed in a positive light in the novel, as both characters convey, so to speak, the contradictions and values of the narrator – following the defendant’s suicide in prison. It is evident that this speech, which takes the form of an indictment, and which is presented as the only interview given to the media by the lawyer, who has previously turned down many other requests, constitutes both the synthesis and the final conclusion through which the author seeks to give his character an opportunity to express, with a certain solemnity in the context of this fiction, the author’s own view as a militant writer. Moreover, in the last two pages of the book, following the television statement, no distance whatsoever is introduced between the narrator and the remarks made. This extract thus constitutes defamation against the civil parties.” 19. The Court of Appeal further dismissed the argument that the applicants had acted in good faith, on the following grounds: “Defamatory allegations are deemed to have been made in bad faith unless the defendant can show that they fulfil all of the following conditions: they must correspond to the pursuit of a legitimate aim; they must not reflect any personal animosity on his part towards the civil party; there must have been a serious preliminary investigation; and the language used must be dispassionate. In the present case, the legitimacy of the aim pursued by the defendants through the novel, namely ‘to fight against Jean-Marie Le Pen effectively’, in other words to engage in a political combat, cannot be challenged in a democratic society. With its claim to be a ‘combative’ work, the novel in question, and in particular the passages found to be defamatory, attest to patent animosity towards the civil parties. However, that animosity is explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as Chairman of the Front National. That animosity, which is not directed against the civil party in person, cannot be regarded as reprehensible per se. Since this is a work of fiction, the question of the seriousness of the investigation underpinning the work cannot be assessed as if it were a text intended to inform the reader of real facts or comment on such facts. However, the principle adopted for the construction of the work in issue, as can be seen explicitly from a reading of the text and as the defendants have asserted before the court, is based on the juxtaposition within an imaginary plot of, on the one hand, various fictional characters, and on the other, the Chairman of the Front National, a real figure, who represents the focus in relation to which the imaginary characters take shape and around which they revolve throughout the novel. Furthermore, the ideas, rhetoric, acts and gestures of Jean-Marie Le Pen are accurately described in the novel – as the defendants have claimed, producing cogent evidence to that effect – in relation to the reality of the various public manifestations of his political activity. Accordingly, it is appropriate to examine whether the use of the defamatory comments chosen by the author was preceded by an investigation sufficiently serious to justify the comments in question. In this connection, whilst the rhetoric and ideas attributed to the civil parties, together with the ensuing debates, are unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants have failed to adduce any specific evidence to show that the use of the wording found to be defamatory was preceded by basic verification as to the reality supposed to be evoked by that wording. Similarly, it cannot be said that the form of expression used in the three extracts found to be defamatory is sufficiently dispassionate: to liken Jean-Marie Le Pen to the ‘chief of a gang of killers’ (page 10), to assert that the murder committed by Blistier – a fictional character – was ‘advocated’ by Jean-Marie Le Pen – a real person – and to describe the Chairman of the Front National – a real person – as a ‘vampire who thrives on the bitterness of his electorate, but sometimes also on their blood’, clearly oversteps the permissible limits in such matters. It cannot therefore be accepted that the defendants acted in good faith. Lastly, the argument derived from the application of Article 10 of the European Convention on Human Rights and the Lingens v. Austria judgment of 8 July 1986, whereby ‘a value-judgment made about a politician is by nature not susceptible of proof’ is ineffective. The allegations found in the present case to be defamatory, directed against a real politician, do not merely constitute value-judgments within the meaning of the judgment of the European Court of Human Rights cited above, in a case where a journalist had described the conduct of a politician as ‘the basest opportunism’, ‘immoral’ and ‘undignified’. In Mr Lindon’s case, he accuses the civil party of certain concrete practices (describing him as the ‘chief of a gang of killers’, ‘advocating the perpetration of a murder’ and ‘a vampire who thrives on the bitterness and the blood of his voters’).” 20. In a judgment of 27 November 2001, the Court of Cassation dismissed an appeal on points of law lodged by the first two applicants. It rejected as follows the ground based on an alleged breach of Article 10 of the Convention: “... In finding the defendants guilty of public defamation against a private individual, taking into account three extracts from the work, the judges, who made an accurate assessment of the meaning and significance of the offending writings, justified their decision without breaching the Convention provisions referred to in the ground of appeal. Whilst Article 10 of the Convention ... recognises, in its first paragraph, that everyone has the right to freedom of expression, that provision states, in its second paragraph, that the exercise of this right, carrying with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation of others. ...” 21. In its edition of 16 November 1999, in a column entitled “Rebonds” (“reactions”), the daily newspaper Libération published an article signed by ninety-seven contemporary writers concerning the first two applicants’ conviction, on charges of defamation and complicity in defamation, by the Paris Criminal Court in its judgment of 11 October 1999 (see paragraph 14 above). The article took the form of a petition and read as follows: “Petition. The passages from the book ‘Jean-Marie Le Pen on Trial’ for which Mathieu Lindon and his publisher were convicted are not defamatory. We are prepared to write them in a novel. We will write against Le Pen. Novels cannot be granted unlimited rights. But they have the right to exist and to evoke the real world in which the author and his peers live. Mathieu Lindon and his publisher Paul Otchakovsky-Laurens were convicted of defamation against Jean-Marie Le Pen on account of four passages in the novel ‘Jean-Marie Le Pen on Trial’. To write, in a novel, that demonstrators who pay tribute to the victim of a racist murder consider that: ‘For them, it’s not sufficient to call Ronald Blistier the murderer; an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn’t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too’ is not defamatory in my view and I am prepared to write this in a novel. To write, in a novel, that the boyfriend of a lawyer defending a murderer who belongs to the Front National gives the lawyer this warning: ‘He wants to frighten you, Pierrot. He wants to brand you as a member of his clan: that’s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they’ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you’re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don’t try and be clever, Pierrot. I don’t want them to kill you’ is not defamatory in my view and I am prepared to write this in a novel. To write, in a novel, that a lawyer, in defending his client who is accused of a racist crime puts the following arguments to the court: ‘Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt’ is not defamatory in my view and I am prepared to write this in a novel. To write, in a novel, that a lawyer who has poorly defended his client, a Front National member accused of a racist murder, makes the following analysis: ‘How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier’s suicide? Isn’t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse the democrats of the alleged murder of Ronald Blistier? Because he isn’t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he’s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself’ is not defamatory in my view and I am prepared to write this in a novel. If these passages are to be considered defamatory in a novel, they are also defamatory in reality. I should be sued by Jean-Marie Le Pen and convicted by a court, if they are true to their own logic, for having reproduced those extracts here.” 22. It was on account of the above article that Mr Le Pen and his party summoned the third applicant to appear before the Paris Criminal Court in his capacity as publication director of Libération, alleging that he had committed the offence of public defamation against a private individual (under sections 29(1), 32(1) and 42 of the Freedom of the Press Act of 29 July 1881). 23. In a judgment of 7 September 2000, the court found the applicant guilty of the criminal offence of defamation and sentenced him to pay a fine of FRF 15,000 (EUR 2,286.74). It also awarded FRF 25,000 (EUR 3,811.23) in damages. The court, after observing that Libération had reproduced in extenso passages from the work that it had characterised as defamatory in its judgment of 11 October 1999, found that “the defamatory nature of the remarks, which ha[d] already been found to have impugned the honour and reputation of another and ha[d] been repeated in the offending article, [was] ... not in doubt”. As to the question of good faith, the court found that, whilst the newspaper Libération was entitled to comment on a judicial decision and to impart ideas and information on questions that formed the subject of public debate, it was nevertheless true that there was “a distinction between the right of petition and the publicity given to a petition by the use of objectionable terms”. In the court’s view, the publication of the defamatory passages in abstracto, outside their literary context, strengthened the dishonouring force of the allegations, which were shifted to the terrain of reality and plausibility, without any debate of ideas, as the signatories of the article had emphasised in concluding: “If these extracts are to be considered defamatory in a novel, they are also defamatory in reality.” The court added that other newspapers had reported on the debate triggered by the publication of “Jean-Marie Le Pen on Trial” and the petition following the conviction of its author but had not reproduced the offending comments in extenso. It inferred that the third applicant “could ... have reported on the offending petition and informed readers of the views of numerous writers and journalists, without, however, reiterating the offence of which Mr Lindon and his publisher had been convicted by reproducing the passages that had been found to be defamatory in the court’s previous decision”. 24. On 12 September 2000 the third applicant lodged an appeal against the judgment. He contended that the impugned article was part of a broader political debate concerning the Front National and its Chairman, and that the debate was intense because of events that had actually taken place. It was those events which had provided the inspiration for the novel by the first applicant, whose cause had been defended by the signatories of the petition, reacting in a democratic spirit and out of vigilance towards the far-right movement. The third applicant explained that the column “Rebonds” was specifically reserved for the opinions of commentators from outside the newspaper who expressed their views with the intention of triggering debate and provoking reactions among readers. He added that the column, in principle, was not supposed to be objective or impartial but to convey opinions and therefore entailed the freedom to hold those opinions. He argued that the free discussion of political matters should not be hindered by excessive requirements relating to the protection of the rights of others or the prevention of disorder. 25. In a judgment of 21 March 2001, the Eleventh Division of the Paris Court of Appeal (consisting of Mr Charvet, President, and Judges Deletang and Waechter) upheld all the provisions of the judgment under appeal. The court pointed out that, in its judgment of 13 September 2000 (see paragraphs 16-19 above), it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article, referred back to the grounds set out in the 13 September 2000 judgment, of which, it stated, the reasoning “remain[ed] applicable”. It went on to dismiss the defence of good faith on the following grounds: “The existence of controversy surrounding Mr Le Pen and the Front National has been patent for many years, and that controversy has taken on a polemical aspect at certain times. As regards the work ‘Jean-Marie Le Pen on Trial’, the court found in its previous judgment that it was established that its very subject matter was the fight against the political ideas of the civil parties, which in this case had taken the form of a novel. Such a medium does not preclude the application of the Act of 29 July 1881 where, firstly, the characters portrayed can be identified as real people, and, secondly, the defamatory allegations against them are a reflection not of the narrative process but of the author’s own views. On the basis of that analysis, the court considered that this situation obtained in respect of the novel itself. It is all the more true for the impugned article, which is presented as a shift from fiction in two ways, being published even though the passages in question had formed the basis of a conviction and by clearly indicating that shift: ‘If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen.’ The authors of the text in issue had no other aim than that of showing their support for Mathieu Lindon by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks. The polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions such as those describing Mr Le Pen as the ‘chief of a gang of killers’ or as a vampire. The defence of good faith cannot be admitted ...” 26. On 23 March 2001 the third applicant appealed on points of law, claiming in particular that there had been a violation of Articles 10 and 6 of the Convention. In respect of Article 6 he contended that the Court of Appeal had already ruled on the defamatory nature of the book in question and that it had relied on that earlier judgment, so that the appeal had not been heard by an impartial tribunal but by a “court which openly regarded itself as clearly targeted by the offending article”. 27. In a judgment of 3 April 2002, the Court of Cassation dismissed the appeal in the following terms: “... It is apparent from the decision appealed against that Serge July, publication director, was summoned to appear before the Eleventh Division of the Court of Appeal on a charge of public defamation against a private individual, on account of having published an article. That article incorporated certain passages from a book for which the author had previously been found guilty under section 29 of the Act of 29 July 1881 by a bench of the Court of Appeal consisting of President Charvet and Judges Blanc and Deletang. The appellant is not entitled to complain that Judges Charvet and Deletang sat on the bench of the appellate court before which he appeared, in so far as the participation in this case of a number of judges of the criminal division of the Court of Appeal in proceedings concerning charges brought, firstly, against the author of a defamatory text and, secondly, against the publication director who allowed certain passages from that text to be published, is not contrary to the requirement of impartiality enshrined in Article 6 § 1 of the Convention. In addition, contrary to what has been alleged, there is nothing in the judgment appealed against to suggest that the judges deemed themselves to be targeted by the offending text or that they expressed an opinion contrary to the requirement of impartiality. ... In finding Serge July guilty ... the Court of Appeal stated that the polemical aim of a text could not absolve it from all regulation of expression, when, far from being based merely on an academic debate, its line of argument was built around reference to precise facts. The court added that, in this case, the accusations that had been made without a meaningful prior investigation were particularly serious ones, the civil party having been described as the ‘chief of a gang of killers’ or as a vampire. In these circumstances the Court of Appeal justified its decision without breaching Article 10 of the Convention ...” 28. The relevant parts of the Freedom of the Press Act of 29 July 1881 provide as follows: “It shall be defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.” “Anyone who by any of the means set out in section 23 [including ‘written’ and ‘printed’ matter and ‘any other written medium’ ‘sold or distributed, or offered for sale’] makes a statement that is defamatory of private individuals shall be liable on conviction to six months’ imprisonment and a fine of 12,000 euros, or to one only of those sentences”. “The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press: 1. Publication directors or publishers, irrespective of their occupation or title ...” 29. An individual may be defamed through the portrayal of characters in a novel or play, without it being necessary for the name of the imaginary person to correspond to that of the individual who claims to have been defamed, provided he or she is referred to in a clear manner such that the public cannot be mistaken (Paris Court of Appeal, 8 March 1897). On the other hand, the fact that the name of the imaginary person corresponds to that of a living person is not sufficient for the latter to allege defamation, even if there are certainly similarities of character and diffusion (Algiers Court of Appeal, 20 February 1897). Such situations mostly give rise to proceedings for civil liability and damages are awarded whenever there has been prejudice, that is to say when the public has unavoidably been led to associate the living person with the imaginary person and where an error of judgment can be attributed to the author (Paris Court of Appeal, 24 April 1936, and Paris Court of Appeal, 8 November 1950). (Source: Juris-Classeur de droit pénal, 1996, Presse-Diffamation, fascicule 90, “86 personnages littéraires” (literary characters)). | 0 |
train | 001-110193 | ENG | SVN | ADMISSIBILITY | 2,012 | FERENC v. SLOVENIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | The applicant, Mr Srečko Ferenc, is a Slovenian national who was born in 1968 and lives in Maribor. He was represented before the Court by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was serving his sentence in the closed section of Dob Prison in the period between 24 February 2009 and 26 March 2011. As regards the facilities available in the cells and common areas, as well as the health care regime in the prison, the conditions regarding activities outside the cells and contact with the outside world, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), no. 5711/10 etc., 27 September 2011. Between 24 February 2009 and 2 June 2010 the applicant was held in Block 4, in cell no. 8 which measured 58.96 square metres and accommodated seventeen prisoners. After his brief hospitalisation (see below) he was returned to the same cell, which continued to accommodate seventeen prisoners. He therefore at all times had about 3.5 square metres of personal space while being held in the prison cell. At the beginning of his imprisonment the applicant participated in work therapy sessions, but soon dropped out for unspecified reasons. The applicant suffers from a large ulceration on his left tibia (the part of the leg below the knee), which had already appeared in 2003. According to the Government, in the period between 24 February 2009 and 9 July 2010, the applicant visited the prison clinic sixty-six times. The applicant’s medical record shows that the wound was cleaned and dressed systematically (every few days and, during certain periods, every day) in the prison clinic. Medication was occasionally prescribed to the applicant. The applicant’s comments concerning his condition, in particular as regards his pain and discomfort, were also noted in his medical record. Reports from the prison doctor, which appear to have been prepared at the Government’s request, note that the applicant’s ulcer was regularly cleaned by nurses under the supervision of a general practitioner, that he was also regularly treated by the prison psychiatrist, and was undergoing methadone substitution treatment. It was also noted in one of the reports that the medical assistance provided to the applicant was of a higher standard than that commonly received by individuals with a similar medical problem in Slovenia. During the period of his imprisonment the applicant was twice admitted to the Department for Plastic and Reconstructive Surgery at the Maribor Hospital, in order to undergo surgical treatment for his ulcer. On both occasions it was envisaged that the surgery would be performed under general anaesthesia. The first time, on 1 December 2008, complications arose when the anesthetist was inserting the intravenous catheter. The applicant was given the option of the catheter being inserted through his inguinal canal (in the groin) or his neck, but he refused, and the surgery was aborted for that reason. The same occurred following the applicant’s second admission to the aforementioned hospital on 2 June 2010. A hospital report dated 4 June 2010 notes that the applicant’s ulcer was not infected. It also advised that the applicant’s status in prison be appropriate to his state of health. For the relevant domestic law and practice, see paragraphs 33-35 and 3847 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), as well as Lalić and Others, cited above. In addition, the Patient Rights Act (Official Gazette no. 15/2008, entry into force on 26 August 2008) provides for procedures for dealing with complaints concerning, inter alia, inadequate medical treatment or care. In accordance with the provisions of that Act, a patient can lodge a complaint directly with a health-care provider. If unsatisfied, he or she can complain to the Commission for Protection of Patients Rights. Ultimately, a patient whose complaint has been unsuccessful can challenge the decisions made in his or her case before the Administrative Court. The Act also regulates the work of the Representative for Patients’ Rights, whose main role is to assist, provide advice to and represent patients in the exercise of their rights provided therein. | 0 |
train | 001-22642 | ENG | ITA | ADMISSIBILITY | 2,001 | BRUSCO v. ITALY | 1 | Inadmissible | null | The applicant [Mr Umberto Brusco] is an Italian national, born in 1958 and living in Quarto Flegreo (Naples). He was represented before the Court by Mr A. Murante Perrotta, of the Naples Bar. On 23 March 1992 the applicant, who had been accused of corruption and membership of a criminal organisation, was arrested and placed under house arrest. He was released on 17 July 1992. On 19 February 1993 the Naples public prosecutor’s office requested that the applicant and numerous other people be committed for trial. In an order of 10 November 1993 the Naples investigating judge allowed the request. The first hearing in the Naples District Court was held on 14 February 1994. After three further hearings – on 30 March and 6 and 9 April 1994 – a number of witnesses were questioned. On 20 April, 11 May and 8 June 1994 the proceedings were adjourned owing to strikes by lawyers. On 28 September 1994 the District Court, noting that the composition of its bench was not the same as at the previous hearings, directed that all the measures taken during the trial should be carried out again. Following a succession of hearings – on 27 September, 4, 11, 18, 23 and 25 October and 3 and 4 November 1995 – the parties presented their submissions. In a judgment of 4 November 1995, the text of which was deposited with the registry on 11 June 1996, the Naples District Court sentenced the applicant to three years’ imprisonment for corruption. It acquitted him of membership of a criminal organisation. The public prosecutor’s office and the applicant both appealed to the Naples Court of Appeal. The first hearing was scheduled for 21 April 1997. On 5 May 1997 the case was adjourned, initially until 20 September 1997 because of a lawyers’ strike and subsequently until 10 November 1997 at the defendants’ request. On that day the proceedings were adjourned until 4 May 1998 as the lawyers were on strike. On 3 November 1998 the defendants, noting that an appeal concerning an issue of relevance to the outcome of their case was pending before the Constitutional Court, applied for an adjournment. The Court of Appeal granted their application. The Constitutional Court delivered its judgment on 22 July 1999 and the applicant’s case was set down for hearing in the Naples Court of Appeal on 5 October 1999. Following numerous adjournments, the parties presented their submissions on 7 April 2000. In a judgment of 7 April 2000, the text of which was deposited with the registry on 20 April 2000, the Naples Court of Appeal acquitted the applicant. That decision became final on 22 June 2000. In a letter of 15 May 2001 the Registry of the Court informed the applicant that Law no. 89 of 24 March 2001 (“the Pinto Act”) had come into force on 18 April 2001, introducing into Italian legislation a remedy in respect of the excessive length of court proceedings. The applicant was at the same time invited to refer his complaint, in the first place, to the national courts. In a fax of 29 May 2001 the applicant indicated that he did not wish to avail himself of the remedy provided by the Pinto Act and insisted that his application to the Court should be registered. He observed, in particular, that it had been lodged on 6 December 2000, before the publication and entry into force of the Pinto Act. In passing Constitutional Amendment Act no. 2 of 23 November 1999, the Italian parliament decided to include the principle of a fair trial in the Constitution itself. The relevant parts of Article 111 of the Constitution are now worded as follows: “1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with the law. 2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.” In order to ensure the effective application at domestic level of the “reasonable time” principle now enshrined in the Constitution, Parliament passed the Pinto Act on 24 March 2001. The relevant parts of the Act provide: “1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction. 2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case. 3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules: (a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account; (b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.” “1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending. 2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure. 3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister. 4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel [Avvocatura dello Stato] at least fifteen days prior to the date of the hearing before the Chamber. 5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties. 6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately. 7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.” “A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.” “If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.” “1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made. 2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.” “1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose. 2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.” | 0 |
train | 001-83386 | ENG | MDA | CHAMBER | 2,007 | CASE OF FLUX v. MOLDOVA | 3 | Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 19 July 2001 the Parliament of Moldova amended the 2001 Budget Act to allow the Customs Department to postpone by up to three months the levying of taxes on fuel imported into Moldova. In the evening of the same day, the leader of the communist majority in Parliament (Mr V. Stepaniuc) met with the deputy Speaker of Parliament (Mr V. Mişin) for a meal in the restaurant of a luxury hotel in Chişinău. According to the applicant newspaper, sources which preferred to remain anonymous confirmed that the meal had been paid for by “L.”, a major importer of fuel into Moldova. 7. On 24 July 2001 the applicant newspaper published an article entitled “On L.'s money, communists V. Stepaniuc and V. Mişin had a big-time party (chiolhan) at 'Jolly Allon'”. The article, which included pictures of the two MPs next to the text, informed readers about the changes to the Budget Act and about the profits which those changes would bring to a few big fuel importers who had links with the Customs Department, thus allowing unfair competition. The article claimed that the postponement of tax payments constituted a form of credit by the State without interest or guarantees and rejected the explanation for the amendment given by a member of Parliament. One paragraph in the article read: “One needs to note that, in the evening of the same day, at the 'Jolly Allon' (...) hotel, the communists V. Stepaniuc and V. Mişin, putting aside all proletarian decency [pudoare], had a big-time party on the money of the sharks from 'L.'. Could this party be a simple coincidence? We do not know.” The article went on to expose the legislative plans of the communist party and the resulting benefits to big fuel importers at the expense of ordinary workers. 8. On 8 July 2002 Mr Stepaniuc, the leader of the Communist parliamentary faction which had, at the time, 71 votes out of a total of 101 in Parliament, lodged an action against the applicant newspaper, identifying the paragraph cited above as defamatory. He did not pay any court fee when lodging his complaint, nor did he appear in court at any stage of the proceedings or delegate any person to represent him. 9. On 1 August 2002 Judge I.M., the then President of the Buiucani District Court, found that the applicant had essentially stated that Mr Stepaniuc “had voted for laws in the interest of some private companies and then had a party on their money”. It denounced the use of pure rumour as a basis for journalism and found that the applicant newspaper had acted in bad faith. The court took note of the “vehement attack” on Mr Stepaniuc, the large readership of the newspaper and the “degree of moral and psychological suffering” caused. In addition, the court found that Mr Stepaniuc's position as a member of Parliament and leader of a parliamentary faction “increased the degree of moral damage” which led to the imposition of maximum liability. 10. The court accepted Mr Stepaniuc's claim and ordered the applicant newspaper, pursuant to Articles 7 and 7 § 1 of the Civil Code, to publish an apology and to pay the plaintiff the maximum damages allowed by law and the court fees (a total of 3,690 Moldovan lei (MDL), equal to 278 euros (EUR) at the time). According to the applicant newspaper, the court had conducted one hearing which lasted less than 15 minutes and no questions had been put to the applicant newspaper. 11. In its appeal the applicant newspaper submitted that the impugned phrases had amounted to value-judgments which could not be proved and that these opinions had been based on facts, namely the party which had taken place at the hotel in question on the date mentioned in the article, which was not disputed, and the modifications to the law adopted by Parliament. Moreover, in view of the length of time that had passed after the publication of the article, it had been impossible for the applicant to prove that the persons had been seen at the hotel restaurant, where they had had a party, or verify the source of payment for it. The applicant newspaper also argued that Judge I.M. lacked independence and impartiality because he was a friend of Mr Stepaniuc and had been appointed President of the Buiucani District Court by the Communist Party parliamentary group. The majority of the defamation cases between Flux and Mr Stepaniuc had been examined by him personally and his decisions were stereotyped and did not give sufficient reasons. In other defamation cases between Flux and representatives of the Government, Judge I.M. had always ruled in favour of the latter and had awarded them the maximum amount provided for by law. 12. On 30 January 2003 the Chişinău Regional Court found that the applicant newspaper had missed the time-limit for lodging its appeal against that judgment but went on to examine the substance of the case. It upheld the lower court's judgment, finding that its decision had been lawful and reasoned. The court did not respond to the applicant's complaint about the alleged lack of impartiality of Judge I.M. The hearing lasted less than 10 minutes and the applicant newspaper was not asked any questions. 13. In an appeal in cassation the applicant newspaper relied on Article 10 of the Convention and on the distinction which the lower courts had failed to make between value-judgments and factual statements. Moreover, the courts had never heard evidence from the plaintiff, and had not taken into account his public-figure status, which should have limited the scope of interference with the applicant's freedom of expression, or the special role played by the press in a democratic society. Finally, the lower courts had failed to respond to most of the points raised by the applicant. 14. On 1 April 2003 the Court of Appeal upheld the judgments of the lower courts, finding that they had been lawful and corresponded to the evidence in the case. No comment was made about Judge I.M.'s alleged lack of impartiality. 15. The relevant provisions of the domestic law have been set out in this Court's judgment in the case of Busuioc v. Moldova (no. 61513/00, §§ 39-40, 21 December 2004). | 1 |
train | 001-58154 | ENG | PRT | CHAMBER | 1,998 | CASE OF DAUD v. PORTUGAL | 2 | Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-3-e;Non-pecuniary damage - finding of violation sufficient | C. Russo;Feyyaz Gölcüklü;John Freeland | 9. At the time of lodging his application with the Commission in 1993 Mr Daud, an Argentinian citizen born in 1944, was in prison at Vale de Judeus (Portugal). On 4 August 1995 he died in Caxias prison hospital. 10. On 10 March 1992 the applicant, as he arrived from Rio de Janeiro, was arrested at Lisbon Airport; he was carrying a false passport and a suitcase containing 1.5 kg of cocaine. 11. On 11 March 1992 the judge of the Lisbon Criminal Investigation Court (tribunal de instrução criminal) to whom the case had been allocated interviewed Mr Daud in the presence of an officially assigned lawyer and an interpreter, Mr C.M., an educational and welfare counsellor working in the police criminal investigation department. After verifying that the applicant had been arrested lawfully, the judge ordered that he should be detained pending trial. 12. On 9 July 1992 the Supreme Court (Supremo Tribunal de Justiça) refused an application for a writ of habeas corpus made by the applicant in person. 13. On 9 October 1992 the public prosecutor made his submissions. These were served on the lawyer on 12 October and on the applicant on the 13th. 14. On 15 October 1992 Mr Daud himself requested that a judicial investigation should be commenced. On 26 October the investigating judge, citing Article 92 § 1 of the Code of Criminal Procedure, refused the request, on the ground that it did not satisfy the minimum formal requirements laid down by law, in particular because it was written in Spanish. 15. On 16 November 1992 the file, together with the public prosecutor’s submissions, was sent to the Third Division of the Lisbon Criminal Court (tribunal criminal). 16. In an order of 30 November 1992 that was served on Mr Daud on 9 December the judge in charge of the case set it down for hearing on 26 January 1993. He also ordered that the applicant should remain in detention pending trial. 17. In a letter of 15 December 1992, which was registered on 22 December, the applicant asked the court to hear a number of witnesses and to order an examination of the suitcase in issue, which he denied was his. He also sought the assistance of an interpreter other than Mr C.M. and asked to meet his officially assigned lawyer, who had not yet contacted him. 18. In an order of 22 December the judge in charge of the case, citing Article 92 § 1 of the Code of Criminal Procedure, declined to consider the application, on the grounds that it was “difficult to read”, written in Spanish and unaccompanied by any translation. 19. On 14 January 1993 the officially assigned lawyer asked to be relieved of her duties on health grounds. On 18 January 1993 the judge assigned another lawyer, Ms C.G. Mr Daud was notified of that order on 23 January 1993. 20. The trial began on 26 January 1993 with an interpreter, Mr E.P., present and continued on 1 February 1993. At those hearings the court heard witnesses and, at the request of the officially assigned lawyer, formally identified the suitcase. 21. On 8 February 1993, the court sentenced the applicant to nine years’ imprisonment for drug trafficking and using a false passport and made an order for costs against him. 22. On the very same day that he was convicted, the applicant, represented by his officially assigned lawyer, appealed to the Supreme Court. In his pleadings, drawn up and submitted by Ms C.G., he complained that the court below had not acceded to his request for a judicial investigation. In his submission, the investigating judge had misinterpreted the relevant provisions of the Code of Criminal Procedure; his refusal to consider the request and the lack of an investigation rendered the proceedings null and void. 23. In a judgment of 30 June 1993 the Supreme Court, relying on Article 412 of the Code of Criminal Procedure, held that the appeal was inadmissible on account of an inadequate presentation of the grounds. The submissions did not indicate either the statutory provisions that had allegedly been contravened or the way in which, in the appellant’s view, they should have been interpreted or applied. 24. Article 20 of the Constitution provides: “1. Access to the law and to the courts to defend one’s rights and legitimate interests is guaranteed to all. Justice cannot be refused for lack of financial resources. 2. Everyone is entitled, in accordance with the law, to information, legal advice and legal aid.” 25. Article 32 § 3 of the Constitution provides: “Every person charged with a criminal offence is entitled to choose a legal representative and to be assisted by him in all procedural steps. The law shall lay down the circumstances in which and the stages at which such assistance is compulsory.” 26. The relevant provisions of the Code of Criminal Procedure are the following: “1. The accused may instruct counsel at any stage of the proceedings. 2. Where it is provided by law that the accused must be represented and the accused has not appointed or does not propose to appoint a person to defend him, the judge shall assign one officially, preferably a member or trainee member of the Bar; but the officially assigned representative shall cease to have authority to act if the accused instructs counsel of his own choosing. …” “The accused may revoke any act carried out on his behalf by the person defending him, provided that he expressly declares that intention before any decision has been taken in respect of the act in question.” “1. The assistance of a representative is compulsory (a) when an accused in custody is first examined by the judge; (b) during the investigation and at the hearing, except in proceedings which cannot entail a custodial sentence or a preventive measure; (c) for any step in the proceedings if the accused is deaf, dumb or illiterate or does not know Portuguese, if he is under the age of 21 or if the issue of his lack of criminal responsibility or his diminished responsibility has been raised; … “1. Where a representative is assigned officially, the accused shall be notified of the fact if he was not present at the material time. 2. The officially assigned representative may be excused from assisting the accused if he puts forward a ground that the court considers valid. 3. The court may replace the officially assigned representative at any time on an application by the accused that contains a valid ground. 4. Until such time as he is replaced, an officially assigned representative shall continue to act in respect of subsequent steps in the proceedings. 5. The representative shall always be remunerated for his services; the terms and the amount shall be determined by the court, within the limits laid down in a scale approved by the Ministry of Justice or, failing that, in the light of the fees normally paid for services of a similar nature and of equal importance. Payment shall be the responsibility of, as the case may be, the accused, the assistente, the civil parties or the Ministry of Justice.” “… 2. If the representative is replaced during the judicial investigation or the hearing, the court may, of its own motion or on an application by the new representative, grant a pause to enable the new representative to consult with the accused and study the file. 3. Instead of the pause mentioned in the preceding paragraphs the court may decide, where absolutely necessary, to adjourn the relevant step in the proceedings or the hearing, provided, however, that such an adjournment shall not exceed five days.” “1. To be valid, all steps in the proceedings, whether written or oral, must be made in Portuguese. 2. Where a person who cannot understand or speak Portuguese has to take part in proceedings, an appropriate interpreter shall be appointed free of charge… 3. An interpreter shall likewise be appointed if it proves necessary to translate a document in a foreign language which is not accompanied by a certified translation. …” “An accused, even if at liberty, may submit observations, pleadings or applications at any stage of the proceedings, even if they are not signed by his representative, provided that they relate to the subject matter of the proceedings or are intended to protect his fundamental rights. Such observations, pleadings or applications shall always be placed in the case file.” “1. The purpose of the judicial investigation shall be to provide judicial confirmation of the indictment or of the decision whereby proceedings in the case have been discontinued, so that the case may go to trial or not. 2. The judicial investigation shall be optional…” “1. A judicial investigation may be applied for within five days from the serving of the indictment or of the decision to discontinue the proceedings by the accused, in relation to facts covered by the indictment drawn up by the public prosecutor’s office, or by the assistente if the criminal proceedings have been brought by the latter; (b)… 2. Such an application may only be dismissed if it is out of time, if the judge has no jurisdiction or if a judicial investigation is statutorily inadmissible. 3. The application shall not have to satisfy any formal requirements but it must contain a summary of the reasons of fact and law for challenging the indictment or the failure to bring an indictment, together with, if appropriate, some indication either of the judicial investigation measures which the applicant would like to see taken and of any evidence not considered during the preliminary inquiries or of facts which it is hoped to prove by such means.” “1. The pleadings shall set forth in detail the grounds of appeal and end with submissions, set out point by point, in which the appellant summarises the reasons for his appeal. 2. If the reasons concern the law, the submissions shall also indicate the following, failing which the appeal shall be dismissed: the legal provisions that have been infringed; …” 27. The relevant provisions of Decree no. 387-B/87 of 29 December 1987 are the following: “The appointment of an officially assigned representative and his withdrawal, replacement and remuneration shall be governed by the Code of Criminal Procedure…” “The judicial authority responsible for assigning the representative shall request the Bar Council competent for the district concerned to nominate a member or trainee member of the Bar for official assignment; where it considers it appropriate, it may ask the Bar to nominate only a member of the Bar. The Bar Council shall make the required nomination within five days. Where no such nomination is made …, the judicial authority may appoint a representative as it sees fit.” | 1 |
train | 001-22135 | ENG | GBR | ADMISSIBILITY | 2,002 | DOUGLAS-WILLIAMS v. THE UNITED KINGDOM | 4 | Inadmissible | Gaukur Jörundsson;Nicolas Bratza | The applicant, Lisa Douglas-Williams, is a United Kingdom national, born in 1972 and living in London. She is the sister of Wayne Douglas, who died in police custody on 5 December 1995. She is represented before the Court by Ms L. Christian, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s brother, Wayne Douglas, was 25 years old when he died. He was a large man who weighed approximately 90 kg, with no previous history of heart problems. Shortly before 2.36 a.m. on 5 December 1995, the deceased was allegedly involved in a burglary in Strathleven Road, Brixton. An intruder broke into a house, awoke the young couple who were its occupants and threatened them at knifepoint before leaving with cash point cards, money and a kitchen knife. The couple rang the police at 2.36 a.m. Police Constables Page and McKay responded. They saw the deceased leaving Strathleven Road and entering Acre Lane. Believing him to be the intruder, they apprehended him after a chase which ended in a children’s play area. The deceased threatened officers with a kitchen knife, which fell from his hand when his wrist was struck twice with a police baton by PC McKay. A second officer also struck him. In all, he was struck on the arms and back. Several police officers gave evidence that the deceased punched PC Page in the face. The time was 2.46 a.m. The deceased was tackled to the ground, arrested and placed in the prone position, i.e. on his front with his hands restrained behind his back, and handcuffed. The deceased was placed in a police van, prior to which he complained that he had difficulty breathing. He was again placed in the prone position while he was transported to the police station. Some of the officers later testified that the deceased was “muttering” incoherently in the van and wriggling, unable to sit of his own will. There was further evidence that on leaving the van, he was still “shuffling” and “muttering” incoherently. Some officers said that he was carried into the police station. The van arrived at the police station at 2.58 a.m. The arresting officer PC Page told the custody sergeant PS Sorensen of the circumstances surrounding the arrest, and stated that the deceased had assaulted him. Meanwhile, the deceased was placed face-down in the prone position on the floor of the custody suite. He was removed to a cell at 3.08 a.m. and had to be carried. He was then stripped and searched with his handcuffs removed, and was placed in the prone position for part of the search. The custody record notes, inter alia: “Subject complains of difficulty in breathing and is turned over on his back for searching.” PC Floodgate stated in oral evidence during the Inquest: “He [the deceased] then complained that he was finding it difficult to breathe on his front so the handcuffs were removed first and he was straight away turned onto his back.” PC Floodgate said that this appeared to relieve his breathing problem. On examination, PC Floodgate was asked if he saw any mucus on the deceased’s face, to which he replied, “No”. He did not mention that the prisoner had been placed in a “cell relocation position”. The evidence of PC Turner was not the same: “Present were PCs Mcintosh, Bennett and Cowland. They stripped him down to his underpants and left the cell one at a time, the last officer holding the prisoner’s legs crossed and then springing off him and then closing the door. (Cell relocation technique). I then slammed the cell door. The prisoner rolled over and groaned, and had what appeared to be nasal mucus over his face.” After the search, the deceased was left on his own in the cell. PS Sorensen instructed PC Bennett to remain outside the cell and to keep a continuous watch on him. PC Bennett gave evidence that following this instruction he remained outside the cell door and kept watch through the wicket in the door. PS Sorensen sent for the Forensic Medical Examiner to examine the deceased in case he had suffered any internal injury from a baton and also to examine the two police officers who complained of injury from the arrest. After a short lapse of time, PS Sorensen came to the cell door. PC Bennett stated that he removed his gaze from the wicket to talk to him. When he looked back, the deceased was on his face and in difficulties. Officers re-entered the cell at 3.31 a.m. when the deceased was said to be having a fit. His heart was beating but he had stopped breathing. Artificial respiration was commenced and an ambulance was called which conveyed the deceased to King’s College Hospital where he arrived at 3.42 a.m. He was pronounced dead at 3.56 a.m. The inquest into the death of the deceased took place between 18 November and 6 December 1996. It was presided over by the Coroner Sir Montague Levine, and a jury. Over 40 witnesses gave evidence, including 3 pathologists as to the cause of death. The pathologists were unable to agree as to the cause of death. Dr F. Patel (instructed by the Coroner) considered that the deceased had died of natural causes, due to hypertensive heart disease. However, the applicant claims that the jury rejected this and preferred the evidence of Professor B. Knight and Dr N. Cary. The former considered that the most likely cause of death was “positional asphyxia”, and the latter considered that the cause of death was the deceased’s restraint in the prone position, coupled with the stress occasioned by the whole incident. At the conclusion of the evidence, the Coroner left four verdicts to the jury, namely accident, open verdict, death by natural causes and unlawful killing. The applicant claims that the Coroner misdirected the jury on the meaning of unlawful killing in English law. The jury’s verdict, by a majority of 8 to 1, was recorded in the following terms: “Cause of death 1. (a) left ventricular failure (b) stress and exhaustive and positional asphyxia Verdict Accidental death Details of how Accident Happened Between 3.10 a.m. and 3.15 a.m. in a police cell in Brixton Police Station following a chase and a series of restraints in the prone position face down as used in current police methods.” After the verdict was delivered, the Coroner issued a number of recommendations in respect of police methods of restraint in relation to positional asphyxia. This included: “Repeated periods of restraint in the face down position with the arms handcuffed behind the back can be dangerous and every officer should be given guidelines on essential observations to be made of the restrained person, with special emphasis on the possibility of positional asphyxia; that is taking the pulse rate, listening to the breathing and so forth...” The Director of the Metropolitan Police Complaints Investigation Bureau assured the Authority that these recommendations would be put in progress as policy matters within the Service. The applicant received legal aid to judicially review the decision of the Coroner on the basis of alleged misdirections. On 31 July 1997 Laws J dismissed the application for judicial review. He found that there had been a misdirection in the Coroner’s summing up on the legal definition of “unlawful killing” in that he had had interwoven his explanation on the different aspects of manslaughter concerning unlawful acts and gross negligence in such a way that it may not have been clear to the jury that he was referring to two different types of unlawful killing. Nonetheless, he found that on the evidence before them, and in the light of their finding on the cause of death, even if the jury had been properly directed they would have reached the same verdict. He noted that no complaint had been made about the deceased’s arrest. As regarded alleged neglect by the police officers, he recalled the Coroner’s finding that there was no evidence that the police officers should have recognised that the deceased’s condition was due to anything other than stress and exhaustion. Each officer had been individually asked whether he thought that Wayne should have been taken to hospital and each had replied ‘no’. Further, there had been no evidence that had an attempt been made earlier to take him to hospital that this would have had any effect in avoiding his death. The judge agreed with the Coroner: “I think it is clear that there was no evidence in the case to the effect that any officer could have foreseen the deceased’s sudden and catastrophic collapse owing to a left ventricular failure (or at all). The Registrar at King’s College Hospital, Dr Ellis gave evidence. The Coroner said this... ‘I asked her this question and this is vital: ‘In retrospect, if you were there at the time would you have done anything different than those officers at that point of time?’ and the answer was ‘no’ and I think it is to their credit that everything they did when they found the heart had stopped and the breathing had stopped was right, and they did it quickly and it was done efficiently. She, as a doctor, almost a specialist herself, had said that had she been there she could not have done anything differently. She agreed with everything that was done.’ In my judgment this was never a case in which the exceptional course of leaving neglect as a free-standing verdict should have been taken. One has to postulate circumstances in which a reasonable jury were not satisfied that unlawful killing (on any basis but in particular on the footing of gross negligence) was made out, yet could have been satisfied that there was a ‘gross failure’ to look after the deceased in the condition he was in. I cannot see that on the facts of the case there was any perceptible space for such a scenario...” In the context of the allegations of gross negligence, the judge referred to the undisputed fact that arrangements had been made by the police for the Forensic Medical Examiner to see the deceased. “There was also the very important evidence that PC Bennett was instructed to keep continuous watch over the deceased in the cell, looking through a wicket in the door. [Counsel for the family] seeks to raise a question whether this instruction was properly carried out. The custody record shows that when the officers re-entered the cell and found the deceased having a fit he was lying on his front. He had previously ... been turned or turned himself onto his back. The Coroner records PC Bennett (p. 63 1.3) as saying he had only momentarily turned his gaze away from the wicket when PS Sorensen arrived outside the cell; and (1.5) ‘when they looked back he was on his face’. [Counsel for the family] points to the expert evidence of Professor Knight and Dr Carey to the effect that if a prisoner is taken out of the prone position (as by being put on his back) he recovers the ability to breathe; and so [counsel] submits... ‘it is therefore difficult to understand why he further deteriorated and dies, if he was as Bennett alleged on his side or back while he was continuously watched’. I am afraid I regard that this argument is entirely speculative. When the officers re-entered the cell, seconds after PS Sorensen arrived and spoke with Bennett, the deceased was as I have said having a fit; and most unhappily must have been in a critical and terminal condition as the events which immediately followed demonstrate. He was not in control of his movements. He may have turned voluntarily on his front. There is nothing here to call into question the clear evidence that PC Bennett fulfilled his instructions to watch over him.” The applicant appealed this decision. It was dismissed on 30 July 1998 by the Court of Appeal composed of Lord Justices Woolf MR, Hobhouse and Thorpe. Lord Justice Woolf considered that there had been only borderline justification for leaving the verdict of unlawful killing to the jury. While there had been misdirections of law on “unlawful killing”, he refused to quash the verdict and order a fresh inquest as – the verdict would not have been affected; – any fresh inquest after this passage of time would inevitably be less satisfactory and most unlikely to result in any different verdict; and – the inquest had performed in an exemplary manner the investigation of the facts and little more could be achieved by subjecting all concerned to the considerable expense and stress of a further inquest. Lord Justice Woolf commented that it was important to note that it was not suggested that the way the deceased was treated at the time of his arrest was improper. Leave to appeal to the House of Lords was refused on 21 July 1999, of which the applicant was informed on 23 July 1999. The matter was referred by the Metropolitan Police to the Police Complaints Authority (PCA), an independent body established by an Act of Parliament to oversee complaints by members of the public against police officers. It informed the family that it had investigated two disciplinary aspects of the case: whether any police officer had abused his authority by using unnecessary violence towards Wayne Douglas in effecting his arrest and detention, and whether any police officer had neglected his duty by failing to take proper care of the applicant’s brother whilst in custody. The PCA found on 27 January 1997 that there were no grounds for criticism of the actions of any police officer on these issues. Prior to the deceased’s death, there existed significant literature on the dangers of police methods of restraint and that the very scenario which was the context of the deceased’s death had been the subject of the following expert warning: a suspect, particularly one who is large, who has had his breathing compromised (due to running away from police officers and/or struggling in the course of his apprehension) who is then handcuffed to the rear, and placed on his front in the prone position, may be in danger. The Metropolitan Police were aware of the dangers of positional asphyxia and officers had received training on this. The evidence from PC Page and PS Sorensen during the Inquest was that they had apparently had such training a few weeks before the incident. However, this training was limited and the Coroner expressed himself to be “appalled” that the topic had been dealt with in about 10 minutes. Following the Coroner’s recommendations, an Operational Notice was issued on 22 January 1997 to all divisions in respect of positional asphyxia, dealing with risk factors, signs and symptoms, and ways of reducing risks. This was to be incorporated into a new two-day training course for Metropolitan Police Officers with effect from 1 April 1997. Inquests are governed by the Coroners Act 1988 (“the Act”) and Coroners Rules 1984 (“the Rules”). Under s.8 of the Act, an inquest must be held if a person has died “a violent or an unnatural death”. It is the function of an inquest, as defined by the s. 11(5)(b) of the Act and r. 36 of the Rules, that a coroner and a jury shall look into and determine four essential matters: who the deceased was, and where, when and how the deceased came by his/her death. There is no legal aid for representation at inquests. Prior to April 1999, there was no right to disclosure of documents, but there is now a scheme for limited disclosure, although not commensurate with that available for other types of proceedings. It has been consistently emphasised in case-law that an inquest is an inquisitorial fact-finding exercise, and not a method of apportioning guilt. For example, Bingham LJ declared in ex parte Jamieson: “It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in Rule 42 of the 1984 Rules.” [1995 1 QB 1] There is no right of appeal in relation to an inquest and the High Court’s role is limited to review, which may be by way of judicial review, or statutory as contained in sections 13(1) and (2) of the Act. This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner either – “(a) that he refuses or neglects to hold an inquest which ought to be held; or (b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts of evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held. The High Court may – order an inquest or, as the case may be, another inquest to be held into the death...” Under the Fatal Accidents Act 1976 a claim may be brought by the dependants of the deceased for loss of support. Dependants include spouses and former spouses, children and parents, persons treated as children and/or parents, grandparents and grandchildren, and co-habitees of the opposite sex who had lived with the deceased for more than two years. The claim under the Fatal Accidents Act is for the following three heads: – the value of the dependency; – funeral expenses; and – bereavement damages currently in the amount of £7500 for the surviving spouse, the parents of a legitimate child or the mother of an illegitimate child. There is no claim under the Fatal Accidents Act for a deceased who leaves no dependants, or who does not fall into the limited category of persons mentioned above. English law does not recognise a tort for wrongful death. Under section 1 of this Act, a cause of action subsists in the personal estate of the deceased for any right of action the deceased would have had for damage caused by an act or omission before he/she died. | 0 |
train | 001-61835 | ENG | SVK | CHAMBER | 2,004 | CASE OF PAVLETIC v. SLOVAKIA | 3 | Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;No separate issue under Art. 13;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award | Nicolas Bratza | 8. The applicant was born in 1962 and lives in Marčana (Croatia). 9. On 26 January 1995 a police investigator in Banská Bystrica (Slovakia) apprehended the applicant on the ground that he had been accused, together with another person, of trafficking in women. Subsequently the following relevant facts occurred and decisions were taken. 10. On 27 January 1995 the Banská Bystrica District Court remanded the applicant in custody with effect from 26 January 1995. The decision stated that the applicant had brought two women from Slovakia to Spain and that he had forced one of them to carry out prostitution under the threat of shooting her. The judge considered the detention necessary with a view to preventing the accused from absconding and from committing further offences within the meaning of Article 67(1)(a) and (c) of the Code of Criminal Procedure. On 31 January 1995 the applicant challenged this decision through his lawyer. 11. On 15 February 1995 the Banská Bystrica Regional Court quashed the District Court’s decision of 27 January 1995 on the ground that the reasons for it were not sufficient. The Regional Court noted that the applicant was a foreign national without a permanent address in Slovakia. It therefore considered his detention necessary, within the meaning of Article 67(1)(a) of the Code of Criminal Procedure, and remanded him in custody as from 26 January 1995. 12. On 21 July 1995 a judge of the Banská Bystrica District Court extended the applicant’s detention on remand until 26 August 1995 on the ground that the public prosecutor had decided to re-examine a witness who was staying abroad. The court considered that there was a risk of the applicant’s absconding in case of his release. 13. On 11 August 1995 the Banská Bystrica District Court extended, at the public prosecutor’s request, the applicant’s detention on remand until 26 December 1995. The decision stated that a witness staying abroad could not be re-examined and that it was also necessary to establish whether the accused persons had tried to benefit from the prostitution of other persons. The court considered the applicant’s detention necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. Reference was made to the fact that the applicant was a foreign national and that he did not have permanent residence in Slovakia. 14. On 15 December 1995 the Banská Bystrica District Court extended the applicant’s detention on remand until 25 January 1996. The decision stated that the lawyer appointed to represent the applicant on 20 November 1995 needed more time to study the case file. Furthermore, the lawyer was ill and because of her absence the applicant had refused, on 6 December 1995, to acquaint himself with the outcome of the investigation. 15. On 19 April 1996 the applicant lodged a constitutional petition. He alleged, inter alia, that he was discriminated against as the Regional Court had refused to release him, referring to his nationality and to the fact that he had no permanent residence in Slovakia. 16. On 22 January 1997 the Supreme Court refused to grant a further extension of the applicant’s detention on remand. It found that the requirements laid down in Article 71(2) of the Code of Criminal Procedure were not met. In particular, the Supreme Court noted that the case was not complex and that the period of almost one year during which the case had been pending at the preliminary stage was excessive given the scope of evidence that had to be taken. Furthermore, the first instance court had scheduled the main hearing for 30 September 1996, that is more than eight months after the case had been submitted to it on 22 January 1996. The Supreme Court found no relevant reasons for such delays. The decision stated that the applicant’s two stays in hospital had not been of long duration and that they had not prevented the main hearing from being held. The Supreme Court’s decision was transmitted to the Regional Court on 7 February 1997. 17. On 23 January 1997 the Supreme Court ordered the prison administration to release the applicant. The applicant was released on 26 January 1997. 18. On 26 March 1997 the Constitutional Court declared manifestly illfounded the applicant’s petition of 19 April 1996. The decision stated, with reference to the criminal file, that the applicant’s detention had been necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure as there had existed a risk that he would abscond in case of his release. 19. On 16 May 1995 the applicant lodged an application for release. It was dismissed by the Banská Bystrica District Court on 31 May 1995 on the ground that his detention was still necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. The applicant filed a complaint. He argued that the fact that he was a foreign national did not justify the fear that he might abscond. 20. The Banská Bystrica Regional Court dismissed the complaint on 12 July 1995. The decision stated that the fear that the applicant might abscond in case of his release was justified. The typed minutes, a copy of which the applicant received from the Regional Office of Investigation in Banská Bystrica on 29 November 1995, indicate that the Regional Court examined the applicant’s complaint in camera in the presence of J.M., a public prosecutor. According to those minutes, the public prosecutor “proposed to dismiss the applicant’s complaint”. At a later stage of the proceedings J.M. presided over the Regional Court chamber which delivered the judgment of 13 June 1997 (see below). The applicant submitted to the Court another copy of the same minutes, included in the criminal file, in which the name of another person is handwritten as the public prosecutor who had attended the deliberations. 21. On 16 August 1995 the applicant lodged another application for release. He alleged that there had been undue delays in the proceedings and that the fear that he would abscond in case of his release was unsubstantiated. The applicant further complained that he was discriminated against on the ground of his nationality. 22. The Banská Bystrica District Court dismissed the request on 20 September 1995. The applicant filed a complaint which was dismissed by the Banská Bystrica Regional Court on 18 October 1995. The courts considered it probable that the applicant, a foreign national, would leave Slovakia in case of his release. 23. On 10 January 1996 the applicant requested the public prosecutor to release him. In a letter of 19 January 1996 the Banská Bystrica Regional Prosecutor stated that he had dismissed the application for release and that he would transmit it to the Banská Bystrica Regional Court together with the indictment. The Regional Court did not decide on the applicant’s request. 24. On 25 April 1995 the police investigator accused the applicant of blackmail in addition to the charge of trafficking in women. On 15 May 1995 the Banská Bystrica District Prosecutor dismissed the applicant’s complaint against the investigator’s decision. 25. On 12 October 1995 the police investigator dismissed the applicant’s request for further witnesses to be heard with a view to establishing, in particular, the relevant facts relating to the stay of the two Slovakian women in Spain. On 21 November 1995 the Banská Bystrica Regional Prosecutor dismissed the applicant’s complaint against this decision. Both authorities considered that the taking of further evidence was superfluous. 26. On 18 October 1995 the applicant withdrew the authority of the lawyer who had represented him until then. At the same time he requested the court to appoint a lawyer ex officio. On 20 November 1995 the Banská Bystrica District Court appointed another lawyer to assist the applicant ex officio. 27. On 19 December 1995 and on 10 January 1996 the applicant learned of the outcome of the investigation. On the latter date he requested that further evidence be included in the case file. The police investigator dismissed the request on 11 January 1996. 28. On 17 January 1996 the applicant requested that the authority of the lawyer appointed on 20 November 1995 be withdrawn. He further asked for a time-limit to be set during which he could appoint a lawyer of his own choice. The applicant received no reply. 29. On 22 January 1996 the Banská Bystrica Regional Prosecutor indicted the applicant for trafficking in women and blackmail before the Banská Bystrica Regional Court. 30. After this date the applicant was twice treated as an in-patient in a hospital for prisoners in Trenčín. 31. On 2 February 1996 the Banská Bystrica Regional Prosecutor informed the Regional Court that the applicant had challenged the interpreter. The letter further stated that the interpreter considered herself biased as the applicant’s submissions about her were insulting. 32. The first hearing before the Regional Court was held on 30 September 1996. The applicant challenged the presiding judge I.B. on the ground that he was xenophobic. The case was adjourned. On 4 December 1996 the Supreme Court found that the presiding judge of the Regional Court was not biased. 33. On 13 June 1997 the Banská Bystrica Regional Court convicted the applicant of trafficking in women and sentenced him to three years’ imprisonment. It further ordered the applicant’s expulsion from Slovakia. 34. The court established that, on 13 January 1995, the applicant had brought two women who were sisters from Slovakia to Spain on the false pretext of offering them a job as tourist guides. He threatened to shoot them, took away their passports and plane tickets and forced one of them to stay at night in a club where prostitution was carried out. On 17 January 1995 the applicant left Spain. On 25 January 1995 the women escaped and returned to Slovakia. 35. The court chamber was presided over by judge J.M. who had participated as a public prosecutor, on 12 July 1995, in the examination by the Banská Bystrica Regional Court of the applicant’s complaint against Banská Bystrica District Court’s decision of 31 May 1995 concerning the applicant’s request for release. 36. Upon the delivery of the Regional Court’s judgment the applicant indicated orally that he wished to appeal. Subsequently he left Slovakia. The Slovakian authorities were informed that the applicant had not stayed at his address in Croatia and that an international arrest warrant had been issued against him in Croatia on the ground that he was subject to a prison sentence which had been imposed in 1995. As the applicant’s whereabouts were unknown the public prosecutor proposed, on 24 November 1997, that the case be proceeded with in his absence. 37. On 23 April 1998 the Supreme Court dismissed the appeal. It decided following a public hearing in the applicant’s absence as he was in hiding. 38. The Supreme Court held that the Regional Court had established all relevant facts and had assessed them in accordance with the law while respecting the applicant’s right of defence. The Supreme Court addressed the arguments raised by the applicant in his appeal. The decision stated that the Supreme Court had examined all aspects of the case and had had regard also to possible shortcomings in the proceedings which had not been challenged by the applicant as required by Article 254(1) of the Code of Criminal Procedure. 39. On 28 May 1998 the Banská Bystrica Regional Court decided to include the period during which the applicant had been detained in the period of imprisonment to which he was sentenced. Reference was made to the relevant provisions of criminal law under which such a decision is to be taken in cases where a person sentenced to a prison term has previously been detained in the context of criminal proceedings against him or her. 40. Pursuant to Article 11, as in force at the relevant time, international instruments on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms. Article 144(1) provides that judges are independent and bound only by law. Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide. 41. Article 30(2) provides, inter alia, that a person who earlier acted in a criminal case as a public prosecutor is to be excluded from dealing with the same case as a judge. 42. In accordance with Article 67(1)(a), an accused can only be remanded in custody when there are reasonable grounds for believing that he or she would abscond or hide in order to avoid prosecution or punishment, especially when he or she has no permanent address. 43. Article 67(1)(c) provides for detention on remand of an accused person when there are reasonable grounds for believing that he or she would commit further offences or accomplish an attempted offence. 44. Under Article 71(2), the maximum length of a person’s detention on remand should not exceed two years. The Supreme Court may extend it by another year when the criminal proceedings cannot be concluded, because of the complexity of the case or for other serious reason, within the two years’ period provided that the release of the accused person would jeopardise the proceedings. 45. 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 shall submit it immediately to the court. The court shall rule on such an application without delay. In the event that the application is dismissed, the accused may renew it fourteen days after the decision becomes final unless he or she invokes other reasons. 46. Under Article 254(1), unless there are formal shortcomings in an appeal, the appellate court shall review the lawfulness and justification of all conclusions of the first instance court which may be appealed against as well as compliance with the procedural requirements in the proceedings leading to the first instance judgment. In doing so the appellate court shall also have regard to any shortcomings which have not been complained of in the appeal. 47. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics. 48. Pursuant to Article 13(1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction. 49. Article 13(2) provides that in cases when the satisfaction obtained under Article 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred. 50. Section 1(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of civil, administrative or criminal proceedings with the exception of decisions which concern deprivation of liberty and imposition of a penalty. 51. Section 5(1) provides that a person who is deprived of liberty is entitled to compensation when the criminal proceedings against him or her are dropped or when he or she is acquitted. However, under paragraph 2(a) of Section 5, such compensation is excluded when the person concerned is responsible for his or her detention in that, in particular, he or she tried to abscond or was otherwise responsible for the facts on which the decision concerning the detention was based. 52. Section 18(1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from the erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question. 53. Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation. 54. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner. 55. Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration in a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). 56. In proceedings no. 4C 109/97 before the Šaľa District Court the plaintiff claimed, from the Ministry of Justice, compensation for non-pecuniary damage on the ground that he had been acquitted following the re-opening of proceedings leading to his conviction of an offence. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code which provides for protection of a person’s good name and reputation as well as of other personal rights. The District Court dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969. 57. In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the above Šaľa District Court’s judgment. The appellate court found that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. The decision stated, inter alia, that the first instance court had not explained why the plaintiff should have first sought redress under the State Liability Act. The first instance court was instructed to have the action completed by the plaintiff, to take any evidence which may be necessary and to deliver a new decision with reasons on the case. Reference was made also to Article 11 of the Constitution and to Article 3 of Protocol No. 7. 58. In decision no. 27 C 31/00-120 of 6 March 2002 the Bratislava III District Court partially granted an action where a judge claimed protection of his personal rights. The plaintiff argued, inter alia, that the Minister of Justice had obliged him to submit a declaration concerning his property without any justification and that he had been revoked from the post of President of a district court for his failure to submit such declaration. On 24 June 2003 the appellate court confirmed the conclusion that the plaintiff’s right to protection of his personal rights had been violated. 59. On 30 September 2003 the Banská Bystrica District Court delivered judgment no. 14C 112/02-229. The plaintiffs, a married couple, alleged to have suffered damage of both pecuniary and non-pecuniary nature in the context of criminal proceedings against them in which they had been discharged. One of the plaintiffs, who had been dismissed from the police and detained on remand in the context of the criminal proceedings, also claimed compensation for lost income. In the above judgment the District Court ordered the Ministry of Justice to compensate for the lost income of the plaintiff concerned and also to compensate for the expenses which the plaintiffs had incurred in the context of the criminal proceedings. The decision to grant compensation for pecuniary damage was based on the relevant provisions of the State Liability Act of 1969. The District Court further granted the plaintiffs, with reference to Article 11 et seq. of the Civil Code, 7 and 5 million Slovak korunas respectively in compensation for damage of non-pecuniary nature. The relevant part of its judgment reads as follows: “The right to protection of one’s personal rights is an individual right of any natural person. When granting protection to that right it is irrelevant whether an unjustified interference was the result of a fault and whether or not it was caused deliberately. It is not even required that an unjustified interference should produce any particular consequences. It suffices that an unjustified interference was capable of affecting or violating one’s personal rights. The fact that plaintiff A cannot exercise the profession and hold the job which he held prior to his accusation and that the clientele of plaintiff B [who is an advocate] shrank considerably during the criminal proceedings as well as the fact that the plaintiffs were forced to move to another apartment because of deteriorated relations with their neighbours clearly show that there has been such an interference [with their personal rights]. That interference is causally linked to prosecution of the plaintiffs and to the criminal proceedings held against them. There is no doubt that such interference is objectively capable of causing damage. As regards both plaintiffs, it affected their professional life, their position in the society, family life and their relations with neighbours... The interference with the plaintiffs’ [personal rights] is directly linked to the criminal proceedings [against them]... It follows from the above that there has been an interference with the plaintiffs’ personal rights which, in substance, still persists and that it is related to the criminal proceedings against the plaintiffs. The criminal proceedings were carried out by the Slovak Republic through its competent authorities. The defendant is therefore obliged to compensate for damage of a non-pecuniary nature. ... compensation for damage of a non-pecuniary nature has the character of satisfaction. The purpose of compensation granted in the form of a sum of money is to “purify” the affected person in the eyes of other persons in all spheres of life where harm was caused... The amount of compensation granted should therefore be adequate to the interference and its circumstances... It is beyond any doubt that the plaintiffs were publicly known in the district of Považská Bystrica (in view of their professional positions) and that their reputation was affected in all spheres of life. The case was taken up by the media whereby their esteem in professional life was diminished over the whole country. The amount of compensation must therefore not only be adequate to provide satisfaction to the plaintiffs, but its amount should also ensure that the plaintiffs regain their esteem and dignity in the eyes of the public.” | 1 |
train | 001-59026 | ENG | TUR | CHAMBER | 2,000 | CASE OF DEMIRAY v. TURKEY | 1 | Preliminary objection rejected (non-exhaustion);Violation of Art. 2 with regard to death of applicant's husband;Violation of Art. 2 with regard to investigation;Not necessary to examine Art. 5;Violation of former Art. 25-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant is a Turkish national. She was born in 1969 and lives in Diyarbakır. She lodged the application on her own behalf and on behalf of her late husband, Ahmet Demiray, who, she alleged, was killed by State security forces while in their custody. 9. Ahmet Demiray, the applicant's husband, was arrested in Diyarbakır on 21 July 1994. 10. On 28 July 1994 the father of Ahmet Demiray and father-in-law of the applicant lodged a criminal complaint with the public prosecutor at the Diyarbakır National Security Court against the village guards, H.E., T.E., Ö.E., and others whose identity he did not know, alleging that they had abducted his son on 22 July 1994. In his complaint he stated that his son's life was in danger and that the persons named were responsible. On the same day the public prosecutor informed Ahmet Demiray's father that his son had been placed in custody at the Diyarbakır central gendarmerie station. 11. On 15 August 1994 the Lice public prosecutor informed the mayor of Lice that Ahmet Demiray's body had been found on 14 August 1994 near the village of Dibek (Lice). He stated that forensic medical examiners had carried out an examination and an autopsy of the body. The public prosecutor also said that since the deceased's relatives had not been in the vicinity, but in the neighbouring village of Hazro, the body had been buried in their absence by Lice District Council. 12. The applicant alleged that it was some time before she learnt of her husband's death. 13. On 21 July 1994 Ahmet Demiray was arrested by officers from the Diyarbakır Security Directorate because of suspicious behaviour. During questioning he stated that he was a member of the PKK (Workers' Party of Kurdistan) and offered to show the security forces one of the organisation's arms caches. On the same day he was transferred to the Diyarbakır provincial gendarmerie command for questioning. Lastly, and in connection with his statements concerning the location of the arms cache in question, he was handed over to a team from the Lice district gendarmerie on 8 August 1994 to take them to the site in question. 14. On 13 August 1994 Ahmet Demiray made a statement to the Lice gendarmerie. 15. A visit was organised by the gendarmerie to the alleged site of the arms cache in question. On 14 August 1994 Ahmet Demiray, accompanied by three gendarmes, arrived at the scene at approximately 4.30 a.m. As he was approaching the arms cache, the gendarmes heard an explosion. Ahmet Demiray was killed by the explosion of a booby-trapped grenade planted by the PKK. There were no other victims. 16. In an order of 29 May 1996 the Lice public prosecutor's office found that Ahmet Demiray had been killed following the explosion of a booby-trapped grenade planted by the PKK. It declared that it had no jurisdiction ratione materiae to examine the complaint lodged by Ahmet Demiray's father and decided to forward the investigation file concerning the village guards to the local administrative council of Kocaköy for examination under the Law on the Prosecution of Civil Servants. Those proceedings are still pending. 17. On 27 September 1994 the public prosecutor at the Diyarbakır National Security Court gave an order discontinuing the criminal proceedings against the applicant's husband on the ground that he had since died. 18. During the proceedings before the Commission and before the Court the parties submitted a number of materials. Among other things, the Court requested the Government to provide it with a full copy of the investigation file on the incident during which Ahmet Demiray had died, but the request remained unanswered. Neither did the Government submit any document relating to any investigation commenced in order to identify and arrest Ahmet Demiray's presumed killers, who are allegedly members of the PKK. The documents of interest to the present case are the following. 19. This document was provided by the Government, but the applicant disputed the authenticity of Ahmet Demiray's signature. She provided documents from 1993 showing her husband's signature and asserted that the difference was obvious. The relevant part of the transcript reads as follows: “Question: Are you a member of a party, association or trade union carrying on legal or illegal activities? Reply: I am not a member of any party, trade union or association, but I am a sympathiser of the PKK terrorist organisation. I have given the PKK financial assistance. I have worked within the PKK as a courier and guide and have supplied it with logistical support. I have collected sums of money in the villages and handed them over to the PKK. Question: What were your activities within the PKK? Reply: ... We went to lay anti-personnel mines in the vicinity of this third bridge. ... I can show you the arms cache whenever you wish, near the fountain. ... I have had enough, I no longer want to engage in this type of activity and regret having taken part in these terrorist activities. Now I am thinking of my family and I want to cooperate with the State. I can show you the organisation's arms cache (weapons and mines).” 20. The Government provided a sketch map of the scene, which was drawn by the gendarmerie. According to the sketch map, at the time of the explosion Ahmet Demiray was 1 m away from the arms cache, whereas two of the gendarmes accompanying him were 30 m away and the third 50 m away, forming an isosceles triangle with the arms cache at the centre. 21. This report was drawn up by a general practitioner, Dr Sami Karaka. The relevant part of it reads as follows: “Following a call from the gendarmerie command to inform us that an individual had died while showing gendarmes a site when mines booby-trapped by the PKK organisation were detonated, we [the public prosecutor, the clerk of the court and the doctor] went the same day at 7.40 a.m. to the garden of the district commissioner's commandos unit where the corpse had been taken. We were unable to visit the scene of the incident because it was unsafe to do so. Since neither a forensic medical examiner nor a pathologist was present, we explained to Dr Sami Karaka what he had to do and he took the oath. ... We identified the deceased by means of the photo on his identity card. ... In the head area, the lower jaw had been entirely destroyed and the anterior part of the thorax and the organs of that area of the body had been completely destroyed. The two-thirds part of the left forearm had been amputated, probably due to an explosion at very close range. No trace of injuries inflicted by a firearm or a bladed weapon was found on the rest of the body. Since respiratory and circulatory deficiency due to injury from an explosion two or three hours earlier had been established as the cause of death, a classic autopsy was not deemed necessary.” 22. This decision was given on 29 May 1996 by the Lice public prosecutor's office for the attention of the Kocaköy District Commissioner's Office. It reads as follows: “Public prosecution Intervener: Hüsnü Demiray [applicant's father-in-law] Suspects: [the three village guards] Crime: abduction and murder Date of crime: 27 July 1994 Although the intervener alleged that his son had been abducted and killed by the suspects, it has been noted that the deceased, who belonged to the PKK organisation, had been arrested on 21 July 1994 by the teams from the Diyarbakır Security Directorate. After it had been established that he operated in the rural area, he was transferred on 23 July 1994 to the provincial gendarmerie command and taken to the village of Yolçati by members of the Lice district gendarmerie command. As he was showing them the site of one of the PKK's arms caches, he was killed when a grenade booby-trapped by the PKK exploded. Those facts were communicated in the documents of the provincial gendarmerie command, dated 7 December 1995, and in the document of the Lice district gendarmerie command dated 15 August 1995. The facts were established from the above-mentioned documents and the contents of the file. Our public prosecutor's office declares that it has no jurisdiction ratione materiae given that the accused are village guards and that an investigation into acts committed by them is governed by the provisions of Article 4, paragraph (i) of Legislative Decree no. 285 on the exercise of emergency powers. The public prosecutor's office has decided to forward the investigation file to the Kocaköy District Commissioner's Office which will examine it and do the necessary in accordance with the Law on the Prosecution of Civil Servants.” 23. The applicant made the following statement regarding the circumstances in which she was informed of her husband's death: “In so far as I remember, the Lice public prosecutor sent my husband's death certificate to Hazro where my father-in-law lives and our census records are kept. In that connection the Hazro public prosecutor summoned my father-in-law to collect my husband's death certificate. After collecting it, my father-in-law came to Diyarbakır. Together, we went to Lice where we first met the mayor in order to enquire as to the steps to be taken for the burial. He informed us that the disintegrated corpse had been retrieved at the site and buried as ordered. We asked him what had been done with my husband's identity card, clothes and other personal effects. He replied that he had given them to the public prosecutor's office and advised us to contact them. On the same day we went to the Lice public prosecutor's office, but the public prosecutor was not there. We spoke to his deputy and asked him to open the grave so that we could see whether it was indeed my husband or not. He told us that he was not in a position to open the grave; neither did he show us the photographs of my husband. We wanted him to give us the clothes, but an official from the Lice public prosecutor's office told us that they had sent them to Hazro with the death certificate. After Lice we went to the Hazro public prosecutor's office. We told them that we understood that the clothes had been sent there. They told us, however, that they had not retrieved them. We were unable to continue with our enquiries. I did not learn of my husband's death until my father-in-law arrived in Diyarbakır after he had been summoned by the Hazro public prosecutor on receipt of the death certificate from Lice. If I am not mistaken, I was therefore not informed until a week later. However, those who had arrested my husband knew our address well because it is written on the transcript of the statements bearing a signature which I believe to be forged since it is not that of my husband. At the material time we were renting a flat, where I am still living now. As my address was known I could easily have been informed of my husband's death and requested to attend the autopsy. The fact that I was not summoned shows that certain things have been concealed and that my husband was indeed murdered. ...” 24. In her letters of 28 June and 17 July 1996 to the Commission the applicant maintained that since notice of the application had been given to the Government the security forces had been putting pressure on her and her husband's family to withdraw her application. She stated that Ahmet Demiray's father and brother had been placed in police custody. In her letter of 6 July 1996, the applicant stated that her husband's brother, Mr Erdal Demiray, had been placed in police custody again on 4 July 1996 for the same reasons. The applicant produced a statement by her brother-in-law dated 22 October 1999. He said that he had been arrested by the security forces and that during his time in police custody he had been asked why the applicant had lodged an application against the State. 25. The documents provided to the Court (arrest report and decision of the Diyarbakır National Security Court) show that Mr Erdal Demiray was arrested on 4 July 1996 and released on 9 July 1996. On 30 July 1996 he was accused of having committed offences against the integrity of the State. In a decision of 22 September 1997, he was acquitted by the Diyarbakır National Security Court. 26. The relevant elements of domestic law in this case can be summarised as follows. 27. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been reported to them are governed by Articles 151 to 153 of the Code of Criminal Procedure. Any offence may be reported to the authorities or members of the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 28. If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the course of his duties is liable to imprisonment. 29. 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 Law of 1914 on the Prosecution of Civil Servants, which restricts the public prosecutor's jurisdiction ratione personae at 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, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. 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. 30. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law also applies to members of the security forces under the governor's authority. | 1 |
train | 001-100472 | ENG | RUS | CHAMBER | 2,010 | CASE OF ANTYUSHINA v. RUSSIA | 4 | No violation of Art. 6-1 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1942 and lives in Uspenskoye, the Krasnodar Region. 5. The applicant and her husband were involved in a number of real estate transactions. On 1 June 1993 the applicant's husband presented her with a flat in Nevinnomyssk of the Stavropol Region which she subsequently exchanged for another flat in a different locality. 6. On 5 July 1994 the applicant became involved in the dispute challenging the four-way real estate exchange transactions through the claims brought by the other parties to the transactions. 7. On 26 December 1994 the Shpakovskiy District Court of the Stavropol Region (“the District Court”) annulled the transactions concerning the applicant and her husband. The parties did not appeal, and the judgment came into force. 8. On 26 December 1995 and 30 September 1996 two other trial courts of the region adopted further judgments related to the same dispute. The parties did not inform the Court of the content of those judgments. 9. On 27 February 1997, at the applicant's request, the deputy president of the Supreme Court of the Russian Federation brought an extraordinary appeal against the judgment of 26 December 1994. 10. On 14 March 1997 the Supreme Court of the Russian Federation granted the appeal, quashed the impugned judgment and remitted the case for fresh consideration. 11. On 8 September 1997 the Presidium of the Stavropol Regional Court suggested that the District Court review the judgments of 26 December 1995 and 30 September 1996 on account of newly discovered circumstances. 12. On 22 September and 22 December 1997 the District Court explained to the applicant that it was necessary to file a request for review of the impugned judgments on account of newly discovered circumstances. 13. On 26 February 1998 the applicant filed such a request with the District Court, at the same time claiming invalidation of two exchange transactions, involving her husband and third parties M. and Kh. 14. On 12 January 1999 the District Court decided to quash the judgment of 26 December 1994 on account of newly discovered circumstances. 15. Between 23 October 1998 and 27 September 1999 the District Court scheduled eleven hearings. Five of them did not take place due to the parties' failure to appear. According to the Government, on 27 September 1999 the District Court “made certain arrangements to ensure the parties' appearance for the next hearing”. 16. On 5 October 1999 the District Court annulled all the real estate exchange transactions between the parties to the dispute. The court found it lawful to examine the case and adopt the judgment in absence of one of the respondents Kh. who had been notified of court hearings on multiple occasions. 17. On 22 December 1999 the Stavropol Regional Court (“the Regional Court”) set aside the above judgment on appeal for errors in application of the procedural law, including insufficient measures to ensure Kh.'s appearance in court, and ordered a new hearing. 18. On 31 January 2000 the District Court stayed the proceedings until the end of a counter-terrorist operation in Grozniy of the Chechnya Republic, where one of the disputed flats was located. The proceedings were resumed on 19 May 2000. 19. On 26 June 2000 the court postponed the hearing due to some of the parties' failure to appear, having again “made certain arrangements to ensure their appearance for the next hearing”. 20. On 6 October 2000 the hearing was adjourned due to the failure to appear of one of the parties' legal counsel. 21. After a hearing on 13 November 2000, the court decided to send a rogatory letter to the Nevinnomyssk Town Court (“the Town Court”) for questioning of one of the parties. The proceedings were stayed until its execution. 22. On 13 March 2001 the proceedings were resumed. The court scheduled the next hearing for 14 August 2001 due to examination of one of the parties' appeal of an injunction order. 23. On 14 August 2001 the hearing did not take place due to some of the parties' failure to appear. 24. On 12 September 2001 the District Court accepted some of the parties' renunciation of their claims, transferred the rest of the claims for consideration to the Town Court and discontinued the proceedings. 25. After two hearings, on 25 December 2001 the Town Court discontinued the proceedings, including the part concerning the applicant's flat. 26. On 8 February 2002 the Regional Court overturned the above decision of on appeal and ordered a new examination. 27. On 5 April 2002 president of the Regional Court brought an extraordinary appeal (протест в порядке надзора) against the District Court's decisions of 12 January 1999 and 12 September 2001. It is not clear from the parties' submissions when the higher court called up the case for examination of the extraordinary appeal. 28. On 22 April 2002 the Presidium of the Regional Court quashed the impugned decisions by way of supervisory review for errors in application of the procedural law and remitted the matter for fresh consideration. 29. On 28 May 2002 the District Court admitted the claims for new consideration and scheduled preparatory meetings with the parties. 30. On 23 October 2002 following one of the parties' protest against examination of the case in absence of the respondent Kh., the District Court stayed the proceedings until Kh.'s whereabouts could be established. In particular, the court noted that it had procured information from the post office, town administration and address bureau of the region of Kh.'s possible residence and obtained a police report. The parties were apprised of their right to file a request with the police for Kh.'s search. 31. On 23 December 2002 the Regional Court upheld the decision on appeal. 32. On 5 June 2008 the District Court quashed its decision of 23 October 2002 at the parties' request and resumed the proceedings. 33. On 16 June 2008 the District Court rejected the applicant's claims for invalidation of the four-way exchange transactions. It transpires from the text of the judgment that Kh., whose whereabouts were still unknown, was represented by legal counsel appointed by the court in accordance with Section 50 of the Code of Civil Procedure. The applicant appealed the judgment but did not inform the Court about the outcome of her appeal. 34. On 20 September 2002 the Justice of Peace of Court Circuit No. 1 of the Kochubeyevskiy District of the Stavropol Region dismissed the applicant's claim for pecuniary and non-pecuniary damages allegedly resulting from delayed payment of the guardian's allowance to her. 35. On 25 December 2002 the Kochubeyevskiy District Court of the Stavropol Region upheld the judgment of 20 September 2002 on appeal. 36. Section 112 provided that in case of unknown whereabouts of a respondent party the court should begin examination of the case upon receipt of the summons with a note testifying that it had been viewed by the housing authority or local council of people's deputies at the respondent's place of residence. It further provided that the court should put a missing respondent on the wanted list if the dispute concerned alimony, health damages and damages resulting from the loss of the main provider, and was entitled to do so in disputes brought by State or public agencies. 37. Section 215.4 provided that the court was entitled to stay the proceedings if the respondent had been put on the wanted list in accordance with Section 112. 38. Section 216.2 provided that the proceedings that were stayed in accordance with Section 215 should be resumed upon establishing the respondent's whereabouts. 39. Section 50 provides that the court should appoint legal counsel to represent a respondent with an unknown place of residence and in other cases envisaged by the federal law. 40. Section 219 provides that court proceedings should be resumed upon clearance of the factors impeding continuation of the proceedings, by way of the parties' request or court's own initiative. | 0 |
train | 001-68538 | ENG | NLD | ADMISSIBILITY | 2,005 | KUIJPER v. THE NETHERLANDS | 3 | Inadmissible | null | The applicant, Mrs Trijntje Kuijper, is a Netherlands national, who was born in 1950 and lives in Alexandria (USA). She is represented before the Court by Mr A.W.M. Willems, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent, Mr. R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 October 1979 the applicant married Mr Z. and, on 4 November 1980, their daughter X was born. In February 1985, the applicant and Mr Z. separated and, on 2 April 1986, the Almelo Regional Court (arrondissementsrechtbank) pronounced their divorce. When they separated in February 1985, the applicant and Mr Z. had agreed that it was best for X if she stayed with her father. The applicant moved to Amsterdam, which lies at a distance of about 150 kilometres from Almelo where Mr Z. and X continued to live. On the basis of an arrangement, the applicant had access to X for a total period of five weeks in 1985. In its decision of 16 June 1986 and in accordance with the parents' wishes, the Almelo Regional Court entrusted Mr Z. with X's care and custody and appointed the applicant as X's auxiliary guardian (toeziend voogdes). At an unspecified date in 1986, the applicant moved from the Netherlands to the United Kingdom where she joined her new partner Mr Norris. During the summer of 1986 the applicant and X spent a total of four weeks together in the United Kingdom. Since 1986, there has been little contact between the applicant and X. On 28 December 1988 Mr Z. married his new partner, Mrs Janssen, who was born in 1966, with whom he and X had cohabited since September 1985. Two children were born out of their marriage. In May 1992 the applicant returned to the Netherlands, where she settled in Amersfoort, which lies at a distance of about 100 kilometres from Almelo. Mr Z. informed the applicant, who then wished to intensify her contact with X, that the latter did not wish to have any contacts with the applicant anymore. The applicant's auxiliary guardianship ended on 2 November 1995, when an amendment to the Civil Code entered into force abolishing the institution of auxiliary guardianship. In 1996, the applicant married her new partner Mr Norris and, together with him, moved from the Netherlands to the United States of America where they are currently still residing. On 25 March 1998, about seven months before X was to come of age and shortly before the entry into force of an amendment to several relevant provisions of the Civil Code (Burgerlijk Wetboek) (see below), Mr Z. and Mrs Janssen filed a request with the Almelo Regional Court for X's adoption by her stepmother Mrs Janssen. They submitted that, since 1985, they had jointly provided for X's care and education, that X did not have any contacts with the applicant and that X fully supported the adoption request. In July 1998, the applicant informed the Regional Court that she objected to X's adoption by Mrs Janssen. She submitted inter alia that the fact that X supported the adoption request and that there had not been any contacts between her and X for a certain period of time did not justify severing the legally recognised family tie between them. In the applicant's opinion, to sever a legally recognised family tie would only be justified in cases where a child had nothing to expect from the mother anymore. On 15 September 1998, Mr Z. and Mrs Janssen submitted a copy of a letter of 8 September 1998 by a social worker to the Regional Court. In so far as relevant, this letter reads: “Additional information for the purposes of the adoption request of X Z. This report has been prepared by ... social worker ..., at X's request. At the end of April this year, X contacted the social aid services, in May the provision of assistance started. It appears from conversations that X feels no joy in her life, she feels down and listless, insecure, cannot /dares not take initiatives. For these complaints of depression (which she has already been experiencing for a number of years, at times less at times more, as she says) I advised her to contact her general practitioner. My impressions of X: She comes across as an intelligent young woman, with a certain spontaneity where it concerns less difficult matters; she has the tendency to speak in a more rational manner where it concerns more personal matters. She finds it difficult to show her emotions. She has difficulties in trusting [others] and has little self-confidence. In her personal history the following points of particular interest appear which, in my opinion, are co-determinant for her lack of confidence: after the divorce [which occurred] when she was four, X describes a toilsome access arrangement with her biological mother, whom X calls Trix (Carmen is emotionally her mother, says X, “She has taught me everything”.) X perceives the contact with her biological mother as not close. When X gets a bit older, the need increases to discuss the bad contact as she perceives it, in the hope of being able to come closer to each other. She discovers that that does not succeed. According to X, her biological mother cannot / does not want to look at herself, sees no own part in the problems and blames others. She wants to keep the contact “cosy” [amicable and without complicating matters], says X. X finds that her biological mother does not really love her; this often gives her the feeling that she is not valuable enough to be loved. Another cause of her lack of self-confidence is, in my opinion, her hearing impairment. Owing to this [impairment] she only started attending [regular] primary school as from Group 7 [at the age of 10-11]. The transition from the school for the hearing-impaired to a regular primary school was [a] big [change], she says. She was picked on there, as well as in the beginning of secondary school. Concluding: On the basis of my opinion that complaints of depression have a deeper cause than that of people paying insufficient attention to their own needs, I have found it appropriate to support X in this procedure by way of this letter. Despite her insecurities in life, I note that this adoption request is a conscious decision of hers, about which she has clearly reflected. When I ask X, “Why this radical measure?”, she says she is not acting out of rancour. There appears to be a deep-rooted resistance to the possibility that her biological mother can still exercise an influence on her life, but more important a great need for security and recognition if Carmen becomes her legal mother. I do not feel competent in my function as a social worker to state anything diagnostically as to the possible “harm suffered” by X. My advice is to carry out a further examination on this point, for instance a psychological examination by the Regional Institute for Mental Health Care (RIAGG), before deciding the matter.” On 17 September 1998, in the course of a hearing held in private, the Regional Court examined the adoption request. It heard the parties' arguments. It further heard X on the adoption request. In its decision of 21 October 1998, overruling the applicant's objection, the Almelo Regional Court granted the request for X's adoption. As to the applicant's objection, the Regional Court held that she had insufficiently taken into consideration the manner in which her daughter had developed over the past years and had insufficiently realised that X's interests in being adopted should prevail over her own interests. In that light, it considered that the applicant's objection was to be regarded as a slight form of misfeasance (misbruik van recht; i.e. an abusive use of a right). The applicant's appeal against the decision of 21 October 1998 to the Arnhem Court of Appeal (gerechtshof) was examined at a hearing held on 16 February 1999. X, who was heard before the Court of Appeal during that hearing, made the following statement: “This is a picture of the family to which I belong. That is what it is all about. I consider my stepmother as my mother. I really want the adoption very much. The contact with my biological mother is just not right. Sometimes she wants me and then again not. She did try to do nice things with me but I was always only briefly there. I have never understood why she did not want to see me regularly. When she finally returned to the Netherlands seven years had passed. Then it did not work out anymore. I do not have the feeling that she takes me seriously. I have sought contact with her in 1996. Then she did not want to answer questions which I had. The same thing happened when we spoke over the telephone in 1998 in connection with the filing of the adoption request. The contact that I have with Carmen [X's stepmother] is the most important. I just feel that way. She was already there as from my fourth year. There is a strong bond between us. She has taught me to speak with my hearing disability and has taught me how to ride a bicycle. I do understand why my biological mother disagrees with the adoption request. I have things sorted out much better now. I have also been able to do that because I fight for my interests. At school things are now also better. I realise that the adoption will not change things very much but I want to show that Carmen is my real mother. [Emotionally speaking,] I have taken leave from my biological mother already a long time ago. This adoption is a confirmation of that. I have severed the ties with my biological mother a long time ago. Now I want to express, also in a legal sense, the connection I feel with Carmen. I have no contact any more with my maternal family. I have often tried to have a serious conversation with my biological mother but she just wanted to keep things on a cosy [superficial] level. For the rest, I refer to what I have put in writing.” On 16 March 1999, the Court of Appeal rejected the applicant's appeal and upheld the Regional Court's decision of 21 October 1998. This ruling, in so far as relevant reads: “2.4 The Court of Appeal has noted ... a written statement by X. ... 4.3 The court agrees with Mr Z. and Mrs Janssen that the requested adoption is in the apparent interests of X. 4.4 In this finding, the court takes into account that X, also noting her age, has nothing to expect anymore from [the applicant] as regards care and education. It further takes into account the long period during which X has been cared for and educated by Mr Z. and Mrs Janssen, as well as X's explicit agreement with the adoption request and her reasoned statement on this point. 4.5 It appears from her statement made before the court, as well as from her written statement referred to in 2.4, that X considers Mrs Janssen as her sole mother and that already for some considerable time – in any event since 1991 or 1992 – this has been the case. According to X, she then broke off ties with [the applicant] because the latter was, in X's opinion, not prepared to have or capable of having anything other than superficial contact with her. In or around 1996 X did, according to her statement, seek contact one more time with [the applicant]. That meeting also resulted, according to X, in disappointment, because once more she did not feel she was being taken seriously. The last experience was during a telephone conversation she had with [the applicant] in 1998 in connection with the filing of the adoption request. [The applicant] has not disputed X's statement on this point. 4.6 As already mentioned above, X considers Mrs Janssen as her mother, because she has taught her to speak – X having been unable to do so [for a long period] owing to her hearing impairment – and to ride a bicycle, and has always supported her. In short, X wishes that, in addition to the existing de facto family unit tie (gezinsband) between Mrs Janssen – and the two children born out of the marriage between Mr Z. and Mrs Janssen – and herself, a legal tie is also to be established by which their mutual relation is also legally confirmed.” 4.7 Unlike [the applicant] – who contends that X has incurred emotional problems as a result of the filing of the adoption request – the court accepts that, already prior to the filing of this request, X had contacted a social worker in order to, in her own words, talk about her feelings, and it was thus not the filing of the adoption request as such which caused her to be emotionally burdened. On this point X has declared that those feelings of frustration and anger had already existed a long time and had, according to her, been caused by [the applicant's] incapacity or unwillingness to have a more than mere superficial contact with X. She further felt that she had never been taken seriously by [the applicant] in her wish to obtain answers to questions she had. 4.8 The above does not lead to a different finding as to X's apparent interest in the requested adoption and does not entail that the court, for the determination of the case, requires further information from an expert on X's interest in the adoption by Mr Z. and Mrs Janssen. 4.9 The [applicant's] right of veto, which she invokes, under Article 1:228 § 2 of the Civil Code is only limited by the legal rule that a power cannot be invoked when it is being abused. 4.10 [The applicant] submits that, in exercising her right of veto, she is led by X's interests. According to [the applicant] it is in X's interests, in particular as regards her identity, that a legally recognised family tie between her and X remains in existence. If adoption were to be pronounced, X would be confirmed in her incorrect opinion that she has a bad mother who has left her. That cannot be in her interests. 4.11 Although the court, noting [the applicant's] own statement made at the oral hearing on appeal, assumes that [the applicant] wishes the best for X, and that the absence of a close contact between them is a result of the absence of regular contacts between them – which has also been caused by [the applicant's] stay in England for the period from 1986 to 1992 –, it does not subscribe to the interest advanced by [the applicant] in exercising the right of veto. In this respect it refers to the above considerations as to X's apparent interests in the adoption by Mr Z. and Mrs Janssen. 4.12 The veto expressed by [the applicant] will be disregarded by the court. In the court's opinion, [the applicant] abuses her power to exercise this right because [the applicant], taking into account the disproportionality between the interest advanced by [the applicant] in exercising her [veto] power and X's interest in adoption by Mr Z. and Mrs Janssen which is harmed by the exercise of that [veto] power, in all reasonableness should not have exercised that power. In the assessment of X's interest in being adopted by Mr Z. and Mrs Janssen, the court takes particularly into account that X – who was only four years old when Mr Z. and Mrs Janssen started to cohabit and who turned eighteen in November 1998 – has for a long time has been cared for and educated by Mr Z. and Mrs Janssen jointly.” The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) in which she raised three complaints, namely that the Court of Appeal had failed to take into account her arguments as regards the question whether the adoption would be in X's interest, that the Court of Appeal had given insufficient reasons for rejecting her request to obtain a further expert opinion and for its finding that X had already contacted a social worker before the adoption request had been filed, and lastly that the Court of Appeal had unjustly concluded that her reliance on her right of veto constituted a misfeasance. In its decision of 19 May 2000, the Supreme Court rejected the applicant's appeal in cassation, holding: 3.3 [The first complaint] fails, because it lacks a factual basis. As appears from its legal considerations under 4.10 and 4.11 [in its ruling of 16 March 1999], the Court of Appeal has, unlike what is asserted [in this complaint], examined and rejected the mother's arguments. 3.4 [The second complaint] is that the rejection of the mother's request to involve an expert is incomprehensible and insufficiently reasoned, and that the same applies to the consideration in which the Court of Appeal finds that X, already before the filing of the adoption request, had contacted a social worker. It is left to the insight of the judge hearing the facts of the case to decide whether he finds it necessary to obtain further expert information. That is why the first [limb of this] complaint fails. On grounds of X's statement referred to in its legal consideration under 4.7, the Court of Appeal accepted that X, already before the filing of the adoption request, had emotional problems. On that ground the second [limb of this] complaint fails. 3.5 [The third complaint] is about the finding of the Court of Appeal that the mother has abused her right of veto. In the examination of this part, the following must be put first. Although the right of veto has been allocated to the other parent because adoption would entail, for him, the far-reaching consequence of the termination of the existing legally recognised family tie between him and the child, the other parent should, in exercising this right, attach great weight to the interest of the child. Furthermore, as a rule the interest of the child in being adopted by the adoptive parents increases the longer it has been cared for and educated by them (Hoge Raad, 20 May 1994, nr. 8409, NJ 1994, 626). By finding, on the grounds set out in its legal consideration 4.12, that the mother abused her right of veto, the legal opinion of the Court of Appeal has not therefore been shown to have been incorrect. That opinion is also not incomprehensible or insufficiently reasoned. For the remainder it cannot, being interwoven as it is with assessments of a factual nature, be further examined on its correctness in cassation proceedings.” This ruling by the Supreme Court was published in the Netherlands Law Reports (Nederlandse Jurisprudentie – “NJ”) 2000, no. 455. Article 1:227 § 2 of the Civil Code, as in force at the material time, provided: “The [adoption] request may be granted only if the adoption fulfils the conditions laid down in Article 228, and if it is in the interests of the child as regards both the severance of its ties with its parents and the affirmation of its ties with the adopters, or, in the event of the adoption of a child who is the legitimate or natural child of one of the petitioners, as regards the severance of ties with the second parent and the affirmation of its ties with the step-parent.” The relevant part of Article 1:228 of the Civil Code, as in force at the material time, read: “1. Adoption shall be subject to the following conditions: ... (d) that the [adoption] request is not opposed by either parent having a legally recognised family tie with the child. Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned more than two years previously to be heard on a similar request by the same petitioners that was rejected, although the conditions laid down in paragraphs (e) to (g) below were satisfied; ... 2. ... If the child is the legitimate child of one of the petitioners, the provisions of paragraph 1 (d) shall be disregarded; instead, adoption shall be subject to the condition that the request has not been contested by a former spouse who has a legally recognised family tie with the child and whose marriage to the spouse of the stepparent was dissolved ... [by divorce or dissolution of the marriage after judicial separation].” Under the Supreme Court's case-law in respect of Article 1:228 of the Civil Code, the effective right of veto which this provision gave the legal parent could be overridden if his or her objection to the adoption request constituted a misfeasance (misbruik van bevoegdheid), a notion defined in Article 3:13 of the Civil Code which provision, pursuant to Article 3:15 of the Civil Code, does not only apply to property law but also to other areas. Article 3:13 of the Civil Code provides: “1. A right may not be exercised by the holder if in doing so it is abused. 2. A right is abused inter alia if it is exercised with the sole intention of harming another or for a purpose other than that for which it was granted, or if – in view of the disproportion between the interest to be served and that which is damaged – the decision to exercise that right could not reasonably have been taken. 3. A right may be inherently incapable of being abused.” In a decision taken on 25 February 1994, the Supreme Court accepted as correct the trial court's finding that a former spouse's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between him and his children did not constitute a misfeasance (see, Hoge Raad, NJ 1994, no. 437). In a further decision taken on the same day, the Supreme Court accepted as correct the trial court's finding that a former spouse's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between her and her child in order to prevent the latter reproaching her in the future that, by not opposing the adoption request, she had herself contributed to that tie being lost, did not constitute a misfeasance (see, Hoge Raad, NJ 1994, no. 438). In another case, the Supreme Court held on 20 May 1994 that the exercise of the right of veto should attach great weight to the interests of the child and that, furthermore, as a rule, the interests of the child in being adopted [by one of its own parents and a step-parent] increased the longer it had been cared for and educated [by those requesting adoption] (see, Hoge Raad, NJ 1994, no. 626). In a decision taken on 27 October 2000, the Supreme Court rejected, as a misfeasance, the veto by a parent in respect of a requested adoption where the interests of the children in being adopted outweighed the appellant's interest in exercising his right of veto (see, Hoge Raad, NJ 2001, no. 104). On 1 April 1998, the Act of 24 December 1997 on the revision of the law of descent and the regulation of adoption (Wet tot herziening van het afstammingsrecht alsmede van de regeling van adoptie) entered into force, amending inter alia Article 1:228 of the Civil Code. Pursuant to Article III § 1 of this Act, proceedings on adoption requests filed prior to 1 April 1998 were to be determined according to the legal rules in force until that date. Under the new Article 1:228 § 1 (c) of the Civil Code, the adopting parent or both adopting parents must be at least 18 years older than the child whose adoption is requested. Article 1:228 § 1 (d) stipulates that an adoption request can only be granted if neither legal parent opposes the request. However, according to Article 1:228 § 2, the opposition by a legal parent can be overruled if the child and parent have not or hardly lived together as a family unit (gezinsverband); if the legal parent has abused his or her authority over the child or has grossly neglected its care and education, or if – in respect of the minor – the legal parent has been convicted of one of the offences defined in Sections XIII to XV and XVIII to XX of the Second Book of the Criminal Code (Wetboek van Strafrecht). The Explanatory Memorandum on the bill, which eventually led to the enactment of this provision, makes it clear that the possibility to overrule a legal parent's opposition to adoption was possible only under very limited conditions, although it was explicitly stated that the Supreme Court's caselaw concerning misfeasance remained pertinent and, referring to Articles 3:13 and 3:15 of the Civil Code, that an opposition by a legal parent serving no other purpose than to harm another could already on that ground be overruled. It remained for the judge to assess whether or not in a concrete case a legal parent's opposition was to be overruled. In cases of adoption by a legal parent and a step-parent of a child whose care and education they had provided during a number of years, a large degree of reticence should be displayed in overruling opposition by a legal parent who has not been entrusted with the care and custody of the child. As, in general, there would be no serious grounds that would result in such a parent being deprived of parental authority, and often such a parent would have lived with the child as a family unit, it was considered preferable that, in such situations, more meaning be given to the factual relationship of care and education between the step-parent and the child by way of joint custody (medevoogdij), for example (Kamerstukken (Parliamentary Documents), session 1995-1996, 24,649 no. 3, pp. 14-15). In a letter sent on 22 May 1997 to the Lower House of Parliament, containing replies to questions put by Members of the Lower House on the above bill, the Deputy Minister of Justice stated in relation to the proposed amendment of Article 2:228: “Criticism has been expressed about step-parent adoption in literature and legal practice since the beginning of the 80s. This criticism concerns mainly the fact that step-parent adoption after divorce can be used to ban entirely from the life of the child the existence of the legal parent not entrusted with care and custody. There is further criticism about the artificial manner in which this adoption is regulated (one of the parents must indeed adopt his child). ... I have taken this criticism to heart. Step-parent adoption is not rendered impossible, but the conditions applicable to an “ordinary” adoption also apply to the step-parent adoption: the adopting step-parent must have cared for and educated the child for at least three years. Also the condition of the (minimum) difference in age applies. Furthermore, the same limited possibilities to overrule the opposition of a parent, as in the case of an “ordinary” adoption, are applicable. Finally, the Bill on the regulation of joint authority and joint custody is currently pending before the Upper House of Parliament. I hope and expect that these proposals, if they enter into force, will reduce the number of step-parent adoptions.” The possibility of such joint custody (gezamelijk gezag) was introduced in the Civil Code (Article 1:253t) on 1 January 1998. | 0 |
train | 001-59221 | ENG | TUR | CHAMBER | 2,001 | CASES OF ECER AND ZEYREK v. TURKEY | 1 | Violation of Art. 7-1;Non-pecuniary damage - financial award;Costs and expenses partial award | Elisabeth Palm;Gaukur Jörundsson | 8. On 2 September 1993 security forces from the Şırnak central gendarmerie command apprehended the applicants. An arrest protocol of the same day stated that the applicants had been arrested on the grounds that they were wanted for the offences of aiding and sheltering members of the PKK (Workers’ Party of Kurdistan) terrorist organisation and acting as couriers in the organisation as well as supplying logistic support to the organisation. The applicants were then placed in custody. 9. On 22 September 1993 two officers interrogated the applicants at the Şırnak central gendarmerie command. During their interrogation the applicants both confessed that they had been involved in the PKK since 1988 and that they had supplied food and money to PKK militants. The applicant Abdülaziz Ecer stated that he had placed his son, Mustafa Ecer, at the disposal of the PKK rather than paying them a levy. The applicant Mehmet Zeyrek told the officers that he had been carrying provisions on mules to PKK militants and that he had last carried a battery for them in August 1993. 10. The applicants were then confronted with a witness, İkram Yamaner, who had been arrested on charges of aiding and sheltering members of the PKK between April 1990 and July 1992. İkram Yamaner identified the applicants and stated that they had been supplying food and clothes to members of the PKK when he was in the organisation. 11. On 23 September 1993 the Şırnak public prosecutor questioned the applicants in relation to their activities in the PKK. He first informed the applicants of the nature and cause of the accusations against them and then read out the statements they had made to the officers during their detention in custody. The applicants denied the accuracy of the statements read out by the public prosecutor. They alleged that they had no connection with the PKK and that they had never supplied provisions to members of the organisation. Abdülaziz Ecer asserted that his son, Mustafa Ecer, had been abducted by the PKK and had been forced to join the organisation, contrary to what was written down by the gendarme officers during his questioning at the Şırnak gendarmerie command. On the same day, 23 September 1993, the applicants were brought before the Şırnak Magistrates’ Court (sulh ceza mahkemesi). Before the court the applicants denied their involvement in the PKK and claimed that they were innocent of the charges. The court ordered the applicants’ detention on remand. 12. On 24 September 1993 the Şırnak public prosecutor issued a decision of non-jurisdiction and sent the investigation file to the Principal Public Prosecutor’s Office at the Diyarbakır National Security Court. 13. On 19 October 1993 the Principal Public Prosecutor filed an indictment with the Diyarbakır National Security Court accusing the applicants of having assisted and given shelter to members of the PKK between 1988 and 1989. The public prosecutor alleged that the applicants had supplied food to members of the armed gang in a rural area. He further asserted that the applicant Abdülaziz Ecer had stored food in his shop for members of the gang and that he had helped and sheltered them by means of his contacts with his son, currently an active militant in the gang. The public prosecutor relied on the applicants’ confessions at the Şırnak central gendarmerie command and the evidence given by the witness İkram Yamaner, as well as the documents contained in the investigation file. The public prosecutor requested that the applicants be punished in accordance with Article 169 of the Turkish Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991, “the 1991 Act”; see paragraph 19 below). 14. In the proceedings before the Diyarbakır National Security Court the applicants denied the statements they had made during their detention in custody. They both alleged that the gendarme officers had prepared those statements and that they had signed without reading them. The applicants further maintained that they did not know of İkram Yamaner, with whom they had allegedly been confronted, since they had been kept blindfolded during their questioning while in custody. They asked the court to rule that they were innocent of the charges. 15. On 12 May 1994 the Diyarbakır National Security Court convicted the applicants on account of their assistance to the PKK in 1988 and 1989, sentenced them to three years and nine months’ imprisonment and debarred them from public service for three years. In assessing the penalty to be imposed, the court first found that a sentence of three years’ imprisonment would be appropriate under Article 169 of the Turkish Criminal Code; it then applied section 5 of the 1991 Act, according to which this sentence had to be increased by half, that is, to four years and six months’ imprisonment; finally the court applied Article 59 of the Turkish Criminal Code, thereby reducing the sentence by one-sixth and thus decreasing the overall length to three years and nine months’ imprisonment. The court held, in particular: “Offence: Aiding and sheltering members of the illegal PKK organisation Date of the offence: 1988 and 1989 ... Assessment of the evidence: 1. The defendant Mehmet Zeyrek In his statements to the gendarmes, he said that he had been influenced by the propaganda spread by members of the PKK during their frequent visits to [his] village in 1989. Having seen that the organisation worked for them he had begun aiding [the PKK]. He had given his relative Behiye Zeyrek to the organisation rather than paying them a levy. He knew some of the members of the organisation with the code names Hamit, Mahmut, Sorej, Rojger and Ahmet. He met them in the Besta region, at the Kaniye Rengin point, at the Zirvi stream and on the outskirts of the Elma mountain. He knew a few of the warriors. [He stated further] that, on the instructions of the organisation and the instructions he had received from leaders of the groups during his meetings, he had carried provisions to them on his mules. Nobody had helped him to join the organisation. Members of the organisation had spread propaganda [in favour of the PKK] in the past, but they did not do it later as everybody knew the organisation. He also stated that some time before he had carried a battery and some provisions to a militant with the code name Hamza at the coalmine across from the Milli [gendarmerie] station. In his statements to the public prosecutor, he denied the [accuracy of] his statements to the gendarmes; he claimed that he did not know a person with the code name Ahmet, that the latter had not told the truth about him but had slandered him. He [maintained] that he had not carried provisions to [members of] the organisation. He denied that he had placed Behiye Zeyrek at the disposal of the PKK rather than paying them a levy. He alleged that he did not know of her whereabouts. In his statements to the Şırnak Magistrates’ Court, he submitted that he had never supplied aid to the PKK terrorist organisation, that he had never carried provisions to [PKK militants], that he had never met members of the [PKK]. [He claimed] that he is innocent of the charges. In his statements to our court, the defendant denied the charges of aiding and sheltering [members of] the PKK. He alleged that he did not know of İkram Yamaner who was mentioned in the bill of indictment. He claimed that he is innocent of the charges. According to the identification and confrontation protocol contained in dossier no. 9, when the defendant Mehmet Zeyrek was shown to İkram Yamaner with the code name Ahmet, the latter stated that he knew of Mehmet Zeyrek. He submitted that [Mehmet Zeyrek] used to come to see members of the organisation with the code names Erdal, Mehmet, Hamit and Serxabun and that he had often brought provisions on ten to fifteen mules to the Besta region, the Elma mountain, the Zirvi stream and to the Keniya Rengin point. [The witness] further stated that he had shown [to security forces] the places where these provisions were stored. He claimed that the defendant [Mehmet Zeyrek] was an important militant in the organisation. When İkram Yamaner gave evidence as a witness before our court, he stated that the defendant had met senior members of the organisation, that he was a permanent member of the organisation and that he had frequently been in contact with [a militant] with the code name Erdal. [He further stated] that the defendant had supplied provisions such as food, drinks and weapons to the organisation. It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village and that he had further supplied them provisions in rural areas. These acts of the defendant constitute the offence of knowingly aiding and sheltering members of an armed gang, [namely] the illegal PKK terrorist organisation. The court therefore concludes that there exist the actus reus and mens rea elements of the offence. His defence in this respect was rejected. The defendant’s good conduct during the hearing was considered to be a mitigating circumstance. 2. The defendant Abdülaziz Ecer In his statements to the gendarmes he said that he had joined the PKK in early 1988 following the advice given by those in charge of the Besta region with the code names Amid and Mahmut during their visit to his village. He first placed his son Mustafa Ecer at the disposal of the organisation in order to help it. His son is currently an active armed militant in the organisation. He worked as a shopkeeper in the Geçitboyu village of the province of Şırnak and later on he stopped working. Apart from his son with the code name Amid, he knew [militants] with the code names Mahmut, Sorej and Ahmet as well as Aydın and Kalender. Since he worked as a shopkeeper, he allowed members of the organisation to take as many provisions as they wanted. Sometimes he was given money by members of the organisation with which he bought provisions such as flour, sugar and butter. He kept these provisions in his shop until he delivered them [to the militants]. He supplied aid to the organisation on the instructions of an armed militant in the organisation from his village with the code name Cafer Demir. He gave packs of cigarettes to a member of the organisation with the code name Ahmet. [The defendant] further stated that he had been given money by a member of the organisation with the code name Mahmut who wanted him to buy 1000 bags of flour. He delivered [to the organisation] thirty mule-loads of provisions such as flour, butter, sugar, lentils, socks and peşmerge clothing. In his statements to the public prosecutor, he claimed that he had not helped members of the organisation and that he had not supplied any materials to the organisation. He alleged that he did not know of İkram Yamaner who had the code name Ahmet. He denied the latter’s allegations and submitted that he had no links with the organisation. In his statements to the Şırnak Magistrates’ Court, [the defendant] alleged that he had not given aid to the PKK terrorist organisation, that he had not bought provisions for members of the organisation and that he had not bought flour for them either. He denied the charges against him. In his oral evidence before our court, [the defendant] denied the charges brought against him. He submitted that Mustafa Ecer, who was mentioned in the bill of indictment, was his son. He had not seen him for five years. He heard [through some people] that his son had died. He claimed that he had not given aid to members of the PKK by means of sheltering them or supplying them with provisions. According to the identification and confrontation protocol contained in dossier no. 9, when the defendant Abdülaziz Ecer was shown to İkram Yamaner with the code name Ahmet, the latter stated that he knew of Abdülaziz Ecer and that he had visited him at his home [while] he was working as a shopkeeper in the village. The team commander with the code name Mahmut gave some money to Abdülaziz Ecer and asked him to buy 1000 bags of flour. The defendant used a room at the back of his house and opposite his shop as a depot. The defendant supplied provisions to the organisation and brought 600 pairs of shoes with the brand name of Mekap. The defendant’s son with the code name Erdal is an active militant in the organisation whose real name he did not know. İkram Yamaner further stated that he had been a team commander and that the defendant had brought them twenty bags of sugar, flour, butter and lentils and thirty mule-loads of provisions. İkram Yamaner, in his capacity as a witness before our court, stated that the defendant had supplied provisions such as food, drink and arms to the organisation. He further stated that the defendant was an active militant in the organisation and that he had frequently seen the defendant while he was in the organisation. It was established that the defendant had supplied provisions to members of the armed organisation who used to come to his village, the village of Geçitkaya, and that he had further supplied them provisions in rural areas. Further, the defendant stored provisions in his shop for members of the gang. He met members of the gang with the help of his son, Mustafa Ecer, who is currently in the organisation and supplied them with the materials they needed. By these acts, the defendant is guilty of the offence of knowingly aiding and sheltering members of an armed gang, [namely] the illegal PKK terrorist organisation. The court therefore concludes that there exist the actus reus and mens rea elements of the offence. His defence in this respect was rejected. The defendant’s good conduct during the hearing was considered to be a mitigating circumstance.” 16. On 11 July 1994 the applicants lodged an appeal with the Court of Cassation, challenging the judgment of the Diyarbakır National Security Court. In particular, they alleged that the National Security Court had violated the principle of non-retrospective application of the criminal law since it had applied section 5 of the 1991 Act to increase the basic penalty under Article 169 of the Turkish Criminal Code by half. The applicants submitted that they had been convicted of acts committed in 1988 and 1989 as indicated in the bill of indictment. They maintained that the witness, İkram Yamaner, who testified against them and who had been apprehended in 1991, had said that 1988 and 1989 were the dates of the offences. The applicants finally argued that the court should not have admitted the statements made to the gendarmes as evidence since they had retracted them, asserting that they had been extracted under duress. 17. On 21 February 1995 the Court of Cassation rejected the appeal. It upheld the cogency of the National Security Court’s reasoning and its assessment of the evidence. The Court of Cassation did not deal specifically with the applicants’ complaint relating to the retroactive application of the 1991 Act to their case. 18. On 22 May 1995 the applicants applied to the Principal Public Prosecutor’s Office at the Court of Cassation requesting the rectification of the decision of 21 February 1995. On 19 June 1995 their request was dismissed by the Principal Public Prosecutor on the grounds that the Court of Cassation had examined all the points raised by the applicants and there was no other reason requiring the rectification of the decision. 19. Article 169 of the Turkish Criminal Code provides: “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 ...” According to the Government, the act of assisting and giving shelter to members of an illegal organisation has the character of continuity and the offence is a continuing one. 20. Under section 4 of the 1991 Act, the offence defined in Article 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”. Pursuant to section 5 of the 1991 Act, the penalty laid down in the Criminal Code as punishment for the offence defined in section 4 of the Act is increased by one half. 21. Article 150 of the Turkish Code of Criminal Procedure provides: “The punishment resulting from an investigation and conviction is determined by the crimes set forth in the indictment and can concern only those persons named in the indictment.” | 1 |
train | 001-106446 | ENG | POL | CHAMBER | 2,011 | CASE OF KARBOWNICZEK v. POLAND | 4 | Violation of Art. 3 (substantive aspect) | George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1979 and lives in Wałbrzych. A. The applicant’s detention and criminal proceedings against him 6. On 27 July 2005 the applicant was arrested by the police on suspicion of having committed battery, uttered threats and intimidated a witness. 7. On 28 July 2005 the Wałbrzych District Court (Sąd Rejonowy) decided to remand the applicant in custody. The court relied on a reasonable suspicion that the applicant had committed the offences in question and the high probability that a heavy sentence would be imposed on him. The court further considered that there was a risk that the applicant might interfere with the course of the proceedings and bring pressure to bear on witnesses, particularly in the light of the fact that he had previous convictions. 8. On 27 October 2005 the applicant’s detention was extended. The court relied on the grounds given previously. The applicant’s appeal against this decision was dismissed on 3 November 2005. 9. On 23 December 2005 the District Court further extended the pre-trial detention in respect of the applicant and his two co-accused, considering it necessary in order to ensure the proper course of the proceedings. An appeal by the applicant was dismissed on 5 January 2006. 10. On 9 March 2006 the applicant and the two co-accused were indicted before the Wałbrzych District Court. 11. On 21 March 19 June, 12 September and 7 December 2006 the trial court further extended the applicant’s detention, finding that the original grounds for it remained valid. The court also considered that there was a risk that the accused would interfere with the proper course of the proceedings. 12. At a hearing held on 2 March 2007 the Wałbrzych District Court extended the applicant’s detention, reiterating the grounds invoked previously. 13. The applicant appealed against this decision. 14. On 21 March 2007 the Świdnica Regional Court (Sąd Okręgowy) dismissed the appeal. The court noted that the applicant had already “tried to influence the course of the proceedings”, had tried to abscond while being transported to the court and that he had already been convicted of offences similar to those with which he was charged in the present set of proceedings. The court also considered that the applicant might try to influence the testimony of his sister, who was accused in the same proceedings but who was not detained. The court concluded that detention on remand was the only preventive measure capable of ensuring the proper course of the proceedings. 15. Subsequently, on 30 May 2007, the applicant’s detention was extended on the grounds given previously. 16. Between 22 June 2006 and 3 July 2007 the applicant was serving a prison sentence imposed on him in a different set of proceedings. 17. On 3 July 2007 the Wałbrzych District Court convicted the applicant and sentenced him to eight years’ imprisonment. Together with two accomplices, the applicant was found guilty of, inter alia, forgery, battery, robbery and uttering threats. However he was not charged or convicted of membership of an organised criminal group. 18. The applicant lodged an appeal against the judgment. 19. On 21 December 2007 the Świdnica Regional Court quashed the first-instance judgment and remitted the case. On the same day the court extended the applicant’s detention, finding that the grounds previously given remained valid. 20. On 25 June 2008 the applicant’s detention was further extended. An appeal by the applicant against that decision was dismissed on 10 July 2008. 21. On 25 July 2008 the Wałbrzych District Court extended the applicant’s pre-trial detention; however, the court decided that the applicant could be released, under police supervision, on bail in the amount of 10,000 Polish zlotys (PLN) (approximately EUR 3,000 at that time). The court observed that the majority of the witnesses had been heard, so the risk that the applicant would try to bring pressure to bear on them was no longer justified. 22. The applicant submitted that he had no means to pay the bail. 23. On 14 August 2008 the applicant was released from detention although he had failed to pay the full sum specified in the bail decision. 24. On 18 October 2010 the Wałbrzych District Court convicted the applicant and sentenced him to six years’ imprisonment. 25. On 22 March 2011 the Świdnica Regional Court partly amended and partly quashed the judgment and remitted the case. The applicant was sentenced to seven years’ imprisonment. 26. On 19 April 2011 the applicant’s legal-aid counsel refused to lodge a cassation appeal against the judgment. B. The events of 21 November 2006 as presented by the applicant 27. On 21 November 2006 the applicant was transferred from the Detention Centre to the Walbrzych District Court to attend a hearing. He was escorted by police officers, who left the door of the police van open thereby enabling him to escape. After several minutes he was stopped and brutally beaten up by the police officers. The applicant was brought back to the court building where he was handcuffed to a radiator, stripped naked, and again hit, kicked, strangled and hit with a gun by the police officers. 28. The applicant was then brought back to the courtroom, where he complained to the presiding judge about what had happened to him. An ambulance was called and the applicant was taken to a hospital where he was examined by a doctor. A medical certificate (which is hardly legible) issued by a doctor from the emergency room of the Wałbrzych Hospital, confirm abrasions to the applicant’s head. 29. Upon his return to the court building the applicant was again beaten up by police officers. Afterwards, he was transferred back to the Detention Centre, where he requested an examination by a doctor. The following is an extract from a note in the “Health book of a detainee” (Książka Zdrowia Osadzonego”): “21.11. 2006 [The applicant] submits that he was arrested by force by police officers. On his body can be seen: skin abrasion on the left side of his forehead measuring 5 cm by 3 cm, an abrasion on the lower part of his chin 3 cm long, two scratches on the right shoulder blade 10 cm long, a scratch on the right arm 6 cm long, an abrasion on the left side of his chest 15 cm long, abrasions on the knee, above the ankle, a blue mark under the right eye, a red mark on the neck and right knee.” 30. A note in the book dated 22 November 2006 confirmed that a forensic medical examination had been carried out confirming the injuries as previously described. 31. On 12 February 2007 the Wałbrzych District Prosecutor opened an investigation into the applicant’s allegations. 32. On 12 June 2007 an expert medical opinion was prepared. 33. On 15 June 2007 the Wałbrzych District Prosecutor decided to discontinue the investigation, finding that there was insufficient evidence that an offence had been committed. In the course of the investigation an expert was appointed. The testimony of T.G., who had been transported with the applicant to the court and was later present in the court building, was also heard. T.G. testified that he could not see what happened when the applicant had run out of the van, but he saw him later in the court, when waiting for his hearing. T.G. testified that he heard the applicant screaming in pain, as if he had been beaten. The prosecutor gave the following reasons for her decision: “In the course of the investigation the following course of events was established. On 21 November 2006 [the police officers P.G., D.P. and R.G.] escorted [the applicant] from the Wałbrzych Police Station to the Wałbrzych District Court... Next to the building of the Wałbrzych District Court [the applicant], having removed his hand from the handcuffs, pushed open the van door and ran off in the direction of [other] buildings. The action undertaken [by the police officers] led to the arrest of the applicant, who took fright at a warning shot fired by P.G. and lay down on the ground. He was handcuffed and led to the van and brought to the detainees’ room of the Walbrzych District Court. P.G. and R.G. took part in the pursuit of [the applicant]. [The third police officer] stayed in the van to watch over the other detainee. For their own safety, the police officers searched the applicant and confiscated money and other small items from him. The applicant was alone in the detainees’ room. After having been searched, the applicant was handcuffed. At that moment he started hitting his head against the floor and walls and shouting that the police officers had beaten him up and that it was their fault. Since P.G. had left for Wałbrzych Police Station, in order to transmit the information about [the applicant’s] attempt to flee, the remaining [police officers], seeing [the applicant’s] behaviour, laid him on the floor and held his hands and legs to prevent him from injuring himself further. During that time the applicant tried to free himself, rubbed his head against the floor and shouted at the police officers that he would inform the prosecuting authorities of the fact that they had beaten him up. He also threatened to kill them. After about 30 minutes an ambulance came to give him something to calm him down, but the doctor decided to take [the applicant] to the hospital. [Three police officers] went with [the applicant] to the hospital. In the hospital the applicant underwent the necessary examinations; then, since he was allowed to participate in the trial, the police officers took him to the Wałbrzych District Court. The applicant was then transported to the prison because the hearing had been adjourned. The injuries sustained by [the applicant] on 21 November 2006 qualified as injuries that could happen in the circumstances described by both the victim and the police officers. However, the court expert established categorically that they could not have happened as a consequence of repeated kicking or beating with substantial force, as described by the victim. On the basis of all the material collected in the case it can be unambiguously established that there is not enough evidence substantiating the allegations that the police officers escorting [the applicant] on 21 November 2006 committed an offence. It should be said that the possibility that the applicant was beaten up by the police officers cannot be totally ruled out. However, the evidence collected lends credence to the version of events given by the police, which differs completely from the one given by [the applicant] because there were no other witnesses to the event who could confirm [the applicant’s] version, and it is impossible to identify any such witnesses. T.G., who was transported with the applicant, does not have any information concerning the incident, as from the moment the applicant escaped, he lost all contact with him. As a side note it is to be pointed out that, judging from life experience, it is rather unlikely that the police officers, after having informed their superiors about the applicant’s running off, beat him up and subsequently, having brought the applicant from the hospital back to the court building and knowing that D.G., their supervisor, was already present in the court building, ill-treated the applicant yet again. Since the version of the events given by the applicant was not confirmed by the evidence collected, his statements in this respect should be considered as untrue. It is therefore justified to discontinue the proceedings under Article 17 § 1 of the Code of Criminal Procedure on the grounds that there is no evidence sufficiently justifying the suspicion that an offence was committed.” 34. The applicant lodged an appeal against that decision. 35. On 15 June 2007 the prosecutor requested an expert to enlarge on [his] opinion by answering the question whether the injuries described below could have occurred in the circumstances as described by the police officers. The prosecutor stated as follows: “On 12 June 2007 an expert opinion in forensic medicine was prepared which established that some of the injuries [sustained by the applicant], in particular an abrasion on the forehead, a bruise on the mandible, bruises on the shoulder blade, on the chest, and on the right thigh could be the result of hitting or kicking with minor force. When preparing the opinion, the expert was unaware of the testimonies given by the witnesses D.P. and R.G., the police officers...” 36. On 31 January 2008 the Wałbrzych District Court dismissed the appeal. The court entirely agreed with the prosecutor’s findings after having allowed the new evidence requested by the applicant in his appeal, namely the testimony of K.K., a witness who was present at the Wałbrzych District Court on 21 November 2006 and who allegedly saw the applicant being beaten by the police officers, and the additional testimony of T.G., who was transported with the applicant to a court hearing and was likewise present in the court building at the time the applicant was ill-treated. K.K. submitted that he saw the applicant when he had been waiting for a hearing in the holding room at the court building. The holding room led to two cells. K.K. further submitted that there had been another woman in the room, who had also been transported to the court building for a hearing. According to K.K., the applicant had been placed in one of the cells; the door to the cell was left open. He could see the applicant, partly undressed (without a shirt and trousers) and handcuffed to a radiator. He saw the police officers entering the cell and insulting the applicant. He further submitted that, when leaning out, he had seen one of the police officers kicking the applicant. Subsequently, K.K. stated that he had seen some two to four police officers kicking the applicant. In his additional testimony, T.G. submitted that at the court building, through a peep-hole in the door of his cell, he could see the applicant being pulled about by the police officers. He could not see whether the applicant had been beaten, but he heard him calling out in pain, which he associated with the applicant having been hit. 37. The court did not explain why K.K.’s testimony and the additional testimony of T.G. had been disregarded. The court did not refer either to the alleged stripping of the applicant. However, the court mentioned that the evidence obtained The court also took into account the supplementary expert opinion and concluded: “[From the supplementary expert opinion upholding the conclusions of the original opinion, and after having examined other evidence requested by the applicant] it is clear that although the applicant sustained injuries, they do not indicate that he was repeatedly hit and kicked, and could have occurred when the applicant forcibly pushed the police van door open, fell, or lay down after fleeing, or when he struggled with the police officers while in a lying position and was held down by force; the abrasion on the forehead could have happened when he was rubbing his head against the ground, and [all these injuries] were slight and minor in nature. In the light of the above and after all possible investigative actions have been carried out, it is impossible in the circumstances to establish the existence of evidence to prove that the offence was committed. Having analysed the material collected in the case, the court agreed with the prosecutor’s findings in full and decided as in the operative part.” 38. The regulations on the permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of the particular situation and in so far as they are necessary to obtain compliance with that order. 39. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against whom the action is being carried out, except in self-defence or to counter an attack against another person’s life, health or property. 40. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 41. For the latest amendments of the provisions concerning detention on remand, see the Court’s judgment in the case of Kauczor v. Poland, no. 45219/06, § 25-33, 3 February 2009. | 1 |
train | 001-72594 | ENG | UKR | CHAMBER | 2,006 | CASE OF SHCHUKIN v. UKRAINE | 4 | Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - State to pay outstanding judgment debt;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 4. The applicant was born in 1940 and lives in the village of Veseloye, Kherson region, Ukraine. 5. In 2001 the applicant instituted proceedings in the Novokakhovskiy Town Court against his former employer, the State-owned “Uzhelektromash” company, to recover salary arrears. On 17 December 2001 the court awarded the applicant UAH 10,282 in salary arrears and compensation. 6. On 26 June 2002 the Novokahovska Bailiffs’ Service returned the writ of execution to the applicant on the ground that the debtor lacked funds that could be attached and the court had prohibited seizure of the debtor’s accounts. 7. On 10 June 2005 the Novokakhovskiy Town Court, following the applicant’s complaint, ordered the Bailiffs’ Service to renew the enforcement proceedings in the case. 8. The judgment in the applicant’s favour remains unenforced. 9. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). | 1 |
train | 001-75155 | ENG | HUN | CHAMBER | 2,006 | CASE OF LASZLO KOCSIS v. HUNGARY | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | null | 4. The applicant was born in 1957 and lives in Ács, Hungary. 5. In April 1993 criminal proceedings were instituted against the applicant and his accomplices on charges of counterfeiting money and of other offences. 6. On 6 December 1994 a bill of indictment was preferred. 7. The Tatabánya District Court held hearings on 20, 21 April, 9 May and 13 June 1995. On the latter date it ordered that the investigation be resumed. The time-limit for the completion of the investigation was prolonged on 7 September and 27 October 1995, and also at the hearings on 7 December 1995, 4 June and 13 November 1996. Simultaneously, legal assistance was being sought from the Slovak authorities. 8. Further hearings took place on 17 April, 7 October, 13 November and 11 December 1997. At the hearing on 22 January 1998 the case against two co-defendants was separated since they were abroad. Another hearing was held on 29 January 1998. 9. On 4 February 1998 the District Court convicted the applicant of abuse of explosives and sentenced him to ten months’ imprisonment, suspended for two years. 10. On 20 March 2000 the Komárom-Esztergom County Regional Court quashed this judgment, essentially for procedural shortcomings, and remitted the case. It ordered that the case be given priority. 11. In the resumed proceedings the case fell within the Regional Court’s jurisdiction acting at first instance due to a legislative change. 12. The Regional Court held hearings on 7 February and 26, 27 and 28 June 2001. On the latter date it appointed a medical expert. A further hearing was held and another expert appointed on 27 September 2001. 13. Additional hearings took place on 1 March, 12 April, 30 August, 22 November and 20 December 2002. 14. After further hearings on 22 January, 25 February and 9 May 2003, on 22 May 2003 the court convicted the applicant of abuse of explosives and sentenced him to eight months’ imprisonment, suspended for one year. For the applicant, the judgment became final on the same day. | 1 |
train | 001-67006 | ENG | HRV | ADMISSIBILITY | 2,004 | BANEKOVIC v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Vjekoslav Baneković, is a Croatian national, who was born in 1975 and lives in Kutina, Croatia. He is represented before the Court by Mr B. Posavčić, a lawyer practising in Kutina. The applicant has been a police officer in the service of the Ministry of the Interior since 1995. On 1 January 1996 he was transferred to perform his duties in Dvor, a town situated in an area previously affected by the Homeland War and classified as an “area of special state care”. According to the Act on Areas of Special State Care (Zakon o područjima od posebne državne skrbi; “the Act”), civil servants performing their duties in these areas had a right to a 50% salary increase. As he did not receive a salary increase, on 29 October 1998 the applicant filed a civil action with the Kutina Municipal Court, seeking payment of the amounts due. On 29 July 1999 the Kutina Municipal Court declared that it lacked competence to deal with the matter. On 9 March 2000 the Sisak County Court dismissed the applicant's appeal. On 8 November 2000 the Supreme Court partially quashed the first and the second instance judgments, and remitted the case to the Kutina Municipal Court. It found that a part of the applicant's case fell within the competence of the civil courts. In the meantime, on 29 July 2000 Parliament enacted Amendments to the Act on Areas of Special State Care (Zakon o izmjenama i dopunama zakona o područjima od posebne državne skrbi; “the Amendments”). The Amendments provided that salary increases should only be payable to civil servants who, inter alia, both performed their duties and resided in the areas of special state care. In the resumed proceedings, on 14 June 2001 the Kutina Municipal Court dismissed the applicant's action, as he did not reside in the area of special state care. On 26 October 2001 the Sisak County Court upheld the first instance judgment and dismissed the applicant's appeal. On 6 February 2002 the Supreme Court dismissed his request for revision on points of law as inadmissible. The applicant filed a constitutional complaint. On 8 April 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed his complaint as being lodged outside the statutory time-limit. The relevant part of the Act on Areas of Special State Care (Zakon o područjima od posebne državne skrbi, Official Gazette no. 44/1996) provides that all civil servants in service with the state administrative bodies in those areas shall receive a 50% salary increase in comparison with the salaries in other parts of the State. The relevant part of the Amendments to the Act on Areas of Special State Care (Zakon o izmjenama i dopunama zakona o područjima od posebne državne skrbi, Official Gazette no. 73/2000) reads as follows: “Natural persons who are domiciled and reside within the areas of special state care.... shall have the rights arising out of this Act.” “Proceedings to pursue rights arising out of this Act lodged before the day of the entry into force of this Act shall be concluded pursuant to the provisions of this Act.” | 0 |
train | 001-57784 | ENG | CHE | CHAMBER | 1,992 | CASE OF LÜDI v. SWITZERLAND | 2 | Preliminary objection rejected (victim);Questions of procedure rejected;No violation of Art. 8;Violation of Art. 6-1+6-3-d;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | null | 7. Mr Ludwig Lüdi, a Swiss national, resides at Röschenz in the Canton of Berne. 8. In 1983, while in Germany, he was charged with trafficking in drugs. On 30 November 1983 the 16th Criminal Chamber of the Stuttgart Regional Court ordered the proceedings to be discontinued as a result of various procedural problems, including the intervention of a German undercover agent (V-Mann). On appeal by the public prosecutor’s office, the Federal Court (Bundesgerichtshof) set the order aside on 23 May 1984 and remitted the case to the Stuttgart Regional Court. That court adjourned the case sine die on the grounds that the applicant and his co-defendant, who had been at liberty since 2 September 1983, had returned to Switzerland. 9. On 15 March 1984 the German police informed the police of the Canton of Berne that the applicant had asked a fellow countryman whom he had met while in detention for 200,000 Swiss francs to finance the purchase of approximately 5 kg of cocaine in Switzerland. In order to obtain fuller information on the drugs deal and seize the drugs in question, the investigating judge at the Laufen District Court (Amtsgericht) opened a preliminary investigation on 15 March 1984. With the agreement of the Indictments Chamber of the Court of Appeal (Obergericht) of the Canton of Berne and pursuant to Article 171b of the Berne Code of Criminal Procedure (see paragraph 26 below), he also ordered the applicant’s telephone conversations to be monitored. On 20 June the Indictments Chamber authorised the telephone interception to be extended to 15 September 1984. 10. In addition, the Laufen police and the special drugs unit decided that a sworn officer of the Berne Cantonal Police should pass himself off as a potential purchaser of the cocaine, under the assumed name of Toni. They acted with the authorisation of cantonal police headquarters, and notified the investigating judge at the Laufen District Court of their plan. 11. According to the Government, Toni had attended a course on 12 and 13 December 1978 intended for cantonal officials with responsibility for the fight against drug trafficking, with the aim of drawing their attention to the limits to which their undercover activities were subject and the relevant provisions of the law. Shortly before acting in the present case, Toni was reminded at a meeting with his superior officers of the limits beyond which he was not to go. 12. The applicant met Toni on 19 and 21 March, 15 May and 5 and 14 June 1984, on the latter’s initiative on each occasion, as the applicant did not know his real identity, address or telephone number. 13. He was arrested on 1 August 1984 and charged with unlawful trafficking in drugs. The investigating judge at the Laufen District Court terminated the telephone interception on the same day. In a letter of 22 August 1984 he informed the applicant that he had ordered telephone interception and that it had lasted from 15 March to 2 June 1984. According to Toni’s reports, Mr Lüdi had promised to sell him, as intermediary, 2 kg of cocaine worth 200,000 Swiss francs, and had borrowed 22,000 Swiss francs from a third person for the purchase of cocaine or other narcotics. 14. On 3 August 1984 the police searched the applicant’s home and found traces of cocaine and hashish on a number of objects. 15. On 5 September 1984 the investigating judge at the Laufen District Court ordered the applicant to be released on the ground that he had made "extensive admissions as to the essential parts of the investigation [and that] there [was] consequently no longer any risk of collusion or flight". The Berne police, relying on the results of the preliminary investigation, filed a criminal complaint on 25 October 1984. 16. On 4 June 1985 the Laufen District Court found the applicant guilty of seven offences against the Federal Drugs Law and sentenced him to three years’ imprisonment. In order to preserve the anonymity of the undercover agent, the court declined to call him as a prosecution witness; it considered that the records of the telephone interception and the undercover agent’s reports showed clearly that, even without the agent’s intervention, Mr Lüdi had had the intention of acting as an intermediary in the supply of large quantities of narcotics. 17. Mr Lüdi appealed against his conviction for two of the seven offences, the attempted supply of cocaine to Toni and the attempted purchase of cocaine or another drug by means of the loan he had arranged. 18. On 24 October 1985 the Berne Court of Appeal (First Chamber) confirmed the judgment of 4 June 1985 (see paragraph 16 above). The Court of Appeal did not call the undercover agent either. The court found that the evidence adduced before the trial court had in essence corroborated the content of Toni’s report, in particular with regard to the general course of events. This had clearly shown that the applicant - as had not been disputed by him - had made great efforts in order to supply Toni with 2 kg of cocaine, had contacted M. and then B., travelled to Ticino and Italy, and arranged meetings between Toni and a possible supplier. After initially minimising things, he had eventually decided to admit all these facts, which also followed partly from the interception of his telephone conversations and the statements of M. It had to be regarded as established that Mr Lüdi had been the first to speak to S. about purchasing cocaine; besides, S. had confirmed this, although he had toned down his original statements on this point to some extent. The court then dealt with the applicant’s argument that section 23 subsection 2 of the Federal Drugs Law did not apply to Toni’s actions. The court said that the mere fact that the applicant had planned a significant deal in cocaine before his first contact with the undercover agent brought him within section 19 of that Law. Finally, the detailed reports of the telephone interception showed very clearly that Mr Lüdi had persistently (beharrlich) and on his own initiative attempted to carry out a drugs deal, and that he had for this purpose intended to bring Toni in as the "banker", as he himself did not have the required funds. 19. Mr Lüdi then brought a public law appeal and an application for a declaration of nullity to the Federal Court (Bundesgericht). 20. He alleged in the former that there had been an interference with his right to respect for his private life, which had not been compatible with Article 8 (art. 8) of the Convention. He argued firstly that the monitoring of his telephone conversations had not been "in accordance with the law" and had not been justified under paragraph 2, as he had been suspected merely of having had the intention of committing an offence. Secondly, he complained of the intervention of an undercover agent, which he alleged had been intended to incite him to take part in drug trafficking. He further claimed that the telephone interception could not be used in evidence and that the mere reading of the agent’s reports, without the agent being called as a witness, had prejudiced the exercise of the rights of the defence, in breach of Article 6 (art. 6). 21. On 8 April 1986 the Federal Court dismissed the public law appeal, for the following reasons: "... (a) The public law appeal raises two objections to the ordering of the telephone surveillance. Firstly, it is argued that at the stage of ‘generally investigative police enquiries’ telephone interception was ordered for which there was no statutory provision at that stage; a preliminary investigation was started only for the sake of appearances. Secondly, the appellant complains that Bernese criminal procedure law permits of no preventive telephone surveillance and that the present case did not concern an investigation into an offence which had been committed, but the ascertainment of offences which were about to happen. (b) Under Article 171b of the Berne Code of Criminal Procedure (StrV) an investigating judge can order surveillance of a suspect’s postal, telephone and telegraph communications ‘if an offence whose seriousness or particular features justify the interference or an offence committed by means of the telephone is being investigated’. It is not disputed that in the present case the telephone surveillance was ordered by the competent authority and the procedural rules in Article 171c StrV were complied with. That telephone surveillance in the initial stage of inquiries is excluded by cantonal law does not follow from the Code of Criminal Procedure, nor has it been demonstrated by the appellant. Depending on the circumstances, telephone interception is often appropriate precisely at the beginning of an investigation. From this point of view there is no indication whatever that the order complained of could have infringed the Constitution or that it was made under an arbitrary interpretation of cantonal law. (c) There is no need to examine here whether under the wording of Article 171b StrV telephone surveillance and the other measures regulated thereby are to be strictly confined to investigations of offences already committed, excluding the possibility of preventive surveillance where there is a strong suspicion that offences are about to be committed. Under the sixth paragraph of section 19 subsection 1 of the Drugs Law (Betäubungsmittelgesetz) a person who takes steps in order to participate in some manner in dealing with drugs, transporting or storing them has already committed an offence. By Lüdi’s conduct as reported from Germany, namely his search for finance for a cocaine deal, he had already taken steps as defined above, so that, that being the case, the elements of an offence were already present, and the telephone surveillance ordered related not only to the discovery of planned crimes but also to the investigation of offences which had already been committed. Moreover, it would not be untenable to interpret Article 171b StrV by analogy as a legal basis for preventive measures too, where the interference is justified by the seriousness or particular features of the offence which is anticipated. The telephone surveillance ordered in this case on a basis of serious suspicion of a crime was certainly not an abuse of the law. 3. (a) The use of so-called undercover agents is not expressly provided for in Swiss criminal procedure law, but the dominant opinion is that it is permissible in principle, in so far as the particular nature of the offences is capable of justifying the covert investigative acts and the undercover agent investigates the criminal activity in a predominantly passive manner without using his own influence to arouse willingness to commit the act and induce criminal conduct ... The federal legislature has in section 23 subsection 2 of the Drugs Law expressly taken into account the possibility of using an undercover agent in criminal investigations in the field of drug trafficking. (b) In the ... public law appeal the permissibility of covert investigation in terms of the rule of law is not denied in general and as a matter of principle, but the view is taken that the use of an undercover agent represents a serious interference with the private life and personal freedom of the person concerned and such an interference is possible in a State subject to the rule of law only if founded on a sufficiently precise legal basis ... Such a requirement of a legal basis for the use of undercover agents has not been discussed as yet in Swiss case-law and legal writing, nor expressly acknowledged as a restraint from the point of view of the rule of law. This would be a continuation and extension of the legislature’s reasons underlying the requirement for statutory regulation of telephone interception and similar investigative measures. While coercive measures in the course of criminal procedure (such as arrest, house searches, etc.) clearly interfere against the will of the person concerned with legally protected rights, and surveillance of telephone, postal and telegraph communications without the knowledge of the person concerned interferes in the interests of prosecuting crime with areas of confidentiality which are protected by law, the use of undercover agents is problematic at a somewhat different level: the personal freedom of the person concerned is not restricted, nor does he have to tolerate any other coercive measures, but he comes into contact with a partner who is unknown to him, but with whom he would not have dealings if he knew that he was working for criminal investigation. Where the undercover agent by means of his contacts merely ascertains criminal conduct which would have taken place in the same or similar fashion even without his intervention, the use of an undercover agent is no doubt unobjectionable. On the other hand, it would not be permissible if the undercover agent were to take the initiative, as it were, and provoke criminal activity which would otherwise not have come about at all; for the prosecuting authorities must not provoke criminality in order to be able to prosecute criminals whose readiness to commit crime, possibly present but latent, would otherwise not have become manifest. If the undercover agent fosters the criminality of the person concerned without it being possible to regard him directly as initiating or inciting, but nevertheless in such a way that it must be assumed that the criminal act would have been of lesser extent and seriousness without the ‘participation’ of the undercover agent, this is to be taken into account when passing sentence. Covert investigation does not encroach on a basic right protected by the Federal Constitution (or the European Convention). The person concerned is free as regards his decisions and his behaviour towards the undercover agent; he is, however, deceived as to the identity of his negotiating partner and the latter’s connection with the police. A criminal is not protected by constitutional law against being observed in the course of his illegal conduct by a police officer who is not recognisable to him as such. Nor can any protection of a criminal against covert investigation be derived from the European Convention (Article 8) (art. 8). Whether the investigative methods of undercover agents should because of certain risks of abuse be statutorily regulated, and whether a statutory rule would be likely to counteract any abuses better than is currently done by case-law, is for the legislature to decide. According to current constitutional law and statute law, the use of an undercover agent is permissible within the bounds set by the general principles of the rule of law, without it requiring an express statutory basis. There are other investigative measures too - as for example the constant surveillance of a suspect - which may seriously affect private life and lead to findings which are unwelcome for the person concerned, without it ever having been thought necessary for there to be a statutory basis for such measures. (c) If, therefore, as the law stands there is no requirement of a statutory basis for the use of undercover agents, it is not necessary to examine whether section 23 subsection 2 of the Drugs Law could be regarded as a sufficient statutory basis in the absence of a corresponding provision in cantonal procedural law. The wording of the subsection shows that it is not an enabling provision of criminal procedure, but a rule of substantive law on the question, which need not be discussed here, as to the circumstances under which acts by an undercover agent which are objectively the elements of an offence are not liable to punishment. 4. The activity of undercover agent ‘Toni’ did not go beyond the bounds, described above, of covert investigation acceptable in a State governed by the rule of law: (a) The investigation of suspected drug offences is often, because of the nature of such offences, possible only by an undercover agent. It is precisely in this sphere that this method proves to be necessary and effective ... Once a report had been received of a definite suspicion that the appellant wished to carry out a substantial cocaine deal, it was not disproportionate to use a police officer to pose as a buyer. This did not involve an arbitrary interpretation of cantonal procedural law, nor was there a breach of a basic right or a human right protected by the European Convention. (b) On the basis of the statements made by the various parties, and assessing the evidence in a reasonable and non-arbitrary fashion, the court below found that Lüdi first mentioned a cocaine deal to Schneider and then spontaneously offered ‘stuff’ to the interested party ‘Toni’ as well. Although subsequently it was always ‘Toni’ who contacted Lüdi to find out how things were progressing, it does not follow from this that the appellant did not commit an offence. Lüdi of his own accord got in touch with possible suppliers and also tried to find money for drug dealing elsewhere. As he had no telephone number for ‘Toni’, he necessarily had to wait for him to ring him. The essential point is that ‘Toni’ did not act as the instigator, but by posing as a buyer merely made it possible to investigate the appellant’s activities, which were aimed at a substantial deal in cocaine. 5. The appeal argues at great length that no account may be taken directly or indirectly of the statements of undercover agent ‘Toni’, for the further reason that he was not summoned and heard as a witness ... . If it is recognised that the use of undercover agents is justified in the public interest in fighting as effectively as possible against drug dealing, it follows that the identity and the investigative methods of such agents are not lightly to be given away in criminal proceedings; for their continued use would thereby effectively be made largely impossible. Preserving the secrecy of undercover agents does not in itself infringe principles of criminal procedure or constitutional rights. It is a matter for the court assessing the evidence to decide what weight can be attached in a particular case to the written statements of an undercover agent who has not appeared before the court, where there are legally relevant facts which are in dispute. The allegations that the appellant carried out preparatory actions which constituted criminal offences have been substantiated by the result of the telephone interception, the appellant’s own statements and those of the other persons involved. If the court below attributed to the undercover agent a somewhat less active role than that alleged by the appellant in his account of the facts, that was not arbitrary but was based on a tenable assessment of the evidence. ..." (Annuaire suisse de droit international, 1987, pp. 229-230 and 232-234) 22. In contrast, in a judgment of the same day, the Cassation Division of the Federal Court granted the application for a declaration of nullity. The court said that the Laufen District Court, when convicting the applicant, had not taken sufficient account of the effect on his behaviour of the actions of the undercover agent, and the Berne Court of Appeal had not mentioned the outcome of the proceedings brought against the applicant in Germany or the fact that he had no criminal record. The Federal Court remitted the case to the Berne Court of Appeal. 23. On 19 February 1987 the First Chamber of that court reduced the sentence to eighteen months’ imprisonment, suspended for three years. It also ordered that the out-patient medical treatment which Mr Lüdi had started while in detention should be continued. As grounds for its decision it cited its concern to take into account the intervention of Toni, and a psychiatric report stating that the applicant had been under the influence of cocaine at the time of the offences and hence had only limited responsibility. 24. The Drugs Law provides in sections 19 and 23 that: "1. Any person who unlawfully cultivates alkaloid plants or hemp in order to obtain drugs, any person who unlawfully manufactures, extracts, transforms or processes drugs, any person who unlawfully stocks, dispatches, transports, imports or exports them or carries them in transit, any person who unlawfully offers, distributes, sells, deals in, procures, prescribes, markets or transfers them, any person who unlawfully possesses, holds, purchases or otherwise obtains them, any person who takes steps to do so, any person who finances unlawful traffic in drugs or serves as intermediary for such financing, and any person who publicly encourages the consumption of drugs or publicly announces an opportunity for the acquisition or consumption of drugs, shall be liable, if he acts intentionally, to imprisonment or a fine. In serious cases the penalty shall be imprisonment for not less than one year, which may be accompanied by a fine of up to one million francs. 2. A case is serious in particular if the person committing the offence (a) knows or must be aware that the offence relates to a quantity of drugs which may endanger the health of a large number of people; (b) acts as a member of a gang formed for the purpose of the unlawful dealing in drugs; (c) obtains a large turnover or a substantial profit by dealing as a business. ..." "1. If an official responsible for the enforcement of this law intentionally commits an offence under sections 19 to 22, the penalty shall be increased as appropriate. 2. An official who for investigative purposes in person or by the agency of another accepts an offer of drugs or personally or by the agency of another takes possession of drugs shall not be liable to punishment, even if he does not disclose his identity and status." Statement of the Federal Council to the Federal Parliament of 9 May 1973 relating to an amendment to the Federal Drugs Law [and in particular to the introduction of an amended section 23] "... The amendment introduced at the end of the sentence is intended to give the court more latitude in determining the sentence where an official responsible for the enforcement of the Drugs Law deliberately contravenes that law. The intention of the draft provisions, which follow on from the present section 23, is to facilitate police investigations in a field where they are particularly difficult. This is a question of allowing the police to enter the environment of dealers and sellers without exposing themselves to criticism for having incited the commission of offences or even having committed them themselves. Illegal drug trafficking has often been cited as a typical example of well-organised international gangs, some of which have been broken up in recent months. The police must be given adequate means for increasing the effectiveness of their campaign against these gangs of traffickers, as the Council of Europe asks us to do. Article 32 of the Criminal Code (official duty) is not sufficient to justify such actions. They must rest on a legal basis in each particular case (see Prof. Max Waiblinger, no. 1204, Fiches juridiques suisses, faits justificatifs). ..." 25. The Government stated that section 23 subsection 2 was regarded by cantonal courts and the Federal Court as permitting only a passive attitude on the part of undercover agents, who incurred criminal liability in the event of instigation or provocation by them. Moreover, the use of such agents could be ordered only in serious cases of organised crime relating to drug trafficking. The Federal Court has held that the section in question derogates from provisions of cantonal law which may conflict therewith: "... it is not necessary for section 23 subsection 2 of the Drugs Law to have as its purpose the regulation of a procedural point, which the appellant contests; it is sufficient that the cantonal legislation compromises the anonymity which the federal legislature - whose intentions are not in doubt here, if one considers the extracts from the parliament’s travaux préparatoires pertinently cited by the cantonal authorities - intended to guarantee to persons pursuing drug dealers. The anonymity intended by the legislature has one purpose only: to allow the investigator to continue his work subsequently to the arrest of the person or persons whom he has exposed and to allow him to carry on several cases at once without the completion of one of them terminating his activities in the others. If once an inquiry has been completed the police officer has to disclose his identity and explain in detail the role he has played, it is self- evident that he will have to abandon any further work, as his cover will have been blown in drug-dealing circles. For this reason the observance of Articles 58 and 59 of the cantonal Code of Criminal Procedure is in conflict with section 23 subsection 2 of the Drugs Law ..." (Cassation Division, judgment of 5 June 1986). 26. The Berne Code of Criminal Procedure makes provision for various investigative measures: "The investigating judge may order surveillance of a suspect’s postal, telephone and telegraphic communications and have his mail seized if an offence whose seriousness or peculiar features justify the interference or an offence committed by means of the telephone is being investigated." "1. The investigating judge shall within twenty-four hours of his decision submit to the Indictments Chamber for approval a duplicate copy of his order together with the case-file and a short statement of reasons. 2. The order shall remain in force for three months at most; the investigating judge may extend it for a maximum of three months. The extension order is to be submitted to the Indictments Chamber for approval with the case-file and reasons ten days before the expiry of the period. 3. The investigating judge shall terminate the surveillance as soon as it becomes unnecessary or the period expires or if the order is withdrawn." 27. Articles 24 and 32 of the Swiss Criminal Code provide that: "1. A person who intentionally persuades another person to commit an offence shall, if the offence is committed, be liable to the penalty to which the person who commits the offence is liable. 2. A person who attempts to persuade another person to commit a serious offence shall be liable to the penalty prescribed for the attempted commission of that offence." "An act which is ordered by law or by an official or professional duty, or which is stated by law to be permitted or not liable to punishment, shall not be an offence." | 1 |
train | 001-82267 | ENG | TUR | ADMISSIBILITY | 2,007 | MOHAMMADI v. TURKEY | 4 | Inadmissible | null | The applicant, Mr Anvar Mohammadi, is an Iranian national who was born in 1947. He currently lives in Canada. He was represented before the Court by Mr H. Saeedi, who resides in the Netherlands. The Government did not appoint an agent to represent them. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 October 2000, the applicant, followed by his wife and children on 23 October 2000, entered Turkey illegally. According to the information provided by him, he was a political activist against the regime in Iran and a member of the Democratic Kurdistan Party. In this connection, he submitted an Iranian Court order of 2001, concerning the confiscation of his property on account of his collaboration with the said party and for his illegal departure from Iran. On 13 November 2000, the applicant filed an asylum request with the Turkish authorities and the United Nations High Commissioner for Refugees (UNCHR). On 30 January 2003 his asylum request was dismissed by the UNCHR. On 4 May 2005 the Ministry of the Interior rejected his asylum application. On an unspecified date, he again applied to the UNCHR. His request was dismissed on 13 September 2005 and his file was closed. The applicant continued to send letters to the UNCHR and consequently his case was reopened. On 20 January 2006 he was arrested at Ankara Airport while trying to leave the country. On 22 January 2006 he lodged his application with the Court and requested not to be deported to Iran. On 26 January 2006 he was given a residence permit in Turkey which was valid until August 2006, in order to facilitate his participation in the domestic proceedings in Turkey. On 1 March 2006 he was recognised as a refugee by the UNCHR. On 29 May 2006 he was arrested by Turkish police in Van. On the same day, his representative filed an urgent action with the Court. He stated that the applicant had been recognised as a refugee by the UNCHR and had a residence permit in Turkey until 10 August 2006. He requested the Court to stop the applicant’s deportation. On 31 May 2006, the Acting President of the Chamber to which the case has been allocated decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be deported to Iran until further notice. On the same day, the Acting President also decided to apply Rule 40 of the Rules of Court (urgent notification of an application) to the present case. Accordingly, the Government were requested to submit factual information by 12 July 2006. | 0 |
train | 001-89287 | ENG | POL | CHAMBER | 2,008 | CASE OF JANULIS v. POLAND | 4 | Violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1974 and lives in Ostróda. 7. The applicant was arrested on 26 March 2002 at 4 p.m. On the same day the Olsztyn District Court (Sąd Rejonowy) remanded the applicant in custody until 26 June 2002 in view of the reasonable suspicion that, together with three other suspects, he had stolen several cars. It also considered that keeping the applicant in detention was necessary given the risk that he might obstruct the proceedings; the court did not, however, state its reasons for taking such a view. It also stressed the severity of the anticipated sentence. 8. The applicant’s appeal against the detention order was unsuccessful, as were his further appeals against decisions extending his detention and his applications for release. His detention was extended on several occasions by the Olsztyn District Court (decisions of 20 May and 23 August 2002, 4 and 14 February 2003 and 14 May 2003) and his appeals against extension were dismissed by the Olsztyn Regional Court (decisions of 26 April 2002, 17 January and 23 May 2003, 6 June 2003 and 16 April 2004). In all these decisions the courts relied on the original grounds given for the applicant’s detention or simply found that the reasons for his continued detention given in their previous decisions “were still relevant”. 9. On 27 September 2002 the first hearing took place. Evidence was heard from the applicant and his co-accused. The applicant behaved in an arrogant and disorderly manner and was expelled from the court room. Consequently, the hearing had to be adjourned and no witness evidence was heard that day. 10. On 14 February 2003 the Olsztyn District Court sentenced the applicant to ten years’ imprisonment. On the same day the Olsztyn District Court extended the applicant’s detention until 14 May 2003. 11. The applicant and two of his co-accused lodged appeals against the firstinstance judgment. 12. On 15 October 2003 the Olsztyn Regional Court heard the appeals, quashed the firstinstance judgment and remitted the case for retrial. 13. In the retrial proceedings the applicant unsuccessfully appealed against further decisions extending his detention. The relevant decisions on extension of his detention were given by the Olsztyn District Court and the Olsztyn Regional Court. The courts again relied on the grounds originally given for the applicant’s detention. They added that there were no circumstances obliging them to release the applicant, with the result that his detention could be continued. In its decision given on 23 January 2004 the Olsztyn Regional Court dismissed the applicant’s appeal against further extension. It relied on the likelihood that a severe penalty would be imposed on the applicant as well as on the reasonable suspicion, justified by the evidence collected in the proceedings before the first-instance court, that the applicant and his co-accused would obstruct the proceedings. The court further found that the proceedings had been conducted without undue delays and that the applicant’s detention had been necessary to secure the proper course of the proceedings, because the court had had to hear evidence from a certain W.K., who had previously been accused in the same set of proceedings. 14. Between 5 February 2004 and 16 July 2004 the District Court held seven hearings during which evidence was heard from eighteen witnesses. 15. Following the retrial, on 16 July 2004, the Olsztyn District Court sentenced the applicant to three years and eight months’ imprisonment. 16. On the same day the applicant was released from detention. 17. The applicant, his co-accused and the prosecutor appealed against the Olsztyn District Court’s judgment, which was upheld by the Olsztyn Regional Court on 15 February 2005. 18. On 24 February 2005 the Court received a letter from the applicant. The envelope bore the following stamp: “Censored on 14 February 2005” (Ocenzurowano dnia 14.02.2005), together with an illegible signature and a stamp affixed by the post office in Ostróda that read: “Envelope taken out of mail box damaged and re-taped. Ostróda, 14 February 2005” (“Przesyłka wyjęta ze skrzynki w stanie uszkodzonym oklejona taśmą. Ostróda 14.02.2005”). 19. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 20. The relevant domestic law concerning the censorship of prisoners’ correspondence 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 | 001-78171 | ENG | RUS | ADMISSIBILITY | 2,006 | DZHARAGETI v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Ms Zhanna Mikhaylovna Dzharageti, is a Russian national who was born in 1965 and lives in Moscow. She was represented before the Court by Ms M. Kuznetsova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, 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. Before 1992 the applicant, a Russian national, lived in Abkhazia, Georgia. On 17 August 1992 the applicant together with her husband and two children (born in 1984 and 1986) left Abkhazia for Russia due to the outbreak of an armed conflict in the region. At first they stayed with the applicant’s mother in the Krasnodar Region, but shortly after that moved to Moscow. They remained registered at her mother’s address. In February 1993 the applicant started to work as a school teacher. The school director requested the municipal authorities to provide the applicant with accommodation. On 11 March 1993 the Chief of the Housing Department of the West Circuit Prefecture of Moscow decided that the applicant should be provided with housing as soon as it would become available. On 7 June 1995 the applicant was temporarily allotted a two-room apartment. The municipal housing service opened a personal account on the applicant’s name for the purpose of billing the communal charges. The applicant moved in with her family, lived there and regularly paid all charges. She applied to the housing authorities to have a social tenancy established in respect of this apartment, but this was refused. In 1997 the residence block, including the applicant’s flat, was placed at the disposal of the Moscow Migration Centre to be converted into dwellings for forced migrants. On 30 May 1997 the Solntsevo District Prosecutor’s Office brought eviction proceedings against the applicant on the grounds that her occupancy was not lawful. On 24 June 1997 the West Circuit Prefecture of Moscow ordered that temporary occupants, including the applicant, vacate the flats. The applicant was advised to apply to the Moscow Migration Service to be provided with free housing. The school administration was also informed that the employment of staff members who were not registered in Moscow was unlawful. In 1997 the applicant was dismissed from her job as a school teacher on the grounds that she had no officially registered address in Moscow. On 9 July 1997 the applicant applied to the migration authorities of the Krasnodar Region to be granted the status of a forced migrant. She indicated that her permanent address was at her mother’s house in the Krasnodar Region. On 17 July 1997 the applicant was granted the status of a forced migrant for the period until 17 July 2002. On 8 April 1998 the applicant applied to the Moscow Migration Service to be registered as a forced migrant. She also applied to the Passport Office of the Interior to be registered at the flat in Moscow as her official address. On 26 May 1998 the Solntsevo District Court of Moscow examined the prosecutor’s eviction claim and rejected it having found that the applicant had had a de facto tenancy contract. This judgment entered into force on 6 June 1998 but was subsequently reversed in supervisory review proceedings. The case was re-examined in two sets of civil proceedings before the final decision was taken on 26 September 2002 (see below). On 22 September 1998 the Passport Office of the Interior authorised the applicant and her children to be temporarily registered at the disputed flat for a period of six months. On 2 November 1998 the Moscow Migration Service advised the applicant that she could not be registered with them as a forced migrant until she cancels her registration with the migration authorities of the Krasnodar Region. On 22 March 1999 the applicant applied to the migration authorities of the Krasnodar Region to have her registration with them annulled and her file to be transferred to the Moscow migration authorities. On 24 March 1999 her request was granted. On 14 May 1999 the applicant was informed that she could not be registered with the Moscow migration authorities because her official address remained in the Krasnodar Region. On 25 April 2000 the applicant reiterated her request for registration as a forced migrant in Moscow, which was refused on 5 May 2000 because the applicant had provided no proof of her of official address in Moscow. The applicant did not challenge the refusal. On 26 September 2002 the Moscow City Court gave the final decision authorising the applicant’s eviction without providing her with substitute housing. It was established in the proceedings that the applicant’s occupancy was not based on social tenancy, as she had never been issued a “residence order” or offered to sign a tenancy contract. The courts also found that the applicant had no status of a forced migrant on the basis of which she could claim social housing. On 18 November 2002 the applicant was served with an eviction order, but she did not comply with it. On 30 April 2004 the municipal service required the applicant to vacate the flat, but she did not do so. In December 2004 the applicant was served with another eviction order, which she again did not comply with. Her eviction has not been enforced and, according to the latest updates, she continues to occupy the flat. On 6 April 2005 the Housing Commission of the Moscow Government decided that the disputed flat should be rented out to the applicant under a common tenancy contract. The applicant was invited to sign the contract and to complete the formalities. The applicant refused to sign the common tenancy contract as it required her to pay rent, supposedly at the market rate which she thought would be too expensive for her. She believed to have been entitled to social housing by virtue of her previous occupancy, due to being a “de facto refugee” and a teacher, and being in need of state support. The parties provided no details of the common tenancy contract offered to the applicant. On 13 January 2006 the applicant received a reminder to settle the tenancy rent, which she refuses to comply with. Article 49 of the Housing Code in force at the material time provided that tenancy in the publicly owned premises could only be validated by a documentary residence order issued by the local executive council. The form of the residence order was adopted by a governmental decree. Article 99 of the same Code provided for eviction of persons occupying premises without due permission. According to Article 6 of the Law on Forced Migrants, dated 19 February 1993, No. 4530-1, persons registered as forced migrants may be provided with temporary accommodation in the specially allocated residence. | 0 |
train | 001-76703 | ENG | TUR | CHAMBER | 2,006 | CASE OF KIR AND OTHERS v. TURKEY | 4 | Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | Peer Lorenzen | 5. The applicants Ms Habibe Kır, Ms Feriştah Çenesiz, Mr Hasan Çenesiz and Ms Fatma Ekiz were born in 1926, 1941, 1951 and 1951 respectively and live in Mersin. 6. On 17 December 1992 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants in Mersin in order to build a motorway. A committee of experts assessed the value of the plots and the relevant amounts were paid to them when the expropriation took place. 7. On 28 December 1994, following the applicants’ requests for increased compensation, the Mersin Civil Court awarded them an additional compensation of 131,387,300 Turkish liras (TRL) plus interest at the statutory rate, applicable at the date of the court’s decision, running from the date of transfer of title deeds of the plots of land. 8. On 14 September 1998 the Court of Cassation upheld the judgment of the Mersin Civil Court. 9. On 22 June 2000 the General Directorate of National Roads and Highways paid the amount of TRL 556,290,000 to the applicants, interest included. 10. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV). | 0 |
train | 001-58034 | ENG | TUR | CHAMBER | 1,997 | CASE OF AKKUŞ v. TURKEY | 2 | Violation of P1-1;Preliminary objection rejected;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Paul Mahoney | 6. In September-October 1987, the National Water Board (Devlet Su isleri), a State body responsible for dam construction, expropriated land belonging to Mrs Akkus and her husband, who died in 1992, in order to build the Altinkaya hydro-electric dam in the Kizilirmak Valley. The land, which was located in the village of Gökdogan (Sinop) had been used for growing rice. It now lies under water. More than 3,000 families (17,000 people in all) were affected by the expropriations resulting from the dam construction scheme. 7. According to the applicant, a scientific study commissioned by the National Water Board and carried out by the Aegean Faculty of Agronomy found the land to be worth between 3,200 and 3,500 Turkish liras (TRL) per square metre whereas the amount paid in 1987 was between TRL 800 and 850. 8. A committee of experts of the National Water Board assessed the value of the applicant’s land at TRL 122,000. That amount was paid to her when the expropriation took place. 9. On 12 October 1987 the applicant lodged an application with the Duragan Court of First Instance for increased compensation and requested that the rate of inflation be taken into account when determining the additional loss. On 22 June 1989 the court awarded her additional compensation of TRL 271,039 and simple default interest at the rate of 30% per annum from 4 September 1987, the date of the expropriation. The total compensation thus came to TRL 393,039. She was also awarded TRL 61,123 for legal costs. 10. The Board appealed to the Court of Cassation on points of law. Mrs Akkus filed a cross-appeal based on Article 105 of the Code of Obligations (see paragraph 14 below), in which she sought a ruling that the basis for calculating the additional loss should be the rate of inflation and not the rate of statutory interest for delay. On 17 September 1990 the Court of Cassation upheld the judgment at first instance. 11. The additional compensation was paid in February 1992, that is to say six months after the application was lodged with the European Commission of Human Rights and approximately seventeen months after the Court of Cassation’s decision. 12. Mrs Akkus now lives with her son-in-law, who provides for her needs. 13. By Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts is 30% per annum. At the material time the average rate of inflation was 70% per annum and the rate of interest for delay payable on debts owed to the State was 7% per month (84% per annum) (section 51 of Law no. 6183 on the Collection of Debts due to the State and Cabinet Ordinance no. 89/14915). 14. Article 105 of the Code of Obligations provides: "Where the loss sustained by the creditor exceeds the interest for late payment and the debtor is unable to show that the creditor has been at fault, it is for the debtor to make good the loss. If the additional loss can be assessed immediately the court may determine the amount when giving its decision on the merits." 15. On 3 June 1991 the Fifth Civil Division of the Court of Cassation, which has jurisdiction in cases concerning compensation for expropriation, ruled as follows: "The way in which creditors are compensated for the late payment of debt is through statutory interest. Since creditors are able, when resorting to enforcement measures, to claim the amount due to them plus interest, they are not entitled to claim any other form of compensation; accordingly, the decision to grant the creditor’s claim, on the basis that the rate of inflation was high, was ill-founded..." 16. On 23 February 1994 (judgment E: 1993/5-600, K: 1994/80) the Court of Cassation, sitting as a full court, ruled as follows: "Law no. 3095 was approved and came into force when inflation in the country was high with rates well over 30%. Notwithstanding that fact, the legislature fixed the rate of interest for delay at 30%. In the present case it would therefore be unlawful to award compound interest at a rate exceeding 30% on the erroneous basis that the rate of interest payable on bank deposits was applicable." | 0 |
train | 001-68381 | ENG | RUS | CHAMBER | 2,005 | CASE OF ISAYEVA v. RUSSIA | 2 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violations of Art. 2;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 9. The applicant was born in 1954 and is a resident of Katyr-Yurt, Achkhoy-Martan district, Chechnya. 10. The facts surrounding the bombardment of Katyr-Yurt and the ensuing investigation were partially disputed. The Court therefore asked the Government to produce copies of the entire investigation file in relation to the bombardment and the civilian casualties. The Court also asked the applicant to produce additional documentary evidence in support of her allegations. 11. The parties' submissions on the facts concerning the circumstances of the attack are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B. 12. In autumn 1999 Russian federal military forces launched operations in Chechnya. In December 1999 rebel fighters (“boyeviki”) were blocked by the advancing federal forces in Grozny, where fierce fighting took place. 13. The applicant submits that at the end of January 2000 a special operation was planned and executed by the federal military commanders in order to entice the rebel forces from Grozny. Within that plan, the fighters were led to believe that a safe exit would be possible out of Grozny towards the mountains in the south of the republic. Money was paid by the fighters to the military for information about the exit and for the safe passage. Late at night on 29 January 2000 the fighters left the besieged city and moved south. They were allowed to leave the city. However, once they had left the city they were caught in minefields and the artillery and air force bombarded them along the route. 14. The applicant referred to the published memoirs of Major-General Viktor Barsukov and to the interview with Major-General Shamanov, the commanders of the operation, concerning its details (see §§ 111-112 below). 15. A significant group of Chechen fighters – ranging from several hundred to four thousand persons - entered the village of Katyr-Yurt early on the morning of 4 February 2000. According to the applicant, the arrival of the fighters in the village was totally unexpected and the villagers were not warned in advance of the ensuing fighting or about safe exit routes. 16. The applicant submitted that the population of Katyr-Yurt at the relevant time was about 25,000 persons, including local residents and internally displaced persons (IDPs) from elsewhere in Chechnya. She also submitted that their village had been declared a “safe zone”, which attracted people fleeing from fighting taking place in other districts of Chechnya. 17. The applicant submitted that the bombing started suddenly in the early hours of 4 February 2000. The applicant and her family hid in the cellar of their house. When the shelling subsided at about 3 p.m. the applicant and her family went outside and saw that other residents of the village were packing their belongings and leaving, because the military had apparently granted safe passage to the village's residents. The applicant and her family, together with their neighbours, entered a Gazel minibus and drove along Ordzhonikidze road, heading out of the village. While they were on the road, the planes reappeared, descended and bombed cars on the road. This occurred at about 3.30 p.m. 18. The applicant's son, Zelimkhan Isayev (aged 23) was hit by shrapnel and died within a few minutes. Three other persons in the vehicle were also wounded. During the same attack the applicant's three nieces were killed: Zarema Batayeva (aged 15), Kheda Batayeva (aged 13) and Marem (also spelled Maryem) Batayeva (aged 6). The applicant also submitted that her nephew, Zaur Batayev, was wounded on that day and became handicapped as a result. 19. The applicant submitted that the bombardment was indiscriminate and that the military used heavy and indiscriminate weapons, such as heavy aviation bombs and multiple rocket launchers. In total, the applicant submits that over 150 people were killed in the village during the bombing, many of whom were displaced persons from elsewhere in Chechnya. 20. The applicant and the wounded members of her family were later taken by a relative to the town of Achkhoy-Martan. They were afraid to return to Katyr-Yurt, and had to bury the applicant's son in Achkhoy-Martan. 21. The applicant claims that when they were allowed to return to the village some time later, she found her house looted and destroyed. Their car was burnt in the garage. 22. The applicant stated that no safe exit routes had been provided for the village residents before or after the bombardment started. Those who managed to get out under fire and reach the military road-block were detained there for some time. 23. According to the Government, at the beginning of February 2000 a large group of Chechen fighters, headed by the field commander Gelayev and numbering over 1,000 persons forced their way south after leaving Grozny. On the night of 4 February 2000 they captured Katyr-Yurt. The fighters were well-trained and equipped with various large-calibre firearms, grenade- and mine-launchers, snipers' guns and armoured vehicles. Some of the population of Katyr-Yurt had already left by that time, whilst others were hiding in their houses. The fighters seized stone and brick houses in the village and converted them into fortified defence points. The fighters used the population of Katyr-Yurt as a human shield. 24. Early in the morning of 4 February 2000 a detachment of special forces from the Ministry of the Interior was ordered to enter Katyr-Yurt because information had been received about the fighters' presence in the village. The detachment entered the village, but after passing the second line of houses they were attacked by the fighters, who offered fierce resistance using all kinds of weapons. The unit sustained casualties and had to return to its positions. 25. The federal troops gave the fighters an opportunity to surrender, which they rejected. A safe passage was offered to the residents of Katyr-Yurt. In order to convey the information about safe exit routes, the military authorities informed the head of the village administration. They also used a mobile broadcasting station which entered the village and a Mi-8 helicopter equipped with loudspeakers. In order to ensure order amongst the civilians leaving the village, two roadblocks were established at the exits from the village. However, the fighters prevented many people from leaving the village. 26. Once the residents had left, the federal forces called on the air force and the artillery to strike at the village. The designation of targets was based on incoming intelligence information. The military operation lasted until 6 February 2000. The Government submitted that some residents remained in Katyr-Yurt because the fighters did not allow them to leave. This led to significant civilian casualties - 46 civilians were killed, including Zelimkhan Isayeb, Zarema Batayeva, Kheda Batayeva and Marem Batayeva , and 53 were wounded. 27. According to the Government's observations on the admissibility of the complaint, 53 federal servicemen were killed and over 200 were wounded during the assault on Katyr-Yurt. The Government also submitted that, as a result of the military operation, over 180 fighters were killed and over 240 injured. No information about combatant casualties on either side was contained in their observations on the merits. The criminal investigation file reviewed by the Court similarly contains no information on non-civilian casualties. 28. The events at the beginning of February 2000 were reported in the Russian and international media and in NGO reports. Some of the reports spoke of serious civilian casualties in Katyr-Yurt and other villages during the military operation at the end of January - beginning of February 2000. 29. On 5 April 2000 the civil registration office in Achkhoy-Martan, Chechnya, issued death certificate no. 273 certifying the death of Zelimkhan Isayev, aged 23, on 4 February 2000 in Achkhoy-Martan from numerous shrapnel wounds to the chest and heart area. On 12 April 2000 the registration office issued the following death certificates: no. 312, for Zarema Batayeva, who had died on 4 February 2000 in Achkhoy-Martan from shrapnel wounds to the body, face and right hip; no. 314, for Kheda Batayeva, who had died on 4 February 2000 in Achkhoy-Martan from shrapnel wounds to the body, face and right hip; no. 315 for Maryem Batayeva, who had died on 4 February 2000 in Achkhoy-Martan from numerous shrapnel wounds to the head and body. 30. On 24 August 2002 the military prosecutor of military unit no. 20102 replied to the NGO Memorial's enquiry about a criminal investigation. The letter stated that a prosecutor's review had been conducted following the publication on 21 February 2000 in the Novaya Gazeta newspaper of article entitled “167 Civilians Dead in Chechen Village of Katyr-Yurt”. The review established that between 3 and 7 February 2000 a special military operation aimed at the destruction of illegal armed groups had taken place in Katyr-Yurt. The Western Alignment of the army and the interior troops had performed the operation according to a previously prepared plan: the village had been blocked and civilians had been allowed to leave through a corridor. The command corps of the operation had assisted the villagers to leave the village and to remove their possessions. Once the commanders were certain that the civilians had left the village, missiles had been deployed against Katyr-Yurt. Other means had also been employed to destroy the fighters. No civilians had been harmed as a result of the operation, as confirmed by the commandant of the security area of the Urus-Martan district. On the basis of the above, on 1 April 2000 the prosecutors refused to open an investigation into the alleged deaths of civilians due to the absence of corpus delicti. The criminal investigation file reviewed by the Court contained no reference to this set of proceedings. 31. The Government submitted initially that the Russian law-enforcement bodies were not aware of the events described in the applicant's submissions to the Court prior to the communication of the complaint in June 2000. After that communication, the prosecutor's office in the Achkhoy-Martan District, Chechnya, carried out a preliminary investigation and on 14 September 2000 instituted criminal proceedings under Article 105 (2) (a) and (f) of the Criminal Code, i.e. the murder of two or more persons by a generally dangerous method. 32. In their further submissions the Government informed the Court that on 16 September 2000 a local prosecutor's office in Katyr-Yurt, acting on complaints from individuals, had opened criminal case no. 14/00/0003-01 to investigate the deaths of several persons from a rocket strike in the vicinity of the village. The case concerned the attack on the Gazel minibus on 4 February 2000, as a result of which three civilians died and two others were wounded. In December 2000 the case file was forwarded to the office of the military prosecutor in military unit no. 20102. Later in 2001 the case-file was transferred for investigation to the military prosecutor of the Northern Caucasus Military Circuit in Rostov-on-Don. 33. The investigation confirmed the fact of the bombing of the village and the attack on the Gazel minivan, which led to the deaths of the applicant's son and three nieces and the wounding of her relatives. It identified and questioned several dozen witnesses and other victims of the assault on the village. The investigation identified 46 civilians who had died as a result of the strikes and 53 who had been wounded. In relation to this, several dozen persons were granted victim status and recognized as civil plaintiffs. The investigators also questioned military officers of various ranks, including the commanders of the operation, about the details of the operation and the use of combat weapons. The servicemen who were questioned as witnesses gave evidence about the details of the operation's planning and conduct. No charges were brought (see Part B below for a description of the documents in the investigation file). 34. The investigation also checked whether the victims had been among the insurgents or if members of the unlawful armed groups had been implicated in the killings. 35. On 13 March 2002 the investigation was closed due to a lack of corpus delicti. On the same day the military prosecutor in charge of the case informed the Head of the Government of Chechnya about the closure of the procedure, appended a list of victims (including the applicant) and asked the Government to take appropriate steps to locate the applicant and other victims and to inform them about the closure of the case and of the possibility to appeal. The list consisted only of the victims' names and contained no other data relevant to their identification and location. The letter also stated that the victims could pursue separate civil remedies. 36. On 12 December 2002 Major-General Yakov Nedobitko, the commander of the operation in the Katyr-Yurt, appealed the decision of 13 March 2002. He contested the reasons for closing the investigation. On 6 March 2003 the Bataysk Garrison Military Court rejected his appeal and confirmed the decision of 13 March 2002. 37. The parties submitted numerous documents concerning the investigation into the attack. The main documents of relevance are as follows: 38. The Government submitted a copy of the investigation file in criminal case no. 14/00/004-01, comprising six volumes. On the basis of the documents submitted, it appears that the investigation made substantial efforts during 2001 to put together an account of the attack complained of by the applicant. The applicant and her relatives were questioned and granted victim status. The investigators questioned several dozen local residents and granted victim status to 62 of them. Civilian and military witnesses were asked to indicate on the map of Katyr-Yurt the locations to which they referred. Considerable data were obtained from the servicemen involved in the planning and conduct of the operation. The investigators questioned the commanders of the operation and servicemen of lower ranks. 39. Certain documents obtained from the military and the evidence of some servicemen were not disclosed to the Court. In the second volume, which consisted of 89 documents, 49 were not disclosed. In the fifth volume, which contained 105 documents, 56 were not disclosed. In the sixth volume, 20 out of 213 documents were not disclosed. The Government produced a list of documents that were exempted from the case file submitted to the Court and explained their non-disclosure on the grounds of national security. 40. The principal documents contained in the file are as follows: 41. On 16 September 2000 an investigator of the Achkhoy-Martan District Prosecutor's Office opened a criminal investigation into the killing of the applicant's relatives. On 23 November 2000 the criminal case was forwarded to military unit no. 20102 for investigation. On 15 December 2000 a military investigator accepted the case for investigation and on 6 January 2001 he issued a decision to close the investigation on the ground of a lack of corpus delicti in the actions of the military pilots. On 30 January 2001 this decision was quashed by a military prosecutor of military unit no. 20102. On 19 February 2001 the case was accepted for investigation by an investigator of the North Caucasus Military Prosecutor's Office in Rostov-on-Don, who conducted a further investigation. 42. In October and November 2000 the investigators of the Achkhoy-Martan District Prosecutor's Office questioned the applicant, her husband and several other passengers of the Gazel minibus. The applicant, questioned on 15 November 2000, testified that on 4 February 2000 the village came under attack from federal aviation from early morning. In the afternoon the applicant and her family learnt of a “humanitarian corridor” that would be opened for civilians. At around 4 p.m. she left the house at 15 Oktyabrskaya Street with her son Zelimkhan and daughter Leyla. They took their seats in a blue Gazel minibus, driven by its owner, their relative Dzhabrail Bitiyev. There were about 28 people in the bus, including her husband's sister Petimat Batayeva and her three daughters Zarema (born in 1984), Kheda (born in 1987) and Marem (born in 1993). The applicant recalled that the bus was driving along the street towards Achkhoy-Martan. As they were leaving the village and approaching the military roadblock, an aviation bomb exploded nearby. The blast deafened the applicant and threw most of the passengers out of the bus, but she remained inside. All the windows of the Gazel were shattered and the back and side doors were torn away. The applicant did not remember subsequent events very clearly, except that she was taken in the same minibus to the Achkhoy-Martan hospital, where she learnt that her son Zelimkhan Isayev, Kheda Batayeva and Marem Batayeva had been killed on the spot. Zarema Batayeva died in the Achkoy-Martan hospital the next morning. Several of the Gazel's other passengers were wounded. On 2 October 2000 the applicant was granted victim status in the criminal proceedings. 43. At an additional interview on 3 March 2001, conducted by an investigator from the North Caucasus Military Prosecutor's Office, the applicant specified that there had been 26 adults and two babies in the minibus. She indicated the sitting plan within the vehicle. She further specified that the explosion occurred when the bus had been driving along Ordzhonikidze Street towards the exit of the village, about 500 metres before the roadblock. The applicant submitted that she was looking up through a sunroof and saw two planes, which had dropped bombs on parachutes. The applicant called them “flare bombs”. She could not determine where exactly the explosions had occurred. She described her son's wounds and indicated them on a body scheme. The investigators collected the sweater which her son had been wearing on the day of the attack. 44. The applicant's husband, who was travelling in another car, confirmed in an interview that his wife and daughter had been wounded as a result of the explosion near the minibus and that his son Zelimkhan had been killed. They returned to Katyr-Yurt only three months later and found their house destroyed, and all property and household items gone. Their son's car, a Renault 19, was found burnt in the garage. On 20 February 2000 the administration of Katyr-Yurt issued a certificate to the applicant that their house at Oktyabrskaya Street had been destroyed beyond repair. 45. The other passengers in the minibus gave evidence about the circumstances of the attack. Zura B. testified that on 4 February 2000 she saw military planes over the village at about 9 a.m. and heard explosions near the mosque. She ran into her neighbours' cellar, where some people were already hiding. At about 3 p.m. her nephew Zelimkhan Isayev ran into the house and said that the military had opened a corridor for villagers and that many cars had already lined up in Ordzhonikidze Street to leave for Achkhoy-Martan. With other people, she got into the minibus in the courtyard of the house at 15 Oktyabrskaya Street at about 3.30 p.m. While the vehicle was travelling along Melnichnaya Street, she saw a bomb dropped from a plane on a parachute. The explosion was somewhere near the bus, and she was thrown out of the vehicle. At first she lost consciousness, and when she regained consciousness she went into a nearby house. A male relative brought in Zelimkhan, who was bleeding. Then there was another explosion, and they decided to leave with the bus. When they came out to the road, they found Zarema Batayeva who was wounded but still alive. At that stage they did not find Kheda and Marem Batayeva, whose bodies were identified later. Zura B. was admitted to the Achkhoy-Martan hospital with light shrapnel wounds. In the morning on 5 February 2000 Zarema Batayeva died in the hospital. Zaur Batayev was also treated there for a wound in the abdomen area. Four other passengers received shrapnel wounds and burns. On the following day she saw the dead in the mosque, and identified the bodies of Kheda and Marem Batayeva by the remains of their clothing. Their bodies were so badly burned and disfigured that they were not shown to the parents. When asked if she had seen the fighters, she said that at about 2 p.m. on 4 February she was running from one cellar to another and saw a group of 8-10 armed men with beards and headbands in the gardens in Pervomayskaya Street. 46. Akhmadi I. testified that that when the minibus was driving along Melnichnaya Street, nearing the crossroads with Ordzhonikidze Street, he saw a fireball flying towards the vehicle from the sky. At that moment Dzhabrail Bitiyev, the driver, braked because the car behind had started to hoot, and he opened the door to look back. Akhmadi shouted to him to move forward, but at that moment three explosions occurred. He could not say on which side of the bus they occurred. When he got out of the bus he saw Zelimkhan Isayev lying on the ground and took him into a nearby house. When they brought him to the hospital in Achkhoy-Martan, the doctor looked at him and said that he was dead. 47. Yakhita B. testified that the attack on the village started at about 8 a.m. on 4 February 2000. She hid in her neighbours' cellar, because her own family's was not solid enough. Only women and children were in the cellar, the men remained outside. At about 2 p.m. there was a lull in the bombardment and they ran to another cellar because cracks had appeared in the walls of their initial hiding place. The bombardment resumed. Then the door opened and Zelimkhan Isayev told them to get out and leave quickly, because the military had opened a “humanitarian corridor”. She recalled the circumstances of the attack and that there were two explosions within three or four minutes of each other. 48. Elza I., the applicant's niece, testified that early in the morning of 4 February 2000 she looked outside and saw a lot of armed men in the street. Her family was hiding in a cellar. At about 3 p.m. her cousin Zelimkhan came in and told them to leave, because the military had provided a corridor for exit to Achkhoy-Martan. They got into the Gazel bus, which was full to bursting point. She was in the centre of the bus. After the first explosion she ran away with her brother towards the roadblock and did not return to the vehicle. She confirmed Zelimkhan Isayev's death. Her brother Murat, who was also questioned, confirmed her statement. 49. In March 2001 the investigators, together with one passenger from the Gazel minibus, examined the site of the explosion and took photographs. The place was identified as being on Melnichnaya Street, approximately 150 metres before the crossing with Ordzhonikidze Street. 50. On 10 October 2000 the investigator of the Achkhoy-Martan District Prosecutor's Office questioned the head of administration of Katyr-Yurt. He testified that early in the morning on 4 February 2000 a large group of fighters, numbering several hundred persons, entered the village. The elders asked them to leave in order to save the village, but they proceeded to fortify their defence positions. At about 11 a.m. on 4 February the federal aviation forces started to bomb the village. The strikes continued until 7 February 2000. Many civilians and fighters were killed as a result. 51. The investigators questioned over 50 local residents, who gave evidence about the fighters' arrival in the village, hiding in the cellars from the bombardment, the circumstances of the attacks, the death and injury of family members and destruction of their houses. The investigators also collected copies of the witnesses' personal documents, medical documents and death certificates. 62 persons were granted victim status. 52. Tamara D. testified that on 4 February 2000 she, along with her four children, was hiding in a cellar from the bombardment. In the morning she came out briefly and saw a helicopter near the school, about 300 metres from her home. She heard something being said through loudspeakers, but could not make out the words because it was too far and there were explosions around. At about 4.30 p.m. a neighbour ran into her cellar and said that women and children would be allowed to leave the village. She grabbed the smaller children and ran towards Achkhoy-Martan. When she was near Ordzhonikdze Street she saw planes and then there was an explosion. Her elder son, who had been about 50 metres behind, was killed by shrapnel. 53. Alkha D., who lived in the centre of the village not far from the mosque, testified that at 6 a.m. on 4 February 2000 he was woken up by a knock on the gates. He went outside and saw the whole street filled with armed people. A group entered his house, and he had no choice but to allow them in. The fighters told him that they belonged to groups headed by field commanders Gelayev and Abu Movsayev. They also told him that there were about 4,000 of them and that they had passed from Shaami-Yurt along the riverbed into Katyr-Yurt. They said that they would stay for one day and then leave. Once the aviation strikes started, they all went into the cellar of the witness's home, together with about 12 of his relatives. The attacks continued all day. Early next day a truck came to the neighbours' house and the residents all got inside, with the exception of the witness's brother, for whom there was no room. As their car was leaving the village, there were a lot of people in front of them at the roadblock. Mr D. saw a helicopter landing about 300 metres away and some officers in camouflage got out. Later he was told that it was General Shamanov and that he had scolded his subordinates for allowing the people out of the village. He found his brother's body, with shrapnel wounds, after they were allowed to return to the village. 54. Eysa T. testified that as of 2 February 2000 the military encircled the village and allowed people to enter, but not to leave. The roadblock on the road towards Achkhoy-Martan prevented movement and was fortified with army armoured personnel carriers (APCs). He knew that General Shamanov, who was the commander of the operation, came to the village on 4 or 5 February in a helicopter, and that apparently he gave an order “not to let anyone out of the village”. The witness left the village, on foot and under fire, on the afternoon of 4 February. His son was wounded by shrapnel and died four days later in a hospital in Ingushetia. He testified to having seen large bombs, about three metres long, dropped on parachutes from planes. 55. Khasi V. testified that on 4 February 2000 their neighbourhood at the edge of the village was shelled. The witness and his family went into the cellar of his cousin's house. It was a new house with a big cellar, and about 100 people gathered there. At about midday a bomb broke through the ceiling and exploded, killing nine people and wounding others. The witness's brother was among those killed. They crossed to another cellar and waited there until 5 February. On that day they went on foot to Achkhoy-Martan. When passing the building of the school at the edge of the village the witness saw General Shamanov, who arrived in a helicopter and ordered that people should not be allowed to leave. The Interior Ministry forces did not, however, close the roadblock. Several other witnesses who had been hiding in the same big cellar at 4 Chkalova Lane confirmed his statements as to the bombardment and the killing of nine people. 56. Suleyman D. submitted that early in the morning of 4 February 2000 he had heard noise from outside. When he looked out he saw many armed fighters walking along the street. At about 9 a.m. the bombing started and his part of the village, which was near the centre, came under heavy fire. The witness and his family went into the cellar, while his father remained outside to look after the cattle. At about 9.30 a.m. a bomb with a parachute exploded in the courtyard. It left a crater about four metres wide. His father, who was in the stables, was killed by shrapnel. The village was shelled throughout the day by aviation, helicopters, tanks and mine-launchers. The witness also identified Grad multiple rocket-launcher systems because of the sound they make. On 5 February 2000 the witness and his family went to Achkhoy-Martan. He saw a helicopter landing near school no. 2 on the edge of the village and heard General Shamanov saying that they had themselves to blame and that there should have been no corridor. He returned to the village on 8 February and buried his father in the village cemetery. 57. Tumisha A. stated that early in the morning of 4 February she had gone outside to get some water and saw armed people in the centre of the village. They were wearing camouflage and military gear and the men were bearded. There were also a few women. They asked her the name of the village. She asked them why they had come, and they said that they would leave, but not before daybreak. They looked exhausted and had wet feet. About 15 IDPs from other places were staying in the witness's home. Once the bombing started, they went into the cellar. The assault continued all day without a break. At about 4 p.m. they decided to leave, and drove along the road towards Achkhoy-Martan. They were not aware of the humanitarian corridor. When they were nearing the edge of the village, a rocket fired from a plane hit the Volga car in front of theirs and killed six people inside – these were IDPs from Zakan-Yurt who had spent the night in her house. She did not know their names. The witness managed to reach Achkhoy-Martan that day. When she returned to Katyr-Yurt on 8 February 2000 she discovered that a rocket had entered the cellar of their house and killed her husband. 58. Marusa A. testified that on 4 February 2000 she was in a cellar with her neighbours. At about 1 a.m. on 5 February her son went upstairs to fetch them some food from the house. At that moment several explosions occurred in the courtyard, and in the morning they found her son's body with numerous shrapnel wounds. On 5 February they went toward the exit from the village, leading to the village of Valerik, but were not allowed to pass through the roadblock. The shelling was too heavy to return home, and they remained in a cellar in a house on the edge of Katyr-Yurt for three days. She had not been aware of a humanitarian corridor. 59. Roza D. testified that their house on the edge of the village was bombed on the morning of 4 February 2000. The first explosion occurred in her courtyard and wounded her two year old son, who died of his wounds early in the morning on 6 February. She remained in a cellar until 6 February, when she, with some other people, attempted to leave for Valerik. However, the roadblock was closed and the soldiers told them that they had an order from General Shamanov not to let anyone out. They remained in the cellar of an unfinished house on the edge of the village, near the exit to Valerik, for one more day, and on 8 February she returned home. 60. Makhmud S. testified that on 5 February 2000 he talked to four fighters. He asked them how they had been able to get into the village when it was blocked by the military on all sides. They replied that they had entered without any problems and were planning to leave. He did not see any dead fighters and presumed that they had escaped into the mountains. 61. Yelizaveta T. testified that her house was on the southern edge of Katyr-Yurt. On 4 February 2000 bombing suddenly started. She went into the cellar with her family. The next day at about 9 a.m., a group of around 100 federal soldiers dressed in green camouflage entered their courtyard. They checked the family's documents and left. Then other members of the military came, wearing grey camouflage with black berets. They also checked the family's documents. The whole family was brought by soldiers to a house at the edge of the village, near the tanks. There were already six families in that house. They were kept there for five days, then the military left and they returned home. The witness stated that they had been kept as hostages and that the military threatened to shoot her two nephews. 62. All the residents questioned refused to allow their relatives' bodies to be exhumed. They also stated that they and their relatives had nothing to do with the fighters. 63. The investigation requested information from the Achkhoy-Martan hospital about the wounded who had been treated on 4 February 2000 and over the following days. In November 2000 the hospital confirmed that on 4 February 2000 three passengers from the Gazel minibus were treated in the hospital for shrapnel wounds. No detailed records had been kept for that period because of a massive influx of patients. A nurse at the hospital, who was questioned on 23 November 2000, stated that on 4 February 2000 a large number of wounded were brought to the hospital, most of them with shrapnel wounds. They told her that they were from Katyr-Yurt and that they had been attacked by aviation bombs. There were so many wounded that the hospital personnel were unable to keep records. 64. The hospital authorities also submitted to the investigators copies of the medical death certificates issued to the residents of Katyr-Yurt in relation to the attack. 65. In February 2002 a military forensic laboratory, at the investigator's request, produced eight reports based on the medical files from the Achkhoy-Martan district hospital. The reports concluded that the wounds – shrapnel wounds and concussion – could have been received in the circumstances described by the victims, i.e. during an attack at the village. 66. On 8 October 2001 the investigation questioned Major-General Vladimir Shamanov, who at the material time had headed the operations centre (OC) of the Western Zone Alignment in Chechnya, which had included the Achkhoy-Martan district. He stated that his main aim had been to restore constitutional order in the western districts of Chechnya by disarming the illegal armed groups and, if they offered resistance, by eliminating them, i.e. conducting the military stage of the counter-terrorist operation. Units of the Ministry of Defence, Ministry of the Interior, Ministry of Justice and the Federal Security Service were under his operational command. The OC issued operation orders. The special operation for the liberation of Katyr-Yurt was part of a broader action, based on the operation order issued by the OC in the last ten days of January 2000. 67. The situation in his zone of responsibility was very difficult in February 2000, because large groups of bandits had escaped from Grozny and were breaking southward. They were occupying villages along the way and fiercely opposing federal troops. Among the fighters were many mercenaries, including Arabs and Africans. 68. In January – February 2000 the federal forces were conducting identity checks in the villages of the Western Zone, including Alkhan-Kala, Shaami-Yurt and others. The command corps warned the heads of local administrations about the need to inform the federal forces of the arrival of fighters and of the need to prevent their entry. This information was also conveyed to the head of the Katyr-Yurt administration, who had personally assured the military commandant of the Achkhoy-Martan district that there had been no fighters in the village. However, reconnaissance information was received to the effect that groups under Gelayev's command, numbering 500-600 persons, were slipping into the village. In order to prevent their concentration in the village, Katyr-Yurt was blocked by a division of interior troops under the command of Major-General Nedobitko and other units. Nedobitko was ordered to conduct a special operation – an identity check - in Katyr-Yurt, and to locate and disarm members of illegal armed groups. The head of administration was informed that a special operation would be conducted, but he asked that it be postponed, and in the end it was postponed for one day. 69. On the morning of the day on which the operation started (Mr Shamanov could not recall the exact date) the fighters had attacked the federal forces. They were well-equipped and armed with automatic weapons, grenade-launchers and fire-launchers, and used trucks armoured with metal sheets. He stated: “Realising that the identity check in the village could not be conducted by conventional means without entailing heavy losses among the contingent, Nedobitko, absolutely correctly from a military point of view, decided to employ army aviation and ground attack air forces, artillery and mine-launchers against the fortified positions of the fighters entrenched in the village. Failure to employ these firm and drastic measures in respect of the fighters would have entailed unreasonably high losses among the federal forces in conducting the special operation and a failure to accomplish the operative task in the present case. All this would have demonstrated impotence on the part of the federal authorities, would have called into question the successful completion of the counter-terrorist operation and the reinstatement of constitutional order in Chechnya. Failure to accomplish these tasks would threaten the security of the Russian Federation. Besides, our indecisiveness would have attracted new supporters to the illegal armed groups, who had adopted a wait-and-see attitude at the relevant time. This would have indefinitely extended the duration of the counter-terrorist operation and would have entailed further losses among the federal forces and even higher civilian casualties.” 70. He stated that the fire-power employed had been directed at the fighters' positions “on the edges of the village and in its centre, near the mosque”. Civilians were allowed to leave the village. The fighters were offered surrender, with a guarantee of personal safety, which they refused. They thus used the villagers as a human shield, entailing high civilian casualties. 71. In his opinion, the population of Katyr-Yurt should have prevented the fighters' entry into the village. Had they done so, as had happened earlier in the village of Shalazhi, there would have been no need to conduct such a “severe mopping-up operation” and to deploy aviation and artillery, and thus the unfortunate civilian losses could have been avoided. The losses among fighters, in his estimation, were about 150 persons. The rest escaped from the village at night, under cover of thick fog. 72. He was asked what measures were taken to ensure maximum security of the civilians during the operation in Katyr-Yurt. In response, Mr Shamanov responded that Nedobitko used a Mi-8 helicopter equipped with loudspeakers to inform civilians about the safe exit routes he had established. 73. He was also asked, with reference to the statements by local residents, if, when he had arrived by helicopter at the roadblock near Katyr-Yurt, he had ordered soldiers to prevent civilians leaving the village. Mr Shamanov responded that he had given no such orders, and that the exit was in fact organised by the federal troops under his command. He stated that during his visit he berated the head of the village administration for allowing the situation to deteriorate to such an extent that it had become necessary to involve aviation and artillery. That dialogue could have been understood by those present in a perverse way. 74. On 26 October 2001 the investigator questioned Major-General Yakov Nedobitko, who had headed the operation in Katyr-Yurt. He testified that at the relevant time he had headed a division of Interior Ministry troops which belonged to the Western Zone Alignment, headed by Major-General Vladimir Shamanov. The situation in the zone of their responsibility in early February 2000 was very difficult, because large groups of fighters were trying to break through from Grozny, via the plain, to mountains in the south of Chechnya. At the end of January 2000 the OC of the Western Zone Alignment issued an operation order to destroy these groups before they joined up with their supporters in the mountains. He further stated: “From Shamanov I learnt that a large group of fighters, having escaped from Lermontov-Yurt, had entered Katyr-Yurt. Shamanov ordered me to conduct a special operation in Katyr-Yurt in order to detect and destroy the fighters. I drew up a plan of the special operation, which defined units of isolation, units of search, rules of fire in case of enemy fire, positions of ... roadblocks... Two roadblocks were envisaged – one at the exit towards Achkhoy-Martan, another – towards Valerik. ... The involvement of aviation was foreseen should the situation deteriorate. The artillery actions were planned ... in advance in order to target the possible bandit groups' retreat routes and the lines of arrival of reserves to assist the besieged groups. The artillery were only to be involved in the event of enemy fire against the search groups. This plan was drawn up the night before the operation. On the evening of the same day Shamanov called me to the command headquarters of the Western Zone to discuss the details of the operation. We foresaw the presence of refugees and fighters, and planned to check documents. Early in the morning on the following day I was returning to our position with two APCs. On the eastern side of the village, towards Valerik, there had been an exchange of fire. An Ural truck was on fire, three dead bodies lay on the ground and there were a few wounded. These were OMON [special police force units] from Udmurtia. We were also attacked from the village. We descended and fired back. Then, under cover of the APCs, we moved south toward our command point. I immediately informed Shamanov about the deterioration in the situation. He authorised me to conduct the special operation in accordance with my plan. Colonel R., commander of ... regiment, informed me that he had met with the head of administration of Katyr-Yurt, who stated that there were no fighters in the village, just a small 'stray' group who had had a skirmish with OMON forces. I did not know the number of fighters in the village, so I ordered that the search be carried out by previously determined groups of special forces from the interior troops, without artillery or aviation support. If there were few fighters, they could be destroyed by the search groups. If their number was substantial, they could be destroyed by tanks shooting directly at specific points, i.e. by pinpoint attacks. And if it was a very big bandit grouping, then it would be impossible to avoid the use of artillery and aviation, because otherwise the personnel losses would be too high. The search groups moved out ... they were attacked... and I ordered them to retreat. One group could not withdraw... Realising that the use of artillery and aviation could not be avoided, I ordered colonel R. to organise evacuation of the civilians from the village, which he did through the head of the village administration. For that purpose colonel R. used a vehicle equipped with loudspeakers, through which he was able to inform the population of the houses on the edge of the village about the need to leave. The civilians were leaving the village through the pre-established roadblocks.” 75. Major-General Nedobitko then proceeded to describe in detail the fighting on the first and second day of the operation. On the first day the army used artillery, tanks and a mine-launcher. The aviation attack was coordinated by a forward air-controller, who was positioned at the command centre and took directions from Mr Nedobitko, who relied on information received from the special forces of the interior troops. When asked if his troops had prevented civilians from leaving through the eastern roadblock, he replied that he did not prevent it, but that the main exit route was through the checkpoint at the western side, i.e. towards Achkhoy-Martan. At that checkpoint, servicemen from the Federal Security Service and the Ministry of Interior checked those leaving the village for possible involvement in the illegal armed groups. 76. The investigator asked what might have been different had the village administration informed the federal forces that the group of fighters in the village was very large. The Major-General responded that he would have allowed the civilians to leave through both roadblocks, as had been done in Shaami-Yurt. But once one of his search groups was trapped in the village and had sustained casualties, he could not abandon them and had to do everything possible to save them. Civilian victims were unavoidable. Mr Nedobitko was not aware of the exact number of casualties sustained by the federal forces or by the fighters during the operation. 77. On 23 November 2001 the investigators questioned colonel R., who at the material time had headed a regiment of the internal troops involved in the operation. He stated that in early February 2000 his regiment was stationed outside Katyr-Yurt. At about 8 a.m. on 4 February 2000 OMON servicemen from Udmurtia, who had been stationed in the village school, arrived at his unit and reported fighting in Katyr-Yurt. They brought with them several wounded and explained that their vehicle, carrying a change of personnel to man a roadblock, had been attacked by fighters in Katyr-Yurt and that more fighters, allegedly over 1,000 in number, had attacked their base in the school and forced them to withdraw. The colonel reported this information to the commander of the division, Major-General Nedobitko. The latter contacted the head of the village administration who conceded that about 1,000 fighters had entered the village and that they would stay there for a couple of days and then leave. At about 6 p.m. on the same day additional army units arrived in Katyr-Yurt. On that first day no aviation or artillery strikes were carried out. On the second day the village was blocked and a reconnaissance group was sent into the village, but it was attacked. Then the civilians started to leave en masse. A vehicle equipped with loudspeakers was installed at one of the roadblocks and information about the safe exit was given to the head of the village administration. Most people left the village along the road towards Achkhoy-Martan. Colonel R. also stated that, in his opinion, the village administration could have either prevented the entry of the fighters into the village, or could at least have notified the military of their arrival at an early stage. This would have allowed the military to be more precise in their attacks and would have prevented civilian casualties. 78. On 29 October 2001 the investigation questioned colonel S., head of a unit of the internal troops who reported directly to Major-General Nedobitko. He testified that the illegal armed groups led by field commanders Gelayev, Basayev, Khattab and others, had left Grozny on 30 January 2000. On 3 February 2000 he received an order from Nedobitko to search the village of Katyr-Yurt for fighters, disarm them, and in the event of resistance, to destroy them. He further submitted that he had had information that a group of about 1,500 fighters was supposed to have entered Katyr-Yurt after escaping from Shaami-Yurt. However, the OMON unit from Udmurtia, stationed in Katyr-Yurt, refuted this information. Early in the morning of 4 February 2000 his unit entered the village from the south-western side. They encountered two civilian families, whom they evacuated from their homes towards the rear, and did not meet any other civilians after that. At about 7.20 a.m. one of their groups was attacked. They immediately informed Nedobitko, who at 8 a.m. ordered them to retreat. They captured one fighter who told them that there were over 2,000 fighters in the village, headed by Gelayev, Khattab and Basayev. At 9 a.m. fighter jets arrived and started bombing the village. Soon they were joined by artillery. On that day they did not attempt to enter the village again. On 5 February there was some heavy fighting, and on 6 February they conducted the “mopping-up” operation without meeting any resistance. When asked about casualties, colonel S. responded that his unit had lost seven men and 15 had been wounded. He could not specify the overall losses among the fighters, but his unit had found about 80 bodies, and his overall estimation of the number of fighters destroyed by his unit was 386. He submitted that he did not see any civilian bodies among the dead, all of whom had been dressed in military and camouflage gear. 79. Several of the OMON servicemen from Udmurtia were questioned. They testified that from December 1999 – March 2000 their unit of about 30 servicemen was deployed in Katyr-Yurt and in the village of Valerik, situated about 1.5 kilometres to the south-east of Katyr-Yurt. They were stationed in the school building in Katyr-Yurt. Serviceman N. estimated the population of Katyr-Yurt at the beginning of February 2000 at about 18,000 people. He stated that he had been on duty at the roadblock in Valerik from the morning of 3 February 2000. He and his colleagues were informed by a senior police officer that they could expect some southbound movement of fighters from Grozny and that the fighters might pass through Valerik or Katyr-Yurt. On the morning on 4 February 2000 no replacement personnel came to the roadblock because the fighters had attacked Katyr-Yurt and the servicemen who were supposed to replace his team had been attacked. 80. Serviceman G. from the same unit testified that between 7 and 8 a.m. on 4 February 2000 their car was shot at as they were going to replace their colleagues at the roadblock in Valerik. Three servicemen were killed and four were wounded. He immediately informed his superiors of the incident by radio. About one and a half hours later the air force and artillery attacks began. He was not aware of any measures to inform the population about the safe exit routes, but stated that this period – one and a half hours - was available for them to leave. He further confirmed the arrival of Major-General Shamanov to visit the positions of the federal forces early in the morning of 6 February 2000. The latter did not prevent civilians from leaving; on the contrary, he ordered the soldiers to establish check-points at the exits from the village and to let out women, children and the elderly. On his orders, the OMON forces organised a “filtration point” where they checked young men leaving of the village. 81. Colonel V. from the Rostov-on-Don interior troops testified about his participation in the operation in Katyr-Yurt. He stated that he was on mission in Chechnya at the relevant time. He did not recall the details of the operation, except that there had been some fierce fighting. The investigator quoted to him the operation record book, where the officer on duty recorded Colonel V.'s report, made at 12.15 p.m. on 4 February 2000, stating that he had seen people with a white flag in his sector of responsibility. Colonel V. stated that his memory was impaired by head traumas and concussions and that he could not recall any such episodes. 82. On 26 November 2001 the investigators questioned Lieutenant-Colonel Z., who had been heading a detachment of the Ulyanovsk OMON unit on mission in Chechnya. He testified that they were deployed in Katyr-Yurt on the night of 3 February 2000, and on the morning of the next day they entered the village from the south-west at about 10 a.m. They were attacked and retreated. In the afternoon the village was attacked by aircraft, helicopters, artillery and mine-launchers. He had heard something about a “humanitarian corridor” for civilians, but was not involved in its organisation. His detachment did not encounter any civilians, only fighters, when it was in the village on 4 February and later. 83. Serviceman K. from the Rostov-on-Don OMON testified that his unit was on mission in Chechnya in December 1999 – March 2000. In early February 2000 the unit was sent to Katyr-Yurt. They entered the village for the “mopping-up” operation in a group of about 40 servicemen from the OMON and the Interior Ministry troops, but were then ordered to take cover because aviation and artillery had been called in. They hid in a house near the edge of the village and stayed there until evening, then retreated. Next day they again entered the village. After driving about 150 metres into the village, they saw civilians coming out of the houses; these were elderly men and women. He did not see any children or younger people. They checked the houses for fighters and firearms until evening, but he did not personally see any fighters, dead bodies or firearms. Another serviceman from the same OMON unit confirmed the submissions almost word-for-word. 84. Servicemen from the special forces of the Samara interior troops gave evidence about their participation in the Katyr-Yurt operation. One of two testimonies was disclosed by the Government. Serviceman B. testified that his unit was on mission in Chechnya in January – March 2000. On some date at the beginning of February they were deployed to Katyr-Yurt. Their unit was attacked near the river. He understood that civilians had been given three days to leave the village. From their positions they could clearly distinguish fighters from civilians, based on the presence of firearms and beards. 85. Serviceman T. testified that at the relevant time he had headed the commandatura in Achkhoy-Martan district. Once the military operation in Katyr-Yurt was over, he organised the “mopping-up” of the village and collection of the fighters' bodies. He was not aware of the exact number of bodies collected, but believed that two or three fighters had been detained alive. 86. Servicemen from the Tula OMON forces were also questioned. Only one testimony out of four was disclosed to the Court. Serviceman Gr. testified that their unit arrived at Katyr-Yurt to conduct a “mopping-up” operation after the military stage was over. They were searching for fighters, or for their dead bodies. He did not see any civilians in the village, dead or alive. He presumed that they had been allowed to leave before the assault started. He also testified that after two days of the “mopping-up” operation, civilians started to return to the village. He saw the body of one fighter. The fighters' bodies were collected by two trucks belonging to the army commandatura, and both were loaded full. He did not know exactly how many bodies there were. 87. Two pilots from the army air force were questioned in relation to the attack on Katyr-Yurt. They were identified by the Government as pilot no. 1 and pilot no. 2. Both pilots stated that their unit took part in the bombardment of Katyr-Yurt on 4 February 2000. The mission sortie was between 12 and 2 p.m. on two SU-25 planes, each carrying six FAB-250 bombs. They dropped the bombs from a height of about 600 metres. The weather conditions were quite bad, and normally in such conditions they would not fly, but on that day the ground troops were in serious need of support. The targeting was done by a ground air controller who was positioned at the operation centre near the village. He indicated the targets and later reported to them that the bombing had been successful. In response to the question of whether they had seen any civilians or civilian vehicles in the streets of the village, the pilots either responded that the visibility was so bad - because of clouds and the smoke from burning houses - that they could not see anything, or that they did not see civilians or civilian transport. 88. Two air-ground controllers were questioned. One of them, whose identity was not disclosed by the Government, testified that he was employed as a forward air-controller for fighter jets. His mission was to direct visually the planes to targets identified by the command corps of the operation. On the day preceding the operation in Katyr-Yurt, the exact date of which he could not remember, he was deployed to positions located between the villages of Valerik and Katyr-Yurt. His operational commander was Major-General Nedobitko, who told him to be on standby in case there was a need to call in the air force. The witness was not aware of the details of the operation, but from the discussions around him he realised that a large group of fighters had broken through from Grozny and captured Katyr-Yurt. On the next day between 7 and 8 a.m. information came in that three OMON servicemen had been killed in a skirmish with fighters. Approximately 30 minutes later Nedobitko ordered him to call in fighter jets with bombs, without specifying the type of bomb. Once the planes arrived, Nedobitko named the first target – about 500 metres west of the village mosque, which had been the tallest building and served as a good orientation point. The pilots were informed of the target and confirmed seeing armed people below. The planes successfully dropped a full load of FAB-250 bombs. They also used FAB-500 bombs, which were dropped by parachute in order to permit the plane to leave the area of the explosion. Once they had disposed of their ammunition round, Nedobitko requested another pair of planes. They arrived in 20 minutes with the same load. This time the target was set at 300 metres south of the mosque. The air-controller received the targets from Nedobitko, who was receiving continuous operational information by radio. At about 2 p.m. the planes left because the weather conditions had worsened, and then army and interior troops' helicopters arrived, which the witness did not direct. 89. On the second day Major-General Shamanov and Major-General Barsukov arrived in Katyr-Yurt and, together with Nedobitko, headed the operation. The weather was too bad to employ fighter jets, but he was kept at the commanding point in case the conditions improved. The village was bombarded by artillery and mine-launchers and from helicopters. On the third day he was relocated back to his base. 90. When asked if he was aware of a plan to evacuate civilians, the air-controller responded that on the first day of his arrival Nedobitko mentioned that his initial plan had been to offer the fighters a chance to surrender or for the civilians to leave, but once the OMON forces had been attacked he had called in fighter jets. 91. Several helicopter pilots were questioned. They testified about taking part in the Katyr-Yurt operation. They employed non-guided missiles against the area targets indicated to them by forward air-controllers. They did not see any civilians or civilian vehicles in the village, only fighters who attacked them with machine-guns. 92. The investigation also questioned servicemen from a tank battalion which arrived at Katyr-Yurt on the night of 4 February 2000. They testified that they were stationed south of the village with the task of preventing the fighters from breaking towards the mountains. They fired about 80 shots from tank guns at the village, on the orders of the operational headquarters and in response to enemy fire. They did not enter the village during or after the combat and were not aware of the humanitarian corridor. 93. Numerous other documents were requested and obtained by the investigation from the military, the majority of which were not disclosed to the Court. These concerned the operation plan, operational orders from the various levels of command, the log-books of different units involved in the operation, personnel lists for these units, records of casualties sustained etc. 94. The military aerodrome submitted information to the effect that the horizontal fragment dispersion of a high explosion aviation bomb FAB-250 was 1,170 metres. 95. On 26 November 2001 the investigator requested an expert opinion from the Combined Armed Services Military Academy in Moscow. Six questions were posed to the experts, who were given access to the investigation file. The questions concerned the accuracy of planning and conducting of the operation, the kind of documents and orders that should have been issued and the question of compliance of the operation in Katyr-Yurt with internal military rules. The experts were also asked to evaluate the propriety of Major-General Nedobitko's decision to deploy aviation and artillery against the fighters' positions; another question was to evaluate whether all necessary measures had been taken by the command corps of the OC of the Western Zone Alignment to minimize civilian victims in Katyr-Yurt. 96. On 11 February 2002 six of the Academy's professors, with military ranks from lieutenant-colonel to major-general, produced their report. They had had access to military documents, such as the operational orders of the United Group Alignment, of the OC of the Western Zone Alignment, log-books etc. They also used six legal acts as a basis for their report, the titles of which were not disclosed to the Court. The report found as a fact that the decision to employ aviation and artillery was taken by Major-General Nedobitko after the forces under his command had been attacked when they tried to enter the village. Aviation and artillery fire power was involved from 8.30 a.m. on 4 February until 6 February 2000. 97. The expert report concluded that the actions of the officers of the internal troops involved in the special operation to eliminate illegal armed groups in Katyr-Yurt on 4-6 February 2000 were in conformity with the Army Field Manual and the Internal Troops Field Manual. Analysis of the operative and tactical situation, as well as a videotape reviewed, permitted the experts to conclude that the decision to involve aviation and artillery had been a correct and well founded one. This conclusion was further reinforced by reference to article 19 of the Army Field Manual, which states: “The commanding officer's resolve to defeat the enemy should be firm and should be accomplished without hesitation. Shame on the commander who, fearing responsibility, fails to act and does not involve all forces, measures and possibilities for achieving victory in a battle”. 98. As to minimising civilian losses, the report concluded that certain measures were taken to that effect: the commanding officers organised and carried out an exodus of the population from the village, and chose a localised method of fire. The administration and the population of the village were informed about the need to leave the area of the operation and the necessary time was provided for this. A roadblock was established at the village's western exit, equipped with a filtration point and manned by servicemen from the Ministry of the Interior and the Federal Security Service, located away from the area of the combat operations. The report further suggested that the losses could have been further minimised if additional time had been allocated for the civilians' departure. However, that same time could have been used by the fighters to prepare more thoroughly for defence of the village, which could have entailed additional losses among federal forces. Finally, the experts reported that it was not possible to reach any definite conclusions about what had prevented the village's entire population from leaving safely, but that it was probably the fighters. 99. On 30 October 2001 the investigator of the Military Prosecutor's Office for the Northern Caucasus, acting on orders from the Circuit Military Prosecutor, transferred the case to another military prosecutor. On 13 March 2002 the latter issued a decision to close criminal proceedings due to the absence of corpus delicti in the military's actions. 100. The investigation found it established that on the night of 3 to 4 February 2000 a group of more than 1,000 well-equipped and well-trained fighters under the command of field commander Gelayev occupied the village of Katyr-Yurt. These fighters were part of a larger group of insurgent forces, escaping south from Grozny to the mountains. By that time most people had already left Katyr-Yurt, whilst others, unwilling to leave the village, hid in their homes. The fighters occupied stone and brick buildings, turned them into fortified defence points and used the local residents as a “human shield”. 101. On 4 February 2000 Major-General Nedobitko, who was unaware of the exact number of fighters in the village, ordered search groups to enter the village, but they met fierce resistance, sustained casualties and were forced to withdraw. Once the fighters' numerical superiority became clear, Nedobitko decided to evacuate the civilian population and to proceed with the deployment of artillery and aviation. Information was conveyed to the population through the head of administration and by a mobile broadcasting unit which moved around the village. Two roadblocks were established to control the exit. At around 9 a.m. the artillery proceeded with pinpoint strikes at the clusters of enemy resistance, namely at the edges of the village and in the centre near the mosque. Army aviation was then deployed. Targeting and guidance was based on information obtained from reconnaissance and units of the special forces. By their combat actions, the fighters prevented federal forces from organising evacuation of the civilians. 102. Heavy fighting between the insurgents and federal forces, together with aviation and missile strikes, forced the local population to flee the village despite active combat. By midday on 4 February 2000 the flow of civilians had intensified. 103. The special operation in Katyr-Yurt lasted for three days. On the third night a group of fighters, numbering about 800 persons, left Katyr-Yurt and escaped south towards the mountains under cover of thick fog. The rest were destroyed. In the course of the special operation 43 civilians were killed and 53 wounded; these were people who, by the time the bombardment commenced, had not wished or had had no time to leave. 104. The document then summarised statements by Major-General Shamanov, Major-General Nedobitko, Colonel R., Colonel S. and other servicemen. It referred to the operational orders and operations log-book, which confirmed the deployment of combat means and the fighters' resistance. It referred to the statements by the head of administration of Katyr-Yurt and local residents, confirming that the village was seized by fighters on 4 February 2000 and that aviation and artillery strikes took place. It listed 43 civilians killed and 53 wounded as a result of the strikes. The decision referred to testimony by four local residents regarding the provision of a humanitarian corridor (two of these witnesses were wounded and were listed as such). It finally recalled the conclusions of the military experts' report. 105. Against this background, the investigation came to the following conclusions. The majority of civilian injuries were sustained on 4 February 2000 in the centre of the village, where the fiercest fighting between federal forces and fighters occurred. The command corps of the operation took all possible measures to organise the local population's departure, which had been disrupted by the actions of fighters who stormed and occupied houses, using civilians as “human shields”. The fighters' fierce resistance and numerical superiority, as well as a real danger that they would break through the federal forces' lines toward the mountains, forced the command corps to use aviation and artillery. The strikes were directed at the fighters' positions. Aviation and artillery were heavily used at the initial stage of the operation on 4 February 2000, which caused a massive departure of the local population. Thus, civilians were caught in cross-fire between fighters and federal forces, which explained the heavy losses. As a result of the federal forces' dynamic action, the majority of the group was destroyed, the village was liberated and the remaining members of the group were dispersed. 106. Under such circumstances the investigation concluded that the command corps' actions were absolutely necessary to eliminate the danger to society, the state, and to the lives of servicemen and civilians. This danger could not have been eliminated by other means, and the command corps' actions were proportionate to the resistance put up by the fighters. 107. The criminal case opened on charges of abuse of power and manslaughter was closed for the absence of corpus delicti. 62 decisions to grant victim status were quashed by the same decision. The persons in question were to be informed of the possibility of seeking redress through civil proceedings. 108. On 12 December 2002 Major-General Nedobitko appealed against the decision of 13 March 2002. He considered that it should have been closed on the ground that no crime had been committed. On 6 March 2003 the Bataysk Garrison Military Court rejected his appeal and upheld the decision of 13 March 2002. 109. The applicant submitted an additional statement about the attack. She submitted that she witnessed the death of her son and of her three nieces, was wounded and saw her relatives wounded. They could not bury their dead in the village cemetery according to their traditions and were obliged to bury them in the cemetery of Achkhoy-Martan. Her house and all her property were destroyed. This caused her shock and irreparable moral suffering. 110. The applicant submitted five additional testimonies by witnesses and victims about the attack on Katyr-Yurt. Witness A. testified that by the beginning of February 2000 the village was under the firm control of the federal forces and that there were about eight to ten thousand IDPs, because people thought there would be no fighting in Katyr-Yurt. There were military roadblocks around the village and a commandatura in its centre. The aviation strike at 9 a.m. on 4 February 2000 was totally unexpected. The witness tried to leave the village between 4 and 5 p.m. on 4 February, but the car he was travelling in was shot at from a helicopter and he and his relatives were wounded. He escaped on 5 February, having lost two relatives. On the road he saw many dead people and burnt cars. The road was covered with debris from destroyed houses. The road towards Achkhoy-Martan was filled with people trying to leave, and the soldiers would not allow anyone through, even the wounded. The witness received no assistance from the State. He stated that when he went to the head of the village administration to report the deaths of his relatives he saw a list with the names of 272 civilians who had been killed. Witnesses B., C. and D. gave evidence about heavy bombing on 4 and 5 February 2000, which involved aviation, helicopters, artillery and Grad multiple missile-launchers. They also testified about General Shamanov's arrival at the roadblock, when he allegedly ordered the soldiers not to let people out of the village. They cited his orders to “filter out” all men, but these orders were not enforced by the interior troops. They also testified about a Volga car with six refugees from Zakan-Yurt, which was destroyed on the road by a direct hit. Witness E., who left the village on 5 February 2000 for Achkhoy-Martan, spoke of the confusion and panic, repeated bombardment and crowds at the roadblock to Achkhoy-Martan. He described the situation as “every man for himself”. The witnesses were either not aware of a humanitarian corridor, or stated that they had heard something about it but that their exit was not in any way safe. 111. The applicant submitted an extract from the book “Troops of the Ministry of the Interior: The Caucasus Cross-2” (Карпов Б.В. Внутренние войска: Кавказский Крест-2. - М.: Деловой экспресс, 2000. – 281 c.). The book contains an interview with Major-General Barsukov, Deputy Commander of the Ministry of the Interior Troops in the Northern Caucasus, who was among the commanders of the operation in Katyr-Yurt. His interview, contained in the book, includes the following passage on pp. 112-113: “Some of the bandits ... broke through our positions and reappeared in Lermontov-Yurt. We conducted a special operation there. But in planning and conducting this operation, we also blocked the nearby Shaami-Yurt. For two days we conducted a special operation there... Their remaining forces were breaking through towards Katyr-Yurt. By that time it was also blocked. We let them enter Katyr-Yurt and conducted a special operation there with the forces of the 7th and the 12th special units. Again we met fierce resistance. The 7th unit sustained substantial casualties. We had to withdraw it... Again we used fire power – 'Grad', 'Uragan', 'Buratino', artillery of the 47th regiment, cannons of the 46th regiment, mine-launchers. Fighter jets were also involved. But... the bandits broke through... and went towards the village of Gekhi-Chu... Near Gekhi-Chu we were able to draw conclusions from the operation started in Alkhan-Kala. Over 150 bandits were detained, 548 dead bodies were seized. The rest the Chechens buried hastily in Alkhan-Kala... A large number of bodies were dumped or buried in shallow graves. In Shaami-Yurt and Katyr-Yurt we did not even take the bodies out, we did not have the resources to do that. Usually, after we had left, police units together with the forces of the Ministry of Justice came in... In the army we simply don't have enough trucks to take out so many bodies... According to our estimates, and this is supported by interception of radio communications, during this 'death raid' in the 'valley of death' (these are their expressions) they lost in total over one and a half thousand men.” 112. The applicant submitted a transcript of an interview from the RTR TV channel's programme “Zerkalo”, broadcast on 5 February 2000, where Major-General Vladimir Shamanov, the commander of the Western Zone Alignment in Chechnya, said: “Well, let's give some good news to the Russians. The Western Zone Alignment has been entrusted with participation in a big operation. It's called 'wolf hunt'. The idea of the plan was to create an illusion of an existing exit corridor from Grozny along the route used by Arbi Barayev's groups. In cooperation with the Federal Security Service and other bodies, one of the officers was given the task of contacting the fighters and for a large sum, we can now say about 100,000 US dollars, to promise a corridor. Honestly, we did not even expect that the bandits would swallow the bait, especially their leaders. Even less did we think there would be so many of them. The planned scheme of artillery fire combined with reactive obstacles showed not only how correct we had been, but also basically solved the Grozny problem. ... The operation is continuing. The Western Alignment has built a corridor, so that any step to the left or to the right equals execution. We are chasing them along this corridor, we already chased them to the second line, and in two or three days we will destroy them all.” 113. The applicant submitted a report prepared by the NGO Human Rights Watch in April 2003, entitled “A Summary of Human Rights Watch Research on Attacks on Fleeing Civilians and Civilian Convoys during the War in Chechnya, Russia, between October 1999 and February 2000”. The submission, prepared for the European Court of Human Rights, is based on eyewitness testimonies collected by HRW researchers in Ingushetia between November 1999 and May 2000. The report described at least five independent incidents where civilians fleeing from fighting were attacked en route. The report stated that “the Russian forces appear to have deliberately bombed, shelled, or fired upon civilian convoys, causing significant civilian casualties. ... The frequency of the attacks on fleeing civilians left many civilians trapped in areas of active conflict, contributing indirectly to the high death toll of the conflict.” 114. The report invoked provisions of international humanitarian law, namely Common Article 3 to the Geneva Conventions of 1949, as well as Article 13 (2) of Protocol II Additional to the Geneva Conventions of August 1949. The report submitted that “where aircraft make multiple attack passes over a civilian convoy, or convoys are subject to prolonged attack by ground troops, the most plausible inference is that such attacks are intentional and with the likely knowledge of the predominantly civil character of the convoy. Customary international law requires that any attacks discriminate between the civilians and military objects and that foreseeable injury to civilians be proportionate to the direct and concrete military advantage to be gained by the attack. ... Each of the incidents described below raises concerns that civilians may have been targeted intentionally or that the force used was not proportionate to the military advantage pursued...” 115. The report describes the bombardment of Katyr-Yurt on 4-6 February 2000 as one of the examples of attacks on civilians escaping from fighting. Referring to information from humanitarian NGOs, the report estimates the population of Katyr-Yurt at the relevant time at about 25,000 people, including some 15,000 IDPs. Early on 4 February 2000 several thousand fighters, having escaped from Grozny, which is about 30 kilometres away, entered the village. A few hours later the strikes against the village began. Villagers' testimonies, collected by HRW, described the great difficulties they experienced in leaving the village and the numerous casualties sustained while people were hiding in cellars and shot at on the road. 116. Article 20 of the Constitution of the Russian Federation protects the right to life. 117. Article 46 of the Constitution guarantees the protection of rights and liberties in a court of law by providing that the decisions and actions of any public authority may be appealed to a court of law. Section 3 of the same Article guarantees the right to apply to international bodies for the protection of human rights once domestic legal remedies have been exhausted. 118. Articles 52 and 53 provide that the rights of victims of crime and abuse of power shall be protected by law. They are guaranteed access to the courts and compensation by the State for damage caused by the unlawful actions of a public authority. 119. Article 55 (3) provides for the restriction of rights and liberties by federal law, but only to the extent required for the protection of the fundamental principles of the constitutional system, morality, health, rights and lawful interests of other persons, the defence of the country and the security of the state. 120. Article 56 of the Constitution provides that a state of emergency may be declared in accordance with federal law. Certain rights, including the right to life and freedom from torture, may not be restricted. 121. Section 25 of the Law on Defence of 1996 (Федеральный закон от 31 мая 1996 г. N 61-ФЗ "Об обороне") provides that “supervision of adherence to the law and investigations of crimes committed in the Armed Forces of the Russian Federation, other Forces, military formations and authorities shall be exercised by the General Prosecutor of the Russian Federation and subordinate prosecutors. Civil and criminal cases in the Armed Forces of the Russian Federation, other forces, military formations and authorities shall be examined by the courts in accordance with the legislation of the Russian Federation.” 122. The 1998 Law on the Suppression of Terrorism (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows: “Section 3. Basic Concepts For the purposes of the present Federal Law the following basic concepts shall be applied: ... 'suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities; 'counter-terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; 'zone of a counter-terrorist operation' shall refer to an individual land or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ... Section 13. Legal regime in the zone of an anti-terrorist operation 1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled: 2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification; 3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation; 4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health; 5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ... Section 21. Exemption from liability for damage In accordance with and within the limits established by the legislation, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 123. Articles 126-127 of the Code of Civil Procedure (Гражданский процессуальный Кодекс РСФСР) ), in force at the material time, contained general formal requirements governing an application to a court, including, inter alia, the defendant's name and address, the exact circumstances on which the claim was based and any documents supporting the claim. Article 214 part 4 provided that the court had to suspend consideration of a case if it could not be considered until completion of another set of civil, criminal or administrative proceedings. 124. Article 225 of the Code provided that if in the course of reviewing a complaint against the actions of an official or a civil claim a court came across information indicating that a crime had been committed, it was required to inform the prosecutor. 125. Chapter 24-1 established that a citizen could apply to a court for redress in respect of unlawful actions by a state body or official. Such complaints could have been submitted to a court, either at the location of the state body or at the plaintiff's place of residence, at the latter's discretion. Under the same procedure, the courts could also rule on an award of damages, including non-pecuniary damages, where they concluded that a violation had occurred. 126. The Code of Criminal Procedure (Уголовно-процессуальный Кодекс РСФСР 1960г. с изменениями и дополнениями), in force at the material time, contained provisions relating to criminal investigations. 127. Article 53 stated that where a victim had died as a result of a crime, his or her close relatives should be granted victim status. During the investigation the victim could submit evidence and bring motions, and once the investigation was complete the victim was to have full access to the case-file. 128. Article 108 provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens, public or private bodies, articles in the press or a discovery by an investigating body, prosecutor or court of evidence that a crime had been committed. 129. Article 109 provided that the investigating body was to take one of the following decisions within a maximum period of ten days after notification of a crime: open or refuse to open a criminal investigation, or transmit the information to an appropriate body. The informants were to be informed of any decision. 130. Article 113 provided, where an investigating body refused to open a criminal investigation, a reasoned decision was to be provided. The informant was to be made aware of the decision and could appeal to a higher-ranking prosecutor or to a court. 131. Article 126 provided that military prosecutor's office was responsible for the investigation of crimes committed by military servicemen in relation to their official duties or within the boundaries of a military unit. 132. Articles 208 and 209 contained information relating to the closure of a criminal investigation. Reasons for closing a criminal case included the absence of corpus delicti. Such decisions could be appealed to a higher-ranking prosecutor or to a court. 133. No state of emergency or martial law has been declared in Chechnya. No federal law has been enacted to restrict the rights of the population of the area. No derogation under Article 15 of the Convention has been made. 134. On 6 June 2003 the State Duma adopted Decree no. 4124-III, by which an amnesty was granted in respect of criminal acts committed by the participants to the conflict on both sides in the period between December 1993 and June 2003. The amnesty does not apply to serious crimes such as murder. | 1 |
train | 001-114665 | ENG | ROU | CHAMBER | 2,012 | CASE OF GHIURĂU v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 6. The applicant was born in 1963 and lives in Oradea. 7. According to the applicant, at about 4 p.m. on 27 November 2006, police officers belonging to the special intervention forces of Bihor Police Inspectorate took the applicant into custody in order to transport him from his home in Borş to Cluj, about 200 km away. They had not presented any warrant or other legal document justifying his arrest, nor informed him of the reason for his arrest or where they intended to transport him. 8. The applicant contended that while in custody he had been beaten by police officers so severely that he had lost consciousness. As a result, he needed urgent medical assistance and was admitted to the emergency ward of Huedin Hospital. While he was on a drip at the hospital, he was hit again and handcuffed by police officers. This occurred in the presence of his lawyer. 9. The Cluj Police immediately transferred him from Huedin Hospital to the emergency ward of Cluj Hospital, where he remained for about three hours from 9.15 p.m. until midnight. 10. At about 0.45 a.m., although unable to speak because he had been given sedatives in hospital, he was transported from the hospital directly to the Cluj Police Headquarters in order to be interviewed. There, he was informed for the first time of the reason for his arrest, namely that he was suspected of making repeated phone calls threatening to kill someone. He was interviewed until 1.52 a.m. 11. A preliminary criminal investigation was initiated in connection with allegations that the applicant had made threatening telephone calls against a resident of Cluj-Napoca. On 27 November 2006, the prosecutor attached to the Cluj-Napoca District Court therefore issued an order for the applicant to be brought before him for questioning. 12. At 4 p.m. on the same day, having been informed by police officers about the order, the applicant agreed to accompany the police officers to the Prosecutor’s Office in Cluj. On their way to Cluj, near Huedin, the applicant informed them that he was feeling sick and became physically agitated, presenting the symptoms of an epileptic seizure. 13. The police officers took the applicant to the nearest hospital in Huedin, where he was examined and received immediate medical treatment. While in the consulting room, the applicant had a panic attack and started hitting his legs and hands against the bed. Two police officers had to intervene and immobilise the applicant’s hands so that he could be disconnected from the medical devices. 14. The applicant was transported in an ambulance from Huedin Hospital to the emergency ward of Cluj-Napoca Hospital for further medical examinations, which took place from 9 p.m. until midnight. The diagnosis was abdominal trauma and abrasions. 15. As no traumatic injuries or clinical indications requiring an immediate operation were diagnosed, the applicant was discharged from the hospital and presented himself at the police station for questioning. 16. After questioning, the applicant gave a written statement, which according to the prosecutor was barely legible. He was assisted by his lawyer during the questioning. 17. On 28 November 2006 the Bihor Forensic Institute examined the applicant and issued a report that stated that his injuries could have been caused the previous day by being hit with a hard object. It noted the existence of bruising and abrasions on the upper abdomen and on both hips, and estimated that the applicant would need four to five days to recover. 18. A medical certificate issued by Cluj-Napoca Hospital on 19 December 2006 showed that the applicant had been hospitalised on 27 November 2006 for about three hours. The certificate stated that the applicant had been diagnosed with a minor cranial trauma, abdominal trauma and abrasions, and concluded with the expression “Affirmative assault” (“Afirmativ agresiune”). 19. The applicant contended that although on 29 November 2006 he had submitted a request with the Bihor Police Inspectorate to be provided with a copy of the order to which the police officers had referred in order to justify the deprivation of his liberty, he had not received a copy. 20. On 22 June 2009 the Prosecutor’s Office attached to Cluj County Court decided to discontinue the criminal proceedings against the applicant for making threatening phone calls on the grounds that his guilt could not be proved. 21. On 7 December 2006 the applicant lodged a criminal complaint against ten police officers alleging unlawful arrest, abuse of authority, abuse of the officers’ powers of investigation and deprivation of liberty. 22. On 4 January 2007 the applicant’s lawyer, B.V., made a written statement concerning the events that had occurred on 27 November 2006. She submitted that the manager of the applicant’s company had called her at about 4 p.m. informing her that two police patrols had taken the applicant into custody. She had called the applicant, who had confirmed that he was in police custody. She also submitted that she could hear police officers insulting and hitting the applicant. As she had understood from their phone conversation that the applicant did not feel well, she had decided to accompany him. She had called the ambulance service and discovered that the applicant had been taken to the Huedin Hospital emergency ward. When she found him there, he had been connected to medical devices but supervised by three police officers from the Cluj Police Department. She alleged that she had seen the police officers punch the applicant because he refused to remain in bed. She had accompanied the applicant to ClujNapoca Hospital and then to the police headquarters, assisting him during questioning. 23. On 12 March 2007 the applicant’s criminal complaint was registered with the Prosecutor’s Office attached to the Cluj Court of Appeal. 24. On 6 February 2008 four of the police officers against whom the applicant had lodged a criminal complaint were heard by the prosecutor. Their written statements were all identical. 25. On 12 February 2008 the Prosecutor’s Office attached to the Cluj Court of Appeal decided not to prosecute on the grounds of lack of evidence that the offences in question had been committed. The decision stated that criminal proceedings had been initiated against the applicant on 27 November 2006. His deprivation of liberty had been justified by the necessity to interview him immediately, even before summoning him on the basis of an order to appear before the investigating body (mandat de aducere) issued by a prosecutor. The decision further stated that the applicant had agreed to accompany the police officers and that, in any event, the applicant’s allegation that he had not been given a copy of the warrant could not lead to the conclusion that the police officers had abused their position, as his legal interests had not been infringed. In addition, the prosecutor held that the applicant had been provided with the order on the way from Huedin Hospital to Cluj-Napoca Hospital. In respect of the applicant’s allegation that he was subjected to physical violence by the police officers, he concluded that the injuries noted by the forensic doctor had been self-inflicted. The police officers had accompanied him to Huedin Hospital because he had mentioned that he did not feel well. While he was being examined by a doctor, he had had a panic attack and had started to hit the hospital’s bed with his body, hands and feet. The police officers’ intervention had therefore been necessary; they had immobilised him in order to disconnect him from the various medical devices. 26. On 1 August 2008 the head of the Prosecutor’s Office dismissed the applicant’s appeal against the aforesaid decision on the grounds that it had been lodged outside the time-limit set by the law. He stated, inter alia, that the order to appear before the investigating body had been issued because the applicant, although legally summoned, had refused to go to the police station to be interviewed. He added that the decision of 12 February 2008 had been communicated to the applicant on 14 February 2008 by registered letter and kept at the local post office until 26 February 2008. As the applicant had not collected the letter, it had been returned to the sender. 27. On 23 September 2008 the applicant appealed to the Cluj Court of Appeal against the prosecutor’s decisions. 28. On 15 January 2009 the Cluj Court of Appeal dismissed the appeal on the grounds that it had been lodged outside the time-limit. It stated that the decision of 1 August 2008 had been communicated to the applicant by registered letter on 5 August 2008, but had not been collected by him from the post office. It concluded that the legal term of twenty days for lodging an appeal against the prosecutor’s decision had begun on 5 August 2008 and not on 16 September 2008, the date on which the applicant had allegedly found out about the decision. 29. The applicant appealed again, claiming that the decision of 1 August 2008 had never been communicated to him and, therefore, that the term for submitting his complaint against it had not started to run. 30. On 18 May 2009 the High Court of Cassation and Justice allowed the appeal on points of law lodged by the applicant on the grounds that the appeal had been lodged within the time-limit set by law, quashed the judgment of 15 January 2009 and referred the file back to the Cluj Court of Appeal. 31. The applicant lodged an application with the High Court of Cassation and Justice for the removal of the file to another court on the grounds that the Cluj Court of Appeal was not impartial. His application was granted on 2 November 2009 and the file was transferred to the Ploieşti Court of Appeal. 32. On 19 January 2010, the Ploiesti Court of Appeal allowed the applicant’s appeal against the prosecutors’ decision not to prosecute. It sent the file back to the Prosecutor’s Office attached to the Cluj Court of Appeal for further investigation on the grounds that the investigation proceedings had not been properly conducted. It noted, inter alia, that the investigation of the allegations against the police officers had not been thoroughly investigated on the basis of the evidence against each of them. It added that despite the fact that the file contained 236 pages, the procedural acts carried out by the criminal investigation body were mentioned only at pages 21732 and consisted of four identical statements made by four of the police officers involved in the incident, and the statements of the applicant (pages 50-54) and the applicant’s lawyer (pages 12-14). The rest of the file contained copies of documents submitted by the applicant and copies of documents not related to the case. It also noted that the prosecutor, in deciding not to prosecute, had provided no explanation as to why only four police officers out of ten had been interviewed, why their statements were identical and why he had not taken into account the documents submitted by the applicant attesting that the applicant had suffered injuries. It made particular reference to the medical certificate issued by the Bihor Institute of Forensic Medicine on 28 November 2006, as well as the medical certificate issued by Cluj Hospital on 19 December 2006. It concluded that in the light of such medical certificates, a competent court could not decide that there was a lack of evidence that the offences in question had been committed. 33. On 14 April 2010 the High Court of Cassation and Justice dismissed an appeal on points of law lodged by the Prosecutor’s Office attached to the Ploieşti Court of Appeal. Consequently, the decision to continue the investigation was upheld. 34. On 18 January 2011 the prosecutor questioned for the first time the six other police officers involved in the events of 27 November 2006. 35. On 21 April 2011 the applicant’s lawyer made a written statement that she had not only heard during her phone conversation with the applicant but had also seen how the latter had been subjected to ill-treatment by the police officers on 27 November 2006. She added that despite the fact that she had repeatedly asked to see the order to appear before the investigating authority on the day of the events, she had only seen it two years later in the case file. 36. On 22 August 2011 the prosecutor heard two of the police officers who had already made statements on 6 February 2008. 37. On 25 August 2011 the Prosecutor’s Office attached to the Cluj Court of Appeal again decided not to prosecute the police officers. It found that the applicant had not been subjected to ill-treatment by the police officers and had been deprived of his liberty pursuant to a warrant that had been issued in compliance with the law. 38. The applicant lodged an appeal against this decision with the chief prosecutor, claiming that the prosecutor in charge had not observed the instructions of the High Court of Cassation and Justice in respect of the evidence to be re-administered. He also claimed that despite the fact that he had been summoned to appear before the prosecutor on 18 July 2011, he had not been heard because the prosecutor had been absent from his office for the whole day. The applicant also submitted that not all of the police officers against whom he had lodged the criminal complaint had been heard by the prosecutor; he made the same claim with respect to other individuals who had witnessed the events of 27 November 2006 but had never been heard by the investigating body. 39. On 21 September 2011 the chief prosecutor dismissed the applicant’s appeal on the grounds that the injuries mentioned in the forensic certificate had been self-inflicted while he was simulating an epileptic seizure. He held inter alia that the order to appear before the investigating body had been issued because the applicant had failed to appear before the prosecutor, despite the fact that he had been summoned. 40. By a decision of 11 November 2011, the Ploiesti Court of Appeal allowed the applicant’s appeal. It held that the prosecutor had not complied with its decision of 19 January 2010 and again remitted the case to the Prosecutor’s Office, ordering it to commence criminal proceedings against the ten police officers mentioned in the initial criminal complaint. 41. The criminal proceedings are still pending and no judgment on the merits has been rendered. 42. Excerpts from the relevant provisions of the Romanian Criminal Code with regard to ill-treatment can be found in Iambor v. Romania (no. 64536/01, § 130, 24 June 2008). 43. Article 180 of the Romanian Criminal Code deals with bodily harm and provides, inter alia, that the harm caused to the physical integrity or health of a person requiring up to twenty days of medical care is punishable by one to three months’ imprisonment or a fine. 44. Article 250 deals with abusive behaviour and provides that a public servant on duty who uses insulting language while physically harming someone shall be punished by six months to five years’ imprisonment. 45. The order to appear before the courts (mandatul de aducere) was, at the material time, provided for by Articles 183-184 of the Code of Criminal Procedure, which read as follows: “(1) A person may be brought before [a] criminal-investigation body or [a] court on the basis of an order to appear, drawn up in accordance with the provisions of Article 176, if, having been previously summoned, he or she has not appeared, and his or her hearing or presence is necessary. (2) An offender or a defendant may be brought [before the authorities] on the basis of an order to appear even before being summoned, if the criminal-investigation body or the court considers that, and provides reasons why, this measure is necessary for the determination of the case.” “(1) [An] order to appear is enforced by the police. (2) If the person specified in the order cannot be brought [before the authorities] because of an illness or for any other reason, the police officer appointed to enforce the order shall mention this situation in an official report, which shall immediately be handed to the criminal-investigation body or the court. (3) If the police officer appointed to enforce the order to appear does not find the person specified in the order at the specified address, he shall investigate and, if unsuccessful [in locating the individual], shall draw up an official report including mention of the investigative activities undertaken. (31) If the offender or the defendant refuses to accompany a police officer or tries to escape, he or she may be forced to obey the order.” | 1 |
train | 001-79406 | ENG | POL | ADMISSIBILITY | 2,007 | J.L. AND M. H.-L. v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicants, Mr J.Ł. and Mrs M. H.-Ł., are Polish nationals, who were born in 1957 and 1959 respectively. They are married to each other. The first applicant is a physiotherapist and the second is a teacher. They live in Warsaw. In the proceedings before the Court the applicants chose not to be represented. The respondent Government are represented by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 November 1998 the applicants signed an agreement with the Catholic Adoption Centre in Warsaw. Under the terms of the agreement they agreed to provide care to X, a boy born on 16 July 1998. The applicants were chosen as prospective adopters for X because of their professions since the child required special care on account of his health problems. In this connection, the applicants referred to the conclusions of a medical opinion of 30 October 1998 which stated that X showed disturbed physical development and slightly retarded psychomotor development. It was also recommended in the opinion that the child should be placed without delay with a caring adoptive family, which would create the conditions for his proper development. On 13 November 1998 E.K., the biological mother of X, was deprived of her parental authority for X. On the same day the boy began to live with the applicants. On 16 December 1998 the Warsaw District Court appointed a guardian (opiekun prawny) for X. On 25 January 1999 the applicants filed with the Warsaw District Court an application for the adoption of X. On 4 February 1999 E.K. requested the Warsaw District Court to restore her parental authority for X. As a result of this request the Warsaw District Court stayed the adoption proceedings on 8 February 1999. On 25 March 1999 the court held the first hearing at which it heard E.K. and X’s guardian. The next hearing was held on 15 June 1999. On an unspecified date in 1999 E.K. applied to the Warsaw District Court for interim measures. In particular, she asked the court to change the guardian of X and to grant her and her parents, J.K. and B.K., visiting rights. On 23 June 1999 the District Court rejected her application for interim measures. The court did not see any grounds for changing the guardian. It pointed out that X had been born with a serious neurological disorder and required physiotherapy on a daily basis. As for the request to grant visiting rights to E.K. and her parents, the court rejected it for the following reasons: “The application for interim measures does not contain any reasons for allowing [E.K.] and her parents to visit the child. The District Court considers that this request is not aimed at the well-being of the child but results from the change in the attitude of [E.K] and (...) her parents’ endeavours to obtain the legal custody of [X]. The evidence gathered shows that [E.K.] is still undergoing therapy. Getting back the child is a part of that therapy and would allow [E.K.] to return to normal life. The decision to allow [E.K.] and her parents to visit the child would require the return of the child to a child-care facility. Therefore, the child would be deprived of his present living conditions which provide him with proper physical and (...) emotional development. The child has been living in this environment for six months. (...)” On 21 September 1999 the Warsaw Regional Court (Sąd Okręgowy) dismissed E.K.’s appeal against the decision of 23 June 1999. The Warsaw District Court held hearings on 21 October, 18 November and 16 December 1999 and 9 February 2000. On 2 March 2000 the Warsaw District Court dismissed E.K.’s request to restore her parental authority for X. The court observed that since June 1997 E.K. had cohabited with a man who had fathered X. Her parents had not approved of that relationship. E.K. had concealed her pregnancy. She had not consulted a doctor and smoked. E.K. had been interested in continuing the relationship with her child’s father, who had, however, not accepted the child. When X was born, E.K. declared that she wanted to leave him in the hospital for subsequent adoption. In August 1998 the father of X had left E.K. and she had moved into her parents’ flat. She started psychological therapy and in December 1998 informed her parents about the birth of X. The court considered that E.K. was not emotionally ready to take care of a child. Moreover, her actions had been influenced by her parents. E.K. was responsible for the fact that there did not exist any emotional bonds between her and X. At the same time, X had strong emotional bonds with the applicants who provided him with very good living conditions. On 29 May 2000 E.K. appealed against this decision. On 13 July and 23 November 2000 the Warsaw Regional Court held hearings and on the latter date it quashed the decision of the Warsaw District Court and remitted the case for reconsideration. On 19 December 2000 the Warsaw District Court held the first hearing at which it decided to order opinions of two experts in psychology. The experts submitted their opinions on 2 March 2001. At the hearing held on 8 March 2001 the Warsaw District Court again dismissed E.K.’s request to restore her parental authority for X. At the same time the court decided that X should be placed in the foster family of J.K. and B.K. It pointed out that E.K. was not able to provide X with proper care. The court referred to expert evidence which showed that she was emotionally and socially immature and behaved like a child who needed care and who was not responsible for her actions. As for its decision to place X with E.K.’s parents the court was of the view that “it was justified to place the child in the foster family of the maternal grandparents since the advantages from growing up in a biological family exceeded the disadvantages resulting from the change of [X’s] environment.” E.K. appealed against the decision. On 23 May 2001 the Warsaw District Court refused the applicants’ standing in the proceedings for an application for the restoration of E.K’s parental authority. The applicants appealed, but their appeal was dismissed on 26 June 2001 by the Warsaw Regional Court. On 4 July 2001 the Warsaw District Court rejected the applicants’ appeal against its decision to place X with his biological grandparents, J.K. and B.K., since the applicants did not have standing in those proceedings. On 5 September and 4 October 2001 the court held hearings. At one of the hearings the Regional Court heard the applicants. On 18 October 2001 the Warsaw Regional Court allowed E.K.’s appeal against the decision of the Warsaw District Court and granted her parental authority for X. Basing itself on the expert opinions, the court established that there were at present no indications that E.K. should not be personally taking care of X. The court then stated: “An important issue, undoubtedly of the greatest significance, is to establish whether the wellbeing of [X] requires that he be returned to his biological mother. The interest of the child is the overriding factor in the instant case. According to the experts, whose opinions were followed by the District Court, a child will have the best conditions for its development in the biological family. Other forms of foster family are allowed only if the biological parents are unable or inept to care [for the child]. Obviously, every change in the environment of [X] might give rise to difficulties of adaptation; however, it is common knowledge that small children adapt quickly to new conditions. The Adoption Centre offers to help in this respect. The experts underlined that the removal of [X] to the biological family had to be carried out correctly; it did not have to create a shock for him. The pre-adoptive family, for which the separation would be extremely painful, declares that, to ensure the best for X, they will do everything to make the removal of X as painless as possible for him. The behaviour of the biological family ... shows their understanding that ... entering into X’s life must come gradually, consensually and in a manner accepted by both parties. The [applicants’ and E.K.’s] position on that issue lead [the court] to believe that the biological mother’s taking over the care of [X] would not create a shock for the child. In the light of the above, the court decided as in the operative part.” The decision was final. On 8 November 2001, X, who had been living with the applicants for three years and considered them as his parents, was taken away from them. On 30 January 2002 the Warsaw District Court discontinued the adoption proceedings. On 25 September 2002 the Warsaw District Court dismissed the applicants’ application to grant them visiting rights. The custody and adoption of children are regulated by the Family Code 1964 (Kodeks Rodzinny i Opiekuńczy). Article 111 of the Family Code provides as follows: “1. If parental authority cannot be carried out due to a permanent obstacle or due to fact that the parents abuse their parental authority or grossly neglect their duties with respect to children, the family court shall deprive the parents of their parental authority... 2. If the reasons for which deprivation of the parental responsibilities was ordered cease to exist, the family court may restore parental authority.” 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. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 1223, ECHR 2005–.... | 0 |
train | 001-84237 | ENG | SVN | ADMISSIBILITY | 2,007 | JAMA v. SLOVENIA | 4 | Inadmissible | Corneliu Bîrsan;David Thór Björgvinsson | The applicant, Mr Vinko Jama, is a Slovenian national who was born in 1914 and lives in Ljubljana. He was represented before the Court by Mr Z. Korenčan, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General. The facts of the case, as submitted by the parties, may be summarised as follows. In 1971, after the applicant’s house had been expropriated, the Ljubljana Municipality instituted non-contentious civil proceedings for determination of compensation to be awarded to the applicant in this respect. On 24 November 1978 the Ljubljana Municipal Court (Občinsko sodišče v Ljubljani) issued a decision concerning the compensation. Until 28 June 1994, when the Convention entered into force with respect to Slovenia, the case had been four times remitted to the first-instance court for re-examination. On 1 February 1995 the applicant’s representative informed the renamed Ljubljana Local Court (Okrajno sodišče v Ljubljani) that several related sets of proceedings had been instituted in the meantime. Since their outcome constituted a preliminary question (predhodno vprašanje) which was relevant for the determination of the compensation, the court, on 28 April 1995, stayed the proceedings (prekinitev postopka). Between 13 September 1995 and 31 November 2000 the court made several inquires on the progress of the case. The hearing held on 5 April 2004 was adjourned until 13 May 2004 at the applicant’s request. On 31 May and 1 June 2004 the applicant lodged written submissions. In the course of the proceedings, until 23 December 2005, the case was reassigned to four different judges. Three hearings were held between 30 March and 8 June 2006. The hearing held on 21 September 2006 was adjourned sine die due to the applicant’s attempt to reach a settlement with the municipality. The settlement has apparently not been reached and the proceedings are still pending before the Ljubljana Local Court. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006 – the 2006 Act) became operational on 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings – a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje). For a more detailed presentation of the relevant domestic law see Žunič v. Slovenia, (dec.) no. 24342/04, §§ 16-26, 18 October 2007. | 0 |
train | 001-22891 | ENG | SVK | ADMISSIBILITY | 2,002 | BABINSKY v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Stanislav Babinský, is a Slovakian national, who was born in 1939 and lives in Trstená. The respondent Government were represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. Proceedings concerning the applicant’s action against the Slovakian Film Company and the Slovakian Television On 25 July 1991 the applicant lodged an action for protection of his reputation with the Bratislava I District Court. He claimed that a film concerning his person produced by the defendant company was defamatory. On 3 February 1992 the action was transferred to the Bratislava III District Court for reason of jurisdiction. On 9 July 1992 the Bratislava III District Court found that it lacked jurisdiction to deal with the case. On 30 September 1992 the case file was submitted to the Bratislava City Court and on 2 October 1992 the latter instructed the Bratislava III District Court to deal with the case. On 8 July 1993 the District Court held a hearing. The applicant submitted a document dated 15 June 1993 by which he amended his action and explained that it was directed also against the Slovakian Television. The case was adjourned as the presiding judge considered herself biased. On 14 October 1993 the Bratislava City Court excluded three District Court judges from dealing with the applicant’s case. Between 20 December 1993 and 12 July 1997 the District Court unsuccessfully attempted to obtain from the Bratislava Regional Court the file concerning criminal proceedings against the applicant which had been terminated earlier and which had given rise to the film in question. The file could not be submitted to the District Court as it was needed in the context of examination of the applicant’s request for re-opening of the criminal proceedings. On 14 September 1995 the president of the Bratislava III District Court transferred the case to a different chamber. On 10 June 1997 the Bratislava III District Court granted the applicant’s request to extend the action and to consider also the Slovakian Television as a defendant in the case. On 12 November 1997 the District Court held a hearing. On 26 November 1997 Štúdio Koliba, a.s. informed the District Court that it was the legal successor to the Slovakian Film Company. On 12 November 1997 and on 12 March 1998 the applicant submitted to the District Court the judgment delivered in the criminal proceedings against him and also a decision by which his request for re-opening of the criminal proceedings had been dismissed. On 6 and 20 April 1998 the District Court summoned the applicant’s lawyer to an informative hearing. The lawyer appeared on 30 April 1998. On 3 December 1998 a judge of the Bratislava III District Court heard the applicant’s lawyer. On 16 February 2000 the Bratislava III District Court discontinued the proceedings. On 1 August 2000 the Bratislava Regional Court quashed the first instance decision. On 4 December 2000 one of the defendants informed the court that a different company owned the rights in respect of the film. On 2 January 2001 the court requested the company concerned to submit a video-tape of the film. On 17 January 2001 a representative of the company informed the court that the company did not possess the film. On 28 February 2001 the case was adjourned as one of the defendants failed to appear. Subsequently the applicant requested that the case be transferred to a different court. The Supreme Court’s decision to dismiss this request was served on the applicant’s lawyer on 10 July 2001. On 1 August 2001 one of the defendant companies informed the court that it had become bankrupt and requested that the proceedings be adjourned. The District Court held hearings on 6 March 2002 and on 26 April 2002. The case was adjourned until 26 June 2002. The proceedings are pending. Proceedings concerning the applicant’s action against a publisher On 25 July 1991 the applicant brought proceedings for protection of his reputation on the ground that a book published by “Práca - vydavateľstvo a nakladateľstvo odborárov na Slovensku” contained defamatory statements in respect of his person. On 26 August 1991 the applicant paid the court fees. Subsequently the Bratislava I District Court took several procedural steps with a view to obtaining the relevant documentary evidence. On 13 February 1992 the judge invited the applicant’s lawyer to specify which statements he considered defamatory. The applicant was further informed that the court could not proceed with the case as the criminal file concerning the applicant’s case, which the District Court deemed necessary to consult, had been sent to the Office of the General Prosecutor of the Czech and Slovak Federal Republic. On 23 April 1992 the applicant submitted further information to the Bratislava I District Court at the latter’s request. On 12 May 1992 the Bratislava I District Court suspended the proceedings as the file concerning criminal proceedings against the applicant was still being examined by the Office of the General Prosecutor. On 25 August 1992 the District Court requested the latter to submit the criminal file to it. On 22 September 1992 the Office of the General Prosecutor replied that a complaint in the interest of the law had been lodged on the applicant’s behalf in the criminal proceedings and that the case file had been submitted to the Supreme Court of the Czech and Slovak Federal Republic. On 10 September 1993 the president of the Bratislava I District Court assigned the applicant’s case to a different judge. The latter received the case file on 1 August 1995. On 7 September 1995 the District Court requested the above criminal file. On 14 September 1995 the Bratislava Regional Court replied that the file was about to be sent to the Supreme Court in the context of examination of the applicant’s request for re-opening of the criminal proceedings. Subsequently the District Court reiterated the request several times. On 18 December 1997 the Bratislava I District Court adjourned the case. On 26 February 1998 the applicant submitted further information at the judge’s request. A hearing scheduled for 2 March 1998 was adjourned as the defendant could not attend. The applicant requested that the case be transferred to the Dolný Kubín District Court. On 5 August 1998 the Supreme Court dismissed this request. The parties failed to appear at a hearing scheduled for 24 February 1999. On 26 April 1999 the District Court adjourned the case as the defendant’s counsel claimed that his client was not a successor to the company against which the applicant had originally lodged his action. On 14 May 1999 the applicant’s lawyer asked for access to the companies register with a view to establishing the relevant facts concerning the defendant. On 9 September 1999 and on 1 December 1999 the Bratislava I District Court judge requested the relevant file from the companies register. On 24 October 2000 the applicant requested a change in the defendants. On 1 December 2000 the case was assigned to a different judge. On 26 April 2001 the applicant was requested to specify his claims. He replied on 31 May 2001. The proceedings are pending. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ... The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002. After that date the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred. According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing prevents the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. | 0 |
train | 001-108963 | ENG | ROU | CHAMBER | 2,012 | CASE OF DIACENCO v. ROMANIA | 3 | Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection joined to merits and dismissed;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 6. The applicant was born in 1944 and lives in Botoşani. 7. On the evening of 5 November 1998 the applicant, an engineer, accompanied by P.H., was driving a car owned by the limited company C. on the national road connecting Iaşi to Botoşani and was involved in a car accident. A car travelling in the opposite direction blinded the applicant with its headlights and he was forced to slow down and to steer the car towards the right side of the road. Suddenly, a cart pulled by a horse (“the cart”) travelling on the side of the road appeared in front of the applicant and forced him to break abruptly. However, he was unable to avoid collision. The driver of the cart, N.Z., escaped unharmed, but his passenger, S.I., suffered some injuries that required medical treatment. 8. On 9 November 1998 the Botoşani Forensic Laboratory carried out a forensic examination of the injuries suffered by S.I. and found that they could have been caused by a car accident on 5 November 1998, and required fiftyeight to fiftynine days of medical care. 9. A second forensic examination of the injuries suffered by S.I. was carried out by the Botoşani Forensic Laboratory on 3 February 1999. It concluded that S.I.’s injuries could have been caused by a car accident on 5 November 1998, and required 102 to 103 days of medical care. 10. On 24 February 1999 the Botoşani Prosecutor’s Office ordered the opening of a criminal investigation against the applicant for involuntary battery and other violent offences. 11. By a decision of the Botoşani Prosecutor’s Office of 15 June 1999 the criminal investigation against the applicant was discontinued on the ground that he had not committed any unlawful act. The decision concluded that the cart which the applicant had collided with had not been equipped with the legally required hazard warning lights, which prevented the applicant from seeing the cart at the material time owing to the poor weather conditions. Consequently, the applicant could not have anticipated the danger and taken action in order to avoid it. S.I. appealed against the decision. 12. By a final decision of 10 June 2000 the Suceava Prosecutor’s Office allowed S.I.’s appeal, quashed the decision of 15 June 1999 and ordered the reopening of the criminal investigation against the applicant. 13. On an unspecified date S.I. joined the criminal proceedings instituted against the applicant as a civil party and claimed 50,000,000 Romanian lei (ROL) (approximately 2,100 euros (EUR)) in respect of pecuniary and nonpecuniary damage. 14. By a final decision of 19 March 2001 the Botoşani Prosecutor’s Office acknowledged that S.I. had joined as a civil party the criminal proceedings instituted against the applicant, indicted the applicant and referred the case to the Botoşani District Court. 15. On an unspecified date the applicant at his own request added to the file a technical expert report dated 4 June 2001 regarding the accident of 5 November 1998. The report concluded, inter alia, that the applicant had been driving lawfully, had been travelling at a speed of fortythree kilometres per hour (km/h), that he had hit the cart at a speed of thirtythree km/h and that the person responsible for the accident was N.Z. 16. On 29 October 2001 and 16 April 2002 the Botoşani District Court ordered a technical expert report and a supplement to the technical report, respectively, to be prepared regarding the accident of 5 November 1998. 17. On 29 January and 16 September 2002 the Iaşi Forensic Department attached to the Minister of the Interior carried out the technical expert analysis and concluded that the applicant had been travelling at a speed of between twentyeight and thirtysix km/h and could have avoided the accident if his speed had been between eleven and twelve km/h. However, there had been no reason for him to travel at such a low speed. The travelling speed had been high enough to cause part of the cart to break. Moreover, the accident could have been avoided by N.Z. if he had equipped his cart with the legally required hazard warning lights. Consequently, the absence of the legally required hazard warning lights on N.Z.’s cart had been the cause of the accident. 18. On 15 March 2002, in his written submissions before the firstinstance court, the applicant contested, inter alia, the results of the medical expert reports of 9 November 1998 and 3 February 1999. He contended that S.I. had already been suffering from some of the ailments which had been taken into account in the reports in order to determine the number of days of medical care she required as a result of the accident. Moreover, the said reports had not established with certainty that her condition had been caused by the car accident at issue. 19. By a judgment of 16 December 2002 the Botoşani District Court acquitted the applicant on the basis of the provisions of Article 47 of the Romanian Criminal Code, and dismissed S.I.’s civil claims for damages against him. Relying on the statements of the witnesses, of the victim and of the accused, as well as on the forensic and technical expert reports contained in the file, the court held that in the absence of hazard warning lights, the applicant could not have foreseen the presence of the cart on the road and that therefore the accident could not have been avoided. 20. The applicant appealed against that judgment and argued that the legal basis for his acquittal should have been the fact that he had not committed the alleged offence and that N.Z. had been the sole party responsible for the accident. S.I. also appealed against the judgment, requesting to be awarded civil damages. 21. By a judgment of 8 May 2003 the Botoşani County Court, in the presence of the applicant and his chosen legal representative, dismissed both appeals and upheld the judgment of 16 December 2002. In dismissing S.I.’s request for civil damages, the court held that in the light of the applicant’s acquittal, the just satisfaction claim submitted by the applicant did not have any basis in law. 22. The applicant and S.I. appealed (recurs) against that judgment. S.I. modified her civil claims against the applicant to ROL 100,000,000 in respect of pecuniary and nonpecuniary damage. 23. On 3 June 2003 the parties were summoned to appear before the Suceava Court of Appeal on 9 July 2003. The summons addressed to the applicant was displayed on the main entrance door of his home because he was not at home when the bailiff had attempted to deliver the summons. 24. On 9 July 2003, in the absence of the applicant and his legal representative and prior to the delivery of its judgment, the Suceava Court of Appeal heard the oral submissions of the parties present with regard to the appeal. 25. By a final judgment of 9 July 2003 the Suceava Court of Appeal dismissed in the operative part of its judgment the applicant’s appeal, and upheld the judgments of 16 December 2002 and 8 May 2003. In the reasoning part of the judgment it held that the applicant had failed to provide the court with written or oral reasons for his appeal (recurs), as required by the applicable rules of criminal procedure and that the court could not identify any reasons that would require the Court of Appeal to quash the judgments of the lower courts. At the same time the court allowed the appeal (recurs) lodged by S.I., and ordered the applicant to pay ROL 100,000,000 (approximately EUR 2,600) to S.I. for pecuniary and nonpecuniary damage, out of which ROL 30,000,000 (approximately EUR 800) would be paid jointly with the insurance company A., for the mental and physical suffering which S.I. had endured and the medical expenses she had incurred. It held that the lower courts had misapplied the law with regard to the civil limb of the proceedings, and considered that they had erred in acquitting the applicant on the ground that he could not have anticipated the presence of the cart on the road. According to the evidence in the file, the applicant had committed the unlawful act in respect of which he had been indicted and could have foreseen the danger in question. The applicant was guilty of the offence of involuntary battery and other violent offences because he had failed to control the speed of his car and to adjust it to the road conditions so that he would have been able to stop in the event of a foreseeable obstacle. Moreover, the court dismissed the conclusion reached in the technical expert reports concerning the speed of the applicant’s car, on the ground that the impact had caused part of the cart to break. Furthermore, prudent driving should have prompted the applicant to stop when he was blinded by the headlights of the car travelling in the opposite direction. Consequently, the court concluded that: “For the above-mentioned reasons, [the court] considers that the applicant is guilty of the offence for which he was correctly indicted and his case sent for trial, the fact that the [lower] courts have acquitted him on the basis of the provisions of Article 47 of the [Romanian] Criminal Code (which is not applicable), is irrelevant in respect of the civil limb.” 26. On 2 October 2003 the applicant initiated extraordinary annulment (contestaţie în anulare) appeal proceedings against the final judgment of 9 July 2003. He argued that he had not been lawfully summoned for the hearing of 9 July 2003 before the Suceava Court of Appeal. Thus, he had been unaware about the date of the hearing. Consequently, he had been unable to submit written or oral reasons for his appeal, to defend himself or to inform the court as regards his absence. 27. By a final judgment of 28 September 2004 the Cluj Court of Appeal dismissed the applicant’s annulment appeal on the ground that during the applicant’s absence from his home the summons had been displayed on the main entrance door, in accordance with the applicable rules of criminal procedure. The applicant appealed against that judgment. 28. On 2 December 2004 the applicant brought extraordinary review (revizuire) appeal proceedings against the final judgment of 9 July 2003, submitting, inter alia, that he had not been lawfully summoned for the hearing held on the aforementioned date. 29. By a final judgment of 14 December 2004 the Court of Cassation dismissed the applicant’s appeal against the final judgment of 28 September 2004 as inadmissible, on the ground that the said judgment was final and not subject to appeal. 30. By a judgment of 5 October 2006 the Botoşani District Court dismissed the applicant’s appeal to review the final judgment of 9 July 2003, on the ground that he had been lawfully summoned and that, in any event, his presence at the hearing would not have changed the outcome of the proceedings, given that the Suceava Court of Appeal had relied on the evidence available in the file and not the parties’ arguments. The applicant appealed against that judgment. 31. By a judgment of 16 January 2007 the Botoşani County Court dismissed the applicant’s appeal against the judgment of 5 October 2006 as illfounded. The applicant appealed against that judgment. 32. By a final judgment of 22 October 2007 the Suceava Court of Appeal dismissed the applicant’s appeal against the judgment of 16 January 2007 as illfounded. 33. The relevant provisions of the Romanian Constitution as in force at the relevant time provided as follows: “ ... A person is considered innocent pending a final court conviction.” 34. The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time provided as follows: “(1) The aim of a civil action is to engage the civil liability of the person accused of a criminal offence... (2) A civil action can be joined to the criminal proceedings, if the victim joins the criminal proceedings as a civil party. ...” “... (2) A victim can join criminal proceedings as a civil party at the criminal investigation stage or before the court... ...” “(1) If a victim has not joined criminal proceedings as a civil party, he or she can initiate separate proceedings for damages caused as a result of the offence before the civil courts. (2) Civil proceedings are to be suspended pending a final judgment of the criminal courts... ...” “(1) The final judgment of a criminal court is res judicata in respect of the existence of an offence, the identity of the offender and his guilt for the court examining the civil action. (2) The final judgment of the court examining the civil action is not res judicata in respect of the existence of an offence, the identity of the offender and his guilt for the authority carrying out the criminal investigation or for the criminal courts.” “(1) A person accused of or charged with a criminal offence does not have to prove his innocence. (2) Where evidence is adduced proving a person’s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.” 35. Articles 998 and 999 of the Romanian Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused such damage. 36. Article 47 of the Romanian Criminal Code provides that an act covered by the criminal law, which leads to results owing to unforseeable circumstances, shall not be an offence. | 1 |
train | 001-75291 | ENG | TUR | ADMISSIBILITY | 2,006 | YILDIZ AND OTHERS v. TURKEY | 4 | Inadmissible | null | The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Hüseyin Aygün and Mr Özgür Ulaş Kaplan, lawyers practising in Tunceli. The facts of the cases, as submitted by the parties, may be summarised as follows. Until 1994 the applicants lived in Eskigedik, Eğimli, Şahverdi, Yakatarla, Çambulak, Işıkvuran, Yalmanlar, Koruköy, Kalecik and Kurukaymak villages, in the districts of Ovacık and Hozat, in Tunceli province, where they own property. It is to be noted that the title deeds to the property that some of the applicants used in aforementioned villages bear their fathers’ name. Furthermore, Ahmet Özer and Kazım Gündüz did not submit any certificate to the Court attesting their ownership of the property. In 1994, security forces forcibly evacuated Eskigedik, Eğimli, Şahverdi, Yakatarla, Çambulak, Işıkvuran, Yalmanlar, Koruköy, Kalecik and Kurukaymak on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to İzmir,Bursa, Tekirdağ, Erzincan, Ovacık, Tunceli, Istanbul, Elazığ, Bilecik and Eskişehir where they currently live. On 12, 14 and 17 May 2002 the representatives of the applicants filed petitions, on behalf of the applicants, with the offices of the Tunceli Governor, Ovacık and Hozat District Governors requesting permission to return to their villages and compensation for the damage they had suffered. On 7 June 2002 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants’ representatives: “... The Eskigedik, Eğimli, Şahverdi, Yakatarla, Çambulak, Işıkvuran, Yalmanlar, Koruköy, Kalecik and Kurukaymak villages are being considered under the ‘Return to the Village and Rehabilitation Project’. Thus, the residents of those villages can reside in Hanuşağı, Arslandoğmuş, Burnak, Kızık, Koyungölü, Söğütlü, Topuzlu, Ziyaret, Mollaaliler, Çakmaklı, Cevizlidere, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages in Ovacık district or Sarısaltık, Çaytaşı, Karaca, Tavuklar, Karabakır, Geçimli, İnköy, Beşelma, Dalören, Akpınar, Yenidoğdu, Kavuktepe and Türktaner villages in Hozat district. ... Your petition containing requests of permission to return to village will be considered under the ‘Return to Village and Rehabilitation Project’.” On 11 September 2002 the representative of the applicants lodged a petition with the Public Prosecutor’s office in Tunceli complaining about the dereliction of duty by the Tunceli Governor and the Hozat and Ovacık District Governors(görevi ihmal). On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Public Prosecutor’s office at the Court of Cassation. On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to start the proceedings into the allegation of dereliction of duty against the Tunceli Governor (dilekçenin işleme konulmaması). On 23 June 2003 the Tunceli Administrative Council decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and Ovacık District Governors. On 7 July 2003 the representatives filed an objection with the Malatya Regional Administrative Court against the decision of the Tunceli Administrative Council. On 2 October 2003 the Malatya Regional Administrative Court rejected the objection. On 30 October 2003 the Tunceli Public Prosecutor decided not to conduct investigation into the applicants’ allegations against the Hozat and Ovacık District Governors. On 20 November 2003 the representative of the applicants filed an objection with the Elazığ Assize Court against the decision of the Tunceli Public Prosecutor. On 4 December 2003 the Elazığ Assize Court rejected the objection. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI). | 0 |
train | 001-61926 | ENG | UKR | CHAMBER | 2,004 | CASE OF SHMALKO v. UKRAINE | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Zoryana Bortnovska | 5. The applicant, Mr Anatoliy Afanasiyovych Shmalko, is a Ukrainian national, who was born in 1930 and currently resides in Dnepropetrovsk. He is a disabled pensioner and a veteran of the Second World War. He suffers from myasthenia. 6. In March 1999 the applicant instituted proceedings in the Babushkinsky District Court of Dnepropetrovsk against the Dnepropetrovsk City Health Protection Department (“HPD”) and the Dnepropetrovsk City Hospital No. 1 (the “Hospital”), seeking compensation for moral and material damage caused by their refusal between 1996 and 1998 to provide him with the prescription drug Kalimin-60. He alleged that the State authorities had failed to provide him with this drug free of charge, contrary to Resolution No. 1303 of the Cabinet of Ministers of 17 August 1998. He further complained that because this drug was not provided to him, he had to buy it in Moscow, Germany and the United Kingdom. He requested reimbursement of the costs incurred. 7. On 29 September 2000 the Babushkinsky District Court of Dnepropetrovsk (the “Babushkinsky Court”) rejected the applicant’s claims as being unsubstantiated. It found that the HPD and the Hospital could not be held responsible for the failure to provide a drug simply because it was not available in the Dnepropetrovsk Region. 8. On 13 November 2000 the Dnepropetrovsk Regional Court allowed the applicant’s appeal, quashed the decision of 29 September 2000 and remitted the case for fresh consideration. 9. On 22 February 2001 the Babushkinsky Court rejected the applicant’s claims as being unsubstantiated. 10. On 26 March 2001, following an appeal filed by the applicant, the Dnepropetrovsk Regional Court quashed the decision of 22 February 2001 and again remitted the case for fresh consideration. 11. On 13 July 2001 the Babushkinsky Court rejected the applicant’s claims as being unsubstantiated. 12. On 10 October 2001 the applicant lodged an appeal with the Dnepropetrovsk Regional Court of Appeal under the new appeal procedure introduced by the Code of Civil Procedure on 21 June 2001. On 29 November 2001 the Dnepropetrovsk Regional Court of Appeal allowed the applicant’s claims in part. The court ordered HPD to pay the applicant UAH 722.70 and UAH 750 (a total of UAH 1,509.95 [EUR 237.37]) in compensation for material and moral damage, respectively. It also ordered the Hospital to pay the applicant UAH 393.65, UAH 750 and UAH 22.25 (a total of UAH 1,165.9 [EUR 183.28]) in compensation for material and moral damage, costs and expenses. 13. On 19 April 2002 the Bailiffs’ Service of the Babushkinsky District Department of Justice (the “Bailiffs’ Service”) instituted enforcement proceedings in respect of the judgment of 29 November 2001. 14. On 15 May 2002 the Bailiffs’ Service ordered that the funds awarded by the judgment of 29 November 2001 be transferred to the applicant’s bank account. 15. On 27 May 2002 a panel of three judges of the Supreme Court rejected the cassation appeal lodged by the Chief Doctor of the Hospital against the judgment of 29 November 2001 for want of substantiation. The institution of the cassation proceedings did not suspend the enforcement of the judgment of 29 November 2001. 16. On 17 October 2002 the writ of execution and the payment request were returned to the applicant because of the Hospital’s lack of funds. 17. On 21 October 2002 the Bailiffs’ Service requested the Dnepropetrovsk Regional State Treasury to inform it about the possibility of obtaining funds from the Hospital in order to enforce the judgment. 18. On 26 November 2002 the Bailiffs’ Service terminated the enforcement proceedings after UAH 1,165.9 had been transferred to the applicant’s bank account. The judgment was fully executed in so far as it concerned the Hospital. 19. On 25 December 2002 the Bailiffs’ Service requested the HPD to comply with the judgment of 29 November 2001 and to transfer the amount due to the applicant to his bank account. 20. On 16 January 2003 the HPD paid UAH 862.75 [EUR 135.63] to the applicant. 21. On 20 January 2003 the Bailiffs’ Service received the payment request and the writ of execution back from the HPD, with a statement that the judgment could not be fully enforced due to the HPD’s lack of funds. 22. On 21 January 2003 the Bailiffs’ Service requested the HPD to pay the applicant the remainder of the judgment debt. 23. On 7 February 2003 the HPD transferred the remainder of the funds (UAH 647.2 [EUR 101.74]) to the applicant’s account. The Bailiffs’ Service terminated the enforcement proceedings. 24. On 19 May 2003 the Babushkinsky Court rejected for lack of substantiation the applicant’s claims against the Dnepropetrovsk Regional Department of the State Treasury for an award of compensation for the moral damage he had allegedly suffered due to the lengthy period of non-enforcement of the judgment of 29 November 2000. This judgment was not appealed and thus became final. 25. Article 124 of the Constitution provided as follows: “... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” 26. Under Article 2 of the Law, 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 for 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 inadequate enforcement or non-enforcement of a judgement, and to receive compensation. 27. Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage 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. 28. Under clause 3.6 of the regulations, the forced recovery of funds must be executed from the same account as that of ordinary payments. | 1 |
train | 001-91934 | ENG | FIN | CHAMBER | 2,009 | CASE OF TOIVE LEHTINEN v. FINLAND (NO. 2) | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1944 and lives in Tampere. He was the principal partner in a construction company, Toprakenne Ky Toive Lehtinen (limited partnership), which was wound-up in 1991. 6. On 8 May 1995 the SSP Bank (hereinafter “SSP”) initiated civil proceedings to enforce various debts against the applicant. The applicant was summoned on 17 May 1995. Subsequently the applicant filed a counter-claim, which was eventually joined to the original claim on 5 January 1996. 7. Between 4 December 1995 and 28 May 1998 a total of ten preparatory hearings and three main hearings were organised. 8. During the same period the District Court issued six partial decisions. The decisions concerned requests to grant the applicant free legal aid, to dismiss the opposing legal counsel, to declare the trial material classified, to declare one claim inadmissible, to relieve the applicant’s counsel of his tasks and to order the claimant to provide certain documents as evidence. 9. On 24 June 1998 the District Court gave its judgment, ordering the applicant to pay some 1,487,603 euros (EUR) with interest to SSP and dismissing all of the applicant’s counter-claims. 10. In his appeal the applicant challenged the judgment in its entirety as well as the earlier decisions of the District Court not to dismiss the opposing counsel and the refusal to order the claimant to produce certain documents as evidence. He requested that the case be remitted to the District Court and that an oral hearing be held before the Court of Appeal (hovioikeus, hovrätten) with regard to the missing documents or – if the case was not remitted – with regard to the entire case. He further requested that he be exempted from paying SSP’s legal fees or at least the value-added tax (VAT) on the fees. He also requested reimbursement of his own legal fees. 11. On 30 November 1999 the Court of Appeal remitted the case to the District Court, ordering SSP to provide three specified documents (minutes from various board meetings) at the hearing before the District Court and allowing the applicant to provide some additional evidence which had previously been refused by the District Court. 12. The proceedings became pending before the District Court on 27 March 2000. Between 31 May 2000 and 26 March 2001 a total of three preparatory hearings and five main hearings were organised. 13. On 6 September 2000 the District Court ordered SSP to provide various additional documents, including the above-mentioned ones. All but two of the requested documents were provided on 30 October 2000. The missing documents were no longer in the possession of SSP or they had not been found. 14. On 5 June 2001 the District Court decided on the case for the second time, finding that the examination of the previously presented evidence, the new evidence and the new hearing of all the witnesses did not give rise to any new conclusions. The judgment was essentially the same as the one given in the first set of proceedings. 15. In his appeal the applicant requested that the judgment be quashed, that an oral hearing be held, and that he be exempted from paying SSP’s legal fees or at least the VAT thereon. He also requested reimbursement of his own legal fees. In the addendum to his appeal he requested the Court of Appeal to order the missing documents to be provided and to remit the case again to the District Court since the judgment did not specify the new evidence nor address the issue of changed witness statements. He also claimed that the judge had been biased. 16. On 21 February 2003 the Court of Appeal dismissed the applicant’s request to have the case remitted again to the District Court and held that it was plausible that the missing documents were not in the possession of SSP. It further found that the judge in question had not been biased and that there was no indication that the new evidence had not been taken into consideration. In regard to the latter, the Court of Appeal added that, in any event, the relevant witnesses would be heard again. 17. After having held an oral hearing over four days the Court of Appeal upheld the decision of the District Court on 25 September 2003. The applicant was exempted from paying VAT on the legal fees incurred before the Court of Appeal, but the court held that since he had not requested an exemption before the District Court, the exemption did not apply to legal fees incurred at that stage. 18. On 24 June 2004 the Supreme Court (korkein oikeus, högsta domstolen) granted leave to appeal with regard to the issue of exemption from the payment of VAT on the legal fees incurred before the District Court. Leave to appeal was refused as regards the remainder of the case. 19. On 18 March 2005 the Supreme Court gave its judgment on the VAT exemption. | 1 |
train | 001-5648 | ENG | FRA | ADMISSIBILITY | 1,999 | THE MUNICIPAL SECTION OF ANTILLY v. FRANCE | 1 | Inadmissible | null | The applicant is the Municipal Section of Antilly in the municipality of Argilly (Côte-d’Or). It is represented before the Court by Mrs Defosse, of the Dijon Bar. The community of Antilly has existed since time immemorial and owns property (forests, pastures, a town hall), its title to which is undisputed. At the time of the French Revolution the municipality of Argilly was created, incorporating the community of Antilly. In accordance with the law, the latter was established as a section of the municipality and remained the owner of the property it had owned previously. On 12 February 1994 the Board of Management of the Municipal Section of Antilly, which managed the section’s property and rights, resolved to bid for a plot of farm land in the municipality of Argilly and within the municipal section of Antilly. On 13 October 1994 the prefect of the Côte d’Or département applied to the Dijon Administrative Court to have the municipal section’s resolution of 12 February 1994 set aside. In a judgment of 21 January 1995 the Dijon Administrative Court set aside the resolution of 12 February 1994 on the ground that the municipal section had no power to take a decision on the acquisition of land. On 20 March 1995 the Board of Management of the Municipal Section of Antilly applied to the Conseil d’Etat to have that judgment varied or quashed. It firstly contested that it lacked jurisdiction to acquire real property. It further argued that the impugned judgment was confiscatory visà-vis the municipal section and consequently infringed Article 1 of Protocol No. 1 to the Convention. It lastly alleged that it had not had a fair hearing, contrary to Article 6 of the Convention. On 12 December 1997 the Conseil d’Etat dismissed the Municipal Section of Antilly’s application holding as follows: “The fact, asserted by [the applicant municipal section], that it had not been possible, for want of sufficient financial resources to instruct a lawyer, for it to properly prepare its defence ... has no bearing on the lawfulness of the judgment being challenged. The proceedings in the Administrative Court were adversarial, in accordance with the provisions of the Administrative Courts and Administrative Courts of Appeal Code, and it cannot avail the applicant municipal section to pray in aid the provisions of Article 6 of the ... Convention ..., which do not apply in the instant case. ... it follows [from the provisions of Article L. 151-6 of the Municipalities Code] that the acquisition of property is not within the powers of the board of management of a municipal section. The impugned judgment, which denied the [applicant municipal section] the right to acquire a parcel of land, did not infringe the rights it had over the property it owned; the ground of appeal based on the judgment’s violation of the Constitution and of the provisions of the ... Convention ... which protect the right of property accordingly fails.” French Constitution – Part XII – Local and regional authorities – Article 72 “The local and regional authorities of the Republic are the municipalities, the départements and the overseas territories. Any other local or regional authority shall be created by law. Those territories shall be freely administered by elected councils and under the conditions provided for by the law.” Municipalities Code – Book V – Interests specific to certain categories of inhabitant Chapter 1 – Municipal section “Any part of a municipality permanently and exclusively vested with property or rights distinct from those of the municipality shall constitute a municipal section. A municipal section shall have legal personality.” “The property and rights of the section shall be managed by the municipal council, the mayor and, in the cases provided for by Articles L. 151-6, L. 151-7, L. 151-8, L.151-9, L 151-11, L. 151-15 and L. 151-18 of this Code, by a board of management and its chairman.” “... The members of the board of management, who are to be chosen from among the persons eligible to stand for election to the municipal council of the municipality to which the municipal section belongs, shall be elected according to the same rules as the municipal councillors of municipalities with under 3,500 inhabitants... The mayor of the municipality to which the municipal section belongs shall be a member of the board of management ex officio.” “Subject to the provisions of Article L. 151-15, the board of management shall decide on the following matters: 1. Contracts entered into with the municipality to which it belongs or another municipal section; 2. Sale, exchange or lease for nine years or more of the section’s property; 3. Change in the use of that property; 4. Settlements and legal proceedings; 5. Acceptance of gifts; 6. Membership of a landowners’ association or any other financial pooling organisation; 7. Setting up of a union of sections; and 8. Appointment of representatives to represent the municipal section; The chairman of the board of management shall take the necessary steps to ensure the execution of those decisions. ...”. COMPLAINTS 1. Relying on Article 6 § 1 of the Convention, the applicant municipal section complained of not having had a fair hearing because it had not been possible for it to prepare its defence properly for want of sufficient financial resources, unlike the public authorities which had been its opponents in the proceedings. In its submission, that inequality of means amounted to a breach of the principle of the equality of arms. 2. The applicant municipal section further considered itself the victim of a violation of its right to the peaceful enjoyment of its possessions as secured by Article 1 of Protocol No. 1 to the Convention. | 0 |
train | 001-112079 | ENG | RUS | ADMISSIBILITY | 2,012 | ZVEREV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant, Mr Aleksandr Anatolyevich Zverev, is a Russian national, who was born in 1956 and lived until his arrest in Moscow. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 2001 the criminal proceedings were initiated against the applicant on suspicion of aggravated kidnapping and aggravated accessory to murder. On 22 May 2001 he was remanded in custody. 4. On 9 April 2004 the Moscow City Court gave judgment of conviction. The applicant was found guilty of aggravated kidnapping and aggravated accessory to murder and sentenced to eighteen years’ imprisonment. 5. The applicant and his defence lawyer lodged an appeal. On 13 October 2004 the Supreme Court of the Russian Federation upheld the conviction and the sentence in full. | 0 |
train | 001-57863 | ENG | FRA | CHAMBER | 1,994 | CASE OF BENDENOUN v. FRANCE | 2 | No violation of Art. 6-1;Not necessary to examine P1-1 | C. Russo | 7. Mr Michel Bendenoun is a French citizen who lives in Zürich and is a dealer in coins. On 1 July 1973 he formed a public limited company under French law, ARTSBY 1881, with its head office in Strasbourg, for the purpose of dealing in old coins, objets d’art and precious stones. He owned the greater part of its capital (993 out of a total of 1,000 shares) and acted as its chairman and managing director. As a result of his activities, three sets of proceedings - customs, tax and criminal proceedings - were brought against him, and they progressed more or less in parallel. 8. Between 3 June and 26 September 1975 the National Head Office of Customs Investigations (Belfort frontier zone) carried out a check on imports made by ARTSBY 1881; they were acting on information received from an anonymous informer. The main events during the investigation were that Mr Bendenoun was questioned and documents were seized (3-6 June), clients were questioned (6 June), employees and former employees of the company and an expert were interviewed (8-17 September) and Mr Bendenoun himself was arrested in Metz (26 September). 9. On the basis of the evidence thus gathered the applicant was prosecuted for various customs and exchange-control offences. A composition was reached on 6 January 1978, however, whereby Mr Bendenoun admitted the offences and paid a fine of 300,000 French francs (FRF) and the customs returned the seized items to him. 10. During the proceedings the applicant had access to all the documents in the customs file, which contained 24 reports and 353 other documents. The reports were the following: no. 73/1: questioning of Mr Bendenoun (Strasbourg, 3 June 1975); no. 73/2: searches of the premises of ARTSBY 1881 and of Mr Bendenoun’s home, and interviewing of Mr Bendenoun (Strasbourg, 3 June); no. 73/3: arrest of an employee of ARTSBY 1881 (Strasbourg, 3 June); no. 73/4: arrest of an employee of ARTSBY 1881 (Strasbourg, 3 June); no. 73/5: sealing of a bank strongbox (Strasbourg, 3 June); no. 73/6: arrest of an employee of ARTSBY 1881 (Strasbourg, 3 June); no. 73/7: opening of the bank strongbox (Strasbourg, 4 June); no. 73/8: seizure of old coins, cash and a vehicle (Strasbourg, 4 June); no. 73/9: interviewing of Mr Bendenoun (Strasbourg, 4 June); no. 73/10: interviewing of Mr Bendenoun (Strasbourg, 6 June); no. 73/11: interviewing of Mr Bendenoun (Strasbourg, 6 June); no. 73/12: interviewing of one of ARTSBY 1881’s clients (Pfastatt, 6 June); no. 73/13: interviewing of one of ARTSBY 1881’s clients (Colmar, 6 June); no. 73/14: interviewing of an employee of ARTSBY 1881 (Strasbourg, 8 September); no. 73/15: interviewing of one of ARTSBY 1881’s clients (Strasbourg, 8 September); no. 73/16: interviewing of a former employee of ARTSBY 1881 (Strasbourg, 10 September); no. 73/17: interviewing of a former employee of ARTSBY 1881 (Strasbourg, 10 September); no. 73/18: interviewing of a numismatist (Paris, 15 September); no. 73/19: interviewing of a former representative of ARTSBY 1881 (Strasbourg, 17 September); no. 73/20: interviewing of a former chairman of ARTSBY 1881 (Strasbourg, 24 September); no. 73/21: arrest and interviewing of Mr Bendenoun (Metz, 26 September); no. 73/22: interviewing of a representative of ARTSBY 1881 (Metz, 26 September); no. 73/23: interviewing of Mr Bendenoun (Metz, 26 September); no. 73/24: interviewing of a witness (Metz, 26 September). Mr Bendenoun received a copy of eight of them (nos. 73/1, 73/2, 73/8, 73/9, 73/10, 73/11, 73/21 and 73/23). The 353 documents comprised a register bearing the title "Invoice control" (sealed document no. 1), seized on ARTSBY 1881’s premises on 3 June 1975, and invoices and authentication certificates (sealed documents nos. 2 to 353), seized on the same day at the applicant’s home. 11. At some time - according to the Government - before 31 August 1976 and pursuant to Article 1987 of the General Tax Code (which became Article L 83 of the Code of Tax Procedure on 1 January 1982), the customs sent the file to the Revenue. 12. From 31 August to 28 September 1976 the Head Office of the Bas-Rhin Revenue carried out an inspection of ARTSBY 1881’s accounts. 13. On 30 November 1976 the inspector sent two supplementary tax assessments to Mr Bendenoun as chairman and managing director of the company. One of them related to corporation tax and the other to value-added tax. They set out in detail the manner in which the inspector had determined what receipts had not been entered in the accounts and he confirmed them on 4 April 1977 after receiving comments from the applicant. On the same date he also sent Mr Bendenoun personally a supplementary income-tax assessment, which he confirmed on 11 May 1977. Under the supplementary assessment the applicant was required to pay an additional FRF 841,366, including FRF 422,534 in penalties. The company was required to pay additional tax and penalties amounting to FRF 157,752 and FRF 309,738 in respect of the value-added tax and FRF 270,312 and FRF 260,660 in respect of corporation tax. 14. The inspector then drew up a nineteen-page report, ending with a request that criminal proceedings should be taken against the applicant, and these were instituted on 30 November 1977 (see paragraph 25 below). 15. On 6 December 1977 ARTSBY 1881, in the person of its chairman and managing director, lodged two appeals with the Regional Commissioner of Revenue in Strasbourg in respect of the corporation tax and the value-added tax. Mr Bendenoun filed a third appeal, in his own name, concerning the income tax. The Regional Commissioner refused the first two appeals on 20 April 1978 and the third on 3 April 1979. 16. On 16 June 1978 Mr Bendenoun, acting on behalf of ARTSBY 1881, made two applications to the Strasbourg Administrative Court concerning the corporation tax and the value-added tax. On 7 June 1979 he made a further application to the same court, this time in his own name, challenging the supplementary tax assessment on his income. 17. The Revenue annexed to its two sets of pleadings dated 5 April 1979 four customs reports (nos. 73/9, 73/10, 73/16 and 73/17 - see paragraph 10 above) and two letters from ARTSBY 1881 dated 30 May 1975 and June 1976. 18. On 29 May 1979 Mr Bendenoun’s lawyer sent two identically worded letters to the President of the court. They read as follows: "On 17 April 1979 you kindly forwarded to me the Regional Commissioner of Revenue’s pleadings of 5 April 1979. These pleadings refer several times to a file opened on Mr Michel Bendenoun, the chairman and managing director of the ARTSBY company, by the customs authorities. Six documents from that file are annexed to the Revenue’s pleadings. It would seem essential for the whole of the file to be sent to the court and the undersigned. The scale of the customs investigation was very large indeed and a number of reports, whose existence has not been mentioned by the authorities, are directly relevant to the present dispute. ..." On 29 June 1979 the President of the court wrote to the Strasbourg public prosecutor to this end: "For the purposes of preparing for trial a case concerning tax files relating to the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the file on Mr Bendenoun, the chairman and managing director of the company. A number of reports are directly relevant to the case, and the National Head Office of Customs Investigations has informed me that the file in question was sent to you on 15 April 1978..." In a letter of 11 July 1979 the public prosecutor replied as follows: "... I am unable to send you the file opened on Michel Bendenoun in connection with the criminal investigation on charges of tax evasion. I would point out that the Revenue is a civil party to the criminal proceedings and therefore may, since it has access to the case file, apply for a copy of it if it sees fit. ..." 19. On 19 July 1979 counsel for the applicant wrote again to the President of the court: "... ... [my] request was not for production of the tax-evasion file but of a customs file which has not been the subject of any judicial investigation involving the Strasbourg public prosecutor’s office as a composition was reached between Mr Bendenoun and the customs authorities. ... I would add that production is being sought at my request and not at that of the Revenue, since it is precisely the Revenue that is relying on documents from the customs investigation, and unless he has been able to inspect the customs file in its entirety Mr Bendenoun cannot make any sensible comments." 20. On 9 December 1980 Mr Bendenoun’s lawyer sent another letter to the President of the court: "... To date, I have ... not been able to study the customs file. The Revenue, however, relies on certain reports taken from a large mass of reports. I should therefore be obliged if you would let me know how I am to be able to study the whole customs file. I should also be glad if you would kindly extend the time allowed me for submitting comments until the customs file has been made available to me, as requested as early as 1979." The President of the Administrative Court sent the public prosecutor a letter dated 30 December 1980 in which he said: "For the purposes of preparing for trial a case concerning tax files on the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the documents relating to the customs file on the criminal investigation into Mr Bendenoun, the chairman and managing director of the company. This customs file is directly relevant to the tax case, which is before the Administrative Court also." The request went unanswered. 21. On 30 November 1981 the Administrative Court delivered three judgments in which it dismissed ARTSBY 1881’s and Mr Bendenoun’s applications. It did not mention the decisions given in the case by the criminal courts (see paragraphs 28 and 30 below). 22. On 1 March 1982 Mr Bendenoun, acting on his own behalf and on behalf of ARTSBY 1881, appealed to the Conseil d’État against the three Administrative Court judgments. 23. In supplementary pleadings filed on 1 July 1982 he set out the following ground of appeal: "Although the tax authorities made ample use of items in the customs file which in their view showed that the supplementary assessments in issue were justified, while ignoring those which clearly would have provided grounds for setting them aside, they deliberately decided not to meet the appellant’s requests to inspect that customs file in its entirety. ... Compliance with the adversary principle precludes accepting an argument which the opposing side cannot be aware of and which thus cannot be sensibly challenged by them." 24. The Conseil d’État dismissed the appeals in three judgments on 28 May 1986. The reasons given for the one concerning value-added tax for the period from 1 July 1973 to 31 December 1975 (no. 40482) were worded as follows: "The lawfulness of the judgment appealed against It appears from the pre-trial preparations that the applicant company was put in a position to inspect all the documents in the file that were likely to have a bearing on the resolution of the dispute, including the customs reports establishing the existence of concealed receipts. That being so, the ground of appeal alleging that the judgment at first instance was unlawful because the ‘ARTSBY 1881’ company was unable, during the course of the proceedings at first instance, to inspect all the documents in the customs file must be rejected. The lawfulness of the assessment procedure and the burden of proof It appears from the pre-trial preparations that in June 1975 the customs seized invoices for a total of FRF 1,676,710 at the home of Mr Bendenoun, the chairman and managing director of the public limited company ‘ARTSBY 1881’, which trades in old coins and nearly all of whose capital was owned by Mr Bendenoun from 1974 onwards. It appears from the findings of fact made by the Colmar Court of Appeal in a judgment that was given in criminal proceedings on 13 May 1981 and has become final (findings which are binding erga omnes) that Mr Bendenoun, ‘who did not have sufficient financial resources personally to carry out’ the transactions recorded in the invoices seized at his home, ‘deliberately decided, with the aim of evading tax on part of the company’s receipts, to conceal about 25% of the company’s turnover by not entering it in the company’s books and taking care to keep the copies of the relevant invoices at home...’. These findings establish that the bookkeeping of the ‘ARTSBY 1881’ company was not reliable. That being so, the Revenue was legally entitled to rectify of its own motion the figure of the company’s turnover for the period from 1 July 1973 to 31 December 1974. It is consequently for the company to show that the basis taken by the Revenue for making the disputed assessments was too high. The amount of the assessments ... The penalties The applicant company intended, by means of a systematic process of concealment, to evade payment of value-added tax on transactions made in 1974 and 1975. The authorities were therefore entitled to regard it as having been guilty of deception and subsequently to increase the tax due by 200% as provided in Articles 1729 and 1731 of the General Tax Code taken together." The same reasoning was adopted in the other two judgments (nos. 40480 and 40481). 25. By means of two applications made on 30 November 1977 the Head Office of the Bas-Rhin Revenue lodged a complaint against Mr Bendenoun with the Strasbourg public prosecutor’s office. The applications were accompanied by a series of supporting documents. 26. On 3 March 1978 the investigating judge instructed the police to obtain the customs file. This was received on 19 April 1978 and contained copies of the 24 reports, sealed document no. 1 drawn up by officials of the National Head Office of Customs Investigations and the 352 other sealed documents in a hardback file. The whole customs file remained at the court throughout the judicial investigation and counsel for the accused had access to it on each occasion that his client was questioned (12 January 1978, 8 February 1978 and 12 February 1980) and again before the trial. 27. On 21 May 1980 the public prosecutor applied for Mr Bendenoun to be committed for trial. 28. On 21 November 1980 the Strasbourg Criminal Court delivered two judgments (nos. 6776/80 and 6780a/80) concerning the accused, the first in his capacity as chairman and managing director of ARTSBY 1881 (corporation tax and value-added tax), the second in his personal capacity (income tax). In each judgment he was given a suspended sentence of fifteen months’ imprisonment for tax evasion, both sentences to run concurrently, and was ordered to be imprisoned for one year in the event of non-payment of the sums owed. 29. Mr Bendenoun appealed against these judgments to the Colmar Court of Appeal. In his submissions he complained that the documents relating to the customs proceedings were no longer in the file. 30. In two judgments on 13 May 1981 (nos. 615/81 and 616/81) the Criminal Division of the Court of Appeal upheld the decisions of the trial court and also sentenced Mr Bendenoun to a fine of FRF 30,000. In the first judgment it dismissed the ground of appeal based on the fact that documents were missing from the file: "... (d) knowledge of [the documents in the customs file] is in no way necessary or even helpful for the discovery of the truth, since the statements lawfully obtained from the accused during the present proceedings and the documents that he himself submitted at the trial provided ample evidence in respect of the sole difficulty on which his guilt depends; and (e) the rights of the defence have thus not been prejudiced in any way." 31. Mr Bendenoun appealed on points of law against the two judgments. In particular, he alleged that the rights of the defence had been infringed in that the customs file had not been put before the Court of Appeal. 32. The Court of Cassation dismissed his appeals in two judgments on 24 May 1982. It rejected the ground of appeal just referred to in the following terms, identical in both judgments: "... In finding Bendenoun guilty of fraudulently evading assessment or payment of taxes, the Court of Appeal stated that the defendant did not ‘dispute the existence of the invoices discovered’; that it was thus ‘unnecessary to be acquainted with all the documents in the customs proceedings’; that it was apparent from the facts established in the judicial investigation that Bendenoun had evaded the payment of corporation tax by the ARTSBY 1881 company by concealing taxable sums exceeding the statutory allowances; and that the defendant’s explanation that the transactions in question had been effected in the course of a private, unregistered business as a dealer in coins were unacceptable owing to the circumstances set out and analysed by the court below. Given these findings and statements, which adequately and consistently show that all the ingredients of tax evasion - as regards both the actus reus and the mens rea - have been made out against Bendenoun, and seeing also that it is apparent from this that the court below based its decision solely on evidence which was put before it during the trial and was the subject of adversarial argument before it in accordance with the provisions of Article 427 of the Code of Criminal Procedure and did not in any way infringe the rights of the defence, the grounds of appeal, which merely attempt to call in question the unfettered discretion of the courts below to assess this evidence, must fail." | 0 |
train | 001-4884 | ENG | AUT | ADMISSIBILITY | 1,998 | HOCHREINER v. AUSTRIA | 4 | Inadmissible | null | The applicants are a couple. They are farmers residing in Linz, Upper Austria. In the proceedings before the Court they are represented by Mr. Josef Lindlbauer, a lawyer practising in Enns. On 14 June 1968 the Federal Ministry for Defence (Bundesministerium fűr Landesverteidigung) issued a decree (Verordnung) under the Ammunition Depot Act (Munitionslagergesetz) declaring that parts of the applicants’ land fell within the danger zone (Gefährdungsbereich) of the Ebelsberg ammunition depot. It appears that certain restrictions on the use of the property at issue follow from such a declaration. On 9 July 1969 the applicants lodged a request for compensation with the Linz District Court (Bezirksgericht). On 21 April 1981 the Federal Ministry for Defence issued a second decree including two further plots of land belonging to the applicants in the danger zone of the Ebelsberg ammunition depot. The decree entered into force on 1 May 1981. On 22 February 1989 the applicants, represented by counsel, specified their compensation claim as regards the plots of land affected by the 1968 decree and extended their claim as regards the plots of land affected by the 1981 decree. On 28 November 1990 the Linz District Court dismissed the applicants’ compensation claim as regards damages resulting from the 1968 decree as well as regards damages resulting from the 1981 decree. Referring to the relevant provisions of the Ammunition Depot Act, the court noted that anyone claiming damages resulting from a decree under the said Act had to file a request for compensation within one year of the entry into force of the respective decree. As to the 1968 decree, the applicants had filed their compensation claim within the time-limit. However, they had implicitly waived their right to compensation as they had not pursued their claim for twenty years. As to the 1981 decree, the applicants had only filed their request on 22 February 1989. The court noted that the applicants had claimed to have made a supplementary request when lodging their first claim, in which they requested the court to take any changes of the danger zone into account and to take any necessary steps to compensate them for future damages. The court explicitly noted that it was irrelevant whether or not the applicants had filed the said supplementary request. Even if it had been made as claimed by the applicants, it did not fulfil the requirements of a compensation claim as is did not specify the plots of land concerned and the amount of compensation requested. The applicants had only made these submissions on 22 February 1989, i.e. outside the one year time-limit. On 19 March 1991 the Linz Regional Court (Landesgericht) upheld the District Court’s decision as regards the refusal of compensation for damages resulting from the 1981 decree. However, it quashed the said decision as regards the refusal of damages resulting from the 1968 decree and referred the case back to the District Court. Subsequently, the applicants were granted compensation in this respect. On 10 September1991 the Supreme Court (Oberster Gerichtshof) dismissed the applicants’ appeal on points of law. Referring to the relevant provisions of the Ammunition Depot Act, it noted that the claim to compensation only arises once the respective decree is issued. Thus, even assuming that the applicants had in 1969 filed a supplementary request relating to possible future damages, such a request was inadmissible. As the applicants failed to specify their compensation claim within one year of the entry into force of the 1981 decree, their request was out of time and had to be rejected. | 0 |
train | 001-91839 | ENG | HUN | CHAMBER | 2,009 | CASE OF KATONA 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 1965 and lives in Zalaegerszeg. 5. On 12 December 1996 the applicant filed for divorce. 6. After three remittals to the first instance court, the proceedings ended on 4 October 2005 when the Supreme Court rejected the parties’ petition for review, after the lower instances had pronounced the parties’ divorce, granted the custody of the couple’s son to the applicant. The father’s right of access was also regulated and the matrimonial property divided, allowing the applicant and the son to stay in the couple’s flat against compensation payable to the ex-husband for his share of the flat. The proceedings thus lasted almost eight years and ten months for three levels of jurisdiction. 7. The first-instance decision adopted after the last remittal allowed the customary 10% deduction from the value of the flat on account of the mother’s statutory obligation to lodge her minor son in it, which would have reduced her debt to the ex-husband by 413,650 Hungarian forints (HUF). However, the second-instance court annulled this advantage because it miscalculated the son’s age, holding that he was no longer a minor. The Supreme Court rejected the applicant’s objection to the latter ruling as the son in the meantime had become of age. | 1 |
train | 001-114497 | ENG | SVK | ADMISSIBILITY | 2,012 | MARTIKÁN v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Ján Martikán, is a Slovak national, who was born in 1974 and lives in Kysucké Nové Mesto. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant was charged, indicted and tried for ill-treatment and rape (Articles 215 and 241 of the Criminal Code). The case was remitted to the Žilina District Court (Okresný súd), as the court of first instance, after its judgment (rozsudok) convicting the applicant had been quashed by the Žilina Regional Court (Krajský súd) following an appeal by the applicant (odvolanie). The current state and outcome (if any) of the proceedings is unknown. 4. In the course of his trial the applicant was remanded in custody and the term of his detention was repeatedly extended. The relevant part of the requests, appeals and decisions is described below. 5. The requests for release of 24 February and 8 March 2006 were dismissed by the District Court on 20 March 2006 and, following an interlocutory appeal (sťažnosť) by the applicant, by the Regional Court on 30 May 2006, the final decision being served on the applicant on 16 June 2006. The proceedings leading up to the latter decision were found by the Constitutional Court (Ústavný súd) on 27 March 2007 to have been short of the “speediness” requirement under Article 5 § 4 of the Convention. Accordingly, the Constitutional Court found a violation of that provision and awarded the applicant the equivalent of some 900 euros (EUR) in just satisfaction. 6. In the same judgment (nález) the Constitutional Court found that the procedure leading up to a decision of the Supreme Court (Najvyšší súd) of 23 August 2006 to extend the applicant’s detention until 16 January 2007 had equally been incompatible with the applicant’s rights under Article 5 § 4 of the Convention. A separate violation of that provision was found and, in that respect, the applicant was awarded the equivalent of some EUR 600 by way of just satisfaction. 7. The request for release of 2 October 2006 was dismissed on 2 November 2006 and, following an interlocutory appeal by the applicant, also on 12 December 2006. 8. On 20 November 2006 the applicant again requested release. He relied on different grounds from those submitted in his previous request, which at that time had not yet been determined. In particular, the applicant argued that in the proceedings leading up to the Supreme Court decision of 23 August 2006 (see paragraph 6 above) on the last extension of his detention, he had been deprived of access to the case file and his observations had not been taken into account. This request has never been determined, which was found by the Constitutional Court to be in breach of the applicant’s rights under Article 5 § 4 of the Convention (see paragraphs 12 et seq. below). 9. A further request for extension of the applicant’s detention was dismissed on 11 January 2007, which is why the applicant was released, on 16 January 2007. In that decision, the Supreme Court observed, inter alia, that repeated requests for release and challenges for bias were the lawful right of the applicant and that, although they had undoubtedly had an impact on the length of the proceedings, they were no excuse in themselves for unjustified delays in the proceedings. 10. In the course of the proceedings, the applicant sought the withdrawal of individual judges as well as the entire bench of the District Court and the Regional Court, on the grounds of bias. These challenges had the following outcomes: - A challenge concerning an assessor in the District Court chamber dealing with the applicant’s case was dismissed as unfounded on 2 November 2006 and, upon an interlocutory appeal by the applicant, also on 12 December 2006. - Further challenges were lodged on 7 and 20 November 2006, against all the judges of the Regional Court and the presiding judge of the District Court’s chamber dealing with the applicant’s case. Their outcomes are unknown. 11. On 18 January and 5 March 2007 the applicant introduced and amended respectively a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court, contending that the procedure in respect of his request for release of 20 November 2006 (see paragraph 8 above) had been contrary to his rights under Article 5 § 4 of the Convention. 12. On 2 August and 20 December 2007, respectively, the complaint was declared admissible and the Constitutional Court found a violation of the applicant’s rights under the provision invoked. The Constitutional Court acknowledged that the applicant’s request for release of 20 November 2006 was based on grounds other than those in his request of 2 October 2006. The applicant was thus not precluded by law from making the second request before the final determination of the first one. Nevertheless, it had to be taken into account that the grounds underlying the second request must have already been known to the applicant at the time of the first request. 13. The Constitutional Court further observed that, at the relevant time, the District Court had to deal with a number of matters concerning the applicant’s detention, including a request for its extension. However, in view of the Constitutional Court, it had been for the District Court to deal first with the applicant’s request for release and only then with the other matters, and not, as the District Court had done, the other way round. 14. The Constitutional Court considered that the applicant’s procedural actions, and especially their accumulation at the relevant time, had been obstructionist in nature and that, with the term of the applicant’s detention nearing its end, as authorised at that time in the decision of 23 August 2006 (see paragraph 6 above), the applicant’s intention in taking those actions had been to create a time constraint for the courts. However, this had had no impact on the substantive conclusion, but was to be taken into account in connection with the applicant’s compensation claim. It was precisely for this reason that the Constitutional Court concluded that the finding of a violation of the applicant’s right was sufficient satisfaction for him. In addition, the applicant was awarded legal costs. 15. The relevant part of Article 46 reads as follows: “... 3. Everyone shall have the right to compensation for damage caused by an unlawful decision of a court, other State body or a body of public administration, or by wrongful official action. 4. Conditions and details ... shall be provided for by an Act of Parliament.” 16. Article 127: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may award appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. Liability for damage or other loss in respect of a person who has violated rights or freedoms as referred to in paragraph 1 shall not be affected by a Constitutional Court decision.” 17. The Constitutional Court Act (Law no. 38/1993 Coll., as amended) governs the organisation of the Constitutional Court, the procedure before it and the status of its judges. An individual complaint under Article 127 of the Constitution is made subject to the rule of exhaustion of ordinary remedies, which is formulated in the relevant part of section 53(1) and (2) as follows: “1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute. 2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition for reasons worthy of particular consideration.” 18. Under its section 56(4), when dealing with individual complaints, in the event of a finding of a violation of a fundamental rights or freedoms: “The Constitutional Court may also grant appropriate financial compensation to a person whose fundamental right or freedom has been violated.” 19. Section 56(6) provides that: “If the Constitutional Court quashes a final and binding (právoplatné) decision, measure or act and remits the matter for further proceedings, the person who issued the decision, decided on the measure or carried out the act is liable to examine and determine the matter anew. In such proceedings or a procedure [he] is bound by the legal view of the Constitutional Court.” 20. In connection with the present application, as well as three other individual applications under the Convention of a similar kind, the Constitutional Court produced a report. The report is dated 7 March 2011 and concerns specifically the existence of an enforceable right to compensation, as required by Article 5 § 5 of the Convention, in respect of detention in contravention of Article 5 §§ 1 to 4 of the Convention and the Constitutional Court’s practice in awarding appropriate financial compensation. The report and case-law references contained therein can be summarised as follows. 21. Awarding appropriate financial compensation under Article 127 § 3 of the Constitution is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals and legal entities which has been found by the Constitutional Court. The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection higher than the mere finding of a violation or, as the case may be, an order by the Constitutional Court that a case be dealt with without a violation of the fundamental right in question (cases nos. IV ÚS 410/04 and IV ÚS 139/08). The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy the violation of the right or freedom by quashing the impugned decision or measure or by restoring the status quo ante (case no. I ÚS 15/02). The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right; the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned (mutatis mutandis, case no. III ÚS 424/08). 22. As regards the system of remedies in respect of detention in violation of Article 5 §§ 1 to 4 of the Convention, by virtue of Article 127 § 4 of the Constitution, the liability of a person who has violated rights or freedoms as referred to in paragraph 1 of that Article for damage or other loss is not to be affected by the Constitutional Court’s decision, including on appropriate financial compensation. This provision is of particular relevance in correlation with the right to compensation for damage (including nonpecuniary damage) caused by a public authority under the State Liability Act. 23. The provision of Article 127 § 3 of the Constitution, which allows for an award of appropriate financial compensation, is a special and autonomous remedy, which is independent of the State Liability Act. It does not constitute a lex specialis and, therefore, an award or non-award of appropriate financial compensation under Article 127 of the Constitution does not preclude a claim for compensation for pecuniary or non-pecuniary damage under sections 7, 8 and 9 of the State Liability Act. 24. The State Liability Act (Law no. 514/2003) was enacted on 28 October 2003 and became operative on 1 July 2004. It provides for the liability of the State for damage which has been caused by, inter alia, unlawful arrest, detention (zadržanie) or other deprivation of liberty (section 3(1)(b)); decisions concerning remand in custody (väzba) (section 3(1)(c)); and wrongful official action (section 3(1)(d)). 25. Pursuant to section 7, where a decision on arrest, detention or any other deprivation of liberty has been quashed as being unlawful or where there has been wrongful official action in that context, a person affected by it is entitled to compensation for damage. 26. The right to compensation for damage caused by a decision concerning detention on remand is vested in the person who has been detained, provided that any criminal proceedings against him or her have been dropped (section 8(5)(a)), or he or she has been acquitted (section 8(5)(b)), or the matter has been referred to another authority (section 8(5)(c)). 27. However, no such right arises when the person concerned himself or herself has given cause to be remanded in custody (section 8(6)(a)). 28. Section 9, which deals with compensation for damage caused by wrongful official action, provides: “1. The State is liable for damage caused by wrongful official action. Wrongful official action includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities. 2. The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage.” 29. Section 17 defines the manner and extent of compensation for damage. Its relevant part provides: “1. Damage and lost profit shall be compensated for, unless special legislation provides otherwise. 2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.” 30. Under section 25(4), unless provided for otherwise by special legislation, disputes concerning matters regulated by the State Liability Act are to be decided upon by the courts. 31. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal. On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant’s appeal. 32. On 14 October 2009 the Bratislava Regional Court allowed an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act for damages and awarded him a sum of money in compensation for non-pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal. 33. In a judgment of 17 August 2009 (case no. 19C 47/2006) the Bratislava I District Court allowed an action for damages by an individual against the State under the State Liability Act and awarded the claimant a sum of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned extension of the claimant’s detention pending trial. The action was preceded by a constitutional judgment of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant’s rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court did not award the claimant damages, as he had made no claim for damages. | 0 |
train | 001-61451 | ENG | POL | CHAMBER | 2,003 | CASE OF WIERCISZEWSKA v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1956 and lives in Wizna, Poland. 5. In 1991, in the course of court proceedings concerning child support maintenance the Łomża District Court (sąd rejonowy) imposed on the applicant an interim ban on leaving the territory of Poland. She was not notified of that decision until 16 July 1991, when she was stopped at an airport, on her way to the United States of America. 6. On 30 September 1991 the applicant filed with the Łomża Regional Court (sąd wojewódzki) an action in which she claimed damages from the State Treasury. She argued that that ban was wrongful and not served on her, which had made it impossible for her to return to the United States of America and pursue her application for a residence permit there. The applicant submitted that judge X who had issued that order had known her former husband, who had been a party to those proceedings. 7. On 31 October 1991 the Białystok Court of Appeal (sąd apelacyjny) transferred the case to the Białystok Regional Court. 8. The latter court held hearings on 7 April, 24 September and 17 December 1992. 9. On 5 January 1993 it rejected a part of the applicant's claim. 10. At the hearing held on 13 May 1993 the court, at both parties' request, stayed the proceedings until the completion of disciplinary proceedings against judge X. 11. On 3 September 1993 the court resumed the proceedings. 12. It held further hearings on 7 October and 16 December 1993, as well as 20 January 1994. 13. On 3 February 1994 the Białystok Regional court gave judgment. It awarded the applicant damages in the amount of 145.820.500 old zlotys with interest. The defendant and judge X, who joined the proceedings as an intervener, appealed. 14. On 7 July 1994 the Białystok Court of Appeal quashed the Regional Court's judgment and remitted the case for re-examination. 15. On 1 August 1994 the applicant challenged the participation in the proceedings of all the judges from the Białystok Regional court. 16. On 15 December 1994 the Białystok Court of Appeal dismissed that petition. 17. The Regional Court held hearings on 26 April, 28 June and 6 September 1995. At the former the court decided to request the U.S. embassy to submit a certain piece of information. At the hearing of 26 June 1995 it imposed a fine on a witness for non-attendance before the court. 18. Hearings were held on 22 August, 19 September and 28 November 1996. 19. The hearing scheduled for 18 December 1996 was adjourned because of the presiding judge's illness. 20. The court held a hearing on 17 April 1997. 21. On 30 April 1997 it gave judgment. The court dismissed the applicant's action. She appealed. 22. On 7 November 1997 the Regional Court refused the applicant's request for exemption from the appellate court costs. On 2 December 1997 the Court of Appeal changed that decision and exempted her from part of those costs. 23. It held hearings on 5 February and 3 March 1998. 24. On 10 March 1998 the Białystok Court of Appeal amended the judgment of 30 April 1997 in that it awarded the applicant damages in the amount of 23,864 zlotys (PLN) with interest. All the participants to the proceedings lodged cassation appeals against that judgment. 25. On 12 May 1998 the Court of Appeal rejected the applicant's cassation appeal. She appealed. On 27 August 1998 the Supreme Court quashed the Court of Appeal's decision. 26. On 28 June 2000 the Supreme Court quashed the judgment under appeal and remitted the case for re-examination. 27. On 30 November 2000 the Court of Appeal held a hearing. 28. On 7 December 2000 it gave judgment. The court dismissed the applicant's appeal against the judgment of 30 April 1997 given by the Białystok Regional Court. The applicant lodged a cassation appeal against that judgment. 29. On 14 June 2002 the Supreme Court rejected that cassation appeal on procedural grounds. 30. Subsequently, the applicant's lawyer requested the re-opening of the case, relying on a recent judgment of the Constitutional Court concerning the State's liability for damage caused by a State official while giving a decision or carrying out other official duties. The request was rejected. 31. On 4 November 2002 the applicant's lawyer lodged a constitutional complaint relating to the rejection of her request for re-opening. On 9 June 2003 the Constitutional Court gave judgment. 32. Relying on that judgment, the applicant again filed a request for re-opening. On 9 October 2003 she informed the Court that her request had not yet been examined. | 1 |
train | 001-58307 | ENG | FRA | GRANDCHAMBER | 1,999 | CASE OF CIVET v. FRANCE | 1 | Lack of jurisdiction (complaint inadmissible) | Luzius Wildhaber;Nicolas Bratza | 7. Mr Civet, a French national, was born in 1947 and is currently in custody at Aiton Prison. 8. On 6 October 1993 one of the applicant’s daughters, Mrs Isabelle Di Malta (née Civet), who was born in 1970, went to the police station with her mother, Mrs Liliane Civet, to complain that her father had raped her on several occasions. She stated that Mr Civet had sexually abused her a number of times at the family home, while her mother was out, between 1984 and 1987. 9. On 7 October 1993 another daughter of the applicant, Miss Aline Civet, born in 1972, also reported her father to the police for raping her a number of times at the family home, while her mother was out, when she was 16 years old. 10. On the same day Mr Civet was placed under judicial investigation on charges of rape of a minor by a legitimate ascendant (ascendant légitime). The applicant was immediately charged and remanded in custody by an investigating judge of the Saint-Etienne tribunal de grande instance. 11. The applicant went on hunger strike for the first time, for twelve days until 6 April 1994. 12. On 13 July 1994 the investigating judge informed the parties that the investigation appeared to be complete and that the case file would be sent to the public prosecutor for his views on whether a prosecution should be brought. However, the investigation continued after that date as the judge had granted an application by Mr Civet for supplementary investigative measures. 13. On 8 February 1995 the investigating judge informed the parties again that the investigation appeared to be complete, but granted a further application by the applicant for supplementary investigative measures. 14. On 10 May 1995 the investigating judge informed the parties for the third time that the investigation appeared to be complete. The case file was sent to the public prosecutor on 31 May 1995 for his views on whether a prosecution should be brought. 15. On 2 October 1995 the investigating judge made an order for the documents to be forwarded to the public prosecutor at the Lyons Court of Appeal, in order to conclude the investigation. 16. In a judgment of 24 November 1995 the Indictment Division of the Lyons Court of Appeal committed the applicant for trial at the Assize Court on several counts of rape of a minor by a legitimate ascendant. An appeal on points of law by the applicant was dismissed on 21 March 1996. 17. On 3 June 1994 the investigating judge dismissed an application for release submitted on 31 May 1994. In a judgment of 24 June 1994 the Indictment Division of the Lyons Court of Appeal upheld the order dismissing his application. 18. The applicant appealed to the Court of Cassation on points of law, but his appeal was dismissed on 4 October 1994 on the ground that he had failed to lodge his grounds of appeal within the statutory time. 19. On 5 August 1994 the investigating judge dismissed a further application for release, submitted on 2 August 1994, on the following grounds: “[The applicant’s] two daughters have made grave allegations against him of sex offences classified as ‘serious crimes’ (de nature criminelle). Offences of this kind, committed against girls under the age of 15 by a legitimate ascendant, seriously prejudice public order. There is a risk that the victims and their mother will be intimidated. The applicant has numerous previous convictions.” 20. The Indictment Division of the Lyons Court of Appeal upheld that order in a judgment of 23 August 1994. 21. On 9 September 1994 the investigating judge refused a further application for release, submitted on 6 September 1994, stating: “The charges are serious. These offences classified as ‘serious crimes’ are, by definition, seriously prejudicial to public order in that they inflict lasting damage on the physical, mental and psychological well-being of children. The applicant is known for his intemperance and violence and has numerous previous convictions.” 22. The applicant appealed. In a judgment of 4 October 1994 the Indictment Division of the Lyons Court of Appeal upheld the order of 9 September 1994. 23. In an order of 4 October 1994 the investigating judge extended the pre-trial detention for one year on the same grounds as those set out in the order of 9 September 1994. 24. On 17 August 1995 the investigating judge dismissed an application for release submitted by the applicant on 14 August 1995. The applicant appealed. 25. In a judgment of 1 September 1995 the Indictment Division of the Lyons Court of Appeal upheld the order on the grounds that, despite the applicant's denials, “there is serious and strong evidence that he committed the rapes with which he has been charged. Given his attitude to the charges, there is a risk that, if released, he would be tempted to pressurise the victims, and indeed his wife, into retracting their statements. These violent crimes, even if not widely publicised, have caused serious prejudice to public order as far as the protection of children’s physical and psychological well-being is concerned. This prejudice, temporarily contained by remanding the applicant in custody, would recur if he were to be released, particularly as the investigation is almost complete. [The applicant], who is unemployed and has several previous convictions (for theft, handling stolen goods, misappropriation, driving while under the influence of alcohol and a hit-and-run offence), is described as a violent individual who presents a danger both to himself and others, particularly when under the influence of alcohol, and thus cannot provide sufficient guarantees that he will appear for trial. It therefore appears necessary to keep the accused in detention on remand in order to prevent him from reoffending, to protect public order from the consequences of these offences and to ensure that he remains at the disposal of the judicial authorities ...” 26. In an order of 29 September 1995 the investigating judge dismissed a further application for release, submitted on 25 September 1995. Mr Civet appealed. 27. In a judgment of 20 October 1995 the Indictment Division of the Lyons Court of Appeal upheld the order for the same reasons as those contained in its judgment of 1 September 1995. 28. On 27 June 1996 the Assize Court for the département of the Loire convicted the applicant of the offences charged and sentenced him to ten years’ imprisonment. 29. The relevant provisions of the Code of Criminal Procedure on pre-trial detention applicable at the material time are the following: “In cases involving serious crimes (matière criminelle) and other major offences (matière correctionnelle), where the possible sentence is equal to or exceeds one year’s imprisonment in the case of an offence discovered during or immediately after its commission (délit flagrant), or two years’ imprisonment in other cases, and if the constraints of judicial supervision are inadequate in regard to the functions set out in Article 137, detention pending trial may be ordered or continued (1) where detention of the accused pending trial is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on witnesses or victims, or collusion between accused and accomplices; (2) where such detention is necessary to protect the accused, to put an end to the offence or to prevent its repetition, to ensure that the accused remains at the disposal of the judicial authorities or to preserve public order from the disturbance caused by the offence. Detention pending trial may also be ordered, in the circumstances set out in Article 141-2, where the accused deliberately fails to comply with the obligations imposed by judicial supervision.” “Whatever the classification of the offence, an order for detention pending trial must set out the legal and factual reasons for the decision with reference to the provisions of Article 144 alone; the accused shall be informed orally of the order and be given a full copy of it, receipt being acknowledged by signature in the case file …” “In cases involving lesser criminal offences (matière correctionnelle) pre-trial detention may not exceed four months. However, at the end of this period, the investigating judge may extend the detention by an order giving reasons as indicated in the first paragraph of Article 145. No extension may be ordered for a period exceeding four months. Where the accused has not previously been sentenced for a serious crime (crime) or other major offence (délit) to a non-suspended term of imprisonment exceeding one year and where the sentence that may be passed on him does not exceed five years, the extension of detention provided for in the preceding paragraph may be ordered only once and for a period not exceeding two months. In other cases the accused may not be kept in detention for longer than one year. However, in exceptional circumstances the investigating judge may decide at the end of that period to extend the detention, for a period not exceeding four months, by a reasoned order made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That order is renewable by means of the same procedure. Nevertheless the accused may not be kept in detention for more than two years where the sentence to which he is liable does not exceed five years. The orders referred to in the first and second paragraphs of this Article shall be made after the public prosecutor and, if applicable, the accused or his lawyer have submitted their observations.” “In cases involving serious crimes (matière criminelle) an accused cannot be held in detention for more than one year. However, the investigating judge may, at the end of that period, decide to prolong detention for a period not exceeding one year in a decision made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That decision is renewable by means of the same procedure. The provisions of this Article shall apply until the disposal order is made.” “Whatever the classification of the offence, the accused may be released, subject or not to judicial supervision, by means of an order made by the investigating judge of his own motion after the public prosecutor has submitted his observations, provided that the accused undertakes to attend for procedural purposes whenever required to do so during the investigation and to keep the investigating judge informed of all his movements. The public prosecutor may also apply at any time for the accused to be released. The investigating judge shall rule within five days of such an application.” “Whatever the classification of the offence, the accused or his lawyer may at any time lodge with the investigating judge an application for release, subject to his giving the undertakings referred to in the preceding Article. The investigating judge shall communicate the file immediately to the public prosecutor for his submissions. The investigating judge shall take a decision, in an order setting out the legal and factual reasons for the decision with reference to the provisions of Article 144, not later than five days following communication of the file to the public prosecutor. However, where a decision has still to be taken on a previous application for release or on an appeal against an earlier order refusing release, the five-day period shall not start to run until the date of the decision of the investigating judge or indictment division. Where release is granted, it may be made subject to judicial supervision. If the investigating judge fails to give a decision within the period laid down in the third paragraph, the person concerned may apply directly to the indictment division, which after receiving the Principal Public Prosecutor’s reasoned submissions in writing, shall give a decision within twenty days of the application to it, failing which the accused shall automatically be released unless an order has been made for particulars of his application to be verified. The public prosecutor is likewise entitled to apply to the indictment division in the same eventuality.” “An application for release may also be made by any accused for any reason and at any stage in the proceedings …” “Any judicial authority which has to rule, pursuant to Articles 141-1 and 148-1, on an application for a judicial supervision order to be discharged in whole or in part or for release shall give its decision after hearing the prosecution and the accused or his lawyer; an accused who is not in detention and his lawyer shall be given notice by registered letter at least forty-eight hours before the date of the hearing. The judicial authority to which the application has been made, depending on whether it is an authority of first or second instance, shall give its decision within ten or twenty days of receipt of the application. However, where on the date of receipt of the application a decision has still to be taken on a previous application for release or on an appeal against an earlier decision to refuse release, the ten- or twenty-day period shall not start to run until the date of the decision of the relevant judicial authority; if no decision has been given by the end of that period, the judicial supervision or detention pending trial shall be terminated and the accused, unless detained for another reason, shall automatically be released. The judicial authority’s decision shall be enforceable immediately notwithstanding any appeal; where the accused remains in detention, the indictment division shall give its decision within twenty days of the appeal, failing which the accused, unless detained for another reason, shall automatically be released.” “When four months have elapsed since his last appearance before the investigating judge or a judge delegated by the investigating judge, an accused or his lawyer may, provided no disposal order has been made, apply for release directly to the indictment division, which shall decide as laid down in the last paragraph of Article 148.” “In the event of a breach of the law, judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies can be set aside on an appeal on points of law to the Court of Cassation lodged by the public prosecutor or by the party adversely affected, according to the distinctions made hereafter. Such an appeal shall be lodged with the Criminal Division of the Court of Cassation.” “The Criminal Division, when hearing an appeal on a point of law against a judgment of the indictment division concerning pre-trial detention, shall rule within three months of the file’s being received at the Court of Cassation, failing which the accused shall automatically be released. The appellant or his lawyer shall, on pain of having his application dismissed, file his pleading setting out the grounds of appeal within one month of the file’s being received, save where exceptionally the President of the Criminal Division has decided to grant an extension of eight days. After the expiry of this time-limit, no new grounds may be raised by him and no further pleadings may be filed. As soon as the pleading has been filed, the President of the Criminal Division shall set the case down for hearing.” “Judgments of indictment divisions and judgments of trial and appeal courts against which no ordinary appeal lies and which comply with the formal requirements laid down by statute can be quashed only on grounds of a breach of the law.” “Such judgments shall be declared null and void if they are not delivered by the prescribed number of judges or have been delivered by judges who have not attended all the hearings in the case. Where several hearings have been held in one and the same case, the judges who have taken part in the decision shall be presumed to have attended all of them. Such judgments shall also be declared null and void if they have been delivered without submissions having been heard from the public prosecutor. Subject to the exceptions laid down by law, judgments which have not been delivered, or in respect of which the proceedings have not been conducted in open court, shall also be declared null and void.” “Judgments of indictment divisions and judgments against which no ordinary appeal lies shall be declared null and void if they contain no reasons or if the reasons are insufficient and do not enable the Court of Cassation to exercise its power of review and to ascertain that the law has been complied with in the operative provisions. The same rule shall apply in the event of a failure or refusal to rule either on one or more applications by the parties or on one or more applications by the public prosecutor.” “The Court of Cassation shall be able to quash a judgment without remitting it to the Court of Appeal if quashing it does not entail a rehearing of the merits. It may also, when quashing a judgment without remitting it to the Court of Appeal, dispose of the case where the facts, as found and assessed by the tribunals of fact in the exercise of their exclusive jurisdiction, allow it to apply the appropriate rule of law. …” 31. The Court of Cassation has acknowledged that the assessment of the facts of a case by indictment divisions is a matter falling within their exclusive jurisdiction, but verifies that they have addressed “essential” (péremptoires) grounds, including those based on Article 5 § 3 of the Convention (Court of Cassation, Criminal Division (“Cass. Crim.”), 20 October 1987, Bull. Crim. no. 356; 12 April 1995, appeal no. 95-80,328; see also Cass. Crim., 2 September 1997, appeal no. 97-83,234). The Criminal Division of the Court of Cassation reviews the reasoning of indictment divisions in order to satisfy itself that it complies with statutory requirements, and ascertains that the reasons given by the tribunals of fact for their decisions regarding the length of pre-trial detention are adequate and consistent (see Cass. Crim., 20 June and 16 July 1996, appeals nos. 9681,557 and 96-82,086 respectively; see also Cass. Crim., 2 September 1998, appeal no. 98-83,322). Where an indictment division omits to address in its judgment a pleading by an appellant to the effect that there has been a violation of Article 5 § 3 of the Convention, the Court of Cassation will find that the judgment has no legal basis and quash it (see Cass. Crim., 12 December 1995, appeal no. 95-84,949; and 14 May 1996, appeal no. 9681,045; see also Cass. Crim., 18 May 1998, appeal no. 98-81,085). In exercising its power of review, the Court of Cassation has delivered judgments in the following terms, in particular: “The courts must address ‘essential’ grounds raised in pleadings submitted to them; all judgments must contain reasons justifying the decision reached, and giving inadequate reasons is tantamount to giving no reasons. It appears from the judgment appealed against and the documents exhibited in the proceedings that [C.W.], a Belgian national extradited from Spain, was charged by the investigating judge on 18 May 1991 with several counts of fraud and with infringing the Act of 24 January 1984 on money-lending and on the same day was ordered to be detained pending trial. An order was made on 16 September 1991 extending pre-trial detention for four months from 18 September 1991. On 19 November 1991 the investigating judge ordered him to be released subject to judicial supervision and on payment, before release, of security in the amount of 4,500,000 francs. 100,000 francs of that amount was intended to ensure that he appeared for subsequent proceedings and up to a ceiling of 4,400,000 francs to guarantee payment of ‘compensation for the damage caused by the offence, the expenses incurred by the State and fines’; that order was not complied with, since the defendant paid only 2,563,000 francs of the required security; on 15 May 1992 the investigating judge dismissed an application by [W.] for the judicial supervision order to be discharged in part and extended the pre-trial detention for four months from 18 May 1992, ‘subject to activation of the order for his release that was made on condition that a security in the amount of 4,500,000 francs was paid in advance’; in an order of 16 September 1992, against which the defendant appealed, the pre-trial detention was extended for a further period of four months with effect from 18 September 1992. In upholding that order [extending the pre-trial detention, following non-payment of the sum set by way of security], the Indictment Division, after referring to the offences with which [C.W.] had been charged and to the fact that the order of 19 November 1991 releasing him subject to judicial supervision had become final, stated: ‘The discussion initiated by [W.]’s lawyer of the criteria for pre-trial detention has no place here; it is of no relevance now that the defendant’s release has been ordered subject to judicial supervision and that his detention is being extended as a result of his own acts and therefore does not violate the rules laid down by the Convention for the Protection of Human Rights and Fundamental Freedoms.’ The Indictment Division added: ‘As a subsidiary consideration, his failure to comply with the conditions accepted by him suggests that were he to be released today, he would not appear for trial.’ However, in reaching that decision and not addressing the pleading submitted to it, in which reliance was placed on a violation of Article 5 § 3 of the above-mentioned Convention, according to which everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial, and in failing to set out the considerations of law and of fact which, under Article 144 of the Code of Criminal Procedure, justified extending pre-trial detention, the rules on which (as laid down by Article 145-1 of that Code) do not provide for any exception, the Indictment Division infringed the aforementioned provisions and principle and deprived its decision of a legal basis. The decision must therefore be quashed. For these reasons, the Court quashes and sets aside …” (Cass. Crim., 20 January 1993, Bull. crim. no. 32) “… [D.Z.] submitted before the Indictment Division that he had been continuously detained, since being charged, for four years and six months, during which the only measures taken by the investigating judge had been: at the end of 1994, to arrange a confrontation with the witnesses who had implicated him; between November 1994 and January 1996, to instruct experts to identify the victims who had died in 1992; and, during 1996, to take further witness statements. The length of his detention had thus been justified neither by the complexity of the case nor by his own conduct. In upholding the order appealed against, the Indictment Division stated that despite [D.Z.]’s denials, there was strong evidence that he had committed the offences with which he was charged; that detaining him was the sole means of ensuring until the trial that no pressure was brought to bear on witnesses and that the accused, who had no regular employment and no fixed address, appeared for trial; and that the investigating judge’s refusal of the application for release therefore had to be upheld, notwithstanding the length of time already spent in detention, which had been justified by the difficulties encountered by the judge in carrying out his task and especially in identifying the deceased. But by confining itself to referring, in order to justify the length of detention, to an investigative measure carried out by an expert and omitting to address the main arguments in the pleading submitted to it, the Indictment Division infringed the principles alluded to above. The decision must therefore be quashed. For these reasons, the Court quashes and sets aside …” (Cass. Crim., 22 July 1997) “ … Regard being had to Article 593 of the Code of Criminal Procedure, read together with Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, The courts are required to address the main arguments in the pleadings submitted to them. In dismissing [J.E.]’s application for release, the Court of Appeal in its judgment went no further than stating that the charges of aggravated rape of which he stood accused had caused exceptional and continuing prejudice to public order and that keeping him in detention was the only means of preventing him from bringing pressure to bear on the victim or evading justice by taking refuge outside French territory, since judicial supervision was inadequate for that purpose. However, in reaching that decision without addressing the defendant’s pleading in which reliance was placed on a violation of Article 5 § 3 of the European Convention on Human Rights, which provides that everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial, the Indictment Division deprived its decision of a legal basis. The judgment must therefore be quashed. For these reasons, and without its being necessary to examine the other grounds of appeal, the Court quashes and sets aside …” (Cass. Crim., 18 May 1998, appeal no. 98-81,085) 32. The Criminal Division of the Court of Cassation also quashes judgments for non-compliance with statutory formalities laid down on pain of nullity (Cass. Crim., 25 April, 21 August and 15 November 1995, appeals nos. 95-80,682, 95-83,124 and 95-84,543 respectively) and errors of law in the interpretation and application of the Code of Criminal Procedure (Cass. Crim., 11 January, 15 February, 27 February and 10 May 1995, appeals nos. 94-85,155, 94-85,570, 94-85,957 and 95-80,975 respectively). 33. Lastly, having regard to the provisions inserted into the Code of Criminal Procedure by Law no. 96-1235 of 31 December 1996, which came into force on 31 March 1997, the Court of Cassation now quashes judgments of indictment divisions which do not make clear why judicial supervision would be inadequate in a particular case or do not give any special reasons why the investigation should be continued (Cass. Crim., 6 and 19 August 1997, appeals nos. 97-82,955 and 97-38,014 respectively) or any indications of when the investigation is likely to be completed (Cass. Crim., 19 August 1997, cited above). | 0 |
train | 001-58184 | ENG | ITA | CHAMBER | 1,997 | CASE OF LAGHI v. ITALY | 4 | Art. 6 inapplicable | C. Russo;N. Valticos;R. Pekkanen | 7. Mr Luciano Laghi, an officer in the revenue police, lives in Bressanone (Bolzano). 8. On 24 July 1985 he instituted proceedings in the Consiglio di Stato for judicial review of a decision of the Ministry of Finance assigning him to a rank lower than the one to which he considered himself to be entitled. He also sought a stay of execution of that decision. 9. In a decision of 5 November 1985 the Consiglio di Stato allowed the application for a stay of execution. After a hearing on 2 February 1988 the Consiglio di Stato ordered the Ministry of Finance to produce various documents. 10. In a judgment of 8 March 1994, the text of which was deposited with the registry on 14 July 1994, the Consiglio di Stato gave judgment against the applicant. | 0 |
train | 001-108366 | ENG | UKR | ADMISSIBILITY | 2,011 | GEDERIM v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy | The applicant, Mr Aleksandr Evgenyevich Gederim, is a Ukrainian national who was born in 1990 and lives in Odessa. On 5 February 2010 the applicant authorised Mrs Tatyana Gederim, his mother, to represent him before the Court. The applicant’s mother in her turn was represented by Mr Andrey Kostin, a lawyer practising in Odessa, and by Mrs Larysa Goncharuk. The facts of the case, as submitted by the applicant, may be summarised as follows. According to the applicant’s mother, on 9 November 2003 she lodged a complaint with the Suvorivsky District Police Department (Суворівський районний відділ Одеського міського управління Міністерства внутрішніх справ України в Одеській області) that a certain teenager had beaten up the applicant, a minor at that time. No copy of this complaint is available. On 10 November 2003 the applicant tried to commit suicide by jumping from the roof of a multi-storey building. He survived, but suffered numerous serious injuries, and is now physically disabled. According to the applicant, he was being bullied by a certain Y., who extorted money from him and beat him up. According to the Government, the fact that the applicant had fallen from the roof was noted in a register of reported offences of the Suvorivsky District Police Department (журнал реєстрації повідомлень про злочини) and all the necessary investigations were carried out. It was decided not to institute criminal proceedings. On 23 July 2004 the Suvorivsky District Police Department, following “an additional verification”, again decided not to institute criminal proceedings. On 28 July 2005 this decision was quashed by a prosecutor, allegedly following a complaint by the applicant’s mother on 22 July 2005, and the case was remitted for additional investigation. On the same date the applicant’s mother was informed about it by letter. No copies of the decisions taken were attached to that letter. By letter of 3 February 2006 the applicant’s mother was informed that on 12 December 2005 and 30 January 2006 the Suvorivsky District Prosecutor’s Office had quashed the refusals to institute criminal proceedings, taken on an unknown date and on 30 January 2006, and remitted the case for further investigation. No copies of the decisions taken were attached. On 15 February 2006 the Suvorivsky District Police Department again refused to institute criminal proceedings for lack of evidence of a crime. On the same date the Suvorivsky District Police Department informed the applicant’s mother that “following her complaint registered on 22 July 2005, it had been decided not to institute criminal proceedings” without indicating any dates or attaching any decisions. On 5 October 2009 the applicant’s mother, after an inquiry from this Court, requested the Suvorivsky District Prosecutor’s Office to provide her with copies of the refusals to institute criminal proceedings. In reply, she was informed that on 15 January 2009 the case file materials had been destroyed, as the period they were kept in storage had expired. No copies of the above decisions are consequently available. After the case had been communicated to the respondent Government, on 17 April 2010 a police officer questioned the applicant. The Government state that this questioning took place on the initiative of officials of the Ministry of the Interior of Ukraine, after the Government Agent at the ECHR had, in order to prepare observations on the present case, requested the Ministry to provide all materials related to the case. The Government submitted a photocopy of the applicant’s explanations, written by the police officer and signed by the applicant. It is mentioned there that the applicant owed Y. a certain amount of money. The applicant spent some time at a computer club, met Y. on his way back, then climbed up to the roof of a certain building, and after some time jumped down. Nobody pushed the applicant or incited him to jump from the roof. In a letter of 9 February 2011 the applicant submitted that he had indeed been visited by two policemen, who had questioned him and his mother separately. However, the applicant states that because of his poor vision and the illegible handwriting he did not read the text written by the police officer, but signed it believing that the police officer had noted the applicant’s words correctly. According to the applicant, at the material time he was being constantly bullied by Y. and V. They beat and humiliated him, so he decided to commit suicide. “...A resolution by an investigator or body of inquiry refusing to initiate criminal proceedings can be appealed against to the relevant prosecutor and, if that ruling was issued by the prosecutor, to a higher prosecutor. An appeal shall be lodged by the person whose interests have been infringed or by his or her representative within seven days of the date of receipt of the ruling. A resolution by an investigator or body of inquiry refusing to initiate criminal proceedings can be appealed against by the person whose interests have been infringed or by his or her representative to court under procedure prescribed by Article 236-1 of this Code...” “Within seven days of notification, a decision of a body of inquiry, investigator or prosecutor not to institute criminal proceedings can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...” “An appeal against a decision of a body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] sitting with a single judge within ten days of being lodged. The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them, and inform the prosecutor and the appellant of the date on which the hearing of the appeal has been listed. Having examined the case, the judge ... may take one of the following decisions: 1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries... 2) to dismiss the complaint...” | 0 |
train | 001-115383 | ENG | RUS | CHAMBER | 2,012 | CASE OF SOPIN v. RUSSIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos | 5. The applicant was born in 1954 and lived in Moscow until his arrest. 6. On 11 May 2010 the applicant was arrested on suspicion of aggravated fraud. The prosecutor’s case was that between November 2004 and April 2005 he, with at least fifteen others, had fraudulently assumed ownership of premises and a plot of land which belonged to a private legal entity in St. Petersburg. The criminal proceedings had been pending since 2005 without any apparent progress, with the criminal case having been closed, reopened, stayed and transferred between various investigating authorities on a number of occasions, until in January 2010 it was assigned to a large group of investigators from the Main Investigation Department of the Investigation Committee of the Russian Federation in Moscow. 7. Moscow investigators lodged a request with the Kuybyshevskiy District Court of St. Petersburg for authorisation of the applicant’s remand in custody. The request was supported by a certifying statement issued by a high-ranking police official. The relevant parts of the statement read as follows: “As a result of investigation and search operations, such as ‘gathering of data’ and ‘questioning’, it has been established that ... [The applicant] is an active member of the inter-regional organised criminal community headed by ‘Vasya Bryanskiy’ [Mr V.], which has for a long time been active in the territory of the North-Western and Central Federal Circuits. [The applicant] is a direct subordinate of the leader of [that criminal community], Mr V., with whom he has been committing serious and very serious crimes. [The applicant] has extensive corrupt contacts with State bodies and with various law-enforcement agencies in St Petersburg, Moscow and other towns in the country. [The applicant] is a founder of three limited-liability companies; [he] owns a car ... He has substantial financial resources, a travel passport ...; he occasionally travels abroad for business meetings or vacations, [with the most recent visits to] ... Israel [in 2009], Finland... in 2010, Riga ... in 2010 [and] Frankfurt am Main ... in 2010. According to the available information, if [the court decides] to apply to [the applicant] a measure of restraint other than arrest, [he], understanding his role in a criminal group and the gravity of the crime committed [by him], will take every possible step to obstruct the establishment of the truth in the case, will bribe or threaten witnesses, and will move to another country to avoid criminal responsibility.” 8. On 13 May 2010 the Kuybyshevskiy District Court authorised the applicant’s placement in custody, having held as follows: “[The applicant] is accused of a serious crime against property for which the criminal law establishes punishment of imprisonment for more than two years. The particular circumstances of the crime of which he is accused, committed by an organised group over a lengthy period of time and causing extensive damage to the victims, demonstrate a crime of a particularly audacious nature and thereby an increased danger to society. The materials presented contain statements by suspect P. and victim T., connecting [the applicant] to the crime he is accused of. At the same time, the victim stated that on a number of occasions, when the documents confirming the transfer of title to the immovable property had been signed, [the applicant] had threatened her and her mother with a gun, thus breaking their will to resist the unlawful actions committed against them. All this was part of the plan which had been developed to take over their property. Given the victim’s fear for her life and limb, these circumstances forced her initially to give incomplete statements. In the court’s opinion, this is a sign that the individuals involved in the offence influenced the victim with the aim of obstructing the proceedings in the criminal case. Having regard to the above-mentioned and given the particular circumstances of the crime with which [the applicant] is charged, the significance of the crime and its consequences, the fact that [the applicant] owns a gun (the fact which he has not disputed in the court hearing), his connections in State bodies and law-enforcement agencies, and also the fact that at the material time certain of the perpetrators of the crime committed by that group have not yet been identified, the court has sufficient grounds to conclude that [the applicant], who has a travel passport and relatives living permanently outside Russia, is liable to abscond from the investigation and trial, to threaten victims, witnesses and other participants in the criminal proceedings, or may, in other ways, hinder the proceedings in the case. Information about [the applicant’s] character is not absolute and sufficient to dismiss the [investigator’s] request [for the applicant’s detention] or to apply a more lenient measure of restraint. The court takes into account that [the applicant] is suffering from a number of illnesses and that he is an elderly person; however, there is no evidence that [the applicant’s] state of health precludes his detention, and the court did not receive any proof that [the applicant] is the only caregiver for his relatives. The materials presented to the court demonstrate that there is sufficient evidence that the crime took place and that [the applicant] may be involved; as well as evidence that the investigating authorities complied with the procedure for the arrest of the suspect (Articles 91 and 92 of the Russian Code of Criminal Procedure) and brought charges against him as prescribed by Section 23 of the Russian Code of Criminal Procedure. At the same time, the task of establishing the guilt of the accused is outside the competence of the court at this stage of the criminal proceedings ... By virtue of Article 108 § 1.1 of the Russian Code of Criminal Procedure in the absence of grounds listed in sub-paragraphs 1-4 of paragraph 1 of Article 108 of the Russian Code of Criminal Procedure a [court] cannot authorise detention of an individual suspected of or charged with a crime proscribed by Article 159 of the Russian Criminal Code [the fraud], if that crime was committed in connection with business activities. Having studied the presented materials, the court finds that the crime proscribed by Article 159 § 4 of the Russian Criminal Code with which [the applicant] is charged does not fall within the sphere of business activities, as the intentions of the members of the organised criminal group were aimed at unlawfully taking over title to the premises and a plot of land which belonged [to a private legal entity] which has no connection to any form of business activities.” 9. The applicant and his lawyer appealed, arguing that the detention order lacked any grounds and was based on mere assumptions in the absence of any evidence that the applicant, an elderly and seriously ill person with solid family ties, intended to abscond or reoffend. They further argued that the detention was unlawful, as Russian law did not permit the detention of individuals accused of fraudulent acts committed in the sphere of business activities, which was the offence with which the applicant was charged. 10. On 17 June 2010 the St. Petersburg City Court upheld the detention order, having endorsed the District Court’s reasoning. 11. On 6 July 2010 the Basmanniy District Court of Moscow accepted the investigator’s request for an extension of the applicant’s detention, having authorised it until 17 September 2010. The District Court reasoned as follows: “The investigating authorities have charged [the applicant] with a socially dangerous act, a serious criminal offence for with the criminal law prescribes punishment in the form of no less than two years’ imprisonment. presented, and the information about [the applicant’s] character, the court finds that there are sufficient grounds to conclude that, if released, [the applicant], being charged with [a serious offence], fearing the punishment for that serious offence, [and] being in possession of a travel passport [and] having relatives in foreign countries, will prefer to abscond from the pre-trial investigation and trial; that [he] is liable to influence witnesses and other participants in the criminal proceedings, given that he has acquired specific information about the course of the investigation; that he may destroy evidence for which the investigators are looking now; if released, [the applicant] may develop, together with his accomplices who have not yet been identified by the investigation or in respect of whom search warrants, including international ones, have been issued, a method of working against the investigators’ actions aimed at the establishment of the truth in the case. The above-mentioned circumstances and information are well-founded, real and are corroborated by personal data about [the applicant] who has a travel passport [and] sufficient financial resources, as he is the head of a number of legal entities, and has, on a number of occasions in recent years, travelled abroad, including to visit his daughter in Denmark. That information was received in the course of operational search actions performed within the criminal proceedings. The above-mentioned data runs contrary to the arguments by the defence that the investigator’s request for an extension of [the applicant’s] detention is not based on any evidence or matters of fact. In these circumstances there are grounds cited by Article 97 of the Russian Code of Criminal Procedure for an authorisation of detention, which, in its turn, shows that the grounds taken into account when [the applicant’s] placement in custody was authorised ... are still present and it is still necessary to apply that measure of restraint. Therefore, the request by the defence for the application of a more lenient measure of restraint unconnected to detention, including bail in the amount of 2,000,000 Russian roubles (RUB), should be dismissed because a new [lenient] measure will not exclude the possibility that the applicant will abscond from the investigation, including by leaving Russia, or will commit other acts in order to resist the investigation in the present criminal case, which is currently at the pre-trial stage. When determining the issue of the extension of [the applicant’s] detention, the court takes into account his permanent residence in St. Petersburg, his family situation and the state of his health. The court did not receive any evidence, including from the defence, showing that [the applicant] is unfit for detention in the conditions of the temporary detention facility where he may receive necessary medical assistance; [the applicant] did not complain about the quality of the medical care received [in detention]; [the applicant] also explained that he is not in need of any medicines, including those which are necessary to treat his diabetes. Moreover, the court takes into account a large number of actions which the investigating authorities have to take to complete the investigation of the criminal case; it finds that the period of extension requested by the investigator is well-founded and reasonable. While assessing the present request for an extension the court does not find that the investigation is ineffective or delayed. In the court’s opinion, the length of the pre-trial investigation is caused by objective factors, such as the nature of the offences under investigation, the large volume of written evidence which requires extensive and time-consuming examination and analysis, and the need to authorise and perform complex expert examinations.” 12. On 2 August 2010 the Moscow City Court upheld the order of 6 July 2010, concluding that the District Court’s findings were reasonable and based on evidence provided by the investigating authorities. The City Court also noted that the District Court had thoroughly assessed the applicant’s personal situation and the state of his health, but had correctly concluded that the grounds for his detention outweighed the arguments for his release. 13. A further request by an investigator for an extension of the applicant’s detention was accepted by the Basmanniy District Court on 13 September 2010, with reasoning similar to that employed by the District Court in its previous decision. The applicant’s detention was extended until 17 December 2010. 14. On 20 October 2010 the Moscow City Court dismissed the applicant’s lawyers’ arguments that the extension of the detention was unreasonable and ill-founded. The City Court supported the District Court’s findings that the applicant was liable to abscond and obstruct justice if released. 15. On 15 December 2010 the Basmanniy District Court again extended the applicant’s detention for an additional three months, that is until 17 March 2011. It dismissed the applicant’s and his lawyers’ arguments that the investigators had delayed the criminal proceedings by failing to take any action in the procedure in months, that the applicant had no intention of absconding threatening witnesses or destroying evidence, particularly given that he had voluntarily handed over to the investigators every piece of material evidence which had been in his possession, that his travel passport had also been given to the investigators, and that his family situation, the state of his health and his character warranted his release. The District Court’s reasoning was identical to that in the two previous detention orders. 16. A week later police officials provided the Investigation Department with a memorandum which, in so far as relevant, read as follows: “According to the available information, if [the court decides] to apply to [the applicant] a measure of restraint other than arrest, [he], understanding his role in a criminal group and the gravity of the crime committed [by him], will take every possible step to obstruct the establishment of the truth in the case, will bribe or threaten witnesses, and will move to another country to avoid criminal responsibility.” 17. On 9 February 2011 the Moscow City Court upheld the detention order of 15 December 2010 on appeal. 18. On 14 March 2011 the Basmanniy District Court found it reasonable to remand the applicant in custody for a further period, until 11 May 2011. The District Court considered that the length of the pre-trial investigation in the case was objectively justifiable by complex procedural actions, including a number of expert examinations which the investigators had to perform. In the District Court’s opinion, the applicant’s release on bail or on his own recognisance would not eliminate the risk that he would abscond and/or tamper with witnesses or destroy evidence. Having examined the medical evidence presented by the defence in support of the argument that the applicant was seriously ill, the District Court concluded that the applicant was still fit for detention. 19. The applicant and his lawyer appealed. 20. In the meantime, on 25 March 2011 the pre-trial investigation was closed and the applicant lodged a written request for the case file to be provided to him and his lawyers for study as soon as possible. 21. At the beginning of April 2011 the applicant and his lawyers started studying the case file materials. On a number of occasions they complained to the investigators that they had not been served with the subsequent volumes of the case file and that they had thus been forced to adjourn their reading of the file. 22. On 20 April 2011 the Moscow City Court upheld the detention order of 14 March 2011, finding no grounds to question the lawfulness and reasonableness of the District Court’s findings. 23. On 4 May 2011 the Moscow City Court extended the applicant’s detention until 17 September 2011, reasoning as follows: “Despite [the applicant’s] age and the facts that he has not been convicted before, that he is registered and permanently resides in St. Petersburg, that he is a national of the Russian Federation, that he is not under psychiatric or drug abuse supervision, that he is suffering from a number of illnesses, [and] that his character has been assessed positively, I find that the necessity to apply to him the measure of restraint chosen earlier has not ceased to exist at the material time, as he has been charged with a serious criminal offence which, according to the prosecution, he committed as a member of an organised criminal group, certain of whose members have not yet been identified, and four of whose members absconded from the investigation and court and [were placed] on the international wanted persons’ list; in this regard, the court accepts the investigator’s arguments that there are sufficient grounds to conclude that if released [the applicant] will abscond from the pre-trial investigation and trial, will continue his criminal activities, will threaten witnesses and other parties to the criminal proceedings, will destroy evidence, and will interfere with justice in the criminal case in other ways.” 24. The extension order was upheld on appeal on 25 May 2011 with the appellate court accepting the City Court’s reasoning. 25. On 9 June 2011 the applicant informed the investigators that he had read the entire case file. 26. On 22 July 2011 the Moscow Main Investigation Department sent the case to the St Petersburg Main Investigation Department, given that the majority of the victims and witnesses lived in St Petersburg, where the criminal offences had allegedly been committed. On 8 August 2011 investigators in St Petersburg took over the case. On 14 September 2011 a senior investigator of the St Petersburg Main Investigation Department issued a decision authorising the reopening of the pre-trial investigation. In the same decision, having noted that the maximum period for detaining the applicant had expired and that the long-term detention had negatively affected the applicant’s health, the senior investigator authorised his immediate release on a written undertaking not to leave the town. The applicant was released the same day. 27. It appears that the criminal proceedings against the applicant are still pending. 28. The Russian legal regulations of detention are explained in the judgment of Isayev v. Russia, no. 20756/04, §§ 67-80, 22 October 2009. | 0 |
train | 001-23116 | ENG | MKD | ADMISSIBILITY | 2,003 | SIJAKOVA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 2 | Inadmissible | Georg Ress | The applicants, Mrs Margarita Šijakova, Mrs Nada Elenova, Mrs Vladanka Risteska, Mrs Slobodanka Dimeska and Mrs Lila Štosic, are Macedonian nationals who were born in 1922, 1944, 1951, 1947 and 1947 respectively. The second applicant lives in Kavadarci, whereas the others live in Skopje, both in the Former Yugoslav Republic of Macedonia. They are represented before the Court by Mrs Margarita Šijakova, one of the applicants, a retired lawyer from Skopje. The applicants’ children, after attaining 18 years of age, joined the monastic order of the Macedonian Orthodox Church. The applicants admit that they themselves are practising Orthodox Christians. They allege that some of their children left their homes and joined the monastic order without the applicants’ prior knowledge or consent. In 1998 the applicants lodged a complaint before the Constitutional Court (Уставен суд на Република Македонија), requesting it to assess the constitutionality of the internal rules of the Church (Устав на Македонската Православна Црква), in particular Rules 133, 171 and 173. In their submissions the applicants complained, inter alia, that they had been deprived of their rights as parents to receive proper care from their children in the event of illness or in old age because the religious canons allegedly forbade contacts between monks and their parents. Furthermore, they argued that the Church could not establish monasteries as another form of “life community” because the only such form recognised and protected by the Constitution was the “family”. They argued that the Church, in claiming ownership of monasteries, which were defined as life communities in its internal rules, was thereby asserting ownership of human beings, so that their children could be regarded as being held in slavery. They further alleged that their children had been deprived of many of their fundamental human rights and freedoms as a result of the monastic canons and the vows they had taken before entering the monasteries. On 17 May 2000 the Constitutional Court rejected the applicants’ complaint on the ground of lack of jurisdiction to review the constitutionality of the Church’s internal rules. In its decision, it referred to and summarised the most relevant provisions of the Church’s internal rules and quoted the impugned provisions. In particular, Rule 133 reads as follows: “The monastery is a holy place having a temple and other necessary facilities, i.e. [it is] a life community of persons belonging to the monastic order who have joined together in a spiritual community and have taken a holy vow to live in accordance with the monastic canons.” Rule 171 provides inter alia: “All the possessions of the Macedonian Orthodox Church, bishoprics, church communities and monasteries comprise the property of the Macedonian Orthodox Church.” Rule 173 § 1 reads as follows: “All churches, monasteries, ... - holy waters, cemeteries and places of Orthodox worship, and their movable and immovable assets which are under the canonical and spiritual jurisdiction of the Macedonian Orthodox Church are the property of the Macedonian Orthodox Church.” The Constitutional Court reiterated the constitutional guarantee of freedom of religion, and the right of every individual to express his or her faith and religious beliefs freely and publicly, either alone or in community with others. It stated that this freedom entailed the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion. It further held that the manner in which an individual manifested his or her religious convictions or beliefs was a matter of private conscience, which ultimately determined the relationship between religious communities and the State. In that connection, the Constitutional Court observed that the Macedonian Orthodox Church and other religious communities and groups were separate from the State and were equal before the law, and none of them could have a distinct and privileged position or be controlled by the State. The Constitutional Court further held that the Church and other religious communities or groups could not be regarded as institutional and formal associations of their adherents and that they had not been established pursuant to the provisions of the Law on Citizens’ Associations and Foundations. It therefore concluded that their internal rules were not a matter for constitutional review, as was the case with political parties, other associations and foundations whose programmes and internal regulations and their compliance with the Constitution might be assessed by the court. On an unspecified date, most probably in 1999, the applicants lodged a criminal complaint (кривична пријава) with the Strumica Public Prosecutor’s Office (Основно јавно обвинителство Струмица), requesting it to institute criminal proceedings against the Bishop of Strumica, who had allegedly held their children in slavery, and had thus committed the criminal offence defined in Section 418 of the Criminal Code. Up to the time when the application was lodged the applicants had received no information about the outcome of the investigations by the competent authorities. Article 19 of the Constitution (Устав на Република Македонија) provides that the freedom of religious confession is guaranteed. The right to express one’s faith freely and publicly, individually or with others is guaranteed. The Macedonian Orthodox Church and other religious communities and groups are separate from the State and equal before the law. They are free to establish schools and other social and charitable institutions, by means of a procedure regulated by law. Article 40 § 3 of the Constitution provides that parents have the right and duty to provide for the nurture and education of their children. Children are responsible for the care of their old and infirm parents. Article 110, which defines the jurisdiction of the Constitutional Court provides, inter alia, that it safeguards the freedoms and rights of the individual and citizen relating to freedom of communication, conscience, thought and public expression of thought, political association and activities as well as the prohibition of discrimination among citizens on the grounds of sex, race, religion or national, social and political affiliation. This provision also specifies that the Constitutional Court decides on the constitutionality of the programmes and internal regulations of political parties and associations of citizens. Rule 51 of the Rules of Procedure of the Constitutional Court (Деловник на Уставниот суд) provides that a person who considers that any of his rights or freedoms set forth in Article 110 of the Constitution has been violated by an individual legal act or decision may seek redress before the Constitutional Court within 2 months from the day of adoption of the final individual decision or from the day when he first learns of the action taken, but no later than 5 years from the day of its occurrence. Section 418 of the Criminal Code (Кривичен законик) provides that whoever, in violation of international law, places another person in slavery or in a similar status or keeps him in such a status; buys or sells another person or hands him over to another person; mediates in the purchase, sale and handing over of such a person; or induces someone else to sell his freedom or the freedom of the person he provides for or takes care of shall be punished by from one to ten years’ imprisonment. | 0 |
train | 001-61897 | ENG | SMR | CHAMBER | 2,004 | CASE OF BENEFICIO CAPPELLA PAOLINI v. SAN MARINO [Extracts] | 1 | Violation of Art. 6-1 concerning the length of proceedings;Violation of Art. 6-1 concerning the right to a court;Violation of P1-1;Just satisfaction reserved (pecuniary damage and costs and expenses of domestic proceedings);Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | null | 8. The applicant church is a San Marinese church institution. 9. On 7 March 1985 the San Marinese government issued an expropriation order in respect of certain plots of land belonging to the applicant church. The latter was awarded 114,790,590 Italian lire (about 59,284 euros) in compensation. The land, which was earmarked for urban development projects that were scheduled for completion by 31 December 1987, was only partially used. On 16 February 1987 the applicant church applied to the government seeking to recover possession of the unused land. On 20 October 1987 the government refused the application on the ground that the land in question could still be used in the interests of the community. 10. On 10 November 1988, relying on section 14(3) of Law no. 18 of 25 March 1980 (“Law no. 18/1980”), which provides that expropriation orders lapse in the event of expiry of the deadline set for completion of the relevant work, the applicant church brought an action before the first-instance civil judge (Commissario della Legge) to recover possession. The first hearing, which was set for 19 January 1989, could not be held on that date as the government had not been notified. The government joined the proceedings on 5 May 1989. At a hearing on 23 September 1989, the government requested that a particular witness be heard. That request was granted on 12 January 1990. On the date in question, namely 5 April 1990, the witness failed to attend the hearing. On 26 September 1990 the government waived its right to have the witness heard. The parties submitted their written pleadings on 23 May 1991. Preparation of the case was concluded on 14 November 1991. 11. By a judgment of 14 January 1992, deposited at the registry on the same date, the court dismissed the applicant church’s request on the grounds that, firstly, the expropriation order of 20 October 1987 was an administrative act and thus fell outside the civil court’s jurisdiction and, secondly, that the applicant church could not bring an action to recover possession, since the disputed land had been lawfully expropriated and had not been obtained by the State without title. 12. On 12 March 1992 the applicant church brought an action before the judge of civil appeals (Giudice delle Appellazioni Civili) to establish title to land, seeking to obtain restitution of the land in question in accordance with section 14(3) of Law no. 18/1980. It also alleged that the authorities’ conduct had breached Article 1 of Protocol No. 1. The first hearing was held on 9 April 1992. On 21 May 1992 the applicant church filed a number of documents. On 29 May 1992 the proceedings were adjourned on the ground that an attempt to reach a friendly settlement was in progress. On 2 December 1992, noting that the negotiations had failed, the Commissario della Legge, the official responsible for preparing appeal cases, ordered that the proceedings be resumed. At a hearing on 25 February 1993, the applicant church requested that an expert be appointed and a witness questioned in order to determine exactly which parts of the land had not been used. By decisions of 2 March and 6 April 1993, the Commissario della Legge allowed both requests. Evidence was heard from the witness on 24 June 1993 and the expert report was filed on 7 November 1993. The parties lodged their final submissions on 10 February and 24 March 1994. Preparation of the case was concluded on 27 April 1994. 13. In December 1994 the appeal Judge C.P. died. No other judge could replace him, as the organisational structure of the court of civil appeals provided for only one judge. On 17 January 1995 the General Grand Council (Consiglio Grande e Generale) enacted Law no. 2/1995, section 1 of which provided: “If the judge of civil appeals dies or if, following a serious impediment, he or she is unable to perform the duties of investigating judge, those duties shall be carried out by one of the judges of criminal appeals, who shall carry out any urgent measures until such time as a replacement is appointed or the serious impediment is removed ...” 14. On 25 April 1995 the General Grand Council appointed Judge P.G.P. to replace the deceased judge. However, P.G.P. asked the Council of the XII for leave to withdraw from the proceedings in question on the ground that he had been involved as the first-instance civil judge. Under section 17 of Law no. 2/1995, the Council of the XII, which acted as a third-instance judicial body in cases where the appeal court did not uphold the decision of the first-instance court, was also responsible at the material time for ruling on requests to withdraw or applications challenging a judge. 15. On 26 September 1995 the Council of the XII granted the request and sent the case in question to P.G., an appeal judge in criminal cases (Giudice delle Appellazioni per le cause penali). 16. He dismissed the appeal in a judgment of 18 December 1998, which was deposited at the registry on the same date. He found that section 14(3) of Law no. 18/1980 provided that expropriation orders would lapse where the deadline for execution of the relevant work had expired, but not in the event of failure to use all of the expropriated assets; that, in any event, the administrative courts had jurisdiction to rule on the merits of expropriation proceedings; and that the appellant sought restitution of its title to the assets, whereas at first instance it had sought merely to recover possession of the land. He concluded that the request could not be granted since, according to the established case-law, “requests made for the first time on appeal [were] manifestly inadmissible” (judgment of the Giudice delle Appellazioni Civili, 20 July 1970, no. 147). 17. In the meantime, after a new land-use plan had taken effect, changing the designated use of the land in question from industrial to agricultural, the applicant church had asked the government on 3 March 1992 to return its assets. On 24 November 1992, having received no reply, it sent the government a formal notice asking it to adopt the necessary measures for restitution. On 20 April 1993 it applied to the first-instance administrative court. A hearing took place on 3 August 1993. By a judgment of 17 August 1993, deposited at the registry on the same date, the court stated that it did not have jurisdiction to “recognise the existence of a possible right to restitution of unused land”, as the administrative courts could only examine legitimate interests. It found that the General Grand Council alone was entitled to rule on what was to be done with the said property. Noting finally that the new land-use plan had changed the designated use of the unused land, it declared the expropriation order of 7 March 1985 void in so far as it had lapsed in respect of that particular property, but pointed out that declaring it void did not create a right to reconveyance. 18. The government then lodged an appeal, disputing the existence of an implied refusal which would legitimise an application to the first-instance administrative courts, and also the latter’s jurisdiction to declare the expropriation order partially void. The appeal hearing, initially fixed for 13 January 1994, was adjourned to 24 May 1994 because the judge of administrative appeals was unable to attend. He allowed the appeal in a judgment of 26 May 1994, which was deposited at the registry on the same date. The judge found that the State had acquired ownership of the plots of land in accordance with a procedure prescribed by law, on payment of compensation for expropriation, and that no legislative provision obliged the government to return that property. Accordingly, he concluded that the applicant church’s request of 20 April 1993 was inadmissible, since the government’s behaviour could not be described as an implied refusal. Finally, he stated that, in declaring the expropriation order partially void – an order which, moreover, had never been contested – the first-instance administrative court had exceeded its jurisdiction, which only permitted it, where appropriate, to declare unlawful the government’s alleged implied refusal. 19. On an unspecified date, the administrative court of appeal ordered that the case file be sent to the Council of the XII. After taking expert advice, that body gives rulings in administrative disputes where first-instance and appeal judgments reach opposite conclusions (section 21 of Law no. 68 of 28 June 1989 establishing the administrative courts). On 27 September 1994 the Council of the XII upheld the appeal court’s judgment, thus endorsing the expert’s conclusion that, while the public-interest declaration in connection with the urban development work had transformed Beneficio Cappella Paolini’s right of property into a mere legitimate interest, section 14(3) of Law no. 15/1980 conferred not only a legitimate interest in the lawfulness of the authorities’ actions but an actual right to apply to the civil courts and obtain a declaration that the expropriation order had lapsed because the deadline for completion of the work had expired. | 1 |
train | 001-77942 | ENG | AUT | CHAMBER | 2,006 | CASE OF STOJAKOVIC v. AUSTRIA | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant was born in 1944 and lives in Linz. 9. Since 1984 the applicant was the head of the Federal Bacteriological Serological Research Institute (Bundesstaatiche bakteriologisch-serologische Untersuchungsanstalt) in Linz. According to the activity profile submitted by the Government the tasks of the Institute involved carrying out of various examinations, namely examinations upon official request under the relevant Health Acts and bacteriological examinations of water quality; research, collection and transfer of data; assistance to the installation and maintenance of a notification system concerning certain infectious diseases; maintenance of a specific network on epidemiological diseases integrating EU and other international networks; participation in international scientific projects and studies; provision of general information and advice, such as advice concerning prevention and transfer of infectious diseases and use of antibiotics; assistance by giving of expert advice in the elaboration of quality standards for microbiological laboratories, of national recommendations in the field of hygiene, medical microbiology and preventive medicine and of epidemic legislation; representation of the competent Ministry's department in national and international expert groups. 10. The applicant, as head of the Institute, was responsible for all tasks entrusted to it. Under section 3 of the Civil Servants Act (Beamten-Dienstrechtsgesetz) he was further responsible for certain matters concerning the regulation of its service, namely the arrangement of vacation and grant of special leave, and had the authority to issue decisions (Bescheide) in this regard. 11. On 22 November 1999 the Disciplinary Commission at the Ministry for Work, Health and Social Affairs (Disziplinarkommission beim Bundesministerium für Arbeit, Gesundheit und Soziales) found the applicant guilty of having violated his professional duties under the Non-Discrimination Act (Bundes-Gleichbehandlungsgesetz) and sentenced him to a fine of approximately 2,400 euros (EUR). It found that the applicant inter alia had made statements about some of his employees amounting to sexual harassment. On 15 June 2000 the Senior Disciplinary Board at the Ministry for Public Service and Sport (Disziplinaroberkommission beim Bundesministerium für öffentliche Leistung und Sport) partly dismissed the applicant's appeal. It reduced the fine to approximately EUR 1,600. On 4 September 2003 the Administrative Court dismissed the applicant's complaint. 12. In the meantime, on 31 March 2000, the Federal Minister for Work, Health and Social Affairs recalled the applicant from his post with immediate effect (Abberufung mit sofortiger Wirkung) and transferred him to a post with a lower grade, namely a referee post at the Ministry for Work, Health and Social Affairs in Vienna. 13. Referring to the applicant's behaviour which was the subject of the pending disciplinary proceedings, the Federal Minister found that the applicant had violated his professional duties, and could no longer be trusted to perform the managerial duties as head of the Institute. She referred to section 38 of the Civil Servants Act according to which a transfer can be ordered ex officio in case of important official interest. At the same time she informed the applicant that the payment of the extra duty allowance (Verwendungszulage) granted to him as head of the Institute was to be discontinued from 1 May 2000. 14. On 17 April 2000 the applicant filed an appeal and submitted that the disciplinary proceedings were still pending. 15. On 21 June 2000 the applicant, assisted by his counsel, filed further submissions. He submitted that the Federal Minister had not made sufficient findings as to the background in which his statements had been made and had placed them in the wrong context. He further contested that he had made one of the statements and requested to hear a witness in the context of a hearing. He finally argued that the Senior Disciplinary Board had partly granted his appeal and that the disciplinary proceedings were still pending. There were, therefore, no reasons for his transfer. 16. On 9 October 2000 the Appeals Commission (Berufungs-kommission) at the Ministry for Public Service and Sport dismissed the applicant's appeal without holding a hearing. It noted that the authority deciding on the transfer did not necessarily need to wait for the outcome of pending disciplinary proceedings but could assess itself whether a civil servant had violated his professional duties and whether such a violation requested a transfer. The applicant's arguments concerned mainly the question of his guilt, which was the subject of the disciplinary proceedings. Its task was to ascertain whether the applicant's transfer was objectively necessary. It nevertheless examined and dismissed the applicant's arguments as to the alleged justifying context in which the statements had been made. It further acknowledged that it was in fact not clear whether the applicant had made one of the statements at issue. However, having regard to all other statements it confirmed the Federal Minister's finding that the applicant could no longer be trusted to perform the tasks of a head of the Institute. In particular that the applicant's unqualified behaviour had deepened the already existent conflicts and tensions at work and there was, therefore, an important official interest which made his transfer to another post necessary. 17. On 6 December 2000 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained that the fact that the Appeals Commission had taken its decision after a private meeting was in violation of his right to court proceedings under Article 6 of the Convention. Furthermore he alleged that the Appeals Commission had decided arbitrarily as it had not duly taken account of his arguments made in the disciplinary proceedings according to which the proceedings against him had to be seen in the context of the Ministry's restructuring programme and were aimed at obliging him to take early retirement. 18. On 26 November 2001 the Constitutional Court dismissed the applicant's complaint. Referring to its case-law it found that rights and obligations which resulted from an employment as a civil servant could not be considered as “civil rights” within the meaning of Article 6 of the Convention. It followed that Article 6 was not applicable to the applicant's case. It further found that there was no indication of arbitrariness in the proceedings at issue. 19. This decision was served on the applicant's counsel on 13 February 2002. 20. The relevant rules are contained in the Civil Servants Act. In the version in force at the material time it provided as follows. 21. Section 38 § 1 of the Civil Servants Act (Beamten-Dienstrechtsgesetz) defines the transfer (Versetzung) of a civil servant as permanent assignment to another department. 22. Under section 40 § 2 the recall (Abberufung) of a civil servant is equivalent to a transfer inter alia when the new assignment has not at least the same grade as the former post. 23. According to section 38 § 2 a transfer can be ordered ex officio in case of important official interest. 24. Under section 38 § 7a the transfer is to be ordered by decision. The concerned civil servant can appeal against this decision. His appeal does not have suspensive effect on the decision. 25. Section 121 of the Salaries Act (Gehaltsgesetz) provides that a civil servant is entitled to an extra duties allowances (Verwendungszulage) if he permanently has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade. 26. Pursuant to section 41a § 6 an appeal will be decided upon by the Appeals Commission (Berufungskommission) established at the Ministry for Public Service and Sport (Bundesministerium für öffentliche Leistung und Sport). 27. Section 41a regulates the composition of the Appeals Commission. Its paragraph 3 provides that its chair and his/her substitute are judges, the other members legally trained civil servants whereof one half are representatives of the employer and the other half are representatives of the employee. The members are appointed by the Federal President on a proposal of the Federal Government (Bundesregierung) or by the President of the National Assembly (Nationalratspräsident). Representatives of the employees are in principle nominated by the Union of Civil Servants (Gewerkschaft Öffentlicher Dienst) and, in case the Union makes no nomination within four weeks, by the Minister for Public Service and Sport. 28. The term of office is five years. 29. Section 41c provides that the Appeals Commission decides in formations (Senate) consisting of three members, the chair or his/her substitute, one civil servant representing the employer and one civil servant representing the employee. The civil servant representing the employer has to be employed at the Federal Ministry of the respective complainant. 30. The chair of the Appeals Commission has to fix, for one year in advance, the number of the formations, their members and the sequence in which members have to step in if a member is incapacitated. The chair further allocates business. 31. Section 41d § 1 provides that the Appeals Commission decides by a majority of votes. Its paragraph 2 provides that the members of the Appeals Commission are not bound by any instructions in the exercise of their functions. 32. The Appeals Commission's decisions are not subject to an appeal to the Administrative Court. They are, however, subject to a complaint to the Constitutional Court. 33. Hearings before the Appeals Commission are governed by the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrens-gesetz). Article 40 § 1 of this Act provides as follows: “Oral hearings shall be held in the presence of all known parties and the necessary witnesses and experts... 34. It is the consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise, as it is commonly understood that the principle of publicity does not extend to administrative proceedings. | 1 |
train | 001-98395 | ENG | AZE | CHAMBER | 2,010 | CASE OF GULMAMMADOVA v. AZERBAIJAN | 3 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1961 and lives in Baku. 6. On 25 February 1998 the applicant was issued with an occupancy voucher (yaşayış orderi) for a flat in a recently constructed residential building in Baku on the basis of an order of the Baku City Executive Authority of 19 February 1998. 7. At the same time, the applicant became aware that the flat had been occupied by H. and his family, who were internally displaced persons (“IDP”) from Lachin, a region under the occupation of the Armenian military forces following the Armenian-Azerbaijan conflict over NagornoKarabakh. 8. According to the applicant, despite numerous demands, H. refused to vacate the flat, pointing out that he was an IDP and had no other place to live. 9. On an unspecified date in 1998 the applicant lodged an action with the Yasamal District Court asking the court to order the eviction of H. and his family from the flat. 10. On 20 April 1998 the Yasamal District Court granted the applicant's claim and ordered that H. and his family be evicted from the flat. The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of 25 February 1998 and therefore that the flat was being unlawfully occupied by H. and his family. 11. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within ten days of its delivery. However, H. and his family refused to comply with the judgment and, despite the applicant's complaints to various authorities, it was not enforced. 12. On an unspecified date in 2006, the applicant and a group of other persons who were in the same situation lodged an action with the Yasamal District Court complaining that the Yasamal District Department of Judicial Observers and Enforcement Officers (“the Department of Enforcement Officers”) had not taken measures to enforce the judgments. 13. On 27 December 2006 the Yasamal District Court dismissed that complaint as unsubstantiated. The applicant appealed against this judgment. On 2 May 2007 the Court of Appeal quashed the first-instance court's judgment and delivered a new judgment on the merits in the applicant's favour. The Court of Appeal held that the Department of Enforcement Officers' inaction had been unlawful and that the judgment of 20 April 1998 should be enforced. Following a cassation appeal of H. and other persons against this judgment, by a decision of 18 September 2007, the Supreme Court quashed the Court of Appeal's judgment and remitted the case to the latter court for a new examination. It appears from the case file that the proceedings are still pending before the Court of Appeal. 14. On an unspecified date in 2008 the applicant lodged an action against the State Committee on deals of Refugees and Internally Displaced Persons, the Ministry of Finance and other authorities, seeking compensation for non-enforcement of the judgment of 20 April 1998. On 7 May 2008 the Yasamal District Court dismissed the applicant's claim as unsubstantiated. On 7 July 2008 the Baku Court of Appeal and on 10 November 2008 the Supreme Court upheld the first-instance court's judgment. 15. On 4 July 2007 H. lodged a request with the Yasamal District Court asking for postponement of the execution of the judgment of 20 April 1998. He alleged that, as he was an IDP, he had no other place to live but the flat in question. 16. On 10 July 2007 the Yasamal District Court granted H.'s request and ordered the postponement of the execution of the judgment of 20 April 1998 until H. could move to one of the houses recently constructed for temporary settlement of IDPs. The court relied on the Presidential Order of 1 July 2004 on Approval of the State Programme for Improvement of Living Conditions and Increase of Employment of Refugees and Internally Displaced Persons (“the Presidential Order of 1 July 2004”), according to which the relevant State organs were instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses, IDPs should not be evicted from public apartments, flats, lands and other premises, regardless of ownership, they had settled in between 1992 and 1998. Following a series of appeals by the applicant, on 2 September 2008 the Baku Court of Appeal quashed the first-instance court's decision and remitted the case to the lower court for a new examination. 17. It appears from the case file that following a series of the proceedings on 21 January 2009 the Baku Court of Appeal upheld the decision on postponement of the execution of the judgment of 20 April 1998 and that the proceedings are still pending before the Supreme Court. 18. Azerbaijani citizens are entitled to obtain the right of use of apartments owned by the State or other public bodies under the terms of a tenancy agreement (Articles 10 and 28). A decision to grant an apartment is implemented by way of issuing the citizen with an occupancy voucher (yaşayış sahəsi orderi) from the local executive authority (Article 48). The voucher serves as the sole legal basis for taking possession of the apartment designated therein (Article 48) and for concluding a tenancy agreement (yaşayış sahəsini icarə müqaviləsi) between the tenant and the housing maintenance authority (Article 51). The right of use of apartments is granted for an indefinite term (Article 10). 19. Individuals residing, pursuant to a tenancy agreement, in apartments owned by the State and other public bodies have a right to transfer those apartments into their private ownership (Article 1). Such privatisation is voluntary and free of charge (Article 2). The right to privatise a State-owned apartment free of charge may be exercised only once (Article 7). 20. IDPs are defined as “persons displaced from their places of permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, occupation of certain territories or continuous gunfire” (Article 2). The IDPs may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure that the internally displaced persons are resettled in other accommodation (Article 5). 21. Article 4 of the IDP Settlement Regulations provides as follows: “In order to prevent the eviction of internally displaced persons from dwellings in which they settled between 1992 and 1994, the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended...” 22. Article 4 of the IDP Resettlement Regulations provides as follows: “In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation” 23. In the order, inter alia, the relevant state organs of the Republic of Azerbaijan are instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses, IDPs should not be evicted from public apartments, flats, land and other premises, regardless of ownership, they had settled in between 1992 and 1998. 24. A judge examining a civil case may, at the request of a party to the case, decide to postpone or suspend the execution of the judgment or change the manner of its execution because of the parties' property situation or other circumstances (Article 231). | 1 |
train | 001-95835 | ENG | TUR | CHAMBER | 2,009 | CASE OF ŞENTÜRK v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. The applicant was born in 1958 and lives in Karacabey. 5. On 17 October 1996 the applicant was taken into police custody on suspicion of armed robbery and murder. On 27 October 1996 he was placed in detention on remand. On 4 November 1996 the public prosecutor initiated criminal proceedings against the applicant in the Bursa Assize Court. On 27 November 1997 the applicant was released pending trial. Subsequently, on 29 June 2001 the Bursa Assize Court acquitted the applicant of the charges against him and this judgment was upheld by the Court of Cassation on 19 March 2002. 6. On 5 August 2002 the applicant applied to the Bursa Assize Court, seeking compensation for both non-pecuniary and pecuniary damage pursuant to Law no. 466 pertaining to the payment of compensation to persons unlawfully arrested or detained. 7. On 23 January 2003 the Bursa Assize Court awarded the applicant 358,071,000 Turkish liras (TRL) for pecuniary damage and TRL 3,000,000,000 for non-pecuniary damage. It also decided that no default interest should be applied. 8. On 31 March 2004 the Court of Cassation upheld this judgment. 9. On 26 April 2004 the applicant applied to the Bursa Enforcement Office and requested the payment of TRL 6,022,015,000, including interest running from the date of the judgment. On 10 August 2004 the Treasury objected to the interest rate, but paid the amount of TRL 5,727,000,000 which was not in dispute. Following the objection of the Treasury, proceedings commenced before the Bursa Enforcement Court to determine the exact amount and interest rate to be paid by the Treasury. On 26 October 2004 the Bursa Enforcement Court dismissed the objection of the Treasury. Subsequently, on 25 February 2005 the Court of Cassation quashed the judgment, holding that the interest rate should be calculated on the basis of that laid down in the Budget Law. The case was then remitted to the Enforcement Court. Following a re-examination of the case, and based on an expert report, on 10 June 2005 the Enforcement Court ordered an additional payment of TRL 479,450,000 to the applicant. This amount was paid in August 2005. Consequently, the domestic authorities had applied an interest rate of 50% per annum between 23 January 2003 and 1 January 2004, and 15% per annum as from 1 January 2004. | 1 |
train | 001-97208 | ENG | TUR | ADMISSIBILITY | 2,010 | BOZTAS AND OTHERS v. TURKEY | 4 | Inadmissible | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Aygün, a lawyer practising in Tunceli. On 8 March 2004, at around 10.30 p.m., Imam Boztaş was gunned down by two persons in front of his house in Alanyazı village at Mazgirt district of Tunceli. His mother and to some extent one of his daughters were witnesses to the killing. On the same night, at around midnight, gendarmes at the Bulgurcular Gendarmerie Command, including its commander Mr A.K., arrived at the scene. On the same night, at around 1 a.m., four gendarmes working as technical personnel at the Tunceli Provincial Gendarmerie Command arrived at the scene with the Mazgirt public prosecutor, gendarmes from the Mazgirt District gendarmerie and a doctor. The technical personnel made a sketch of the scene of the incident, took photographs and secured forensic evidence around the scene. The technical personnel considered that the empty cartridges found at the scene belonged to a 7.62 mm Kalashnikov. The doctor carried out a post-mortem examination on Imam Boztaş’s body and concluded that an autopsy had to be carried out to determine the cause of death. On the same night, the Mazgirt public prosecutor heard evidence from Imam Boztaş’s parents (Hıdır and Fidan Boztaş), his wife (Derman Boztaş) and a fellow villager. They submitted, inter alia, that they did not know who had committed the murder, that the deceased had previously been convicted of membership of an illegal organisation, namely TIKKO (Turkish Workers and Peasants’ Liberation Army) and that he had returned to the village only recently. On 9 March 2004 an autopsy was carried out on Imam Boztaş’s body. The cause of his death was stated as internal bleeding and cerebral haemorrhage due to gunshot wounds. On 9 March 2004 the Mazgirt public prosecutor heard evidence from Imam Boztaş’s parents (Hıdır and Fidan Boztaş) and daughters (Ender and Eylem Boztaş) who all affirmed that the deceased had been threatened by the Bulgurcular Gendarmerie Commander. Fidan Boztaş and Eylem Boztaş maintained that the perpetrators were wearing masks and military-type clothes. On the same day Imam Boztaş’s parents made an official complaint to the Mazgirt public prosecutor’s office. On 15 March 2004 the Mazgirt public prosecutor heard evidence from Imam Boztaş’s father (Hıdır Boztaş), brother (Hasan Boztaş), his wife (Derman Boztaş) and sister (Nimet Çiçek). They all repeated that the deceased had been threatened by the Bulgurcular Gendarmerie Commander and had been away from the village for three months prior to his death. On the same day eleven of the applicants (“the complainants”) made an official complaint to the Mazgirt public prosecutor’s office. In this they repeated that that, a few months prior to his death, Imam Boztaş had been threatened by the Bulgurcular Gendarmerie Commander and that, as a result, Imam Boztaş had left the village for three months. In this connection, they claimed that this commander was known by the villagers for illegal and harassing activities. Moreover, they noted that it took the security forces from the Bulgurcular gendarmerie command two hours after the incident to reach the village, which was only one and a half kilometres away. On the same day the Mazgirt public prosecutor heard evidence from the head of the village (muhtar). The head of the village submitted that neither the deceased nor his family had, prior to the killing, voiced or submitted any representation regarding the alleged threats received by Imam Boztaş. He further submitted that after the shooting one of the villagers called the gendarmerie around 11 or 11.30 p.m., and that the gendarmes arrived in the village around midnight or 12.30 a.m. On 15 March 2004 the Mazgirt public prosecutor postponed the on-site inspection requested by the applicants until other evidence had been gathered. He further decided that a copy of the documents contained in the case file should be handed over to the complainants’ legal representative. On 16 March 2004 the Mazgirt public prosecutor heard evidence from a gendarme on duty at the Bulgurcular Gendarmerie Command at the time of the events. The gendarme confirmed that they had received a telephone call at 11 p.m., that they had left the station at around 11.30 p.m. and that, due to incidents of terrorism, they had walked through fields rather than using the main road to reach the village. On the same day, the Mazgirt public prosecutor heard evidence from Mr A.K., the Bulgurcular Gendarmerie Commander, who denied the allegations against him. In particular, he submitted that the gendarmes had not been to the village since December 2003, that they did not have any vehicles and that they used G3 and MG3 guns. The accused maintained that the deceased had come to the gendarmerie around September/October to ask for their help in obtaining a green card. He further maintained that the deceased might have been killed by the sons of a person killed in 1995 and for which killing certain people held the deceased responsible. On 17 March 2004 the Van provincial criminal police laboratory carried out a ballistic examination of the cartridges found at the incident scene. According to an examination of the deceased’s clothes conducted by three experts at the Van Regional Criminal Laboratory on 25 March 2004 the deceased had received sixteen shots at close range and the bullets had entered from the front and exited from his back. On 7 April 2004 the Human Rights Association wrote a report regarding the killing of Imam Boztaş. In this report, they pointed to a number of issues which they considered needed to be elucidated in the present case. On 25 August 2005 the Mazgirt public prosecutor, relying on the forensic and other evidence in the case file including numerous witness statements, decided not to prosecute Mr A.K., the Bulgurcular Gendarmerie Commander, on the ground that there was no cogent evidence to support the allegation that he had abused his office, threatened or killed the deceased. In his elaborated decision the prosecutor examined in particular the issues raised by the applicants and referred to in the Human Rights Association’s report. The prosecutor noted, inter alia, that there were certain inconsistencies in the eyewitness accounts of Fidan Boztaş and Eylem Boztaş as regards the number of assassins and the type of clothes they were wearing, so that even assuming that the alleged perpetrators were dressed in military clothing, this did not in itself prove that the assailants were soldiers, since such clothing was freely available in the shops and, citing some previous incidents, members of terrorist organisations also wore such garments. The prosecutor examined the applicants’ allegations of negligence on account of the belated arrival of the gendarmes from the Bulgurcular Gendarmerie Command. In this connection, referring to witness statements and information received from the Turkcell Telephone Company, the prosecutor noted, inter alia, that the gendarmes were informed approximately one hour after the incident, that it took them around half an hour to cross-check the information and to prepare to leave the gendarmerie and that they arrived half an hour after walking approximately 4-5 km on foot through fields, for security reasons, under adverse weather conditions. He therefore concluded that there was no intentional belated arrival at the scene of the incident. As regards the allegations that the deceased had been threatened by the Bulgurcular Gendarmerie Commander and that, as a result, the deceased had left the village for three months, the prosecutor, after noting serious inconsistencies and contradictions in the various witness statements and the absence of an official complaint to this effect, held that there was no cogent evidence to demonstrate that the deceased had been threatened by the commander. In this connection, the prosecutor also examined the allegations that the commander was threatening others and found them to be unsubstantiated on the same grounds. Finally, the prosecutor noted, inter alia, that there was strong evidence that Imam Boztaş had been killed by a branch of TIKKO, namely the MKP, on account of a document found on four members of the MKP (Maoist Communist Party), who were killed by security forces during a clash on 26 October 2004 and which implicated the MKP in the killing of the deceased. On 28 September 2005 the Erzincan Assize Court dismissed the complainants’ objections. | 0 |
train | 001-57553 | ENG | DEU | CHAMBER | 1,984 | CASE OF ÖZTÜRK v. GERMANY | 2 | Violation of Art. 6-3-e;Just satisfaction reserved | C. Russo | 9. Mr. Öztürk, a Turkish citizen born in 1934, is resident at Bad Rappenau-Heinsheim in the Federal Republic of Germany. He arrived in the Federal Republic in 1964 and works in the motor-car industry. After passing the necessary test, he was issued with a German driving licence on 7 May 1969. In 1978, he estimated his net monthly income at approximately DM 2,000. 10. On 27 January 1978 in Bad Wimfen, the applicant drove his car into another car which was parked, causing about DM 5,000's worth of damage to both vehicles. The owner of the other car reported the accident to the Neckarsulm police. On arriving at the scene of the accident, the police, by means of a notice written in Turkish, informed the applicant, amongst other things, of his rights to refuse to make any statement and to consult a lawyer. He availed himself of these rights, and a report (Verkehrs-Ordnungswidrigkeiten-Anzeige) was thereupon transmitted by the police to the Heilbronn administrative authorities (Landratsamt). 11. By decision of 6 April 1978, the Heilbronn administrative authorities imposed on Mr. Öztürk a fine (Bussgeld) of DM 60 for causing a traffic accident by colliding with another vehicle as a result of careless driving ("Ausserachtlassen der erforderlichen Sorgfalt im Strassenverkehr"); in addition he was required to pay DM 13 in respect of fees (Gebühr) and costs (Auslagen). The decision was based on section 17 of the Regulatory Offences Act of 24 May 1968, in its consolidated version of 1 January 1975 (Gesetz über Ordnungswidrigkeiten - "the 1968/1975 Act"; see paragraph 18 below), on section 24 of the Road Traffic Act (Strassenverkehrsgesetz) and on Regulations 1 § 2 and 49 § 1, no. 1, of the Road Traffic Regulations (Strassenverkehrs-Ordnung). Regulation 1 § 2 reads as follows: "Every road-user (Verkehrsteilnehmer) must conduct himself in such a way as to ensure that other persons are not harmed or endangered and are not hindered or inconvenienced more than is unavoidable in the circumstances." Regulation 49 § 1, no. 1, specifies that anyone who contravenes Regulation 1 § 2 is guilty of a "regulatory offence" (Ordnungswidrigkeit). Under section 24 sub-section 2 of the Road Traffic Act, such an offence gives rise to liability to a fine. 12. On 11 April 1978, the applicant, who was represented by Mr. Wingerter, lodged an objection (Einspruch) against the above-mentioned decision (section 67 of the 1968/1975 Act); he stated that he was not waiving his right to a public hearing before a court (section 72). The public prosecutor's office (Staatsanwaltschaft) attached to the Heilbronn Regional Court (Landgericht), to which the file had been transmitted on 5 May, indicated six days later that it had no objection to a purely written procedure; it further stated that it would not be attending the hearings (sections 69 and 75). 13. Sitting in public on 3 August 1978, the Heilbronn District Court (Amtsgericht) heard Mr. Öztürk, who was assisted by an interpreter, and then three witnesses. Immediately thereafter, the applicant withdrew his objection. The Heilbronn administrative authorities' decision of 6 April 1978 accordingly became final (rechtskräftig). 14. The District Court directed that the applicant should bear the court costs and his own expenses. On 12 September 1978, the District Court Cashier's Office (Gerichtskasse) fixed the costs to be paid by Mr. Öztürk at DM 184.70, of which DM 63.90 represented interpreter's fees. 15. On 4 October, the applicant entered an appeal (Erinnerung) against the bill of costs with regard to the interpreter's fees. He relied on Article 6 (art. 6) of the Convention and referred to the Commission's report of 18 May 1977 in the case of Luedicke, Belkacem and Koç. At the time, that case was pending before the Court, which delivered its judgment on the merits on 28 November 1978 (Series A no. 29). The District Court dismissed the appeal on 25 October. It noted that the obligation to bear the interpreter's fees was grounded on Article 464 (a) of the Code of Criminal Procedure (Strafprozessordnung) and section 46 of the 1968/1975 Act (see paragraphs 21 and 35 below). Relying on a 1975 decision by the Cologne Court of Appeal, it held that this obligation was compatible with Article 6 § 3 (e) (art. 6-3-e) of the Convention. According to the District Court, the above-mentioned opinion of the Commission did not alter matters since, unlike a judgment of the Court; it was not binding on the States. 16. According to undisputed evidence adduced by the Government, the court costs, including the interpreter's fees, were paid by an insurance company with which Mr. Öztürk had taken out a policy. 17. The purpose of the 1968/1975 Act was to remove petty offences from the sphere of the criminal law. Included in this category were contraventions of the Road Traffic Act. Under section 21 of the Road Traffic Act (in its former version), commission of such contraventions had given rise to liability to a fine (Geldstrafe) or imprisonment (Haft). Section 3 no. 6 of the Act of 24 May 1968 (Einführungsgesetz zum Gesetz über Ordnungswidrigkeiten) classified them as "Ordnungswidrigkeiten" and henceforth made them punishable only by fines not considered to be criminal by the legislature (Geldbussen). The 1968/1975 Act had been foreshadowed in the Federal Republic by two enactments: the Act of 25 March 1952 on "regulatory offences" (Gesetz über Ordnungswidrigkeiten) and, to a certain extent, the Economic Crime Act of 26 July 1949 (Wirtschaftsstrafgesetz). 18. Section 1 sub-section 1 of the 1968/1975 Act defines a "regulatory offence" (Ordnungswidrigkeit) as an unlawful (rechtswidrig) and reprehensible (vorwerfbar) act, contravening a legal provision which makes the offender liable to a fine (Geldbusse). The fine cannot be less than DM 5 or, as a general rule, more than DM 1,000 (section 17 sub-section 1). The amount of the fine is fixed in each case by reference to the seriousness of the offence, the degree of misconduct attributable to the offender and, save for minor (geringfügig) offences, the offender's financial circumstances (section 17 sub-section 3). If the act constitutes both a "regulatory" and a criminal offence, only the criminal law is applicable; however, if no criminal penalty is imposed, the act may be punished as a "regulatory offence" (section 21). 19. Ordnungswidrigkeiten are to be dealt with by the administrative authorities (Verwaltungsbehörde) designated by law, save in so far as the 1968/1975 Act confers the power of prosecution of such offences on the public prosecutor and their judgment and sentencing on the courts (sections 35 and 36). Where an act has come before him as a criminal matter, the public prosecutor may also treat the act as a "regulatory offence" (section 40). 20. The administrative authorities will remit the matter to the public prosecutor if there is reason to suppose that a criminal offence has been committed; he will refer the matter back to them if he does not take proceedings (section 41). In the case of a "regulatory offence" having a close connection with a criminal offence in respect of which the public prosecutor has instituted proceedings, the prosecutor may extend the criminal proceedings to cover the "regulatory offence" as long as the administrative authorities have not fixed any fine (section 42). The public prosecutor's decision to treat or not to treat an act as a criminal offence is binding on the administrative authorities (section 44). 21. Subject to the exceptions laid down in the 1968/1975 Act, the provisions of the ordinary law governing criminal procedure, and in particular the Code of Criminal Procedure, the Judicature Act (Gerichtsverfassungsgesetz) and the Juvenile Courts Act (Jugendgerichtsgesetz), are applicable by analogy (sinngemäss) to the procedure in respect of "regulatory offences" (section 46 sub-section 1). The prosecuting authorities (see paragraph 19 above) have the same rights and duties as the public prosecutor in a criminal matter unless the 1968/1975 Act itself states otherwise (section 46 sub-section 2). Nevertheless, various measures permissible in criminal matters may not be ordered in respect of "regulatory offences", notably arrest, interim police custody (vorläufige Festnahme) or seizure of mail or telegrams (section 46 sub-section 3). The taking of blood samples and other minor measures, within the meaning of Article 81 (a) § 1 of the Code of Criminal Procedure, remain possible. 22. The prosecution of "regulatory offences" lies within the discretion (pflichtgemässes Ermessen) of the competent authority; so long as the case is pending before it, the competent authority may terminate the prosecution at any time (section 47 sub-section 1). Once the case has been brought before a court (see paragraphs 27-28 below), power to decide on a stay of proceedings rests with the court; any such decision requires the agreement of the public prosecutor and is final (section 47 sub-section 2). 23. As regards the judicial stage (if any) of the proceedings (see paragraphs 28-30 below), section 46 sub-section 7 of the 1968/1975 Act attributes jurisdiction in the matter to divisions (Abteilungen) of the District Courts and to chambers (Kammern; Senate) of the Courts of Appeal (Oberlandesgerichte) and of the Federal Court of Justice (Bundesgerichtshof). 24. Investigations (Erforschung) into "regulatory offences" are a matter for the police authorities. In this connection, the police authorities enjoy discretionary powers (pflichtgemässes Ermessen); save in so far as the 1968/1975 Act provides otherwise, they have the same rights and duties as in the prosecution of criminal offences (section 53 sub-section 1). 25. Prior to any decision being taken, the person concerned (Betroffener) has to be given the opportunity of commenting, before the competent authorities, on the allegation made against him (section 55). In the case of a minor (geringfügig) offence, the administrative authorities may give the person concerned a warning (Verwarnung) and impose on him an admonitory fine (Verwarnungsgeld) which, save for any exception laid down under the applicable law, may range from DM 2 to 20 (section 56 sub-section 1). However, sanctions of this kind are possible only if the person concerned consents and pays the fine immediately or within one week (section 56 sub-section 2). 26. If necessary, the administrative authorities will designate an officially appointed lawyer to act for the person concerned in the proceedings before them (section 60). Measures taken by the administrative authorities during the preliminary procedure can in principle be challenged before the courts (section 62). 27. Save in so far as the 1968/1975 Act provides otherwise - as in the case of the matter being settled by payment of an admonitory fine -, a "regulatory offence" is punishable by an administrative decision imposing a fine (Bussgeldbescheid; section 65). The person concerned may lodge an objection (Einspruch) within one week (section 67). Unless they withdraw their decision, the administrative authorities will then forward the file to the public prosecutor who will submit it to the competent District Court (sections 69 sub-section 1 and 68) and thereupon assume the function of prosecuting authority (section 69 sub-section 2). 28. Under section 71, if the District Court finds the objection admissible (section 70) it will, unless the 1968/1975 Act states otherwise, examine the objection in accordance with the provisions applicable to an "Einspruch" against a penal order (Strafbefehl): in principle, it will hold a hearing and deliver a judgment (Urteil) which may impose a heavier sentence (Article 411 of the Code of Criminal Procedure). However, its ruling may take the form of an order (Beschluss) if the District Court considers that a hearing is not necessary and provided the public prosecutor or the person concerned does not object (section 72 sub-section 1). In that event, it may, inter alia, acquit the person concerned, settle the amount of a fine or terminate the prosecution, but not increase the penalty (section 72 sub-section 2). 29. The person concerned has the option of attending hearings but is not bound to do so unless the District Court so directs (section 73 sub-sections 1 and 2); he may be represented by a lawyer (section 73 sub-section 4). The public prosecutor's office may attend the hearing; if the District Court considers the presence of an official from that office to be appropriate, it will inform the latter accordingly (section 75 sub-section 1). The District Court will give the administrative authorities the opportunity to set out the matters which, in their view, are of importance for the decision to be given; they may address the Court at the hearing, if they so wish (section 76 sub-section 1). 30. Subject to certain exceptions, section 79 allows an appeal on points of law (Rechtsbeschwerde) to be brought against a judgment or an order issued pursuant to section 72; save in so far as the 1968/1975 Act states otherwise, in determining the appeal the court concerned will follow, by analogy, the provisions of the Code of Criminal Procedure relating to cassation proceedings (Revision). 31. The administrative authorities' classification of an act as a "regulatory offence" is not binding on the court ruling on the objection (Einspruch); however, it can apply the criminal law only if the person concerned has been informed of the change of classification and enabled to prepare his defence (section 81 sub-section 1). Once this condition has been satisfied, either by the court of its own motion or at the public prosecutor's request, the person concerned acquires the formal status of an accused (Angeklagter, section 81 sub-section 2) and the subsequent proceedings fall outside the scope of the 1968/1975 Act (section 81 sub-section 3). 32. A decision imposing a fine is enforceable once it has become final (sections 89 and 84). Unless the 1968/1975 Act states otherwise, enforcement of a decision taken by the administrative authorities is governed by the Federal Act or the Land Act, as the case may be, on enforcement in administrative matters (Verwaltungs-Vollstreckungsgesetze) (section 90 sub-section 1). When the decision is one taken by a court, certain relevant provisions of, inter alia, the Code of Criminal Procedure are applicable (section 91). 33. If, without having established (dargetan) his inability to pay, the person concerned has not paid the fine in due time, the court may, at the request of the administrative authorities or, where the fine was imposed by a court decision, of its own motion order coercive imprisonment (Erzwingungshaft - section 96 sub-section 1). The resultant detention does not replace payment of the fine in the manner of an Ersatzfreiheitsstrafe under the criminal law, but is intended to compel payment. The period of detention may not exceed six weeks for one fine and three months for several fines (section 96 sub-section 3). Implementation of the detention order is governed, inter alia, by the Code of Criminal Procedure (section 97). 34. As far as the costs of the administrative procedure are concerned, the competent authorities apply by analogy certain provisions of the Code of Criminal Procedure (section 105). 35. Under section 109, the person concerned has to bear the costs of the court proceedings if he withdraws his "Einspruch" or if the competent court rejects it. The costs in question are made up of the expenses and fees of the Treasury (Article 464 (a) § 1, first sentence, of the Code of Criminal Procedure). These fees and expenses are listed in the Court Costs Act (Gerichtskostengesetz) which in turn refers, inter alia, to the Witnesses and Experts (Expenses) Act (Gesetz über die Entschädigung von Zeugen und Sachverständigen). Section 17 sub-section 2 of the last-mentioned Act provides that "for the purposes of compensation, interpreters shall be treated as experts". Interpretation costs (Dolmetscherkosten) are thus included in the costs of judicial proceedings. However, as far as criminal proceedings - and criminal proceedings alone - are concerned, the German legislature amended the schedule (Kostenverzeichnis) to the Court Costs Act following the Luedicke, Belkacem and Koç judgment of 28 November 1978 (see paragraph 15 above; see also Resolution DH (83) 4 of 23 March 1983 of the Committee of Ministers of the Council of Europe). According to no. 1904 in this schedule, henceforth no charge is to be made for "the sums due to interpreters and translators engaged in criminal proceedings in order to translate, for an accused who is deaf or dumb or not conversant with the German language, the statements or documents which the accused needs to understand for his defence" (Act of 18 August 1980). 36. Under the terms of section 109 of the 1968/1975 Act, the question of payment of the costs of the proceedings, including the interpretation costs, only arises once the withdrawal or dismissal of the objection has become final. The person concerned may never be required to make an advance payment in respect of the costs concerned. 37. The Road Traffic Act, the Road Traffic Regulations and the Road Traffic Licence and Vehicle Conformity Regulations (Strassenverkehrs-Zulassungs-Ordnung) contain lists of "regulatory offences" punishable by fine (section 24 of the Road Traffic Act). In the case of a "regulatory offence" committed in gross (grob) and persistent (beharrlich) violation of the duties incumbent on a driver, the administrative authorities or, where an objection has been lodged, the court may at the same time disqualify the person concerned from holding a driving licence (Fahrverbot) for a period of one to three months (section 25 of the Road Traffic Act). According to the Government, in 1982 such a measure was taken in 0.5 per cent of cases. 38. The Länder have co-operated together to adopt rules (Verwaltungsvorschriften) establishing a uniform scale of fines (Bussgeldkatalog) for the various road traffic "regulatory offences"; legally, these rules are binding on the administrative authorities empowered to impose fines but not on the courts. Section 26 (a) of the Road Traffic Act, which was inserted in the Act of 28 December 1982 but which has not yet been implemented, provides that the Minister of Transport shall issue such rules with the agreement of the Bundesrat and in the form of a Decree (Rechtsverordnung). 39. Under section 28 of the Road Traffic Act, a fine imposed for contravention of the road traffic regulations may in some specified cases be entered on a central traffic register (Verkehrszentralregister) if it exceeds a certain level (DM 39 at the time of the facts in issue, DM 79 as from 1 July 1982); on the other hand, no mention of it is included in the judicial criminal records (Bundeszentralregister). The entry must be deleted after a maximum of two years, unless further entries have been made in the meantime (section 29). Only certain authorities have access to this register, notably for the purposes of a criminal prosecution or a prosecution for a road traffic "regulatory offence" (section 30). 40. According to undisputed evidence supplied by the Government, the 1968/1975 Act in practice plays a particularly important role in the area of road traffic; thus, it was said that 90 per cent of the fines imposed in 1982 concerned road traffic offences. The Government stated that each year in the Federal Republic of Germany there were 4,700,000 to 5,200,000 decisions imposing a fine (Geldbusse) and 15,500,000 to 16,000,000 warnings accompanied by a fine (Verwarnungsgelder). The statistics of the Länder on Road Traffic Act offences were said to show that in 1982 fines exceeding DM 200 and DM 500 came to 1.5 per cent and 0.1 per cent respectively of the total, as compared with 10.8 per cent for fines of between DM 101 and DM 200, 39.4 per cent for fines of between DM 41 and DM 100 and 48.2 per cent for fines of DM 40 or less. 43.4 per cent of road traffic offences consisted of contraventions of a prohibition on stopping or parking, approximately 17.1 per cent of speeding, 6.5 per cent of non-observance of traffic lights and 5.9 per cent of illegal overtaking. Other offences totalled less than 4 per cent by category. The offences covered by Regulation 1 § 2 of the Road Traffic Regulations, the provision applied in Mr. Öztürk's case (see paragraph 11 above), amounted to approximately 2.8 per cent. 41. Despite the absence of statistics in this connection, the Government estimated that 10 to 13 per cent of the five million or so fines imposed each year concerned foreigners. Of the 4,670,000 foreigners living in the Federal Republic, approximately 2,000,000 possessed a motor vehicle. | 1 |
train | 001-57452 | ENG | GBR | CHAMBER | 1,988 | CASE OF B. v. THE UNITED KINGDOM (ARTICLE 50) | 2 | Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | C. Russo;N. Valticos | 1. The case was referred to the Court on 28 January 1986 by the European Commission of Human Rights ("the Commission"). It originated in an application (no. 9840/82) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1982 by a British citizen. 2. On 23 October 1986, the Chamber constituted to examine the case relinquished jurisdiction in favour of the plenary Court (Rule 50 of the Rules of Court). By judgment of 8 July 1987 ("the principal judgment"), the plenary Court held, inter alia, that the applicant had been the victim of breaches of Articles 8 and 6 § 1 (art. 8, art. 6-1) of the Convention by reason of the procedures followed and the insufficiency of the remedies available in connection with decisions relating to her child in the care of a local authority (Series A no. 121-B, paragraphs 59-83 of the reasons and points 1 and 3 of the operative provisions, pp. 71-80 and 81). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, reference should be made to paragraphs 8-54 of the principal judgment (ibid., pp. 63-70). 3. At the Court’s hearing on 25-26 November 1986, the Government of the United Kingdom ("the Government") reserved their position on the applicant’s claim for just satisfaction, which claim had not then been quantified. In the principal judgment, the Court therefore reserved the whole of this question; it invited (a) the applicant to submit, within the next two months, full written particulars of her claim; and (b) the Government to submit, within two months of receipt of those particulars, their written comments thereon and, in particular, to notify the Court of any agreement reached between them and the applicant (paragraphs 86-87 of the reasons and point 5 of the operative provisions, pp. 81-82). 4. In accordance with the foregoing invitation and the President’s directions, there were filed at the registry: - on 1 October 1987, memorial of the applicant; - on 21 December 1987 and 12 February 1988, memorials of the Government; - on 21 January 1988, observations of the Delegate of the Commission. These documents revealed that no agreement had been concluded between the Government and the applicant. 5. Having consulted the Agent of the Government, the Delegate of the Commission and the representative of the applicant, the Court decided, on 24 March 1988, that there was no need to hold a hearing. | 0 |
train | 001-97232 | ENG | ROU | CHAMBER | 2,010 | CASE OF CIOBANIUC v. ROMANIA | 4 | Violation of P1-1 | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra | 4. The applicant was born in 1936 and lives in Iaşi. 5. In 1985, Apartment 8 situated in Constanţa at 17 Aleea Hortensiei, the property of the applicant and of her husband, was seized by the State under Decree no. 223/1974, following their decision to leave the country. No compensation was paid and no copy of the decision to seize the property was sent to them. The applicant's husband later died in 1998, the applicant being his only heir. 6. On 2 October 1991 and 15 September 1995 the applicant and her husband informed the Constanţa Town Council that they intended to recover their property, requesting the eviction of the tenants. 7. On 29 October 1996 the State sold that apartment to the then tenants under Law no. 112/1995. 8. On 18 August 1997 the applicant and her husband sought to have the seizure declared null and void, to recover ownership of Apartment 8 and to have the former tenants evicted; they also sought damages in respect of the furniture which had been in the apartment and which had allegedly been destroyed. 9. On 17 November 1997 the Constanţa Court of First Instance allowed the action in part and annulled the seizure as unlawful, but dismissed the claim for restitutio in integrum on the grounds that the apartment was in the possession of third parties who were not party to those proceedings. It also dismissed the claim for damages in respect to the furniture for lack of payment of stamp duty. Eventually, on 20 March 2000, the Constanţa Court of Appeal upheld that ruling in a final decision. 10. On 17 October 2001 the Constanţa Court of Appeal, by a final decision, dismissed an action by the applicant for recovery of possession of immovable property lodged against those who had bought the apartment. The court considered that when proceedings are brought by a former owner against those who have acquired ownership under Law no. 112/1995, preference is given to the protection of the good faith principle. Thus, the former tenants had made the purchase in good faith and had complied with the provisions of Law no. 112/1995. On 11 October 2002 the Prosecutor's Office attached to the Supreme Court of Justice informed the applicant that there were no reasons to lodge an application for review (recurs în anulare) against that final decision. 11. On 19 October 2001 the applicant sought to recover Apartment 8 under Law no. 10/2001 governing immovable property wrongfully seized by the State. On 16 May 2005 the Constanţa Town Council dismissed her request, since that apartment had been sold in accordance with Law no. 112/1995, but proposed compensation in the equivalent of 11,074 euros (EUR). Then the file was sent to the Constanţa Prefecture and subsequently to the Secretariat of the Central Commission for Compensation. On 28 May 2008 the Central Commission for Compensation decided to award the applicant 235,076.09 Romanian lei, the equivalent of EUR 64,025 according to the rate of exchange displayed on that day by the National Bank of Romania. According to the documents in the file, the applicant has neither contested that decision nor has she followed the administrative procedure provided under Law 247/2005, as amended by Government Emergency Ordinance no. 81/2007, for opting between cash compensation or shares in the fund Proprietatea. 12. On 14 February 2005 the Constanţa Court of Appeal, by a final decision, dismissed a request by the applicant to have the sale declared null and void, considering that the former tenants had made the purchase in good faith. 13. The relevant legal provisions and jurisprudence are described in the following judgments: Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008); and Viaşu v. Romania (no. 75951/01, §§ 38-46, 9 December 2008). | 0 |
train | 001-91530 | ENG | SVN | CHAMBER | 2,009 | CASE OF ROGELJ v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial;No violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1953 and lives in Ljubljana. 6. The applicant has been a self-employed designer since 1972. 7. On 8 April 1990 the applicant was injured in a car accident which happened on a business trip. It appears that the applicant has since then been on sick leave for most of the time. However, for certain periods the Health Insurance Institute (Zavod za zdravstveno zavarovanje – “the HII”) recognised his full or partial working capability. 8. On 10 January 1996 the Supreme Court (Vrhovno sodišče), in a non-public session, rejected the applicant’s claim concerning the HII’s decision granting the applicant a right to be absent from his work on a part-time basis until 25 February 1993. 9. On 22 April 2000 the applicant lodged a constitutional appeal. On 16 October 2001 the Constitutional Court (Ustavno sodišče) dismissed the appeal as being out of time. This decision was served on the applicant on 21 November 2001. 10. On 15 April 1994 the HII issued a decision finding that the applicant was fully capable of working. 11. On 30 June 1994 the applicant lodged a claim with the Ljubljana Court of Associated Labour (Sodišče združenega dela v Ljubljani) seeking annulment of the aforementioned decision, a recognition of his reduced working capability and entitlement to invalidity insurance benefit. 12. On 28 December 1994 the applicant gave a statement to a judge on duty urging the court to proceed with his case swiftly. 13. The (renamed) Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) held a hearing on 28 November 1996. 14. On 21 January 1997 the court received an expert’s opinion. 15. On 5 February 1997 the court held a hearing. 16. The court scheduled a new hearing for 26 March 1997 in order to examine an orthopaedist. The hearing was eventually cancelled since the expert had been absent owing to some professional commitments. 17. After holding a hearing on 17 June 1997, the court decided to deliver a written judgment rejecting the applicant’s claim. The judgment was served on the applicant on 4 July 1997. 18. The applicant appealed to the Ljubljana Higher Labour and Social Court (Višje delovno in socialno sodišče v Ljubljani). 19. On 23 July 1998 the Ljubljana Higher Labour and Social Court rejected the applicant’s appeal. The court tried several times to serve its decision on the applicant (on 26 October 1998, 10 November 1998 and on 10 December 1998) at the same address in Celje where it had served the decision of 17 June 1997. The decision was eventually served on 14 January 1999 through a colleague of the applicant at work. 20. Subsequently, the applicant lodged an appeal on points of law with the Supreme Court but it was rejected on 12 October 1999. The court again tried several times to serve this decision (on 10 and 30 November 1999, on 21 December 1999 and on 11 January 2000). The decision was served at the applicant’s three different addresses, two in Celje and one in Ljubljana. On 20 January 2000 the court process server left a notice in the applicant’s mailbox at his home in Ljubljana. The decision was eventually served on the applicant on the first-instance court’s premises on 23 February 2000. 21. On 22 April 2000 the applicant lodged a constitutional appeal which also concerned the decision of the Supreme Court of 10 January 1996 (see paragraph 8 above). 22. On 16 October 2001 the Constitutional Court dismissed the applicant’s appeal concerning the above proceedings as manifestly ill-founded. This decision was served on the applicant on 21 November 2001. 23. On 11 November 1996 the HII found the applicant incapable of working in the period between 7 June 1995 and 7 August 1995. 24. On 18 June 1998 the Ljubljana Labour and Social Court upheld the applicant’s claim against the HII finding that he had been incapable of working also between 30 November 1996 and 13 February 1997. 25. On 12 October 1999 the applicant challenged an HII decision of 26 July 1999 before the Ljubljana Labour and Social Court. 26. On 10 February 2000 the court held a hearing. 27. On 19 April 2000 the court received the opinion of the expert appointed in the case. 28. On 31 May 2000 the court held a hearing. The applicant, who received a notice inviting him to attend the hearing on 11 May 2000, did not appear at the hearing. The court nevertheless gave a ruling, quashed the disputed HII decision and upheld the applicant’s claim. It found that the applicant, who had been on sick leave with interruptions since 14 February 1998 and after 1 May 1999, was temporarily incapable of working also in the period between 9 April 1999 and 1 May 1999. This decision was served on the applicant on 6 July 2000. 29. The applicant appealed, claiming that the first-instance court should also have decided about his incapacity to work in the period after 25 May 1999. 30. On 7 February 2002 the Higher Labour and Social Court quashed the first-instance court’s judgment and remitted the case to the first-instance court for re-examination. 31. On 7 November 2002 the court held a hearing. 32. Subsequently, the court attempted on three occasions to serve notice inviting the applicant to the hearing scheduled for 23 January 2003 but was unsuccessful. The applicant, however, appeared at the hearing together with a substitute of his representative. After the hearing, the court gave a ruling and upheld the applicant’s claim in part. This decision was served on the applicant’s representative on 19 February 2003. 33. On 17 April 2003 the Higher Labour and Social Court partly upheld the applicant’s appeal and remitted the respective part for re-examination. 34. The hearing scheduled for 21 August 2003 was cancelled owing to the fact that the applicant’s representative had rescinded his power of attorney. Consequently, the applicant had requested free legal aid, which had not been granted at the time the hearing was held. 35. On 28 October 2003 the applicant was granted free legal aid and subsequently assigned a lawyer. 36. The next hearing was scheduled for 11 March 2004. The court again tried unsuccessfully to serve notice of the hearing on the applicant. The applicant’s representative eventually received the notice on 3 February 2004. 37. Since none of the parties appeared at the hearing of 11 March 2004 despite being invited, the court decided to stay the proceedings (mirovanje postopka). This decision was served on the applicant’s representative on 12 March 2004. 38. On 14 July 2004, given that none of the parties requested the court to resume the proceedings within four months from the date the proceedings were stayed, the court decided to terminate the proceedings on the basis of the assumption that the applicant had withdrawn his claim. This decision was served on the applicant’s representative on 16 July 2004. 39. The applicant appealed. On 24 September 2004 the Higher Labour and Social Court rejected the applicant’s appeal. This decision was served on the applicant’s representative on 5 October 2004. 40. On 10 January 2005 the applicant lodged a motion at the Higher Labour and Social Court, claiming that he had learned that the proceedings had been terminated only at the end of December 2004. The court responded that the decision had been served on his representative in accordance with the civil procedure rules. 41. On 11 March 2005 the applicant examined the file at the Higher Labour and Social Court. 42. The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. 43. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had lodged a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of that Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within four months at the latest..... (2) If the proposal for settlement referred to in the first paragraph of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party submitted its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with a settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” 44. Further to section 14 of the Labour and Social Courts Act (Zakon o delovnih in socialnih sodiščih, Official Gazette of the Republic of Slovenia no. 19/1994), as in force at the material time, the provisions governing civil procedure were to be applied to proceedings before the Labour and Social Courts. 45. According to section 209 of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette of the Republic of Slovenia no. 26/1999), the court should stay the proceedings if, inter alia, none of the parties have appeared at a hearing. A party to proceedings can request the court to resume the proceedings after three months have passed from the date the proceedings were stayed and no later than four months from that date (section 210). Section 210 further provides that in the event that none of the parties requests the court to resume the proceedings, it will be assumed that the claimant has withdrawn his claim and the proceedings will be terminated. | 1 |
train | 001-96996 | ENG | MKD | CHAMBER | 2,010 | CASE OF RISTESKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Art. 6-1 | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1966 and lives in Skopje. 5. On 27 November 1997 she complained to her employer about her treatment at work. 6. On 9 December 1997 the employer dismissed the applicant, considering her complaint as a request for resignation. The applicant's objection remained undecided. 7. On 26 February 1998 she claimed before the Skopje Court of First Instance (“the first-instance court”) annulment of the dismissal decision, her reinstatement and payment of unpaid salary. 8. On 17 February 1999 the court ordered expert examination of the applicant's mental state of health on 27 November 1997, the date when she had submitted her complaints to the employer. The applicant was ordered to pay the expert fees within fifteen days. On 12 June 2000 the first-instance court noted that the applicant had failed to pay the fees. 9. On 4 May 2001 the court ordered expert examination of the applicant's mental health again. The applicant paid the expert fees on 26 October 2001. The expert opinion was submitted on 15 November 2001. 10. During the trial proceedings, three hearings were adjourned due to the incorrect delivery of court summons to the applicant and her lawyer. 11. On 19 September 2002 the first-instance court dismissed (одбива) the applicant's claim as having been submitted out of the fifteen-day statutory time-limit. On 27 March 2003 the Skopje Court of Appeal quashed this decision since the applicant's claim should have been rejected (отфрла) instead. 12. On 15 October 2003 the first-instance court rejected the applicant's claim as out of time. On the same date the applicant was exempted of court fees (судска такса). On 17 March 2004 the Skopje Court of Appeal dismissed the applicant's appeal of 5 December 2003. 13. On 20 April 2004 the applicant submitted to the Supreme Court an appeal on points of law (ревизија) arguing that the fifteen-day time-limit had been of a non-binding (инструктивен) nature. In this connection, she referred to a decision of 28 December 1999 in which the Supreme Court allegedly had given such reasoning. 14. On 30 March 2005 the Supreme Court dismissed the applicant's appeal stating that the statutory time-limit had been of a preclusive nature. This decision was served on the applicant on 27 June 2005. | 1 |
train | 001-100083 | ENG | RUS | CHAMBER | 2,010 | CASE OF GALINA KUZNETSOVA v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1948 and lives in Zarubino in the Primorye Region. 5. On 12 February 2001 the Khasanskiy District Court of the Primorye Region (the District Court) partly granted the applicant's tort action against a municipal housing maintenance company of the Khasanskiy District and awarded her 48,461.01 Russian roubles (RUB) as compensation for pecuniary damage and RUB 1,200 as compensation for non-pecuniary damage. The district court also ordered that the housing authority should repair the roof, the heating system and the water-pipes in the applicant's house. 6. On 28 March 2001 the Primorye Regional Court amended the judgment on appeal, increased the amount of compensation for pecuniary damage by RUB 8,994.12 and upheld the remainder of the judgment. 7. On 16 January 2002 the respondent company was declared insolvent and the insolvency procedure started. 8. On 26 May 2003 the District Court index-linked the award of 12 February 2001 and held that the respondent company was to pay the applicant RUB 13,441.20. The judgment became final ten days later. 9. By letter of 18 May 2005 an insolvency manager of the housing maintenance company had notified the applicant that the respondent company had been declared insolvent and that the debtor was to be released from claims that were unsatisfied in the insolvency proceedings, since there was a lack of assets. Accordingly, the applicant's claims could not be satisfied. The case materials do not contain further information on the insolvency proceedings. 10. The judgments of 12 February 2001 and 26 May 2003 have not been enforced to date. 11. On an unspecified date the applicant sued the Ministry of Finance and the Primorye Regional Department of the Ministry of Justice for compensation for damage caused by the bailiffs' failure to enforce the judgment of 12 February 2001. 12. On 4 February 2003 the District Court partly granted her action. The court found that the bailiff had failed to send the enforcement documents to the applicant in time and was inactive in obtaining the execution of the judgment. The court awarded the applicant RUB 5,000 against the local department of the Ministry of Justice as compensation for non-pecuniary damage and RUB 4,678.42 as compensation for expenses related to the enforcement and court proceedings against the regional department of the Ministry of Justice. The district court also held that the respondents were not under an obligation to pay the applicant RUB 40,642.50 because the bankruptcy proceedings in respect of the municipal company were pending and the applicant had been included in the register of the housing maintenance company creditors' claims. On 19 March 2003 the Primorye Regional Court upheld the judgment on appeal. 13. On 12 August 2003 RUB 9,678 of the court award had been paid to the applicant by the respondent authority. 14. According to the Government, at some point the bailiff was dismissed on account of her failure to ensure timely enforcement of the judgments in the applicant's favour. On 12 February 2004 the District Court held that the bailiff should repay RUB 7,078 of damages to the authorities. | 1 |
train | 001-59723 | ENG | ITA | CHAMBER | 2,001 | CASE OF SCIORTINO v. ITALY | 3 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | Christos Rozakis | 8. The applicant served in the administration of the Sicily Region from 1945 to 1978, holding different posts. 9. The method and the basis of calculation of the pension to which the applicant is entitled have been modified several times by a series of regional laws. 10. Amongst others, according to Regional Law No. 145/1980, the applicant's pension was recalculated and increased. Further modifications in the determination of the applicant's pension were made on the basis of Regional Law No. 41/1985. 11. In July 1990 the applicant filed an application with the Court of Audit seeking recognition and payment of the increase of pension granted by Regional Law No. 41/1985. On 23 November 1993 the Court of Audit admitted the claim and ordered that the Sicily Region pay the applicant the increases of pension he was entitled to, the revaluation of the amounts due and the statutory interest, accrued from November 1985 to the date on which the applicant would actually receive them. 12. In relation to the delays in complying with the decision of the Court of Audit of 23 November 1993, the applicant filed “compliance” proceedings (“ricorso per l'ottemperanza”) with the Sicily Regional Administrative Court (RAC). 13. On 11 July 1997 the Sicily RAC granted the claim and ordered the competent regional administration to comply fully with the above-mentioned judgment within 60 days from the date when the decision would be served or communicated to the applicant. The Sicily RAC also nominated a special commissioner (“commissario ad acta”) who was to intervene if, upon expiration of the 60 day-period, the administration of the Region had not paid. The commissioner was empowered to take the necessary measures to ensure compliance with the decision within further 30 days at the latest. 14. According to the calculations made by the applicant's counsel and covering a period up to 31 December 2000, the applicant was entitled to receive the overall gross sum of 10 254 250 Italian lire (ITL). The Government have not disputed these calculations. 15. On 20 May 1998, the competent regional administration paid to the applicant 289 136 ITL. However, on 4 August 1998 the Presidency of the Sicily region urged the competent regional administration to speed up the compliance with a series of judgments favourable to the applicant, including the one at issue. Subsequently, on 21 June 1999 the applicant received 4 030 000 ITL. Yet the applicant contested this sum and complained that the competent administration had used a different method of calculation than the one envisaged by the RAC judgment of 11 July 1997. 16. In any event, the applicant maintains that on 31 December 2000 he was still entitled to receive the sum of 5 976 400 ITL. The Government have not disputed this allegation. 17. On 19 April 1994 the applicant had lodged another application (No. 1025/94) with the Court of Audit (jurisdictional section for the Sicily Region), claiming that Regional Laws No. 7/1971 and No. 145/1980 had been erroneously enforced and seeking a recalculation of his pension. A first hearing was fixed at 6 November 1998. 18. This controversy was settled by a judgment of 23 March 1999, filed with the registry on 10 May 1999, which partially granted the applicant's claim. | 1 |
train | 001-75160 | ENG | MDA | CHAMBER | 2,006 | CASE OF MACOVEI AND OTHERS v. MOLDOVA | 4 | Inadmissible under Art. 6-1;Violation of Art. 6-1 (legal certainty and right to a court);Not necessary to examine complaint under Art. 13;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses awards - Convention proceedings | Nicolas Bratza | 6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. They were born in 1961, 1946, 1939, 1946, 1946 and 1951 respectively. 7. In 1994 each applicant concluded a contract with ASITO (an insurance company incorporated in Moldova), according to the terms of which he or she paid an insurance premium in exchange for an annuity pension. The size of the monthly pensions varied between 200 Moldovan lei (MDL) and MDL 600 (between the equivalent of 45 United States dollars (USD) and USD 135 at the time). 8. On different dates between 1999 and 2001 ASITO stopped paying the pensions, in some cases, or refused to start paying them, in other cases, invoking a change in the interest rate of the National Bank of Moldova and calling for the termination of the contracts. 9. On unspecified dates in 2001, the applicants brought civil actions against ASITO, seeking the payment of the pension arrears to date and requiring the company to abide by the contracts of 1994. 10. All the applicants obtained final and enforceable judgments between 2001 and 2002, by which the domestic courts ordered ASITO to pay the pension arrears and to resume the execution of the contracts. The courts found the contracts to be valid and dismissed ASITO’s requests to terminate them or to exempt it from abiding by them on the ground of force majeure, which in ASITO’s view was constituted by the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova. The Court was not presented with information on whether those judgments were complied with by ASITO. 11. On 14 December 2001 the Prosecutor General lodged an “appeal in the interest of the law” with the Supreme Court of Justice. According to the Prosecutor General, the appeal had the purpose of clarifying the controversy surrounding the contracts and of setting a uniform practice for all courts. 12. On 11 March 2002, the Plenary Supreme Court of Justice issued a judgment deciding the dispute between ASITO and the pension beneficiaries in favour of the former. In particular, it ruled that the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova could be relied upon by ASITO in order unilaterally to avoid the annuity contracts. It also ruled that its judgment was binding on all the courts, although it could not, however, affect already existing judgments and it could not be used against the parties to proceedings which had already been decided. 13. Subsequently, on different dates, ASITO brought civil actions against the applicants asking for the termination of the contracts concluded in 1994. It relied on the same arguments as in the first sets of proceedings and also the judgment of the Plenary Supreme Court of 11 March 2002. 14. Between December 2002 and June 2003 ASITO obtained final favourable judgments against all the applicants. The courts dismissed the applicants’ submissions to the effect that the matter of the unilateral denunciation of the contracts by ASITO on grounds of hardship had already been resolved by final judgments and found instead that the subject matter of the proceedings which had ended in final judgments favourable to the applicants had been different, because those proceedings had been concerned with the enforcement of the annuity contracts up to the moment of their termination, while the subject matter of the new proceedings was the termination of the contracts. 15. On 25 October 2004, after the Court communicated the present cases to the Government, the Plenary Supreme Court of Justice upheld a revision request lodged against its judgment of 11 March 2002 by a group of ASITO pensioners who are not applicants in the present cases. The Supreme Court quashed its previous judgment while finding inter alia that ASITO could not rely on the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova for avoiding its annuity contracts. 16. The old Code of Civil Procedure in force between 26 December 1964 and 12 June 2003 read as follows: ... 3) the proceedings shall be discontinued if previously a final judgment has been adopted in a dispute between the same parties, regarding the same object and having the same scope ... In order to ensure a uniform application of the law in the entire territory of the country, the Prosecutor General can address ex officio to the Supreme Court of Justice an appeal, asking the court to give an opinion on questions of law which have been solved differently by the courts. The Prosecutor General’s appeal shall be examined in a hearing by the Plenary Supreme Court. The judgments adopted by the Plenary cannot affect already existing judgments and they cannot be used against the parties to proceedings where judgments have been delivered. The judgments adopted in respect of the appeals in the interest of the law shall be brought to the attention of the courts and shall be binding on them. 17. On 12 June 2003 a new Code of Civil Procedure entered into force. Section 449, insofar as relevant, reads as follows: “Grounds for revision Revision may be requested: When new and essential facts or circumstances have been discovered, that were unknown and could not have been known earlier; When, after the adoption of a judgment, new documents have been discovered, that were hidden by one of the parties to the proceedings or that could not have been presented to the court for reasons not imputable to the party who seeks revision;... When a court decision or a decision of another body on which a judgment is based, has been annulled... ” 18. Section 450, insofar as relevant, reads as follows: “A revision request may be lodged: ... Within three months of the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier, in cases provided by Section 449 (c); Within three months of the date on which the documents have been discovered, in cases provided by Section 449 (d); Within three months of the date on which the court decision or the decision of another body on which the judgment is based have been annulled, in cases provided by Section 449 (f)...” | 1 |
train | 001-67252 | ENG | TUR | CHAMBER | 2,004 | CASE OF TUNCER AND DURMUŞ v. TURKEY | 3 | Violation of Art. 3;Violation of Art. 5;Non-pecuniary damage - financial award;Costs and expenses award | Nicolas Bratza | 9. The applicants were born in 1966 and 1963 respectively and live in Istanbul. 10. On 8 January 1996 the applicants were in the Alibeyköy neighbourhood, on their way to attend the funeral of two prisoners who allegedly had been killed by the security forces. Police officers were arresting at random people in Alibeyköy who were walking on the street, waiting at the bus stop or driving their cars. When the applicants arrived in the neighbourhood, they were beaten by police officers and they were subsequently arrested together with many others. This was a notorious incident that had attracted media and public attention. 11. Following their arrest, the applicants were taken to a bus where they were beaten and insulted. They were brought to the Eyüp Stadium along with 1054 people who were arrested randomly. In the stadium they were again beaten and insulted. Their identity cards, money and valuables were seized by the police officers. 12. While the applicants were held in the Eyüp Stadium their friends filed a petition with the Eyüp Magistrate's Court requesting to have them brought before the competent public prosecutor. The Eyüp Magistrate's Court rejected their request. The court stated in its written reply that the public prosecutors were entitled to authorise the prolongation of the detention period of suspects for up to four days in respect of crimes committed by three or more persons. Thus it concluded that it did not have jurisdiction to take any decision at this stage. 13. The applicants were released on the same day. 14. On 9 January 1996 the applicants filed a complaint with the office of the Eyüp Public Prosecutor concerning the treatment to which they were subjected when they were held by the police in the Eyüp Stadium. They requested the public prosecutor to order their examination by a forensic expert. The prosecutor agreed to their request. 15. On the same day the applicants were examined by a doctor at the Eyüp Forensic Institute. According to the medical report the first applicant was suffering from bruising of 3 cm in diameter on her right shoulder and shoulder blade, pain in her shoulders and neck, a bruise of 4 cm in diameter on the right hip and marks of bruising on the exterior of her thigh. It was also noted that, before a final conclusion on her health situation was reached, the applicant had to be examined in a hospital as she had vaginal bleeding. 16. As regards the second applicant it was recorded in the medical report that he had a bruise of 3 cm in diameter on the right shoulder, a bruise of 5 cm in diameter on the right arm, a bruise of 2 cm in diameter on his back and a bruising of 15-20 cm in diameter on the left shoulder and around the shoulder-blade. He was also complaining of pain in his legs. The report concluded that the applicant would be unfit for work for ten days. 17. On 15 January 1996 the Eyüp Public Prosecutor decided to transfer the preliminary investigation file to the District Governor of Eyüp in Istanbul in accordance with the law on the prosecution of civil servants. At a later stage the file was transferred to the Provincial Administrative Council. 18. On 17 January 1996 the applicants, together with some others who had been arrested on the same day and allegedly subjected to ill-treatment by the police officers, filed a petition with the Eyüp Public Prosecutor. They requested the prosecutor to initiate an investigation concerning their arbitrary arrest and the ill-treatment to which they had been subjected to. The Eyüp Public Prosecutor transferred this request as well to the Provincial Administrative Council. 19. On 8 February 1996 the Provincial Administrative Council issued a decision to commit the police officers for trial. 20. On 6 March 1996 the applicants lodged an objection with the Supreme Administrative Court against the decision of the Istanbul Provincial Administrative Council, arguing that the chief of police in the Eyüp District should have also been committed for trial together with the other police officers. On 3 April 1996 the Supreme Administrative Court upheld the decision of the Provincial Administrative Council and rejected the objection concerning the prosecution of the chief of the police department. 21. On an unspecified date the Eyüp Public Prosecutor filed a bill of indictment with the Eyüp Assize Court against the police officers who had allegedly ill-treated the complainants, including the applicants. 22. On an unspecified date the Eyüp Assize Court decided to transfer the case-file to the Aydın Assize Court for security reasons. At a later stage the Aydın Assize Court decided to transfer the case-file to the Afyon Assize Court on the same grounds. 23. On 18 October 1996 the Afyon Assize Court held that there was a possibility that the applicants had suffered from the ill-treatment allegedly inflicted by the accused police officers and it therefore accepted the applicants' request to intervene in the criminal proceedings. During the hearing the applicants gave a detailed account of the events of 8 January 1996. 24. On 18 December 1996 a doctor at the Istanbul Forensic Medicine Institute drafted the final medical report concerning the first applicant. The doctor concluded that, considering the findings of the medical examination of 9 January 1996, she would be unfit for work for ten days. 25. On 5 November 1999 the Afyon Assize Court acquitted the police officers on the ground that there existed no evidence in the case file to identify which of the accused police officers were responsible for the alleged ill-treatment. 26. On 2 April 2001 the Court of Cassation quashed the decision of the Afyon Assize Court, holding that the Law No. 4616 on suspension of proceedings and the execution of sentences regarding offences committed before 23 April 1999 was applicable in this case. 27. According to the Government, the applicants were not amongst the 1054 persons who were arrested and subsequently taken to the Eyüp Stadium. 28. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004). | 1 |
train | 001-88420 | ENG | GBR | ADMISSIBILITY | 2,008 | MAIDSTONE v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr David Maidstone, is a British national who was born in 1960 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 7 October 2000. His claim for widows’ benefits was made on 24 January 2001 and was rejected on 1 February 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was reconsidered and confirmed on 1 March 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-99220 | ENG | LIE | ADMISSIBILITY | 2,010 | STECK-RISCH AND OTHERS v. LIECHTENSTEIN | 3 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | The first applicant, Ms Maria Karolina Steck-Risch, was born in 1926 and lives in Vaduz. The second applicant, Mr Anton Georg Risch, was born in 1927 and lives in Vaduz. The third applicant, Mr Paul Arnold Risch, was born in 1937 and lives in Triesen. The fourth applicant, Mr Mamertus Risch, was born in 1939 and lives in Triesen. The fifth to ninth applicants are the heirs of Walter Risch: Wolfgang Risch (born in 1952 and living in Balzers), Hannelore Steger (born in 1954 and living in Schaan), Eva Ott (born in 1954 and living in Schaan), Josef Risch (born in 1956 and living in Balzers) and Natascha Strampella (born in 1971 and living in Schaan). All the applicants are Liechtenstein nationals. They were represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz, Austria. The applicants are joint owners of two adjacent plots of land in Schellenberg, registered under files nos. 55/IV and 67/IV of the Schellenberg land register. In an area zoning plan, the Schellenberg municipality designated these plots of land as non-building land. On 15 July 1997 the applicants in application no. 63151/00 (that is, the first, second, third and fourth applicants in the present case and Walter Risch, who died after the termination of the proceedings at issue in that application) requested the Liechtenstein Government to pay them compensation for damage allegedly incurred as a result of the designation of their land as non-building land. On 2 June 1998 the Liechtenstein Government dismissed that request. On 25 June 1999 the Liechtenstein Administrative Court, sitting in camera, dismissed the applicants' appeal against the Government's decision. In these proceedings the Schellenberg municipality, as the respondent party, had filed reasoned submissions on 21 October 1998 requesting the Administrative Court to dismiss the applicants' appeal, inter alia because the applicants' property had not been opened up for development purposes. These comments were not served on the applicants. In its decision, the Administrative Court included a detailed summary of the comments submitted by the Schellenberg municipality. It noted that the conditions for compensation had not been met, inter alia because, contrary to the applicants' submissions, the applicants' property had not been opened up for development purposes. When the zoning plan was issued, the applicants could not have legitimately expected their property to be designated as building land. As to the applicants' request that the parties be heard on that issue, the Administrative Court considered that the applicants had filed very detailed written submissions and had therefore been given sufficient opportunity to submit their arguments and evidence. On 29 February 2000 the Liechtenstein Constitutional Court dismissed the applicants' complaint (file no. StGH 1999/26). It found, in particular, that the failure to afford the applicants an opportunity to comment on the Schellenberg municipality's submissions before the Administrative Court had not breached their right to a fair trial. Even though the said submissions had contained some new information, the applicants had not suffered any prejudice as the new information had not had any bearing on the Administrative Court's decision. On 12 October 2000 the applicants in application no. 63151/00 lodged their application with the Court. In its judgment of 19 May 2005 in the case of Steck-Risch and Others v. Liechtenstein the Court found that there had been a violation of Article 6 § 1 of the Convention in that the principle of equality of arms had been disregarded. The Court found as follows: “56. In the present case, the Schellenberg municipality, being the opposing party in the compensation proceedings at issue, filed comments on the applicants' appeal to the Administrative Court, requesting it to dismiss that appeal. It is not contested that these comments were not served on the applicants and that they had no opportunity to reply to them. This deficiency it not remedied by the fact that the applicants could complain to the Constitutional Court, as the latter does not carry out a full review of the case. 57. The Court is not convinced by the Government's argument that, in contrast to the Ziegler case (cited above), the Administrative Court did not rely on these comments. It is true that that Court did not rely on the municipality's assertion that the applicants' father had not filed an objection against the area zoning plan. However, it did have regard to its submissions on the question of whether the applicants' land was opened up for building. In any case, the municipality's observations contained a reasoned opinion on the merits of the applicants' appeal. The Court has repeatedly held that in such a situation the effect which the observations actually had on the judgment is of little consequence. What is particularly at stake here is the litigants' confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file (Nideröst-Huber, cited above, p. 108, §§ 27, 29; Ziegler, cited above, § 38). 58. In the present case, respect for the right to a fair trial, guaranteed by Article 6 § 1 of the Convention, required that the applicants be given an opportunity to have knowledge of and to comment on the observations submitted by the opposing party, namely the Schellenberg municipality. However, the applicants were not afforded this possibility.” As regards the application of Article 41 of the Convention, the Court noted the applicants' argument that they had suffered pecuniary damage as their land would be worth more had it been designated as building land, which, in the applicants' contention, would have been the case had the violations of the Convention not occurred. It found, however, that there was no causal link between the violation found and the pecuniary damage claimed and that it was not called upon to speculate what the outcome of the proceedings would have been if they had been in conformity with the requirements of Article 6 § 1. Therefore, it made no award in respect of pecuniary damage. As to the applicants' request that the Court order a reopening of the domestic proceedings, the Court reiterated that it was primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means were compatible with the conclusions set out in the Court's judgment. This discretion as to the manner of execution of a judgment reflected the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (the Court referred to Assanidze v. Georgia, no. 71503/01, § 202, ECHR 2004-II). Only in very exceptional circumstances had the Court ordered individual measures of redress (ibid, §§ 202-203). The Court considered that no such circumstances pertained in the case before it. The Court's judgment in application no. 63151/00 having become final on 19 August 2005, the applicants in that application lodged a request with the Administrative Court on 2 September 2005 to reopen the compensation proceedings. On 19 October 2006 the Administrative Court dismissed the applicants' request. The Administrative Court found that the applicants had not substantiated that the conditions for reopening the proceedings under section 104 of the Act on Administrative Procedures (Landesverwaltungspflegegesetz; see “Relevant domestic and international law and practice” below) had been met. It further decided not to reopen the proceedings ex officio under section 105 of the Act on Administrative Procedures (see “Relevant domestic and international law and practice” below). The Administrative Court referred to the findings of the Constitutional Court in its decision of 29 February 2000. It noted that the latter had considered that the submissions by the municipality of Schellenberg had contained new facts which had not, however, had any bearing on the reasoning of the Administrative Court dismissing the applicants' appeal in its decision of 25 June 1999. The Administrative Court considered that the Court's finding of a violation of the Convention was not a reason to reopen the proceedings under Liechtenstein law. Article 46 of the Convention did not contain an obligation to reopen proceedings. Accordingly, in its judgment of 19 May 2005 the Court had rejected the applicants' request to order a reopening of the proceedings before the domestic courts. There were no new aspects which the Administrative Court had been unable to take into consideration in its first judgment. On 29 November 2006 the applicants lodged a complaint with the Constitutional Court against the Administrative Court's decision. They claimed, inter alia, that the refusal to reopen the proceedings had violated their right to a fair trial. In particular, the Administrative Court's reference to the Constitutional Court's finding, in its decision of 29 February 2000, that the comments made by the municipality of Schellenberg had been irrelevant to the reasoning of the Administrative Court's first decision had been arbitrary. On 3 July 2007 the Constitutional Court dismissed the applicants' constitutional complaint (file no. StGH 2006/111). The Constitutional Court took note of the Court's finding that Article 6 of the Convention had been breached in the proceedings before the Liechtenstein Administrative Court. However, under the provisions of the Convention that finding did not mean that the final judgment of the Liechtenstein court had to be quashed, as the Contracting Parties to the Convention were not obliged to accord such an effect to the Court's judgments. The Constitutional Court considered not to be arbitrary, but in fact convincing, the Administrative Court's finding that Liechtenstein law (in particular section 104 § 1 of the Act on Administrative Procedures read in conjunction with Article 498 of the Code of Civil Procedure, section 104 § 2 and section 105 of the Act on Administrative Procedures; see “Relevant domestic and international law and practice” below) did not provide for a reopening of the proceedings in respect of a decision taken by the Administrative Court itself or by the Constitutional Court following a finding by this Court that that decision had violated the Convention. Such a finding had to be classified as a new legal assessment, but not as a new fact or new evidence which would alone justify a reopening under the applicable legal provisions. The Constitutional Court further noted that the Court, in its judgment of 19 May 2005, had found that there was no causal connection between the violation of Article 6 § 1 of the Convention found and the pecuniary damage claimed by the applicants. The Court further awarded the applicants costs under Article 41 of the Convention without examining and irrespective of the question whether restitution, including a reopening of the proceedings, could be granted under Liechtenstein law. The Constitutional Court considered that, in the present case, the Court's finding of a violation of Article 6 § 1 of the Convention was sufficient restitution. The Contracting Parties to the Convention were not obliged to provide for a reopening of proceedings which had been terminated by a final decision in cases in which the Court had found that a procedural right under Article 6 had been disregarded. It conceded that this finding was unsatisfactory in cases in which a reopening of the proceedings was necessary in order to grant redress. It noted that in several other Contracting Parties to the Convention, such as Germany, Austria and Switzerland, the law permitted the reopening of proceedings following the finding of a violation by the Court under certain circumstances. However, it was for the legislator, not the courts, to provide for a reopening of the proceedings. The Constitutional Court further left open whether respect for the right to equality could warrant a reopening of proceedings if otherwise the result would be blatantly unjust. In any event, a blatant injustice had not occurred in the present case. Not only had the Court found that there was no causal link between the violation of the Convention found and the damage claimed by the applicants, the applicants had also been awarded the costs incurred in the proceedings because of the breach of Article 6. The Constitutional Court expressly accepted the Court's judgment, according to which a breach of Article 6 § 1 had occurred. It agreed, however, with the Administrative Court, which had found that its decision, in respect of which the applicants requested a reopening of the proceedings, was not based on that breach. Therefore, the Court's finding of a violation of the Convention was sufficient and further measures of restitution were not necessary. The decision was served on the applicants' counsel on 28 November 2007. On 2 September 2005 the applicants, in addition to their application lodged with the Administrative Court, also requested the Constitutional Court to reopen the proceedings which it had terminated by its decision of 29 February 2000, to quash the decision of the Administrative Court of 25 June 1999 and to order that court to take a new decision in fresh proceedings. On 3 July 2007 the Constitutional Court dismissed the applicants' request for the proceedings before it to be reopened under section 51 § 1 of the Constitutional Court Act (see “Relevant domestic and international law and practice” below). Referring to the reasons given in its decision taken on the same day in complaint no. StGH 2006/111, it found that it was sufficient for it to confirm that the failure to serve the comments of the Schellenberg municipality of 21 October 1998 on the applicants had breached their rights under Article 6 § 1 (file no. StGH 2005/68). The decision was served on the applicants' counsel on 28 November 2007. On 20 December 2006 – that is, at a time when the reopening proceedings were still pending before the Constitutional Court – the Committee of Ministers of the Council of Europe, in its 982th session, concluded its examination of the execution of the Court's judgment of 19 May 2005 in the case of Steck-Risch and Others v. Liechtenstein, application no. 63151/00, by adopting Resolution ResDH(2006)73, the relevant parts of which read: “The Committee of Ministers, ... Having examined the measures taken by the respondent state ..., the details of which appear in Appendix; DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.” The Appendix to Resolution ResDH(2006)73 on information about the measures taken to comply with the judgment in the case of Steck-Risch and Others v. Liechtenstein provides: “... Individual measures The proceedings have been concluded at national level. The Constitutional Court has already taken account of the possible effect of the violation on the proceedings, holding that the applicants had not suffered any prejudice (see below). ... General measures Stating that the principle of equality of arms is a basic element of fairness of proceedings, the Constitutional Court agreed with the applicants' argument that they should have been afforded an opportunity to be informed of and to comment upon the municipality's observations. It did note, however, that while the submission contained new information, it had played no role in the Administrative Court's decision and therefore no prejudice had occurred. Thus the Constitutional Court concluded that the applicants' procedural rights had not been interfered with. Citing its case-law, the European Court held that the actual effect of the observations on the judgment was of little consequence, as it was above all the litigants' confidence in the work of justice which was at stake. This confidence is based inter alia on the knowledge that they could have the opportunity to express their views on every document in the file (see paragraph 57). The judgment of the European Court was disseminated in May 2006 to all authorities concerned, particularly to the domestic courts and published in the Liechtensteinische Juristenzeitung (LJZ) in June 2006 ...” Pursuant to section 104 § 1 of the Act on Administrative Procedures (Landesverwaltungspflegegesetz) a party's request to reopen proceedings which were terminated by a decision on the party's rights has to be decided upon by applying, mutatis mutandis, the relevant provisions of the Code of Civil Procedure on the grounds for granting such a request and on the procedure to be followed in the fresh proceedings. Under Article 498 § 1 of the Code of Civil Procedure proceedings which were terminated by a judgment can be reopened on a party's request, in particular, if the party becomes aware of new facts or discovers or is put in a position to use new evidence, the submission and use of which would have brought about a decision more favourable to that party in the previous proceedings (no. 7). Under section 104 § 2 of the Act on Administrative Procedures a request to reopen proceedings shall also be granted if another authority took a significantly different decision on a preliminary question which did not fall within the competence of the administrative authority deciding on the main administrative question. Under section 105 § 1 of the Act on Administrative Procedures the reopening of terminated proceedings shall be ordered ex officio at any time, if this was not excluded by the res judicata effect, if it is very probable that the decision taken was based on an incorrect assessment of the material before the authority or on the authority's lack of knowledge of facts and evidence and that a substantial breach of public interests had occurred thereby. Section 51 § 1 of the Constitutional Court Act (Staatsgerichtshofgesetz) provides that the reopening of proceedings in respect of decisions taken by the Constitutional Court may be requested in accordance with the provisions of the Act on Administrative Procedures. The text of Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted by the Committee of Ministers of the Council of Europe on 19 January 2000 at the 694th meeting of the Ministers' Deputies, is reproduced, for instance, in Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 33. | 0 |
train | 001-59868 | ENG | FRA | CHAMBER | 2,001 | CASE OF PANNULLO AND FORTE v. FRANCE | 1 | Violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. On 2 February 1994 the applicants’ two-year-old daughter, Erika, underwent heart surgery at Marie-Lannelongue Hospital in Le Plessis-Robinson (France). 9. On 17 June 1996 Erika was admitted to the same hospital for a postoperative check-up. 10. On 18 June 1996 she became feverish and vomited blood. The doctors diagnosed rhinopharyngitis and prescribed antibiotics. On 20 June 1996 the doctors decided to allow the child to leave the hospital. 11. In the evening of the same day the applicants telephoned the hospital because Erika was feverish again. 12. On 22 June 1996 the applicants took the child to a doctor, who diagnosed pneumonia, telephoned the hospital and requested that Erika be admitted to hospital immediately. On arriving at the hospital Erika was initially taken to the cardiology unit. When she fell into a coma she was transferred to the intensive care unit. The doctors said that she had a serious infection in the left lung, which had weakened her heart. 13. On 24 June 1996 Erika died. 14. On 28 June 1996 the applicants lodged a complaint with the Nanterre public prosecutor. On 1 July 1996 an inquiry into the causes of death was opened. 15. On 3 July 1996 the investigating judge, Miss M., instructed the Sceaux Gendarmerie Investigation Squad to seize Erika’s medical file and question the members of the medical staff who had looked after Erika. On 14 August 1996 the Sceaux Investigation Squad reported back to the judge with its incomplete findings. 16. On 5 July 1996 the investigating judge ordered an autopsy, which was carried out on 9 July. Several tissue samples were taken in case a further examination was needed. The autopsy report, dated 25 July 1996, concluded that at the time of Erika’s death she had been suffering from an acute respiratory infection. 17. On 16 September 1996 the investigating judge commissioned a further anatomopathological report from Professor L., an expert in forensic medicine, and Dr D., a heart specialist, giving them until 15 December 1996 to submit their report. 18. On 13 January 1997 the investigating judge asked them to send her their report by the “absolute deadline of 20 January 1997”. 19. From the date of the autopsy onwards the applicants sent numerous letters to the Italian consulate-general in Paris, the Ministry of Foreign Affairs in Rome and Italian members of Parliament with the aim of securing the return of Erika’s body. 20. In Italy a number of MPs put parliamentary questions to the government and held press conferences on the case. Several newspaper articles were published on the subject. 21. The Italian consul-general made repeated representations to the investigating judge, including letters sent on 26 September, 26 November and 12 December 1996, and forwarded the information he had obtained to the applicants. 22. In January 1997 the consul-general made a formal complaint to the public prosecutor, who demanded an explanation from Professor L. In a letter of 12 February 1997, Professor L. replied as follows: “The autopsy was carried out on 9 July 1996 and the investigating judge was immediately notified of the results by telephone. She was told that all the necessary samples of tissue from the internal organs had been taken and that the body could be returned to the family as from 9 July 1996. The internal organs were to be studied subsequently from an anatomopathological viewpoint and this was done on 20 January and 4 February 1997, but I had also been instructed to examine the medical file and seek the opinion of another expert, which was done on 3 February 1997. When the seals were removed it was discovered that the intensive-care file was missing, and so we contacted our colleagues, who sent us a copy of it which we are currently examining. The medical file is complex and it is essential that we have a certain amount of time to study it, but there is no reason to keep the body at the Institute of Forensic Medicine. The administrative authorities of the Institute of Forensic Medicine have repeatedly expressed concern at the length of time the body has been kept in storage. On 2 June, 12 August and 18 August 1996 and on 15 January 1997 they contacted Miss M., the investigating judge at the Nanterre Court, who is in charge of the case. She said that she was awaiting the outcome of the anatomopathological examination, but the latter is part of a longer task of investigation and analysis which has not yet been completed. Miss M. is therefore completely free to release the body from the Institute of Forensic Medicine and hence to sign the burial certificate, leaving the doctors the necessary time to carry out their work.” 23. On 14 February 1997, on receiving the above letter, the public prosecutor asked the investigating judge to order that Erika’s body be returned to her family. 24. On the same day investigating judge B., standing in for Miss M., issued a burial certificate. 25. On 19 February 1997 Erika was buried at Terracina Cemetery. 26. On 12 March 1997 Miss M. wrote to Professor L., expressing surprise that after more than six months the report had not yet been filed and asking him to inform her of any difficulties or obstacles that might explain the failure to do so. 27. On 18 March 1997 Professor L. replied that there had been “a problem with a discrepancy between the anatomical observations and the information in the medical file”, which meant that the experts had had to organise interviews with the doctors who had looked after the child, scheduled for 8 April 1997. 28. The experts’ report was filed on 29 April 1997. They concluded that “there was no possibility of life-saving surgery” and there were no signs of “any mistaken treatment”. 29. In a letter of 8 September 1997 a deputy public prosecutor informed the applicants that their case had been dropped because none of the expert reports ordered by the investigating judge had revealed any medical negligence, error of diagnosis or mistaken treatment that could possibly amount to a criminal offence. 30. Article 74 of the Code of Criminal Procedure provides: “On discovery of a dead body, regardless of whether the deceased suffered a violent death, but wherever the cause of death is unknown or suspicious, the senior police officer who is advised thereof shall immediately notify the public prosecutor, promptly visit the place of discovery and make initial observations. The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death took place. He may, however, delegate those tasks to a senior police officer of his choice. Except where their names appear in one of the lists provided for in Article 157, persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience. The public prosecutor may also call for an inquiry to investigate the causes of death.” | 1 |
train | 001-105178 | ENG | RUS | CHAMBER | 2,011 | CASE OF ZYLKOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1952 and lives in Vilnius, Lithuania. 6. The applicant, a retired serviceman, considered himself eligible to receive child allowance payable by the Russian Federation to parents with minor children. 7. On 15 January 2003 he applied for the allowance to the social security division of the embassy of the Russian Federation in Vilnius, Lithuania. 8. On 20 January 2003 the social security division refused his request. They noted that the applicant, being a permanent resident of Lithuania, was not eligible to receive the allowance. 9. On an unspecified date the applicant challenged the decision of the social security division. He lodged a complaint before the Presnenskiy District Court of Moscow. 10. On 29 April 2003 the District Court dismissed the applicant’s complaint without consideration on the merits. In particular, the court ruled as follows: “This statement of claim cannot be admitted for consideration by the Presnenskiy District Court of Moscow given that it was submitted in contradiction of the rules of procedure on jurisdiction ... Pursuant to the applicable legislation ..., the claims are to be submitted to the court with jurisdiction over the region where the claimant resides or where the State authority ... whose action is challenged is located. Pursuant to the [applicant’s] statement, the respondent authority in the case is the social security division of the Embassy of the Russian Federation in the Lithuanian Republic whose registered address is in [Vilnius, Lithuania], that is, a region outside the jurisdiction of the Presnenskiy District Court of Moscow. The applicant resides in [Vilnius, Lithuania], which is also not within the jurisdiction of the Presnenskiy District Court of Moscow. Having regard to the fact that [the applicant] has no ground to introduce his statement of claim before the Presnenskiy District Court of Moscow and in compliance with Articles 24-27 and 254 § 2 of the Russian Code of Civil Procedure, the court hereby RULES that the statement of the claims be returned to [the applicant] and he be advised to lodge it before the relevant court in Vilnius, Republic of Lithuania.” 11. On 30 July 2003 the Moscow City Court upheld the decision of 29 April 2003 on appeal reiterating the reasoning of the District Court. 12. The Russian Code of Civil Procedure (Article 254) provides that the claim against a State authority should be submitted to a court with territorial jurisdiction over the claimant’s place of residence or the location of the State authority in question. 13. The Russian Code of Civil Procedure (Article 28) provides that the claim against a legal entity should be submitted to a court with territorial jurisdiction over the legal entity in question. 14. The Russian Civil Code (Article 54) defines the location of a legal entity as the place of its incorporation which is to be indicated in its founding documents. 15. Pursuant to the Regulations on the Embassy of the Russian Federation as approved by Decree no. 1497 of the President of the Russian Federation of 28 October 1996, the embassy of the Russian Federation is to be established by the Decision of the Government of Russia in accordance with the Decree of the President of Russia. The embassy is a legal entity which forms part the system of the Ministry of Foreign Affairs of the Russian Federation. 16. As regards the immunity from jurisdiction of diplomatic agents, the Vienna Convention on Diplomatic Relations provides as follows: Article 31 “1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Article 32 1. The immunity from jurisdiction of diplomatic agents ... may be waived by the sending State. 2. Waiver must always be express...” 17. Pursuant to the Agreement entered into by the Russian Federation and Lithuanian Republic on 18 November 1993 (Article 2), it is for the social security division of the Russian embassy in Lithuania to deal with the questions pertaining to the payment, recalculation and entitlement to pension and social benefits for retired Russian servicemen. The relevant funding shall be effected through the Russian embassy in Lithuania. | 1 |
train | 001-87606 | ENG | RUS | CHAMBER | 2,008 | CASE OF KABKOV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1933 and lives in the town of Sergiyev Posad in the Moscow Region. 5. In 1988 the applicant gave up his post in the Zagorskiy engineering plant in order to be appointed to a similar position in a car manufacturing enterprise, ATP-11 (“ATP-11”). The latter refused to appoint the applicant to the position sought. 6. On an unspecified date in 1988 the applicant sued ATP-11, seeking that it complied with the agreement for his appointment to the post. 7. On 4 January 1989 the Zagorsk Town Court dismissed his claims. The Moscow Regional Court upheld the judgment on 2 February 1989. On 4 May 1989 the Presidium of the Regional Court quashed the judgments by way of supervisory review and remitted the case for a new examination. 8. By a judgment of 27 June 1989, the Town Court rejected the applicant’s claims. On 14 July 1989 the Regional Court upheld the judgment. 9. On 7 June 1990 the Supreme Court of the Russian Soviet Federative Socialist Republic (“the RSFSR Supreme Court”) quashed the judgments of 27 June and 14 July 1989 and remitted the case to the Town Court for a fresh examination. 10. On 28 December 1990 Judge M. of the Town Court listed a hearing for 9 January 1991. 11. At a hearing of 23 January 1991 the applicant amended his claims and claimed compensation for forced absence from work due to the ATP-11’s unlawful refusal to appoint him to the post. 12. On 7 May 1991 judge M. instituted criminal proceedings against the applicant on suspicion that he had stolen the case file concerning his employment dispute. 13. On 1 November 1991 the deputy prosecutor of the Moscow Regional prosecutor’s office informed the applicant that there were no reasons to set aside the decision of 7 May 1991. He also noted that the local justice department had been ordered to take immediate measures to restore the materials of the case file in respect of the applicant’s employment dispute. 14. On 19 March 1998 the Mytishchi Town Court of the Moscow Region acquitted the applicant for lack of evidence. The judgment became final on 27 March 1998. 15. In the meantime, on 8 April 1992 the applicant requested the President of the Town Court (renamed the Sergiyev Posad Town Court after the town of Zagorsk had been renamed Sergiyev Posad) to restore the case file regarding his employment dispute and to pursue its examination of his claims against ATP-11. The applicant submitted the receipt card showing that the request had been received by the Town Court on 14 April 1992. On 6 May 1992 the President informed the applicant that his employment claims would be adjudicated after the examination of the criminal case against him. 16. On 1 June 1993 and 1 March 1994 respectively the Regional Court forwarded to the Town Court repeated requests by the applicant for restoration of the case file (заявление о восстановлении утраченного судебного производства) with a view to proceeding with the examination of his employment dispute, further to the decision of 7 June 1990. Those requests were accompanied by the documents from the file preserved by the applicant. In its letter of 1 March 1994 the court noted that in case of dismissal of the applicant’s request to restore the case file the courts were to advise the applicant on his right to re-submit his employment dispute to the courts by means of ordinary civil proceedings. It appears that no action was taken in response to the above requests. 17. By decision of 1 April 1994, the Town Court refused to examine the applicant’s requests to restore the case file, as formulated in his application of 20 January 1994 and a telegram of 26 March 1994 respectively. The court referred to the ongoing criminal proceedings and held that it could not examine the applicant’s requests until his exculpation. 18. On 13 October 1994 the Presidium of the Regional Court quashed the decision of 1 April 1994 and remitted the matter to the Town Court for a fresh examination. 19. By letter of 20 February 1995, the Supreme Court of the Russian Federation advised the applicant that the Presidium of the Regional Court had forwarded his request for restoration of the case file to the Town Court for a fresh examination. 20. On 25 September 1996 the Regional Court forwarded to the President of the Town Court a complaint by the applicant about the failure to examine his request for restoration of the case file, as ordered by the decision of 13 October 1994. The Regional Court noted that, according to the Town Court’s registry, the related proceedings were still pending before the Town Court. 21. On 5 May 1998 the Convention entered into force in respect of Russia. 22. On 6 July 1998 the Regional Court forwarded to the Town Court a further complaint by the applicant about the failure to examine his requests for restoration of the case file. It ordered the Town Court to take all necessary measures with a view to pursuing the examination of the applicant’s request. 23. By decision of 10 November 1998, the Town Court refused to restore the case file concerning the applicant’s employment dispute. The court noted that it had returned to the applicant the documents lodged in March 1994 after the decision of 1 April 1994 had become legally binding. The applicant had not complied with the court’s requests to re-submit them. Instead of rectifying the shortcomings, the applicant had chosen to complain to higher courts, declaring that the documents were already with the Town Court. In the absence of the relevant documents and any intention on the part of the applicant to submit them, it had to terminate the proceedings. It advised the applicant that it was open to him to re-submit his employment dispute to the Town Court. 24. It appears that the applicant was not present at the hearing and was not served with a copy of the decision of 11 November 1998. The decision was not appealed against and became final on 22 November 1998. 25. On 10 February 2002 the applicant renewed his request to the Town Court to restore his case file and to adjudicate his employment dispute. 26. By a decision of 26 August 2002 the Town Court dismissed the applicant’s request. It noted that the applicant had asked it to restore the file and had submitted copies of documents related to his employment dispute. However, those documents had not been duly certified. They had been partly typewritten and partly handwritten by the applicant, which cast doubt on their authenticity. The applicant had not submitted any other documents and the court itself had been unable to obtain any documents. ATP-11 had been declared insolvent. Eleven years had passed since the case file had been stolen and the applicant had requested to restore it only in 2002. It was impossible to examine authentic written exhibits (evidence) related to the applicant’s labour action. The court finally noted that it was open to the applicant to re-submit his employment dispute to the Town Court. 27. On 14 October 2002 the Regional Court upheld the decision. It appears that the applicant was provided with both decisions in due time. 28. Article 99 of the 1964 Code of Civil Procedure, as in force at the material time, provided that civil cases were to be prepared for a hearing no later than seven days after the action had been lodged with the court. In exceptional cases, this period could be extended for up to twenty days. Civil cases were to be examined no later than one month after the preparation for the hearing had been completed. 29. Annex No. 2 to the 1964 Code of Civil Procedure, as in force at the material time, provided that courts were to restore lost case files on their own initiative, upon a request from any of the parties to the case or a prosecutor (Article 1). A request to restore the case file was to be lodged with the court which had examined the case on the merits (Article 3). It was to contain detailed information about the case and to be accompanied by all relevant documents or their copies from the file, preserved by the interested person, even if they were not duly certified (Article 4). 30. In examining the request, the court was to use the remaining documents, documents handed over from the case file to third persons or organisations, and copies of those documents and other certificates relevant to the case. It could also examine as witnesses persons who could provide information on procedural steps taken in the course of the proceedings, including members of the court, when necessary (Article 5). 31. If the materials accumulated during the proceedings were insufficient for an adequate restoration of the case file, the court terminated the proceedings by means of a decision (определение). In that case it was open to the interested person to re-submit his/her civil claims to the courts by way of ordinary proceedings (Article 6). | 1 |
train | 001-92030 | ENG | AZE | CHAMBER | 2,009 | CASE OF MURADOVA v. AZERBAIJAN | 3 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicant was born in 1949 and lives in Baku. 6. On 15 October 2003 presidential elections were held in Azerbaijan. The candidate of the opposition Musavat Party lost the election. 7. On the evening of the election day a group of opposition supporters gathered in front of the Musavat Party’s headquarters in the centre of Baku, claiming their candidate’s victory in the election. At this time there were some violent altercations between opposition supporters and the security forces. 8. At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest the election results. The crowd then started moving towards Azadliq Square, the main square in the city. It was reported that, on their way, some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence. 9. Police officers who had been deployed at Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square. The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police. 10. At around 6 p.m. the demonstration was dispersed. Hundreds of people were arrested during the events of 16 October and in their aftermath. 11. The applicant was at Azadliq Square when the demonstration was being dispersed and suffered a serious injury to her right eye. The parties disagreed as to what exactly happened to the applicant on that day. 12. According to the applicant, the number of police and military personnel deployed at Azadliq Square far exceeded the number of demonstrators. The police and military forces attacked the demonstrators suddenly, without any demands to disperse peacefully or any other prior warning. They used excessive force and clubbed anyone who happened to be in their way. A number of people were injured and at least one man died as a result of police brutality. 13. As the police and military forces started to gain ground, people panicked as they attempted to run from the square. The applicant also tried to escape, but someone in the crowd pushed her from behind and she fell to the ground. She lifted her head and saw several policemen in helmets standing in front of her. She extended her arm in their direction, asking them to help her stand up. At this moment one of the policemen struck her forcefully in the right eye with a truncheon. The applicant immediately lost the sight in her right eye. The policeman attempted to hit her again, but she managed to evade the second blow. 14. A number of unknown individuals took her to Pharmacy no. 259, which was located nearby. The pharmacy’s employees were trying to provide first aid to a number of other injured people who were already there. 15. At some point a number of soldiers attempted to enter the pharmacy, apparently with the intention of attacking the people inside, but were prevented from doing so by a person named I.G. and a pharmacy employee. A little later an ambulance arrived and took the applicant and four other injured people to an emergency clinic. 16. The Government stated that, during the disorder, more than twenty peaceful civilians were injured and serious damage was inflicted on various public and private property. 17. However, the Government disputed the applicant’s version of the incident when she had suffered her injury. With reference to the investigation carried out by the domestic authorities (see sections C. and D. below), they maintained that the applicant’s injury was not caused by the police and that the injury was suffered as a result of her falling down on a blunt object. 18. On 16 October 2003 the applicant was taken to an emergency clinic. The medical record indicated that she was diagnosed with “haemophthalmia [bleeding into the eyeball] and contusion of the right eye; a bruised wound of the right supraorbital ridge”. It was noted that the applicant “suffered the injury during the well-known events which took place in the city on 16 October 2003”. 19. After receiving initial treatment, on 17 October the applicant was transferred to the Institute of Eye Diseases, a hospital specialising in ophthalmology. She was admitted with a diagnosis of “severe rupture of the OD [right eye] sclera, ... hyphema [blood in the anterior chamber of the eye], haemophthalmia, stitched injury of the supraorbital ridge”. The applicant told the doctors that she had suffered the injury as a result of a blow by a police truncheon. 20. On 17 October 2003 urgent surgery was performed on the applicant. Despite the surgery, she became permanently blind in her right eye. 21. On 4 November 2003 the applicant was discharged from the hospital. She claimed that a few weeks later the sight in her left eye also started to deteriorate rapidly. 22. On 24 February 2004 the applicant filed a criminal complaint with the Chief Prosecutor’s Office, asking that the policeman who had hit her with the truncheon be identified and incriminated. On an unspecified date she also lodged a petition asking to be granted the formal status of a “victim of crime” (zərər çəkmiş şəxs). 23. By that time the Chief Prosecutor’s Office had already instituted criminal proceedings concerning the public disorder which took place on 16 October 2003. It appears that this criminal case concerned the offences against public order allegedly committed by the demonstrators, and did not concern any violations allegedly committed by the police during the events in question. No separate criminal proceedings were instituted on the basis of the applicant’s complaint and her letter was admitted to the case file of the above-mentioned criminal case. 24. On 13 and 16 March 2004 the applicant was interrogated by an investigator as a witness (not as a “victim of crime”). According to the applicant’s testimony, on 16 October 2003 she went to the seaside park (located across the road from both the State Carpet Museum and Azadliq Square) and sat on a bench to read a newspaper. At around 1.30 p.m. she saw about 200 people in the park, shouting slogans and protesting the election results. She joined this group because she too was discontent with the election. The group headed in the direction of the State Carpet Museum and, from there, to Azadliq Square. About 15-20 young people in the crowd were destroying things on their way, while some also attacked a group of policemen standing near the museum. The applicant and others in the crowd admonished these young people for their actions. When she arrived in Azadliq Square she saw that more people had already gathered there, including some opposition leaders. She also saw that riot police and military personnel were arriving and grouping in one corner of the square. She did not hear the police or the military issue any demands to the crowd to disperse and leave the square. Suddenly the crowd and the police forces clashed. The demonstrators were throwing stones and pieces of wood and metal at the police, while the latter advanced upon the crowd, beating the demonstrators with rubber truncheons. When the police started gaining the upper hand, people started panicking and running away. 25. The applicant continued as follows: “... I wanted to go home. When I was walking between the trees [in one corner of Azadliq Square] I was pushed from behind by people who were running past me and fell to the ground. ... I asked an approaching policeman, who was dressed in a helmet and black uniform and was holding a truncheon and a shield, to help me stand up. Instead of helping me, the policeman hit me over my right eye with the truncheon. I held my eye crying, and when I said to him: “What have I done to you that you hit me?”, I saw him raising his arm to hit me again. At this point I felt that some other policemen standing nearby said something to him, and then all of them went away from me. I could not see any rank insignia on their shoulders. I would not be able to recognise the policeman who hit me and the policemen who were near him. It is possible that some of the civilians who were nearby saw [this incident], but I do not know specifically who witnessed it. I stood up by myself and while I was hobbling in the direction of Pharmacy no. 259, an unknown old man took me by the arm and accompanied me to the pharmacy so that I could get medical aid. That man left after we arrived at the pharmacy. The pharmacy was all covered with blood, [and] there were several injured civilians inside. At this point some soldiers approached the pharmacy and started knocking on the window, and a grey-haired old woman who was an employee of the pharmacy [admonished them]. At the same time, when I.G., whom I recognised because he used to be a television journalist, tried to open the door of the pharmacy [from inside], one of the soldiers [who was standing outside] tried to hit him with a truncheon but missed. The reason [I.G. wanted to open the door and go outside] was that he wanted to call an ambulance for the injured... After a while an ambulance took us to a hospital... In the hospital, I received stitches on my wounded eyebrow, and the next day I was transferred to the Institute of Eye Diseases... There I underwent an operation which lasted about 3 hours... However, the surgery did not help and my right eye became completely blind...” 26. On 21 March 2004 the investigator requested a forensic expert’s opinion on the applicant’s injuries. According to the forensic report of 28 July 2004 (“the First Forensic Report”), issued by an expert of the Forensic Medicine and Pathological Anatomy Department of the Ministry of Health, the forensic examination started on 24 March 2004 and ended on 28 July 2004. 27. The First Forensic Report was eight pages long and mostly consisted of copied extracts from the applicant’s medical records. Inter alia, the report contained the following description of the injury: “The size of the right eyeball has shrunk, and [the eyeball] has sunk into the eye socket. The symmetry of the right eye and the left eye has been disrupted and remains in a deformed state. The circumference of the right eye’s cornea is [diminished] in comparison with the left eye’s cornea. Its anterior spherical shape is deformed. A [scar] is observable on the upper side of the cornea. The round shape of the right eye’s iris is deformed and contains a whitish substance. There is a slanted whitish scar measuring 3x0.5 cm on the right supraorbital ridge.” 28. The report concluded, on the basis of previous medical records and diagnoses, that the applicant had indeed suffered injuries to her right eye, resulting in irreversible deformation of her face, which were not lifethreatening but nevertheless qualified as severely harmful to health. It was noted that “[based on the available materials] it cannot be excluded that these injuries ... were caused on 16 October 2003 by a blow (blows) from a narrowly-shaped hard blunt object ... in the circumstances described by the applicant ... or other circumstances”. However, the expert was unable to reach a definitive conclusion as to the cause of the injury, noting that such a conclusion could be made by a medical board comprised of experts specialised in ophthalmology. 29. In the meantime, prior to the delivery of this forensic report, on 25 May 2004 the applicant wrote a letter to the Chief Prosecutor, complaining, inter alia, that, instead of taking a formal procedural decision ordering a forensic examination, the investigator had simply informed her about the request for a forensic examination by a letter. She also complained that the appointed forensic expert had delayed the examination and avoided examining her in person under various pretexts. On 21 July 2004 she wrote another letter to the Chief Prosecutor, reiterating the above complaints. It appears that none of these letters were answered. 30. According to the applicant, she had not seen the First Forensic Report prior to the receipt of the Government’s observations in the present proceedings before the Court. 31. On 13 September 2004 the investigator ordered another forensic examination. The experts were asked, inter alia, the following specific questions: “4. To determine whether the loss by M. Muradova of the vision in her right eye was the direct result of the initial injury or of any errors committed during the subsequent medical treatment. 5. To determine whether the injury sustained by M. Muradova was caused in the circumstances described by her, i.e. as a result of falling down during the incident or as a result of being struck with a truncheon by a policeman.” 32. According to the forensic report of 25 October 2004 (“the Second Forensic Report”), this examination was carried out from 13 September 2004 to 22 October 2004 by a board of four experts of the Forensic Medicine and Pathological Anatomy Department of the Ministry of Health, including one expert specialised in ophthalmology. 33. The Second Forensic Report was seven pages long. The report consisted almost entirely of copied extracts from the First Forensic Report and the applicant’s medical records. It was noted that she had received adequate medical treatment both in the emergency clinic and the Institute of Eye Diseases and that the medical personnel had committed no errors. 34. The body of the report did not contain any analysis as to possible causes of the injuries sustained by the applicant. 35. In the conclusion part of the report, the following answers were given to the questions asked (see paragraph 31 above): “4. The full loss by M. Muradova of the vision in her right eye was caused by the trauma suffered by her. 5. No damage typically attributatle to a police truncheon have been discovered on M. Muradova’s person.” 36. According to the applicant, she had not seen the Second Forensic Report prior to the receipt of the Government’s observations in the present proceedings before the Court. 37. On 26 November 2004 the investigator issued a decision to discontinue the criminal investigation. 38. According to this decision, in addition to the applicant, a total of eight witnesses had been questioned in connection with the applicant’s complaint. All of these witnesses were shown a photo of the applicant and none of them recognised her. 39. Six of the witnesses were policemen who had been present at or near Azadliq Square during the dispersal of the unauthorised demonstration of 16 October 2003. All of them testified that they had not known the applicant, that they themselves had not hit the applicant with a truncheon, and that they had not seen any woman being hit by a policeman during the events of 16 October 2003. They also surmised that the applicant had suffered her injury as a result of her own actions, i.e. falling down while running away from Azadliq Square, or being pushed by people in the crowd. 40. The remaining two witnesses, A.V. and R.G., were employees of Pharmacy no. 259. They were both male. Both of them testified that they had been at work on 16 October 2003, that they had not seen any injured woman brought to the pharmacy on that day, had not known the applicant and had not seen how she had sustained her injury. 41. The decision further stated that none of the police or military personnel present at Azadliq Square during the events of 16 October 2003 had been presented to the applicant for identification, because in her testimony she had stated that she would not be able to recognise the person who had allegedly caused her injury. 42. Further, according to the investigator, the Second Forensic Report “stated that ... [the applicant’s injuries] were a result of her falling down and her head striking an outstanding blunt object located on the ground, and that there were no damage on her person typically attributable to a blow from a police truncheon”. 43. The investigator concluded that it could not be established that the applicant had been struck by a policeman and determined that the applicant had received the injuries as a result of her own actions. Accordingly, it was found that no crime had been committed (cinayət hadisəsinin olmaması) and that the applicant’s petition to be recognised as a “victim of crime” should be rejected. For these reasons, the investigator decided to discontinue the investigation into the applicant’s allegations. 44. According to the Government, the applicant was sent a copy of this decision by a letter of 26 November 2004. According to the applicant, she was never informed of this decision. 45. In the meantime, in March 2004 the applicant lodged a civil action with the Sabail District Court against the Ministry of Internal Affairs, claiming monetary compensation for her injury. On 15 March 2004 the Sabail District Court refused to examine the case, noting that compensation claims against the State should indicate the Ministry of Finance as a codefendant and should be lodged with the Nasimi District Court. 46. On an unspecified date the applicant lodged her civil claim with the Nasimi District Court, indicating the Ministry of Internal Affairs and the Ministry of Finance as co-defendants and claiming compensation for her injury. 47. By a letter of 18 May 2004, the Chief Prosecutor’s Office informed the Nasimi District Court that a criminal investigation in respect of the applicant’s allegations was in progress. 48. On 7 June 2004 the Nasimi District Court held its first hearing and heard the submissions of the applicant and co-defendants. The applicant gave her account of the incident leading to her injury and reiterated her claim. The counsel for the first defendant, the Ministry of Internal Affairs, submitted that the applicant had filed a criminal complaint which was pending before the investigation authorities. He further argued that the police had been entitled to use force against the crowd during the events of 16 October 2003 because the manifestation had been unauthorised and its participants had been causing public disorder. In any event, he maintained that the police had not inflicted any injuries on the applicant and that her claims were unsubstantiated. The counsel for the Ministry of Finance submitted that he was in accord with the submissions of the first defendant. 49. On 18 June 2004 the Nasimi District Court heard oral testimonies by three witnesses who testified on behalf of the applicant. 50. Mr I.G. (the man whom the applicant mentioned in her testimony, cited in paragraph 25 above) testified as follows (the trial transcript omitted the questions asked by the parties’ counsels during cross-interrogation, but contained the record of the witness’s answers to them): “On 16 October 2003 I saw M. Muradova, who was wounded in her eye, in Pharmacy no. 259. At that time, some policemen tried to enter the pharmacy and, when I wanted to open the entrance door, they tried to kick me. I did not see who had hit M. Muradova and cannot say anything in this respect. [Answers to cross-interrogation by the applicant’s counsel:] - No, I did not see the claimant M. Muradova being hit by a policeman. - Yes, as M. Muradova was injured, I called an ambulance on that day. - Yes, when I saw M. Muradova at Azadliq Square, her eye had already been put out and her face was covered with blood. - Yes, when I opened the door of the pharmacy, [they] wanted to kick me, but I evaded the kick by quickly closing the door. [Answer to cross-interrogation by the defendant’s counsel:] - No, I did not see the claimant M. Muradova being hit by a policeman.” 51. Ms A.A. testified as follows: “[People] were gathering at Azadliq Square at around 2 p.m. on 16 October 2003. At that time I was near the Government House [located on Azadliq Square], and I saw the police and special forces attack the people who had gathered at Azadliq Square without any warning and start to beat them with truncheons. I was there on that day and I saw the claimant, whose name I learnt thereafter, falling to the ground as a result of being pushed [in the crowd] and [I saw] police officers in black uniforms, wearing protective helmets on their heads and holding truncheons in their hands. She [the applicant] extended her arm towards those police officers and asked them to help her stand up, but one of the police officers struck her forcefully in her right eye with his truncheon. When the police officer attempted to hit her again, she evaded the blow by moving away her head. Then some civilians took her to Pharmacy no. 259 which was located nearby. She was given some first aid in the pharmacy and thereafter she and other injured people in the pharmacy were taken to hospital by ambulance. [Answers to cross-interrogation by the applicant’s counsel:] - Yes, I was among those who gathered at Azadliq Square on 16 October 2003. - Yes, M. Muradova, whom I had not known before, was there on that day. - Yes, on 16 October 2003 I saw that M. Muradova fell to the ground and that one of the police officers hit her with the truncheon that he was holding. - Yes, M. Muradova’s eye was injured as a result of the blow inflicted by the police officer. - Yes, she was given medical aid in the ‘Green Pharmacy’ located nearby and was then taken to a hospital by an ambulance. [Answer to cross-interrogation by the defendant’s counsel:] - No, I would not be able to recognise the police officer who hit M. Muradova. - Yes, I had known [G.G.] before, but I saw M. Muradova for the first time at [Azadliq Square].” 52. Ms G.G. testified as follows: “I had not known the claimant before. I was an observer in Polling Station no. 246 during the presidential election of 15 October 2003. At around 2-3 p.m. on 16 October 2003, near Azadliq Square, I saw M. Muradova fall to the ground and ask some masked police officers with truncheons in their hands not to hit her, but one of the police officers hit M. Muradova with his truncheon and, as a result, her eye was injured. I bought medication for [the applicant] from the ‘Green Pharmacy’. [Answers to cross-interrogation by the applicant’s counsel:] - Yes, on 16 October 2003 I saw M. Muradova, whose name I learnt later, falling to the ground at Azadliq Square. - Yes, on 16 October 2003 one of the police officers who were at Azadliq Square hit M. Muradova in the eye area with his truncheon. - No, I had not known M. Muradova before. - Yes, one man brought M. Muradova, I saw that her eye was bleeding. [Answer to cross-interrogation by the defendant’s counsel:] - Yes, I was told that the medication necessary for M. Muradova was available at the ‘Green Pharmacy’, located nearby.” 53. On the same day, 18 June 2004, the Nasimi District Court delivered its judgment, dismissing the applicant’s claim. Having regard to the medical records, the court noted that the applicant had suffered an injury to her eye. However, it considered that she failed to substantiate her allegation that the injury had been inflicted by a police officer. In particular, the court assessed the witness testimonies as follows: “During the hearing Ms G.G., heard by the court as a witness, testified that she had not personally known M. Muradova previously. ... At around 2-3 p.m. on 16 October 2003 she saw that M. Muradova fell to the ground and that she asked the masked policemen, holding truncheons in their hands, not to hit her. However, one of the policemen hit M. Muradova with his truncheon. As a result, M. Muradova suffered an injury to her eye. [The witness] bought some medication for M. Muradova from the ‘Green Pharmacy’. Ms A.A., a witness, gave a similar testimony. Mr I.G., a witness, testified that on 16 October 2003 he saw M. Muradova with an injured eye in Pharmacy no. 259. ... He did not see who had beaten the applicant. In accordance with Article 77.1 of the Code of Criminal Procedure of the Republic of Azerbaijan, each party must prove any allegations which it makes in support of its claims and objections. During the hearing, M. Muradova has failed to prove the allegations she made in her judicial claim. The court finds that the testimonies of witnesses heard during the trial cannot serve as a ground for upholding the applicant’s claim. Having assessed the above, the court concludes that the claim must be rejected as unsubstantiated.” 54. On 17 September 2004 the Court of Appeal upheld the first-instance court’s judgment, noting, without any further elaboration, that the applicant had been unable to prove her allegations. 55. On 2 February 2005 the Supreme Court upheld the lower courts’ judgments. 56. Police officers may use special equipment in respect of offenders in the event of, inter alia, a mutiny or mass unrest (Article 26.II). “Special equipment” is defined as truncheons, arm-restraining instruments, tear gas, rubber bullets, water cannons and other means (Articles 1). Physical force, special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed. Loss of life caused by such absolutely necessary use of physical force, special equipment or firearms cannot be considered as a violation of the right to life (Article 26.VI). The police authorities must perform an enquiry into every incident involving the use of physical force, special equipment or firearms and issue a relevant opinion concerning its lawfulness (Article 26.VII). Unlawful use of force by a police officer entails the officer’s responsibility under the relevant legislation (Article 26.IX). 57. Police officers may use physical force, special equipment or firearms only in the event of absolute necessity or necessary self-defence, after all other means of coercion have failed to produce the required result, and depending on the gravity of the offence and the personality of the offender (Article 27.I.1). Persons injured as a result of the use of physical force, special equipment or firearms must be provided with necessary medical aid (Article 27.I.5). The police officer must inform the relevant police authority, in writing, about the instances in which he or she used physical force, special equipment or firearms (Article 27.I.7). The relevant prosecutor must also be informed about such use of force within 24 hours (Article 27.I.8). 58. Military servicemen must issue a prior warning about their intention to use physical force, special equipment, firearms or combat equipment, and allow sufficient time for compliance with their demands prior to resorting to such use of force. However, exceptions are made in cases where issuance of such prior warning would be untimely or impossible, or where a delay in the use of force would create danger to human health or life or other serious consequences. Military servicemen are required to provide first aid to injured persons and to inform the relevant prosecutor about any cases of injuries or death resulting from the use of force. Use of force by military servicemen in excess of their competence entails their responsibility under the relevant legislation (Article 19). 59. If necessary, the following special equipment may be used in cases of mass unrest: rubber truncheons, tear gas, light- and noise-emitting distracting devices, water cannons, armoured vehicles and service dogs (Article 21). 60. Under Articles 39.1.1 and 41.1 of the Code of Criminal Procedure of 2000 (“the CCrP”), criminal proceedings may not be instituted and, if instituted, must be discontinued at any stage of the pre-trial proceedings if it is found that no crime has been committed (cinayət hadisəsi olmadıqda). 61. If there are sufficient grounds to consider that a person has sustained direct moral, physical or material damage as a result of an act proscribed by criminal law, this person shall be recognised as a “victim of crime” (zərər çəkmiş şəxs) (Article 87.1). If there are not sufficient grounds for recognising a person as a “victim of crime” at the time of institution of criminal proceedings, a decision to grant “victim of crime” status shall be taken (either by a preliminary investigator, investigator, prosecutor or court) as soon as the existence of such grounds is established (Article 87.4). 62. A person recognised as a “victim of crime” has, inter alia, the following procedural rights: to submit materials to the criminal case file; to request the status of a private prosecutor at any pre-trial stage; to make objections to the actions of the criminal prosecution authority; to lodge petitions; to have access to transcripts and documents in the case file; to be informed about and to obtain copies of the procedural decisions of the criminal prosecution authority (including a decision to discontinue the criminal proceedings); to lodge appeals against procedural actions or decisions, etc. (Article 87.6). In contrast, a person participating in the proceedings as a witness is entitled to have access only to those transcripts and documents which are related to him or her (Article 95.6.8). 63. Parties to criminal proceedings (and other persons involved in such proceedings in cases specified in the CCrP) are entitled to complain about procedural actions or decisions by the criminal prosecution authority. Procedural actions or decisions by the preliminary investigator or the investigator may be appealed to the supervising prosecutor and the procedural actions or decisions of the latter may be appealed to the hierarchically superior prosecutor (Articles 122.2.1 and 122.2.2). Certain types of procedural actions or decisions (of the preliminary investigator, investigator or supervising prosecutor) stipulated in Article 449.3 of the CCrP may be appealed directly to the supervising court (Article 122.2.3). 64. The following persons may lodge complaints against the procedural actions or decisions of the criminal prosecution authority directly with the supervising court: (1) the accused person (or a suspect) and his or her representative; (2) the aggrieved party (victim of the crime) and his or her representative; and (3) other persons whose rights have been violated by the impugned action or decision (Article 449.2). A decision to discontinue the criminal proceedings may be appealed, inter alia, to a supervising court (Article 449.3.5). 65. Articles 264-272 of the CCrP provide for a procedure of carrying out expert examinations. In particular, Article 268.1.4 provides that a person suspected or accused of committing a criminal offence has a right, inter alia, to procure an “alternative expert examination” and request that the results of such examination be admitted to the criminal file. 66. Under Article 77.1 of the Code of Civil Procedure of 2000 (“the CCP”), each party in civil proceedings bears the burden of proving the grounds for their respective claims and objections. 67. Under Article 254.1.4 of the CCP, a judge must suspend the civil proceedings if it is impossible to examine the claim prior to the completion of another set of constitutional, civil, criminal or administrative proceedings precluding such examination. 68. Under Article 265.4 of the CCP, if upon examination of a civil claim a court discloses an appearance of criminal elements in the actions of the parties to the case or other persons, it must deliver a special ruling (xüsusi qərardad) informing a public prosecutor thereof. 69. The relevant extracts from the Code of Conduct for Law Enforcement Officials (adopted by the UN General Assembly Resolution 34/169 of 17 November 1979) reads: Article 3 “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” Article 5 “No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.” 70. The relevant extracts from the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990) read: “... 2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind. 3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled. 4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. 5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) Minimize damage and injury, and respect and preserve human life; (c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; ... 6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22. 7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law. 8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles. ... ... 22. Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11 (f). For incidents reported pursuant to these principles, Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control. 23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly. 24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.” 71. The relevant extracts from Functioning of democratic institutions in Azerbaijan, Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), by co-rapporteurs Mr Gross and Mr Martínez Casañ (12 January 2004, Doc. 10030), read: “D. Post-election events 34. Security forces maintained a heavy presence around Musavat headquarters since early afternoon on polling day. In the evening supporters of the Musavat party gathered in front of the party’s office and this meeting, although not authorized by the authorities, was described as rather peaceful. Shortly after the closing of the poling stations, Musavat supporters announced the victory of the leaders of the party. Some turmoil started and the demonstration was strongly repressed by policemen. Alleging they had to enter the party office to arrest party officials, security forces started to use force against the protesters and violent fights followed. 35. Once the preliminary final results had been announced on the following day, the Musavat party denounced them as unrealistic and falsified and called for a demonstration in the main square of the capital. During the demonstration, the demonstrators stole a police vehicle and charged against the police forces killing a policeman. In the clashes which followed, several persons, both demonstrators and policemen, were seriously wounded. Several other sources indicated that four persons died during the clashes.” 72. The relevant extracts from The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Report from the Trial Monitoring Project in Azerbaijan 2003-2004 (4 February 2005) read: “In the immediate aftermath of the elections, demonstrations took place on 15 and 16 October, which resulted in violent clashes between security forces and demonstrators in Baku. On the evening of 15 October in front of the Musavat Party Headquarters, members of the OSCE/ODIHR Election Observation Mission witnessed police attacking peaceful pro-opposition supporters. On 16 October, several thousand demonstrators and pro-opposition supporters gathered in Azadliq Square in the centre of Baku to protest what they considered to have been a stolen election. On their way to the square demonstrators were witnessed vandalizing buildings and vehicles, and attacking police forces with metal bars and stones. At the square, demonstrators were rapidly surrounded by police and security forces, which used overwhelming force to disperse the crowd. Security forces were witnessed beating demonstrators with truncheons after they had been detained and no longer posed any danger or as they were fleeing the area. Video tape recordings provide evidence of the scale of excessive force and brutality used by government forces to overwhelm the demonstrators. The violence was followed by a wave of detentions. According to officials, the detainees were persons involved in the violent activities or responsible for organizing the violence. ... The Minister of Interior reported that over 600 persons were detained following the violent clashes. ... The majority of the people detained in connection with the elections were later released without charge. In total, 129 persons were charged with criminal offences in connection with the post-election clashes, of whom 125 had been brought to trial at the time this report was prepared. ... At the time of the writing of this report, the OSCE/ODIHR was unaware of any cases of charges having been brought against police officers or other officials for brutality or excessive use of force against demonstrators.” 73. The relevant extract from the 2003 Report of the International Helsinki Federation for Human Rights reads: “On the evening of 15 October and the following day, clashes between the police (and the military) and protesters grew into a massively violent confrontation as the opposition protested the flawed elections. The police and the military surrounded the Azadliq (Liberty) Square using tear gas, rubber bullets, police dogs and truncheons on protesters. They brutally beat protesters, even after they had fallen to the ground, injuring scores of people, as well as members of the press. Many police officers were also injured. At the time of this writing the number of casualties was not year clear: depending on sources, two to four deaths were reported, along with dozens of injuries, including a five-year old child. Azerbaijani authorities maintained that the mass unrest was instigated by the opposition leaders in order to destabilize Azerbaijan, but according to numerous accounts, the police actions were unprovoked.” 74. The relevant extract from the 2004 Report of the International Helsinki Federation for Human Rights reads: “On 16 October, opposition activists tried to conduct an unapproved meeting at Azadliq, the central plaza in Baku. They were beaten by the police. One of the activists, 52-year old Hamidaga Zahidov, was beaten to death by police, while hundreds of others were injured. The protesters resisted by throwing stones and injuring dozens of policemen. In the ensuing criminal investigation, police cruelty was not investigated at all. Moreover, in a joint statement by the Ministry of Internal Affairs and the Prosecutor’s Office, the opposition was accused for being responsible for the death of a protester.” 75. The relevant extract from the 2003 Country Report on Human Rights and Practices of the US Department of State, released by the Bureau of Democracy, Human Rights, and Labor on 25 February 2004, reads: “On October 16, a large crowd gathered for an unsanctioned demonstration in downtown Baku that turned violent. Protestors marched from Musavat headquarters to Azadliq Square and along the way beat dozens of security officers, destroyed security forces’ vehicles, and damaged government buildings. As several thousand security forces surrounded the square, a group of protestors attacked the security forces, who stormed the demonstrators with tear gas and truncheons, while unknown demonstrators drove a stolen military truck into police lines. Security forces responded with excessive force, beating many demonstrators, sometimes to the point of unconsciousness and even after they were trying to leave the area or were detained, killing one and reportedly injuring at least 300 persons.” 76. The relevant extracts from the Human Rights Watch press release of 17 October 2003 (Azerbaijan: Post-Election Clashes Turn Deadly) read: “Thousands of opposition protesters took to the streets of Baku, the capital, at 2:00 p.m. yesterday. The demonstration quickly grew violent, in part because once the protesters began to congregate, police and military forces immediately surrounded them. The protesters drove away members of the security forces there and marched to Baku’s Azadliq (Freedom) Square. During their march, protesters severely beat some police officers and soldiers, who remain hospitalized. The protesters also destroyed a number of police and military vehicles, and damaged government buildings along the way. Soon after the opposition protesters arrived at Azadliq Square, several thousand riot police and military troops surrounded the entire plaza. Riot police and military stormed the opposition protest, using tear gas, rubber bullets, police dogs and truncheons. From the roof of a nearby building, a Human Rights Watch researcher saw police and military troops chase down protesters, surround them and viciously beat them. Many of the protesters continued to be beaten after they had fallen to the ground. Human Rights Watch observed a number of civilian pro-governmental supporters participating in the beatings with the security forces. Police beat to death at least one person, Hamidagha Zakhidov, 52, whose body Human Rights Watch viewed after the protests. His body was completely black and blue, and his head smashed and bloody... So far, an estimated 300 persons have sustained serious injuries during the clashes, according to local hospital officials and other sources. Many of the wounded were unable to walk and had to be carried away from the square. Human Rights Watch has conducted interviews with more than a dozen of the wounded, all of who describe being surrounded by groups of riot police and military troops who beat them severely, leaving many unconscious. ... Also among the injured are several dozen police and army personnel.” 77. The relevant extract from the Human Rights Watch World Report 2005 (Events of 2004, Country Summary: Azerbaijan) reads: “Post-Election Trials Over one hundred opposition party members and supporters were tried on charges relating to the post-election violence. Only four were released on bail, the rest remained in pre-trial detention for up to six months. Azerbaijani courts convicted all of the defendants, sentencing forty-six people to custodial sentences ranging from two to six years. The remainder were released on three- to five-year suspended prison sentences. On October 22, the Court of Grave Crimes sentenced seven opposition leaders to between two-and-a-half and five years in prison for their role in the postelection violence.” | 1 |
train | 001-69705 | ENG | TUR | CHAMBER | 2,005 | CASE OF ÇAPLIK v. TURKEY | 4 | Violation of Art. 6-1 as regards independence and impartiality;Not necessary to examine the complaints under Arts. 6-1 and 6-2 regarding fairness;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | null | 4. The applicant is a Turkish national, who was born in 1961 and he lives in Adana. 5. On 16 November 1994 F.A. and her son, İ.A., filed a complaint with the gendarmes and submitted that they had received a threatening letter from the PKK. The letter which was written on purple paper and sealed with the symbol of the PKK read: “You have to change your statement concerning our friend or both of you will die.” F.A. and İ.A. stated that they had been summoned to give evidence in connection with an ongoing investigation against certain PKK members. They further maintained that they knew the person who had sent the letter. 6. Accordingly, the gendarme officers initiated an investigation, which led to the arrest of the applicant. 7. On 17 November 1994 the applicant was arrested on suspicion of sending threatening letters on behalf of the PKK. Samples of the applicant's handwriting were taken and sent to the laboratory for examination. 8. The Regional Criminal Police Laboratory compared the handwriting of the applicant to the handwriting on the letter. It concluded that the characteristics of the applicant's handwriting had similarities with the handwriting on the letter. 9. On 18 November 1994 the applicant gave a statement to the gendarmes and denied all the accusations against him. He submitted that he had no connections with the PKK and that he had not written the letter. 10. The same day, he was questioned by the Adana public prosecutor. In his statement to the public prosecutor, he mainly repeated his police statement and denied the charges against him. 11. The applicant was then taken before the Adana Magistrate's Court in Criminal Matters on the same day. He pleaded not guilty before the judge. He denied the allegation that he had carried out activities on behalf of the PKK. He further asserted that his signature which had been used for handwriting analysis had not been taken in accordance with the domestic legislation. After examining the expert report and the applicant's submissions, the court concluded that the sample of the applicant's handwriting which had been used for comparison had not been taken in accordance with the law. It accordingly concluded that there was not sufficient evidence to establish that the applicant had committed the alleged offence and ordered his release. 12. In an indictment dated 26 December 1994, the public prosecutor attached to the Konya State Security Court initiated criminal proceedings against the applicant. He charged him with being a member of an armed gang under Article 168 § 2 of the Criminal Code. He based himself on the report of the Regional Criminal Police Laboratory which had concluded that the applicant's handwriting had similarities with the handwriting on the threatening letter sent to F.A. and İ.A. 13. Before the court, the applicant contested the charges against him. He stated that he had no connection with the PKK and that the allegations were baseless. 14. On 8 June 1995 the court ordered the Forensic Medicine Institute to carry out a handwriting examination. 15. On 17 July 1995 the Forensic Medicine Institute sent a letter to the court and requested further specimens to make an accurate comparison. In this respect, they required the applicant to write down the text of the letter in small letters, and the text on the envelope in capital letters. The Institute further requested the applicant to submit specimens of his handwriting, which he had written in the past. 16. After an examination of the above-mentioned samples, the Institute delivered two reports, dated 22 January 1996 and 22 January 1997. It was established that the characteristics of the applicant's handwriting had similarities with the handwriting on the letter and that the letter was written by the applicant. 17. The Konya State Security Court held twenty-six hearings, the last on the 28th April 1997. 18. On 16 May 1997 the case was transferred to the Adana State Security Court. Between this date and 14 October 1997 the court held seven hearings. 19. In his final observations on the merits, the public prosecutor changed the accusation against the applicant and accused him of aiding an armed gang under Article 169 of the Criminal Code. 20. In his final defence submissions, the applicant denied the allegations under Article 169 of the Criminal Code and stated that he had not written the letter and that he had no connection with the PKK. He further challenged the findings of the experts' reports. 21. On 14 October 1997 the Adana State Security Court, which was composed of three judges including a military judge, found the applicant guilty as charged and sentenced him to three years and nine months' imprisonment pursuant to Article 169 of the Criminal Code. The applicant was further debarred from public service for three years. In its judgment, the court found it established that the applicant had sent a threatening letter on behalf of the PKK to F.A. and İ.A. who were to give statements against certain PKK members in connection with another criminal case. The court based itself on expert reports which had concluded that the letter was written by the applicant. 22. After holding a hearing, on 30 June 1999 the Court of Cassation dismissed the applicant's appeal. 23. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002). Article 311 § 1 (f) of the Criminal Procedure Code, as amended by Law No. 5271 of 4 December 2004 which entered into force on 1 June 2005, regulates the cases where a request for re-trial could be filed following a criminal conviction. Accordingly: “In cases where the European Court of Human Rights finds it established that the criminal conviction constituted a breach of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols (...) In this case, the re-trial can be requested within one year from the date on which the judgment of the European Court of Human Rights becomes final.” | 1 |
train | 001-100307 | ENG | DEU | CHAMBER | 2,010 | CASE OF RUMPF v. GERMANY | 2 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 6. The applicant was born in 1951 and lives in Ingelheim. 7. Since 1979 the applicant has operated a personal security service (Personenschutzunternehmen). 8. On 1 June 1992 he lodged an application for gun licences (waffenrechtliche Erlaubnis) with the county of Querfurt (Saxony-Anhalt), which was granted. Subsequent requests for a renewal of these licences in May and October 1993 were only provisionally granted and were finally dismissed on 23 November 1993. 9. On 30 November 1993 the applicant lodged an administrative appeal (Widerspruch) against the decision of 23 November 1993, which was dismissed on 18 March 1994. 10. The applicant also applied to the Administrative Court for interim measures. This application was dismissed in January 1994, which decision was confirmed on appeal by the Administrative Court of Appeal in August 1994. 11. On 22 April 1994 the applicant brought an action with Halle Administrative Court, initially without detailed reasoning. 12. On 30 June 1994 the statement of defence and the administrative files were submitted to the court. On 7 October 1994 the applicant appointed additional legal counsel, who resigned again in November 1994. 13. In June 1995 Halle Administrative Court ordered the applicant to reason his action within six weeks. After the applicant's lawyer had twice requested an extension of the time-limit set by the court he submitted the reasoning on 19 September 1995. In October 1995 the applicant appointed additional legal counsel. 14. On 5 March 1996 Halle Administrative Court scheduled a hearing for 11 April 1996, which was subsequently rescheduled for 30 May 1996 upon the defendant's request. 15. After the hearing on 30 May 1996 the judgment was delivered and on 4 and 5 July 1996 served on the applicant's counsel. 16. On 22 July 1996 the applicant appealed the judgment. On 5 August 1996 the files were transferred to the Administrative Court of Appeal. On 22 October 1996 the reasoning of the appeal was submitted. On 23 December 1996 and 21 February 1997 answers to the appeal were lodged. 17. On 2 July 1997 the Administrative Court of Appeal informed the applicant's counsel, at his request, that it was not foreseeable when a decision would be rendered. 18. On 10 September 1998 a hearing was scheduled for 18 November 1998. On 10 November 1998, after inspection of the files, the applicant's counsel informed the Administrative Court of Appeal that the files were incomplete. On the same day the court started an enquiry in this respect and informed counsel on 12 November 1998 that its investigations had been to no avail. On 16 November 1998 the applicant's counsel asked for the hearing to be postponed in order for the missing files to be reassembled. On 18 November 1998 the hearing took place; however, the case was adjourned. 19. On 8 December 1999 the Administrative Court of Appeal requested the missing files from the administrative authorities without success. In January and March 2000 the applicant's counsel enquired about the state of the proceedings. On 3 August 2000 the Administrative Court of Appeal requested the files from Halle Administrative Court, without success. On 29 May 2001 the court informed counsel that its efforts to locate the missing files had failed and that a hearing was planned for July 2001. 20. On 12 June 2001 a hearing was scheduled for 12 July 2001. On 9 July 2001 the applicant's counsel asked for the hearing to be postponed because he had not yet been able to reassemble the missing documents. The hearing was subsequently cancelled. 21. On 30 October 2002 new counsel for the applicant requested a hearing and repeated this request on 4 December 2002. On 13 February 2003 counsel again asked for an oral hearing to be scheduled and promised to try to reassemble the missing documents. On 18 March 2003, after counsel had inspected the files in early March, he informed the court that he did not deem the missing documents relevant and requested a hearing. 22. On 29 April 2003 the applicant's former counsel applied for legal aid. On 9 May 2003 the applicant's current counsel filed a motion for bias against the presiding judge because no hearing had been scheduled. On 9 July 2003 he enquired about the state of the proceedings. 23. On 30 July 2003 the court asked for a clarification of the applicant's representation and ordered the applicant's counsel to submit a power of attorney, which he submitted on 5 August 2003. On 19 September 2003 the applicant's counsel again enquired about the state of the proceedings. On 21 October 2003 the court asked whether a hearing could be scheduled for 11 December 2003. The parties agreed. On 3 December 2003 the court informed the parties that because of the motion for bias the hearing could not be held on the date agreed upon. On 8 December 2003 the motion for bias was dismissed. 24. On 5 February 2004 and 17 March 2004 applicant's counsel renewed his request for a hearing. On 31 March 2004 the request for legal aid was dismissed. On 7 April 2004 a hearing was scheduled for 13 May 2004. After the hearing the Administrative Court of Appeal dismissed the appeal and refused leave to appeal on points of law. On 30 June 2004 the reasoned judgment was served on the applicant's counsel. 25. On 16 September 2004 the applicant's counsel objected to the refusal to grant leave to appeal on points of law. On 5 January 2005 the Federal Administrative Court dismissed the objection; this was served on the applicant's lawyer on 21 January 2005. 26. On 7 March 2005 the applicant brought a constitutional complaint against, inter alia, the decisions of Halle Administrative Court of 30 May 1996, the Saxony-Anhalt Administrative Court of Appeal of 13 May 2004 and the Federal Administrative Court of 5 January 2005, as well as the decisions of the administrative courts with regard to the interim proceedings. He alleged, inter alia, a violation of his right under Article 6 of the Convention because of the length of the proceedings. At the same time he applied for restitutio in integrum because he had failed to comply with the one-month time-limit for constitutional complaints. 27. On 15 March 2005 the Registry of the Federal Constitutional Court informed the applicant about doubts as to the admissibility of his complaint and asked him to indicate within one month whether he wanted to pursue his complaint. On 14 April 2005 the applicant, who had in the meantime retained new counsel, requested an extension of the time-limit until 16 May 2005. In May 2005 the Registry of the Federal Constitutional Court informed the applicant's counsel that the case would not be registered as a case requiring a judicial decision but would remain in the general register until further submissions had been made. On 12 October 2005 counsel of the applicant submitted observations. On 22 November 2005 the case was registered as a case requiring a decision. 28. In a partial decision of 27 April 2006 the Federal Constitutional Court (file no. 1 BvR 2398/05) dismissed the constitutional complaint as inadmissible in part. The remainder, regarding the length of the proceedings, was forwarded to the Ministry of Justice of Saxony-Anhalt for comments on 11 May 2006. 29. On 30 August 2006 the Ministry of Justice of Saxony-Anhalt submitted its comments. On 25 April 2007 the Federal Constitutional Court refused to admit the remainder of the applicant's constitutional complaint for examination without examining the application for restitutio in integrum. On 7 May 2007 the applicant's lawyer received the Federal Constitutional Court's decision. 30. Section 82 of the Administrative Court Rules (Verwaltungsgerichtsordnung) specifies the requirements that every complaint lodged with the administrative court must comply with, one of which is that the facts and evidence on which the complaint is based should be specified. It further provides that the court shall request the applicant to furnish the necessary information within a determined period of time in the event that the complaint does not meet these requirements. 31. Section 86 (1) of the Administrative Court Rules provides that the court shall investigate the facts of its own motion. Furthermore, it is not bound by the submissions or requests of the parties. 32. Further relevant domestic law, applicable mutatis mutandis to proceedings before the administrative courts, is described in the Court's decision of Sürmeli v. Germany (see Sürmeli v. Germany [GC], no. 75529/01, §§ 62-74, ECHR 2006VII); regarding special complaints alleging inaction the Federal Administrative Court explicitly decided on 30 January 2003 (file no. 3 B 8/03) that the Administrative Court Rules do not provide for such a remedy. 33. The draft bill referred to by the respondent State in the case of Sürmeli (cited above, § 90), tabled in 2005, was abandoned in 2007. On 15 March 2010 the Government introduced a new draft, namely the Act on legal protection in the event of excessive length of judicial proceedings and preliminary proceedings under criminal statutes (Gesetz über Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren). Pursuant to this proposed legislation a complaint about a delay in the proceedings must first be lodged in the original proceedings. Where the domestic court subsequently does not provide redress, an action for damages can be brought. 34. The draft bill was forwarded to all affected institutions in April 2010; comments were expected by early June 2010. Afterwards necessary amendments will have to be agreed upon before the Cabinet deals with the draft bill for the first time. The draft bill will then be forwarded for comments to the Bundesrat, the upper house of the German parliament, before being presented to the Bundestag, the lower house. 35. The relevant Council of Europe documents are described in the Court's judgment of Yuriy Nikolayevich Ivanov v. Ukraine (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 35-37, ECHR 2009... (extracts)). | 1 |
train | 001-78787 | ENG | NLD | ADMISSIBILITY | 2,006 | S.A. v. THE NETHERLANDS | 4 | Inadmissible | null | The applicant, Ms S.A., is a citizen of Afghanistan who was born in 1980 and lives in the Netherlands. She was represented before the Court by Ms J.A. Younge, a lawyer practising in Haarlem. In 1996, the applicant married her cousin F. The couple remained childless. In 2001, the applicant and her husband fled from Afghanistan to the Netherlands where they applied for asylum on the basis of the husband’s alleged problems with the Taliban. On 26 March 2001, an immigration official held a first interview (eerste gehoor) with the applicant in connection with her asylum request. A further interview (nader gehoor) was held on 27 July 2001. The applicant, who had been assisted by an interpreter during both interviews, availed herself on 14 August 2001 and 27 November 2002 of the opportunity to submit written comments on the records that had been drawn up of these interviews. As from an unspecified date, the applicant’s husband started to receive medical treatment for a posttraumatic stress disorder. In March 2002, the applicant gave birth to a child, whose physical features (complexion and hair) were alleged to be markedly different to those of the applicant and her husband. On 26 February 2003, in view of the changed situation in Afghanistan, an additional interview (aanvullend gehoor) was held with the applicant who was assisted by an interpreter. On 13 March 2003, the applicant submitted written comments on the record drawn up of this additional interview. On 4 April 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the applicant of her intention (voornemen) to reject the applicant’s asylum request. The applicant submitted her views (zienswijze) on this intention on 28 April 2003. On 3 June 2003, the Minister for Immigration and Integration rejected the asylum request filed by the applicant and her husband. On 30 June 2003, the applicant and her husband filed an appeal against this decision with the Regional Court (arrondissementsrechtbank) of The Hague. On 18 October 2004, a staff member of a Netherlands refugee aid organisation informed the applicant’s lawyer by way of a written memorandum that, in a recent conversation with this staff member, the applicant had said that her husband was not the father of her child and that he did not know this. Fearing to be sent back to Afghanistan where she risked to be killed if this became known – which was probable –, she had now decided to confess to it. She had not dared to tell her husband, but because the situation had become untenable she was planning to do so on 14 November 2004 when she and her husband would have a meeting with a mental health care counsellor. This document does not contain any mention of the child’s physical features. By letter of 28 October 2004, the applicant’s lawyer transmitted the written memorandum of 18 October 2004 to the Regional Court, submitting that also for this reason the applicant risked exposure to treatment contrary to Article 3 of the Convention if expelled to Afghanistan. The lawyer’s submissions were transmitted to the Minister who filed written comments in reply with the Regional Court on 2 November 2004. On 11 November 2004, a hearing on the appeals filed by the applicant and her husband was held before the Regional Court. This hearing was attended by the applicant and her husband, who were assisted by an interpreter. On 14 November 2004, in the presence and under the guidance of a mental health counsellor, the applicant informed her husband of the origins of the child. According to the applicant, her husband was obviously very upset but he refused to give any reaction. During the following months, he was under heavy medication (sleeping medication and tranquillizers), and did not speak with or touch the applicant. He further completely neglected the child since 14 November 2004 whereas before that date he had given the impression of simply not knowing what to do with a child in general in that he did not touch or mind the child very much. On 3 February 2005, the Regional Court rejected the appeals filed by the applicant and her husband. As regards the applicant’s submissions in relation to her child, the Regional Court held that these personal circumstances which had only been raised for the first time in the proceedings on appeal could not be regarded as new facts and circumstances having arisen after the taking of the impugned decision and which should be taken into account under section 83 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000), in that the applicant should have raised these circumstances at an earlier stage in the proceedings. It further held that it had not been argued and that it had not appeared that there were special circumstances on the basis of which this could not have been done earlier. On 3 March 2005, the applicant and her husband filed an appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). In these appeal proceedings, the applicant submitted that the child had been born after a fleeting sexual encounter she had had in the asylum seekers reception centre where she and her husband had stayed shortly after their arrival in the Netherlands, and that, as the child grew older, gradually more and more clearly different racial characteristics became noticeable, as a result of which the child obviously bore no resemblance to either the applicant or her husband. The appeal filed by the applicant and her husband was dismissed by the Administrative Jurisdiction Division on 19 July 2005. It upheld the Regional Court’s judgment. As regards the applicant’s submissions relating to her child, it held: “2.1.1. Pursuant to section 83 § 1 of the Aliens Act 2000, the court shall, in the determination of the appeal, take into account facts and circumstances having arisen after the taking of the impugned decision. 2.1.2. As the Administrative Jurisdiction Division has held previously (ruling of 24 September 2003 in case no. 200304820/1; JV 2003/501), this provision is aimed at preventing that repeated requests [for a residence title] must be filed in case of relevant circumstances having emerged after the [taking of the] impugned decision but before the ruling [on appeal] and entails that the determination of the question whether there are such facts and circumstances must be made on the basis as the same criteria as under section 4:6 § 1 of the General Administrative Law Act (Algemene Wet Bestuursrecht). According to the case-law, under newly appeared facts or altered circumstances – in so far as relevant for now – must be understood facts or circumstances having taken place after the taking of the earlier decision or which could not and, noting section 31 § 1 of the Aliens Act 2002, therefore should not be submitted before the taking of that decision. 2.1.3. As also held by the Division in that ruling, the alien who asks for protection must – even where it concerns a forced return to a country where there allegedly exists a risk of treatment in breach of Article 3 of the Convention – as a rule comply with procedural requirements under domestic law, including section 83 of the Aliens Act 2000, which [requirements] enable the national authorities to determine requests for a residence permit in an orderly manner and only under special, to the individual case relating facts and circumstances, may a necessity arise not to hold a failure to respect these rules against the person concerned. 2.1.4. The Regional Court has not taken into account under section 83 § 1 of the Aliens Act 2000 the personal circumstances only submitted on appeal by the appellant, because it found that the appellant could and therefore should have submitted those circumstances earlier and that no special circumstances had appeared justifying that this not be held against her. 2.1.5. By letter, received at the Regional Court on 27 October 2004, the appellant has submitted a record of 18 October 2004 on a conversation between a collaborator of the Dutch Refugee Council (Vluchtelingenwerk) Drenthe and the appellant concerning personal circumstances in relation to her child born on ... March 2002. 2.1.6. The applicant has thus after the taking of the decision of 3 June 2003 submitted for the first time circumstances in relation to her child that had taken place before that decision was taken. It has not been argued that the thus submitted circumstances were not known to her at the time when this decision was taken. The Regional Court has correctly considered that the appellant, also in view of the provisions of section 31 § 1 of the Aliens Act 2000, should have raised those circumstances earlier in the proceedings. The Regional Court has further correctly found no reasons in what has been put before it in this respect for finding that this could nevertheless not be asked from the appellant. The Regional Court has correctly found that the circumstances submitted by the appellant in relation to her child were not facts or circumstances within the meaning of section 83 § 1 of the Aliens Act 2000. 2.1.7. Neither can the applicant’s submissions to the Regional Court be regarded as special facts and circumstances relating to the individual case, on which basis the Regional Court ought not have held this national procedural rule against the appellant.” No further appeal lay against this ruling. To date, the applicant’s husband has not taken any initiative from which it could be concluded that he is considering a separation, divorce or to challenge his paternity of the child. | 0 |
train | 001-57811 | ENG | FRA | CHAMBER | 1,993 | CASE OF MIAILHE v. FRANCE (No. 1) | 2 | Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved | C. Russo;N. Valticos | 6. Mr William Miailhe has dual French and Philippine nationality and has his home at Malate (Greater Manila) in the Philippines. He is a company director and in early 1983 was also honorary consul of the Philippines in Bordeaux, having just resigned as French foreign-trade counsellor in Manila. Mrs Victoria Miailhe and Mrs Brigitte Miailhe, both of French nationality, are respectively the mother and the wife of the first applicant. They are housewives. 7. On 5 and 6 January 1983 officers from the Bordeaux customs, accompanied by a senior police officer (officier de police judiciaire), made two searches of premises in Bordeaux which housed the head offices of the companies managed by Mr Miailhe and which served as the Philippines consulate. The applicants - who in France lived at Château Siran (Labarde, Gironde) - used to receive there all private mail that was not sent direct to Manila. The searches took place from 9.15 a.m. to 3.50 p.m. on the first day and from 9.15 a.m. to 12.50 p.m. on the second day, the applicant and his secretary being present on both occasions. The officers seized nearly 15,000 documents. They placed them unsorted in eight cardboard boxes which they sealed and took away to the customs’ regional head office. Work on removing the seals and classifying the documents began on 21 January 1983, in the presence of a senior police officer and Mr Miailhe. The latter asked for and obtained a photocopy of documents that he said he needed urgently for his work. After being suspended at the applicant’s request, the work resumed on 28 January in the presence of two senior police officers; Mr Miailhe’s lawyer had indicated by telephone that his client refused to attend. In all, the customs registered 9,478 documents. They considered the remainder to be of no relevance to their inquiries and returned them in two sealed boxes. 8. The searches and seizures in issue were based on Articles 64 and 454 of the Customs Code (see paragraphs 17-18 below) and were part of an investigation to determine whether the applicants were to be regarded as being resident in France and whether they had contravened the legislation on financial dealings with foreign countries. 9. On a complaint lodged by the director of customs investigations on 29 January 1985, the Bordeaux public prosecutor’s office began a judicial investigation in respect of the three applicants on 19 February 1985. A local investigating judge charged them on 20 June 1985 with offences against the legislation and regulations governing financial dealings with foreign countries. In a final application of 18 June 1991 the Bordeaux public prosecutor requested the investigating judge to commit Mr and Mrs Miailhe for trial at the Bordeaux Criminal Court and to discharge Mrs Victoria Miailhe. On 3 July 1991 the judge made orders to this effect. The trial was due to begin on 17 June 1992 but was postponed to 25 November 1992 at Mr and Mrs Miailhe’s request. In a judgment of 2 December 1992 the Criminal Court ruled that the public prosecution and the proceedings for imposition of customs penalties in respect of Mr and Mrs Miailhe were barred as a result of changes in the criminal law. It also ordered the return of the seized documents. 10. On 11 August 1983 the three applicants had instituted proceedings against the Director-General of Customs and Excise in the Paris District Court (1st district), which they asked to "Hold that under domestic law customs officers may make house searches as provided in Articles 454 and 64 of the Customs Code only in order to look for goods. Hold that seizure of documents by customs officers cannot be regarded as being in accordance with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Hold that seizure of letters from lawyers to their clients amounts to an interference with the rights of the defence. And consequently, Declare the seizures of 5 and 6 January 1983 null and void." 11. On 20 December 1983 the court declined jurisdiction in favour of the Paris tribunal de grande instance. 12. The Miailhes applied to the Paris tribunal de grande instance, which likewise held that it had no jurisdiction. In its judgment of 16 May 1984 it gave the following reasons: "That being so, as was held in the aforementioned judgment of 20 December 1983, the ordinary courts have no jurisdiction to assess the lawfulness of the actions in issue unless there has been a flagrantly unlawful act (voie de fait). The customs officers made the seizures under Article 454 of the Customs Code. That Article, which empowers authorised officers to establish offences against the regulations governing financial dealings with foreign countries as provided in Article 64 of the Customs Code, lays down a rule that applies not only to searches for goods held unlawfully but also to those for documents likely to constitute the subject-matter or evidence of these offences. The seizures that are alleged to be null and void were therefore carried out by the authorities within the framework laid down by law for establishing offences against the regulations governing financial dealings with foreign countries, whose constitutionality is not for the Court to review. Although the European Convention for the Protection of Human Rights and Fundamental Freedoms provides in Article 8 (art. 8) that ‘everyone has the right to respect for his private and family life, his home and his correspondence’, interference by a public authority with the exercise of this right is provided for in the same Article (art. 8) where such interference ‘is in accordance with the law and is necessary ... in the interests of ... the economic well-being of the country, [and] for the prevention of ... crime ...’. The customs’ action was taken in that context. The provisions of Article 136 of the Code of Criminal Procedure on house searches relate to operations referred to in that code and do not apply to searches made under the Customs Code, which continue to be governed by the special legislation on the matter. The Act of 29 December 1977, which requires the intervention of the judicial authorities in respect of house searches during the investigation and establishment of offences against tax and business regulations, moreover provides in section 17 that ‘house searches made pursuant to the Customs Code shall continue to be governed by existing legislation’. The Constitutional Council’s decision on which the plaintiffs relied is likewise irrelevant to that legislation. The ordinary courts consequently have no jurisdiction to review the lawfulness of the seizures made at the home of Mr and Mrs Miailhe. The Court must decline jurisdiction." 13. The Miailhes appealed, seeking a declaration that the seizures on 5 and 6 January 1983 were null and void and an order for return of the documents held by the customs. 14. On 23 October 1984 the Paris Court of Appeal upheld the judgment of 16 May 1984 in the following terms: "The seizures in issue were not challenged on the ground of any formal defect. The courts below correctly held that the powers conferred on customs officers by Articles 64 and 454 of the Customs Code, special provisions which are not overridden by the more general ones of Article 136 of the Code of Criminal Procedure and the Act of 29 December 1977, cover the seizure of documents likely to constitute the subject-matter or evidence of offences against the regulations governing financial dealings with foreign countries. To this extent the principles relating to the protection of private life, the home and correspondence cannot be an obstacle to applying these provisions. However, although coming within the ambit of the aforementioned Articles 64 and 454, the unlawful seizure or retention of purely private documents that were manifestly irrelevant to the financial or business transactions which prompted the authorities’ intervention could amount to a flagrantly unlawful act, since such an infringement of civil liberties would then be wholly severable from the authorities’ powers. In the instant case it appears from the search and seizure reports which have been put in evidence that on 5 and 6 January 1983 the authors of them placed a very large number of documents under seal in the offices of Mr Miailhe and in his presence, and that he, while protesting against the principle of the seizure, made no objection based on the nature of any given document. On 21 January 1983 the seals were removed and all the documents were classified, and Mr Miailhe and his secretary availed themselves of the opportunity they were afforded to take a photocopy of those documents ‘which they needed for their work in the coming days’. Once again, Mr Miailhe made no reference to the presence of purely private papers or letters among his business papers. On 28 January 1983 the same customs officers proceeded to go through the documents in detail and seized them. Mr Miailhe had been summoned to attend but made it known that he refused to do so. Notwithstanding his absence, numerous documents were exempted from seizure ‘as being of no relevance to their inquiries’ and were placed in two sealed cardboard boxes and returned to Mr Miailhe some days later. In these circumstances it appears that the officials took the most meticulous precautions in order not to exceed their powers under the law and that if it is subsequently shown that they have inadvertently kept purely private papers unconnected with their investigation - papers of which the three appellants have never given any particulars -, Mr Miailhe must be held largely responsible, and at all events it could only have occurred as a result of an involuntary mistake and not of a manifest, deliberate violation of a personal freedom." 15. An appeal on points of law by the applicants was dismissed by the Commercial Division of the Court of Cassation on 17 June 1986. Its judgment read as follows: "As to the first ground: The Court of Appeal is criticised for having ruled as it did, in that, according to the applicants, in confining itself to noting that the seizure in dispute was made as part of an investigation into the status as a French resident of Mr Miailhe, the Philippines consul in Bordeaux, without even determining whether the purpose of the operation was to seize documents likely to constitute the subject-matter or evidence of an offence against the regulations governing financial dealings with foreign countries, the Court of Appeal infringed Articles 64 and 454 of the Customs Code. It appears from the Court of Appeal’s own reasons and those it adopted, however, that the disputed seizures were made during an investigation to ascertain whether Mr Miailhe had, as a French resident, committed offences against the legislation governing financial dealings with foreign countries. The ground has not been made out. As to the second ground: The Court of Appeal is further criticised for having ruled as it did, in that, according to the applicants, it could not, without infringing Article 455 of the New Code of Civil Procedure, omit to answer the submission in which Mr and Mrs Miailhe argued that, independently of the existence of any flagrantly unlawful act which might have been committed against them, Article 66 of the Constitution entrusted the judiciary with the protection of every aspect of the liberty of the individual, and in particular the inviolability of the home. In its judgment, however, the Court of Appeal held that, although coming within the ambit of the aforementioned Articles 64 and 454, the unlawful seizure or retention of purely private papers that were manifestly irrelevant to the transactions which had prompted the authorities’ intervention could amount to a flagrantly unlawful act, since such an infringement of civil liberties would then be severable from the authorities’ powers. The Court of Appeal also noted that the customs officials took the most meticulous precautions in order not to exceed their powers and that there was no manifest, deliberate violation of a personal freedom. In so holding, the Court of Appeal answered the submissions made, and it follows that the ground is not made out. As to the third ground: Lastly, the Court of Appeal is criticised for having ruled as it did, in that, according to the applicants, by raising of its own motion the points of pure fact that the customs officers classified the 15,000 documents seized and then went through them, which allegedly led to some of them being returned to Mr Miailhe on account of their irrelevance to the investigation, the Court of Appeal exceeded its powers and violated Articles 4, 7, 12 and 16 simultaneously of the New Code of Civil Procedure. The Court of Appeal, however, held that the facts it noted appeared from the search and seizure reports put in evidence, which have been produced. Its judgment is therefore not susceptible to the criticism made in this ground." 16. The criminal provisions of customs law in France are treated as a special body of criminal law. 17. Two provisions of the Customs Code are relevant as regards these officials: "The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries: 1. customs officers; 2. other officials of the Ministry of Finance with the rank of at least inspector; 3. senior police officers (officiers de police judiciaire). The reports made by senior police officers shall be forwarded to the Minister for Economic Affairs and Finance, who shall refer cases to the prosecuting authorities if he thinks fit." "The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in Article 64 of this code." 18. When the house searches were made (5 and 6 January 1983), Article 64 of the Customs Code was worded as follows: "1. When searching for goods held unlawfully within the customs territory, except for built-up areas with a population of at least 2,000, and when searching in any place for goods subject to the provisions of Article 215 hereinafter, customs officers may make house searches if accompanied by a local municipal officer or a senior police officer (officier de police judiciaire). 2. In no case may such searches be made during the night. 3. Customs officers may act without the assistance of a local municipal officer or a senior police officer (a) in order to make searches, livestock counts, and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and (b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone. 4. If entry is refused, customs officials may force an entry in the presence of a local municipal officer or a senior police officer." 19. The Budget Acts of 30 December 1986 (section 80-I and II) and 29 December 1989 (section 108-III, 1 to 3) amended Article 64, which now provides: "1. In order to investigate and establish the customs offences referred to in Articles 414-429 and 459 of this code, customs officers authorised for the purpose by the Director- General of Customs and Excise may make searches of all premises, even private ones, where goods and documents relating to such offences are likely to be held and may seize them. They shall be accompanied by a senior police officer (officier de police judiciaire). 2. (a) Other than in the case of a flagrant offence (flagrant délit), every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated, or a judge delegated by him. Against such an order there shall lie only an appeal on points of law as provided in the Code of Criminal Procedure; such an appeal shall not have a suspensive effect. The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order. The order shall contain: (i) where applicable, a mention of the delegation by the President of the tribunal de grande instance; (ii) the address of the premises to be searched; (iii) the name and position of the authorised official who has sought and obtained leave to make the searches. The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought. If, during the search, the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the premises searched and in which documents, goods or other items relating to the activities referred to in paragraph 1 above are likely to be found, they may, with leave given by any means by the judge who made the original order, immediately search the strongbox. Such leave shall be mentioned in the report provided for in paragraph 2(b) below. The judge shall take practical steps to check that each application for leave made to him is well-founded; each application shall contain all information in the possession of the customs authorities that may justify the search. He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress. The search shall be carried out under the supervision of the judge who has authorised it. Where it takes place outside the territorial jurisdiction of his tribunal de grande instance, he shall issue a rogatory letter, for the purposes of such supervision, to the President of the tribunal de grande instance in the jurisdiction of which the search is being made. The judge may go to the scene during the operation. He may decide at any time to suspend or halt the search. The judicial order shall be notified orally to the occupier of the premises or his representative on the spot at the time of the search, who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph 2(b) below. If the occupier of the premises or his representative is absent, the judicial order shall be notified after the search by means of a registered letter with recorded delivery. Notification shall be deemed to have been made on the date of receipt entered in the record of delivery. Failing receipt, the order shall be served as provided in Articles 550 et seq. of the Code of Criminal Procedure. The time-limits and procedures for appeal shall be indicated on notification and service documents. (b) Searches may not be commenced before 6 a.m. or after 9 p.m. They shall be made in the presence of the occupier of the premises or his representative; if this is impossible, the senior police officer shall requisition two witnesses chosen from persons not under his authority or that of the customs. Only the customs officers mentioned in paragraph 1 above, the occupier of the premises or his representative and the senior police officer may inspect documents before they are seized. The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure; Article 58 of that code shall apply. The report, to which shall be appended an inventory of the goods and documents seized, shall be signed by the customs officers, the senior police officer and the persons mentioned in the first sub-paragraph of this section (b); in the event of a refusal to sign, mention of that fact shall be made in the report. Where an on-the-spot inventory presents difficulties, the documents seized shall be placed under seal. The occupier of the premises or his representative shall be informed that he may be present at the removal of the seals, which shall take place in the presence of the senior police officer; the inventory shall then be made. A copy of the report and of the inventory shall be given to the occupier of the premises or his representative. A copy of the report and the inventory shall be sent to the judge who made the order within three days of its being drawn up. 3. Customs officers may act without the assistance of a senior police officer (a) in order to make searches, livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and (b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone. 4. If entry is refused, customs officers may force an entry in the presence of a senior police officer." 20. Article 458 of the Customs Code provides: "Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for Economic Affairs and Finance or one of his representatives authorised for the purpose." | 1 |
train | 001-22814 | ENG | DEU | ADMISSIBILITY | 2,001 | PETERSEN v. GERMANY | 1 | Inadmissible | null | The applicant, Mr Jürgen Petersen, is a German national who was born in 1946 and lives in Berlin. He was represented before the Court by Mr H. Meyer-Dulheuer, a lawyer practising in Berlin. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a history graduate (Diplomhistoriker) who obtained his degree in 1971 and had been a lecturer in modern history at Humboldt University in Berlin, in the German Democratic Republic (“the GDR”), since 1988. He obtained his teaching certificate (Lehrbefähigung) and the qualification Doctor Scientiae after writing two theses, which were not published. The first thesis was completed in 1978 and was entitled “The creation of a State-monopolised research and development policy in the FRG (Federal Republic of Germany), particularly in the 1950s. A study of the relationship between scientific and technological research and development in the non-university civilian sphere and its military use in the FRG from a historical perspective. Selected problems and facts” (“Herausbildung einer staatsmonopolistisch orientierten Forschungs- und Entwicklungspolitik in der BRD, insbesondere in den fünfziger Jahren. Eine Studie zum Verhältnis von ziviler ausseruniversitärer wissenschaftlich-technischer Forschung und Entwicklung und militärischer Nutzung in der BRD in historischer Sicht. Ausgewählte Probleme und Fakten”). The second was completed in 1986 and was entitled “The CDU [Christlich Demokratische Union – the Christian Democratic party in the FRG] and the conception of the social market economy from 1945 to 1949. The influence of neo-liberal ideas on the development of the programme of economic restoration in the western zones” (“Die CDU und die Konzeption der sozialen Marktwirtschaft 1945-1949. Zum Einfluss neoliberaler Vorstellungen auf die Entwicklung der restaurativen Wirtschaftsprogrammatik in den Westzonen”). After the reunification of Germany, and in accordance with the relevant provisions of the Treaty of 31 August 1990 on German Unification (Einigungsvertrag – Articles 13 and 20 § 1 taken together with Article 1 §§ 1-3 of Annex I, Chapter XIX, Subject A, Section III – see “Relevant domestic law and practice” below), the applicant was incorporated into the civil service of the Land of Berlin and worked in the fields of philosophy and history at the Institute of History, Humboldt University, Berlin. After reunification, in order to carry out the necessary restructuring and rationalisation of the university’s staffing arrangements, structure and appointments boards (Struktur- und Berufungskommissionen) were set up. The purpose of the Structure and Appointments Board for the history department was to draw up opinions for the university’s Central Personnel Committee (Zentrale Personalkommission) as to whether the department’s researchers should have their contracts of employment renewed. On 15 November 1991 the Structure and Appointments Board for the history department – comprising three university lecturers from outside the GDR, three lecturers from Humboldt University, a research assistant and a student from the university – interviewed the applicant. Six members of the Board were present at the interview, two of the lecturers from Humboldt University being absent. On 14 February 1992 the Board, by four votes with two abstentions, recommended to the Humboldt University management that the applicant be dismissed. On 17 February 1992 Mr Schulze, a lecturer in the history faculty of Bochum University and a member of the Board, submitted the final version of his expert assessment of the applicant’s professional qualifications, which was based entirely on the two theses written by the applicant during the time of the GDR. Mr Schulze considered that the first thesis owed more to political analysis than to historical research. The second thesis, in his opinion, did not contribute anything new to contemporary understanding of its subject matter: the early history of the CDU and its economic ideas. In particular, the thesis did not include a comparison with the relevant literature published in the FRG – an essential component of a study of that nature – and merely cited the publications in question. The expert concluded that, in view of the fact that the theses concerned a very narrow aspect of the post-war history of the FRG, that the applicant had published scarcely anything else in the meantime and that his unpublished work did not provide any convincing evidence of his ability to produce critical work as a historian, the applicant’s continued employment in the civil service was unjustifiable (nicht vertretbar) on account of his lack of professional qualifications. In a letter of 19 February 1992 the Chairman of the Board recommended to the Rector of Humboldt University that the applicant be dismissed on the ground of his lack of professional qualifications. On 7 January 1993, following a further interview with the applicant and a process of written consultation, the Board, now chaired by Mr Schulze, confirmed its previous vote. On 20 January 1993 the Central Personnel Committee of Humboldt University decided to refuse the applicant’s application for incorporation and to terminate his contract of employment with effect from 30 June 1993 on the ground of his lack of professional qualifications. On 7 April 1993, further to the Board’s recommendation and after consulting the Staff Council, the Dean of Humboldt University dismissed the applicant with effect from 30 June 1993 under Article 20 of the Unification Treaty, taken together with Article 1 § 4 of Annex I, Chapter XIX, Subject A, Section III (see “Relevant domestic law and practice” below). In a judgment of 2 December 1993 the Berlin Labour Court (Arbeitsgericht) allowed an appeal by the applicant on the grounds, inter alia, that the Structure and Appointments Board had not been properly constituted, that the final version of the expert assessment had not been ready at the time of the vote and that Mr Schulze had acted both as an expert and as Chairman of the Board. In a judgment of 13 June 1994 the Berlin Regional Labour Court (Landesarbeitsgericht) set aside the judgment at first instance and held that the applicant’s dismissal had been justified under section 1(2) of the Unfair Dismissal Act (Kündigungsschutzgesetz – see “Relevant domestic law and practice” below), in that it was indisputable that he lacked the requisite professional qualifications. The Regional Labour Court held that Humboldt University had concluded in a persuasive manner, on the basis of Mr Schulze’s expert assessment and additional observations, that the applicant lacked the necessary professional qualifications. The fact that by 1994 the applicant had not published any other academic work to compensate for the shortcomings of his theses served as further justification for his dismissal. In that connection, the applicant’s argument that he had been prevented from publishing academic work was not convincing, as he had not given any precise reasons for that assertion. The Regional Labour Court also held that the proceedings before the Structure and Appointments Board had not infringed Berlin’s Administrative Procedure Act (Verwaltungsverfahrensgesetz); moreover, the proceedings before the Board had been of a purely administrative and internal nature and had had no external consequences, as the Board was merely empowered to issue opinions. Accordingly, even if there had been procedural flaws, they would have been inconsequential. On 27 October 1994 the Federal Labour Court (Bundesarbeitsgericht) refused to entertain an appeal on points of law by the applicant, on the ground that the ordinary courts’ decisions had been consistent with its own case-law and with that of the Federal Constitutional Court (Bundesverfassungsgericht). The applicant subsequently lodged a constitutional appeal with the Federal Constitutional Court. He argued, firstly, that the Law of 20 August 1992 on extension of the period of applicability for dismissal of civil servants under the Unification Treaty (Gesetz zur Verlängerung der Kündigungsmöglichkeiten in der öffentlichen Verwaltung nach dem Einigungsvertrag – see “Relevant domestic law and practice” below) was unconstitutional, because the civil servants concerned were entitled to expect those provisions to be subject to a time-limit. Secondly, he asserted that Article 1 § 4 of Annex I to the Unification Treaty should be construed as meaning that lecturers could be dismissed only if they had committed specific breaches of their duties (konkrete Pflichtverletzungen). The criteria established in the FRG could not be applied indiscriminately to work carried out on such a delicate topic in the GDR, and if Mr Schulze’s criteria were applied, no historians from the GDR who had worked on the history of the FRG would satisfy them. The actual circumstances in which the applicant had carried out his academic work should have been taken into account. The Regional Labour Court, he argued, should not have been allowed to base its decision solely on the expert assessment produced by the opposing party, as the applicant had thereby been denied any opportunity to state his case. The same was true of the proceedings before the Structure and Appointments Board. In a judgment of 8 July 1997, and after holding a hearing on 11 and 12 March 1997, the Federal Constitutional Court dismissed the applicant’s appeal and held that the decisions appealed against had not infringed his freedom to engage in an occupation (Berufsfreiheit) or his academic freedom (Wissenschaftsfreiheit). The Federal Constitutional Court held that there had been interference with the applicant’s freedom to engage in an occupation, but that the interference had been in accordance with the Constitution. Firstly, it had been prescribed by law, as it had been based on the relevant provision of the Unification Treaty and on the Law on the extension of the period of applicability for dismissal of civil servants, enactments which were guided by the public interest and observed the principle of proportionality. In the instant case an extension of the period of applicability had been necessary on account of the numerous practical difficulties encountered in the administration of staff. Secondly, the ordinary courts’ interpretation of the provision in question had not infringed the applicant’s fundamental rights. The provision was also applicable to university lecturers, as scrutiny of their academic ability pursued a public-interest aim. The conditions in which academics had worked in the GDR had been so different from those in the FRG that the qualifications awarded in the GDR were not sufficiently meaningful (nicht hinreichend aussagekräftig). The Federal Constitutional Court added that in the instant case the Regional Labour Court had taken sufficient account of the applicant’s freedom to engage in an occupation and of his academic freedom. It considered it normal that a lecturer’s qualifications should be assessed on the basis of his or her academic publications. Furthermore, it held that the Regional Labour Court was not open to criticism for having based its decision on the expert assessment and on the lack of any subsequent academic publications by the applicant, either during the time of the GDR or between 1990 and 1994 in the FRG, to compensate for the shortcomings of his theses. Lastly, the Federal Constitutional Court held that the applicant had had a fair hearing, seeing that the Regional Labour Court had undertaken a thorough examination of his professional qualifications. The fact that that court had not addressed all his arguments did not mean that it had not taken them into account. In any event, the applicant had not specified which of his arguments the Regional Labour Court had failed to take into account. Section 1(2) of the Unfair Dismissal Act provides: “A dismissal shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct...” “Sozial ungerechtfertigt ist die Kündigung, wenn sie nicht durch Gründe, die in der Person oder in dem Verhalten des Arbeitnehmers liegen ... bedingt ist.” Article 13 of the Treaty of 31 August 1990 on German Unification provides that the administrative bodies and other institutions of the civil service in the former territory of the GDR come under the authority of the government of the Land in which they are situated. Article 20 § 1 of the Unification Treaty provides that persons who were members of the GDR civil service at the time of reunification are subject to the transitional provisions in Annex I. Article 1 §§ 1-3 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides for the incorporation of civil servants from the GDR into the FRG civil service by means of the substitution of the federal authorities and the Länder of the FRG for the GDR authorities in the existing employment relationship. As members of the GDR civil service belonged to an institution that did not satisfy the criteria of a State based on the rule of law, special provisions on dismissal were included in Article 1 §§ 4-6 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III. Thus, Article 1 § 4 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides: “Ordinary dismissal [with notice] from the civil service is permissible if (a) the employee does not satisfy the requirements on account of lack of professional qualifications or of personal aptitude, or if (b) the employee is surplus to the employer’s requirements...” “Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht oder wenn der Arbeitnehmer wegen mangelnden Bedarfs nicht mehr verwendbar ist...” Those regulations were initially intended to apply for a period of two years, but the Law of 20 August 1992 on extension of the period of applicability for dismissal of civil servants under the Unification Treaty (Gesetz zur Verlängerung der Kündigungsmöglichkeiten in der öffentlichen Verwaltung nach dem Einigungsvertrag) extended their validity until 31 December 1993. | 0 |
train | 001-69315 | ENG | RUS | CHAMBER | 2,005 | CASE OF FADEYEVA v. RUSSIA | 1 | Violation of Art. 8;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 | 10. The applicant was born in 1949 and lives in the town of Cherepovets, an important steel-producing centre approximately 300 kilometres north-east of Moscow. In 1982 her family moved to a flat situated at 1 Zhukov Street, approximately 450 metres from the site of the Severstal steel plant (“the plant”). This flat was provided by the plant to the applicant's husband, Mr Nikolay Fadeyev, under a tenancy agreement. 11. The plant was built during the Soviet era and was owned by the Ministry of Black Metallurgy of the Russian Soviet Federative Socialist Republic (RSFSR). The plant was, and remains, the largest iron smelter in Russia and the main employer for approximately 60,000 people. In order to delimit the areas in which the pollution caused by steel production might be excessive, the authorities established a buffer zone around the Severstal premises – “the sanitary security zone”. This zone was first delimited in 1965. It covered a 5,000-metre-wide area around the site of the plant. Although this zone was, in theory, supposed to separate the plant from the town's residential areas, in practice thousands of people (including the applicant's family) lived there. The blocks of flats in the zone belonged to the plant and were designated mainly for its workers, who occupied the flats as life-long tenants (see “Relevant domestic law and practice” below). A decree of the Council of Ministers of the RSFSR, dated 10 September 1974, imposed on the Ministry of Black Metallurgy the obligation to resettle the inhabitants of the sanitary security zone who lived in districts nos. 213 and 214 by 1977. However, this has not been done. 12. In 1990 the government of the RSFSR adopted a programme “On improving the environmental situation in Cherepovets”. The programme stated that “the concentration of toxic substances in the town's air exceed[ed] the acceptable norms many times” and that the morbidity rate of Cherepovets residents was higher than the average. It was noted that many people still lived within the steel plant's sanitary security zone. Under the programme, the steel plant was required to reduce its toxic emissions to safe levels by 1998. The programme listed a number of specific technological measures to attain this goal. The steel plant was also ordered to finance the construction of 20,000 square metres of residential property every year for the resettlement of people living within its sanitary security zone. 13. By Municipal Decree no. 30 of 18 November 1992, the boundaries of the sanitary security zone around the plant were redefined. The width of the zone was reduced to 1,000 metres. 14. In 1993 the steel plant was privatised and acquired by Severstal PLC. In the course of the privatisation the blocks of flats owned by the steel plant that were situated within the zone were transferred to the municipality. 15. On 3 October 1996 the government of the Russian Federation adopted Decree no. 1161 on the special federal programme “Improvement of the environmental situation and public health in Cherepovets” for the period from 1997 to 2010” (in 2002 this programme was replaced by the special federal programme “Russia's ecology and natural resources”). Implementation of the 1996 programme was funded by the World Bank. The second paragraph of this programme stated: “The concentration of certain polluting substances in the town's residential areas is twenty to fifty times higher than the maximum permissible limits (MPLs)[] ...The biggest 'contributor' to atmospheric pollution is Severstal PLC, which is responsible for 96% of all emissions. The highest level of air pollution is registered in the residential districts immediately adjacent to Severstal's industrial site. The principal cause of the emission of toxic substances into the atmosphere is the operation of archaic and ecologically dangerous technologies and equipment in metallurgic and other industries, as well as the low efficiency of gas-cleaning systems. The situation is aggravated by an almost complete overlap of industrial and residential areas of the city, in the absence of their separation by sanitary security zones.” The decree further stated that “the environmental situation in the city ha[d] resulted in a continuing deterioration in public health”. In particular, it stated that over the period from 1991 to 1995 the number of children with respiratory diseases increased from 345 to 945 cases per thousand, those with blood and haematogenic diseases from 3.4 to 11 cases per thousand, and those with skin diseases from 33.3 to 101.1 cases per thousand. The decree also noted that the high level of atmospheric pollution accounted for the increase in respiratory and blood diseases among the city's adult population and the increased number of deaths from cancer. 16. Most of the measures proposed in the programme concerned the functioning of the Severstal steel plant. The decree also enumerated a number of measures concerning the city as a whole: these included the resettlement of 18,900 people from Severstal's sanitary security zone. It transpires from the programme that the State was supposed to be the main source of funding for such resettlement. However, it seems that in subsequent years Severstal PLC continued to pay for the resettlement of the zone's inhabitants, at least as regards districts nos. 213 and 214. Thus, according to Decree no. 1260 by the mayor of Cherepovets dated 4 April 2004, in 2004 the residents of the blocks of flats situated on Gagarin Street were resettled in another district of the city. According to a letter of 3 June 2004 from the mayor of Cherepovets, Severstal funded approximately one-third of the cost of resettlement. 17. On 9 August 2000 the chief sanitary inspector for Cherepovets decided that the width of the sanitary security zone should be 1,000 metres from the main sources of industrial pollution. However, no specific boundaries were identified for the zone. In 2002 the municipality challenged its own Decree no. 30 of 1992, which had established the zone's boundaries (see paragraph 13 above). On 13 June 2002 the Cherepovets City Court declared Decree no. 30 invalid on the ground that it was ultra vires. The City Court ruled that at the relevant time the municipality had not had jurisdiction to define the width of the zone. The boundaries of the sanitary security zone around the Severstal facilities currently remain undefined. 18. In 2001 implementation of the 1996 government programme was discontinued and the measures proposed in it were included in the corresponding section of the sub-programme “Regulation of environmental quality” in the special federal programme “Russia's ecology and natural resources (2002-2010)”. 19. According to a letter from the mayor of Cherepovets dated 3 June 2004, in 1999 the plant was responsible for more than 95% of industrial emissions into the town's air. According to the State Report on the Environment for 1999, the Severstal plant in Cherepovets was the largest contributor to air pollution of all metallurgical plants in Russia. 20. In 1995 the applicant, with her family and various other residents of the block of flats where she lived, brought a court action seeking resettlement outside the zone. The applicant claimed that the concentration of toxic elements and the noise levels in the sanitary security zone exceeded the maximum permissible limits established by Russian legislation. The applicant alleged that the environmental situation in the zone was hazardous for humans, and that living there was potentially dangerous to health and life. In support of her claims she relied mainly on the city planning regulations of 1989 (see “Relevant domestic law and practice” below). According to the applicant, these regulations imposed an obligation on the plant's owners to implement various ecological measures in the zone, including the resettlement of residents in an ecologically safe area. The applicant claimed that Severstal had failed to fulfil this obligation. 21. On 17 April 1996 the Cherepovets City Court examined the applicant's action. The court recognised that the building at 1 Zhukov Street, where she lived, was located within Severstal's sanitary security zone. The court noted that, prior to 1993, the applicant's flat had been owned by the Ministry of Black Metallurgy, which had also owned the plant. Following privatisation of the plant in 1993, it had become a privately owned entity and the applicant's flat had become the property of the local authorities. Referring to the ministerial decree of 1974, the court found that the authorities ought to have resettled all of the zone's residents but that they had failed to do so. In view of those findings, the court accepted the applicant's claim in principle, stating that she had the right in domestic law to be resettled. However, no specific order to resettle the applicant was given by the court in the operative part of its judgment. Instead, the court stated that the local authorities must place her on a “priority waiting list” to obtain new local authority housing (see “Relevant domestic law and practice” below). The court also stated that the applicant's resettlement was conditional on the availability of funds. 22. The applicant appealed, claiming that the obligation to resettle was on the plant rather than on the municipality. She also maintained that the court had distorted the object of her claim: whereas she had been seeking immediate resettlement, the court had ordered that she be placed on a waiting list. In the applicant's view, this decision was unworkable because its enforcement depended on too many conditions (the existence of a resettlement order, the number of people on the waiting list, the availability of funds for resettlement, etc.). 23. On 7 August 1996 the Vologda Regional Court upheld in principle the decision of 17 April 1996, and confirmed that the applicant's home was located within the Severstal steel plant's sanitary security zone. The appeal court further found that the applicant's resettlement in an ecologically safe area was to be carried out by the municipality. Finally, the appeal court excluded from the operative part of the judgment the reference to the availability of funds as a precondition for the applicant's resettlement. 24. The first-instance court issued an execution warrant and transmitted it to a bailiff. However, the decision remained unexecuted for a certain period of time. In a letter of 11 December 1996, the deputy mayor of Cherepovets explained that enforcement of the judgment was blocked, since there were no regulations establishing the procedure for the resettlement of residents outside the zone. 25. On 10 February 1997 the bailiff discontinued the enforcement proceedings on the ground that there was no “priority waiting list” for new housing for residents of the sanitary security zone. 26. In 1999 the applicant brought a fresh action against the municipality, seeking immediate execution of the judgment of 17 April 1996. The applicant claimed, inter alia, that systematic toxic emissions and noise from Severstal PLC's facilities violated her basic right to respect for her private life and home, as guaranteed by the Russian Constitution and the European Convention on Human Rights. She asked to be provided with a flat in an ecologically safe area or with the means to purchase a new flat. 27. On 27 August 1999 the municipality placed the applicant on the general waiting list for new housing. She was no. 6,820 on that list (see “Relevant domestic law and practice” below). 28. On 31 August 1999 the Cherepovets City Court dismissed the applicant's action. It noted that there was no “priority waiting list” for the resettlement of residents of sanitary security zones, and no council housing had been allocated for that purpose. It concluded that the applicant had been duly placed on the general waiting list. The court held that the judgment of 17 April 1996 had been executed and that there was no need to take any further measures. That judgment was upheld by the Vologda Regional Court on 17 November 1999. 29. The State authorities conduct regular inspections of air quality in the city. Pollution is monitored by four stationary posts of the State Agency for Hydrometeorology, including one (post no. 1) situated at 4 Zhukov Street, 300 metres from the applicant's home. The emission levels of thirteen hazardous substances are monitored by the authorities (nitrogen dioxide, ammonia, carbon oxide, dust, hydrogen sulphide, carbon disulphide, phenol, formaldehyde, sulphur dioxide, nitric oxide, manganese, benzopyrene and lead). Four stationary posts of the State Agency for Hydrometeorology monitor emissions of only the first eight of the above substances; additionally, post no. 1 monitors emissions of sulphur dioxide, nitric oxide, lead, benzopyrene and manganese, and post no. 2 monitors emissions of benzopyrene, manganese and sulphur dioxide. In addition, the State Agency for Sanitary Control conducts regular air tests at distances of one, two, five, seven, and nineteen kilometres from the steel plant. Finally, Severstal PLC has its own monitoring system, which evaluates emissions from every separate industrial facility at the plant. 30. It appears that the basic data on air pollution, whether collected by the State monitoring posts or Severstal, are not publicly available. Both parties produced a number of official documents containing generalised information on industrial pollution in the town. The relevant parts of these documents are summarised in the following paragraphs and in the appendix to this judgment. 31. The applicant claimed that the concentration of certain toxic substances in the air near her home constantly exceeded and continues to exceed the safe levels established by Russian legislation. Thus, in the period from 1990 to 1999 the average annual concentration of dust in the air in the Severstal plant's sanitary security zone was 1.6 to 1.9 times higher than the MPL, the concentration of carbon disulphide was 1.4 to 4 times higher and the concentration of formaldehyde was 2 to 4.7 times higher (data reported by the Cherepovets Centre for Sanitary Control). The Cherepovets State Agency for Hydrometeorology reported that the level of atmospheric pollution within the zone during the period from 1997 to 2001 was rated as “high” or “very high”. The State Agency for Hydrometeorology confirmed that an excessive concentration of other hazardous substances, such as hydrogen sulphide and ammonia, was also registered during this period. 32. As regards the year 2002, the applicant submitted a report prepared by the Northern Regional Office of the State Agency for Hydrometeorology and Environmental Monitoring. This report stated, inter alia, that in 2002 the annual average concentration of dust near the applicant's home was 1.9 times higher than the MPL, and that the short-term peak concentration of dust was twice as high as the MPL. In July an over-concentration of carbon oxide was registered near the applicant's home: the short-term peak concentration of this element was 7 times higher than the MPL. The agency also reported that the average annual concentration of formaldehyde in the town was 3 times higher than the MPL. The average annual concentration of carbon disulphide near the applicant's home was 2.9 times higher than the MPL. The short-term peak concentration of phenols was 4 times higher than the MPL, and that of hydrogen sulphide was 4.5 times higher. 33. The applicant also submitted information published on the website of the Northern Department of the State Agency for Hydrometeorology. This source reported that in April 2004 the concentration of formaldehyde in Cherepovets exceeded the norms. In March 2004 the monthly average concentration of formaldehyde was 5 times higher than the MPL. 34. The applicant further produced a study paper entitled “Economic effectiveness of public health measures at Severstal PLC”, drawn up by the Centre for the Preparation and Implementation of International Projects on Technical Assistance, a public body established in 1993 under the supervision of the then State Committee for Environmental Protection. The study was commissioned by the Cherepovets municipality in order to obtain an analysis of the cost-effectiveness of various measures suggested in the 1996 federal programme. The expert team had access to data on fifty-eight polluting elements contained in industrial emissions from the Severstal plant. The experts singled out the thirteen most toxic elements and, using a special dispersion dissemination model, established how these elements affected the morbidity rate in the city. The experts then calculated how the implementation of one or another measure from the federal programme would reduce the concentration of these pollutants, and, consequently, to what extent the morbidity rate would decrease. 35. In April 2004 the applicant informed the Court that further information on atmospheric pollution could be requested from the respondent Government. In particular, the applicant sought to obtain: (a) baseline emissions data for the Severstal plant, including data on the physical parameters of the stacks and the volume of chemicals emitted annually by each process at the Severstal facility; (b) dispersion modelling data for estimating the ambient air concentration of thirteen toxic pollutants at each of the x and y coordinate locations on the Cherepovets city grid, based on the above emissions data. The applicant indicated that this information might be obtained from the Centre for the Preparation and Implementation of International Projects on Technical Assistance (see paragraph 34 above). The applicant also sought data on the ambient air quality in Cherepovets, obtained between 1998 and 1999 as part of the Project on Environmental Management in the Russian Federation, implemented with financial support from the World Bank. In May 2004 the Court invited the respondent Government to submit the information sought by the applicant. 36. In June 2004 the Government submitted a report entitled “The environmental situation in Cherepovets and its correlation with the activity of [Severstal PLC] during the period until 2004”, prepared by the Cherepovets municipality. 37. According to the report, the environmental situation in Cherepovets has improved in recent years: thus, gross emissions of pollutants in the town were reduced from 370.5 thousand tonnes in 1999 to 346.7 thousand tonnes in 2003 (by 6.4%). Overall emissions from the Severstal PLC facilities were reduced during this period from 355.3 to 333.2 thousand tonnes (namely by 5.7%), and the proportion of unsatisfactory testing of atmospheric air at stationary posts fell from 32.7% to 26% in 2003. 38. The report further stated that, according to data received from four stationary posts of the State Agency for Hydrometeorology, a substantial decrease in the concentration of certain hazardous substances was recorded in the period from 1999 to 2003: (i) dust: from 0.2 mg/m³ (1.28 MPL) to 0.11 mg/m³ (0.66 MPL); (ii) hydrogen sulphide: from 0.016 mg/m³ (3.2 MPL) to 0.006 mg/m³ (1.2 MPL); (iii) phenols: from 0.018 mg/m³ (0.6 MPL) to 0.014 mg/m³ (0.47 MPL). 39. According to the report, pollution in the vicinity of the applicant's home was not necessarily higher than in other districts of the town. Thus, the concentration of nitrogen dioxide at post no. 1 was 0.025 mg/m³ in 2003, whereas it was 0.034 mg/m³ at post no. 2, 0.025 mg/m³ at post no. 3 and 0.029 mg/m³ at post no. 4. The average daily concentration of ammonia registered at post no. 1 was 0.016 mg/m³, 0.017 mg/m³ at post no. 2, 0.005 mg/m³ at post no. 3 and 0.0082 mg/m³ at post no. 4. The phenol level registered at post no. 1 was 0.014 mg/m³, 0.015 mg/m³ at post no. 2 and 0.0012 mg/m³ at post no. 4. Finally, the concentration of formaldehyde at post no. 1 was 0.019 mg/m³, whereas it was 0.012 mg/m³ at post no. 2, 0.018 mg/m³ at post no. 3 and 0.02 mg/m³ at post no. 4. 40. The report stated that the average annual concentrations of nitric oxide, lead, manganese, nitrogen dioxide, ammonia, hydrogen sulphide, phenol, carbon oxide and carbon disulphide did not exceed the MPLs. Excessive annual concentrations were recorded only with respect to dust, formaldehyde and benzopyrene. Over the period from 1999 to 2003, a certain improvement in the quality of air was registered under the steel plant's “pollution plume” in the residential area of the town. Thus, the proportion of unsatisfactory tests was 13.2% in 1999, whereas in 2003 it had fallen to 12.7%. The report emphasised that the proportion of unsatisfactory air tests was decreasing: from 18.4% to 14.2%, as measured at a distance of 1,000 metres from the plant; and from 14.05% to 12.8% at a distance of 3,000 metres. The trend was also positive in respect of certain specific substances: within 1,000 metres the proportion of unsatisfactory tests for nitrogen dioxide decreased from 50% in 1999 to 47% in 2003; for hydrogen sulphide they fell from 75% in 1999 to 20% in 2003; and for phenol they decreased from 52% in 1999 to 38% in 2003. 41. The report contained generalised data on average pollution levels for the years 1999 to 2003, collected from four stationary posts of the State Agency for Hydrometeorology. The Government also produced data collected from monitoring post no. 1, reflecting a reduction in the average annual and maximum pollution levels compared to the situation which existed ten to twenty years ago. The most important data contained in these reports are summarised in the appendix to this judgment. 42. The Government also produced extracts from a report by the chief sanitary inspector for the Vologda region, which was prepared in June 2004 for the purpose of defining new boundaries for the sanitary security zone. According to the report, Severstal was still responsible in 2004 for 94 to 97% of overall air pollution in the city. The report stated that the emissions from Severstal contained eighty different pollutant substances. Despite a significant reduction in pollution in recent years, the maximum concentrations of “five priority pollutants” (dust containing more than 20% of silicon dioxide, ferroalloy dust, nitrogen dioxide, naphthalene and hydrogen sulphide) still exceeded safety standards at distances of one to five kilometres from the plant. The report further indicated that “more than 150,000 people live[d] in a zone where the acceptable level of risk [was] exceeded”. It proposed a number of measures which should reduce the concentration of naphthalene and ferroalloys to safe levels by 2010, and stated that the concentration of all toxic substances originating from the Severstal facilities in the bottom layer of the atmosphere should be below the maximum permissible limits by 2015. 43. Finally, the Government submitted that, should the Court need the documents sought by the applicant and referred to by her representatives as a source of primary information on air pollution, “the authorities of the Russian Federation propose that this document be requested from Mr Koroteyev [one of the applicant's representatives]”. 44. Since 1982 Ms Fadeyeva has been supervised by the clinic at Cherepovets Hospital no. 2. According to the Government, the applicant's medical history in this clinic does not link the deterioration in her health to adverse environmental conditions at her place of residence. 45. In 2001 a medical team from the clinic carried out regular medical check-ups on the staff at the applicant's place of work. As a result of these examinations, the doctors detected indications of an occupational illness in five workers, including the applicant. In 2002 the diagnosis was confirmed: a medical report drawn up by the Hospital of the North-West Scientific Centre for Hygiene and Public Health in St Petersburg on 30 May 2002 stated that she suffered from various illnesses of the nervous system, namely occupational progressive/motor-sensory neuropathy of the upper extremities with paralysis of both middle nerves at the level of the wrist channel (primary diagnosis), osteochondrosis of the spinal vertebrae, deforming arthrosis of the knee joints, moderate myelin sheath degeneration, chronic gastroduodenitis, hypermetropia first grade (eyes) and presbyopia (associated diagnoses). Whilst the causes of these illnesses were not expressly indicated in the report, the doctors stated that they would be exacerbated by “working in conditions of vibration, toxic pollution and an unfavourable climate”. 46. In 2004 the applicant submitted a report entitled “Human health risk assessment of pollutant levels in the vicinity of the Severstal facility in Cherepovets”. This report, commissioned on behalf of the applicant, was prepared by Dr Mark Chernaik. Dr Chernaik concluded that he would expect the population residing within the zone to suffer from above-average incidences of odour annoyance, respiratory infections, irritation of the nose, coughs and headaches, thyroid abnormalities, cancer of the nose and respiratory tract, chronic irritation of the eyes, nose and throat, and adverse impacts on neurobehavioral, neurological, cardiovascular and reproductive functions. The report concluded as follows: “The toxic pollutants found in excessive levels within the sanitary security zone in Cherepovets are all gaseous pollutants specifically produced by iron and steel manufacturing plants (in particular, by process units involved in metallurgical coke production), but not usually by other industrial facilities. It is therefore reasonable to conclude that inadequately controlled emissions from the Severstal facility are a primary cause of the excess incidences of the above-mentioned adverse health conditions of persons residing within the sanitary security zone in Cherepovets.” 47. The applicant also submitted an information note from the environmental department of the Cherepovets municipality, which contained recommendations to Cherepovets residents on how to act in circumstances of “unfavourable weather conditions”, namely when the wind carried emissions from the Severstal plant towards the city. The note recommended that people should stay at home and restrict their physical activity. It also contained dietary suggestions. The primary reason for these restrictive recommendations was emissions from the Severstal plant. The applicant also referred to a letter dated 20 September 2001 from the Cherepovets Centre for Sanitary Control, stating that when such “unfavourable weather conditions” occurred, admissions of children to local health clinics increased by 1.3. 48. Article 42 of the Constitution of the Russian Federation reads as follows: “Everyone has the right to a favourable environment, to reliable information about its state, and to compensation for damage caused to his health or property by ecological offences.” 49. Pursuant to the Federal Law of 30 March 1999 on sanitary safety (О санитарно-эпидемологическом благополучии населения), the Federal Sanitary Service establishes State standards for protecting public health from environmental nuisances. In particular, these standards are applied in assessing air quality in cities: atmospheric pollution is assessed in comparison to the maximum permissible limits (MPLs), the measure which defines the concentration of various toxic substances in the air. It follows from Regulation 2.1 of the Sanitary Regulations of 17 May 2001 and section 1 of the Atmospheric Protection Act 1999 that, if the MPLs are not exceeded, the air is safe for the health and well-being of the population living in the relevant area. Regulation 2.2 of the Sanitary Regulations provides that, for all categories of toxic elements, concentrations should not exceed 1 MPL in residential areas and 0.8 MPL in recreational zones. 50. Pursuant to the Atmospheric Protection Act of 4 May 1999 (Об охране атмосферного воздуха), the Federal Environmental Agency establishes environmental standards for various types of polluting sources (cars, farms, industrial plants, etc.). These general standards are applied to specific undertakings by the regional environmental agencies. In principle, an industrial plant's operation should not result in pollution which exceeds the MPLs (section 16 of the Act). However, for the sake of a region's economic development, a regional environmental agency may issue a temporary permit authorising an undertaking to exceed these norms (sections 1 and 12 of the Act). The permit should contain a schedule for the phased reduction of toxic emissions to safe levels. 51. Every polluting undertaking must create a “sanitary security zone” around its premises – a buffer area separating sources of pollution from the residential areas of a city (Regulations 3.5 and 3.6 of the 1996 Sanitary Regulations, enacted by Decree no. 41 of the Federal Sanitary Service of 31 October 1996; similar provisions were contained in the 2000, 2001 and 2003 Sanitary Regulations, which replaced those of 1996). The levels of pollution in this buffer area may exceed the MPLs. 52. The minimum width of the zone is defined by the sanitary regulations for different categories of undertaking. Under the terms of the 1996 Sanitary Regulations, the sanitary security zone around a steel plant the size of Severstal should be 2,000 metres. Under the Sanitary Regulations of 1 October 2000, the width of the sanitary security zone for a metallurgical undertaking of this size should be at least 1,000 metres. In certain cases the Federal Sanitary Service may enlarge the zone (for example, where the concentration of toxic substances in the air beyond the zone exceeds the MPLs). Subsequent sanitary regulations (enacted on 17 May 2001 and 10 April 2003) confirmed these requirements. 53. Regulation 3.6 of the 1989 City Planning Regulations provides that an undertaking must take all necessary measures in order to set up (обустроить) its sanitary security zone in accordance with the law, with a view to limiting pollution. 54. Regulation 3.8 of the 1989 City Planning Regulations provides that no housing should be situated within the sanitary security zone. This provision was later incorporated into the Town Planning Code (Градостроительный Кодекс) of 1998 (Article 43) and the Sanitary Regulations of 17 May 2001 and 10 April 2003. According to Regulation 3.3.3 of the 2001 Sanitary Regulations, a project to create a zone may include, as a high-priority objective, resettlement of the zone's residents. However, there is no direct requirement to resettle the residents of the sanitary security zone around an undertaking that is already operating. 55. Article 10 § 5 of the Town Planning Code of 1998 provides as follows: “In cases where State or public interests require that economic or other activities be conducted in environmentally unfavourable areas, the temporary residence of the population in these areas is permitted, subject to the application of a special town planning regime ...” 56. It follows from a judgment of the North-Caucasus Circuit Federal Commercial Court (decision no. Ф08-1540/2003 of 3 June 2003) that the authorities may force an undertaking which has failed to create a sanitary security zone around its premises in accordance with the law to cease operating. 57. The applicant produced an extract from the decision of the Supreme Court of the Russian Federation in Ivashchenko v. the Krasnoyarsk Railways (published in “Overview of the case-law of the Supreme Court”, Бюллетень Верховного Суда РФ, № 9, of 15 July 1998, § 22). In that case the plaintiff had claimed immediate resettlement from a decrepit house. The lower court had rejected the plaintiff's action, indicating that she could claim resettlement following the order of priority (in other words, she should be put on the waiting list). The Supreme Court quashed this judgment, stating as follows: “The [plaintiff's] home is not only dilapidated ..., but is also situated within 30 metres of a railway, within the latter's sanitary security zone, which is contrary to the sanitary regulations (this zone is 100 metres wide, and no residential premises should be located within it).” The Supreme Court remitted the case to the first-instance court, ordering it to designate specific housing which should be provided to the plaintiff as a replacement for her previous dwelling. 58. In another case, concerning the resettlement of Ms Ledyayeva, another resident of the sanitary security zone around the Severstal facilities, the Presidium of the Vologda Regional Court, in its decision of 11 February 2002, stated, inter alia: “The lower court did not assess whether the measures taken in order to resettle the residents of the sanitary security zone are adequate in comparison to the degree of threat that the plaintiff encounters. As a result, the court did not establish whether providing [Ms Ledyayeva] with new housing under the provisions of the housing legislation by placing her on the waiting list can be regarded as giving her a real chance to live in an environment that is favourable for her life and health.” The court also expressed doubts as to whether the State should be held responsible for the resettlement of the zone's residents. 59. During the Soviet era, the majority of housing in Russia belonged to various public bodies or State-owned companies. The population lived in these dwellings as life-long tenants. In the 1990s extensive privatisation programmes were carried out. In certain cases, property that had not been privatised was transferred to local authorities. 60. To date, a certain part of the Russian population continues to live as tenants in local council houses on account of the related advantages. In particular, council house tenants are not required to pay property taxes, the amount of rent they pay is substantially lower than the market rate and they have full rights to use and control the property. Certain persons are entitled to claim new housing from the local authorities, provided that they satisfy the conditions established by law. 61. From a historical standpoint, the right to claim new housing was one of the basic socio-economic rights enshrined in Soviet legislation. Under the Housing Code of the RSFSR of 24 June 1983, which was still valid in Russia at the time of the relevant events, every tenant whose living conditions did not correspond to the required standards was eligible to be placed on a local authority waiting list in order to obtain new council housing. The waiting list establishes the priority order in which housing is attributed once it is available. 62. However, being on a waiting list does not entitle the person concerned to claim any specific conditions or time-frame from the State for obtaining new housing. Certain categories of persons, such as judges, policemen or handicapped persons are entitled to be placed on a special “priority waiting list”. However, it appears that Russian legislation does not guarantee a right to be placed on this special list solely on the ground of serious ecological threats. 63. Since Soviet times, hundreds of thousands of Russians have been placed on waiting lists, which become longer each year on account of a lack of resources to build new council housing. At present, the fact of being on a waiting list represents an acceptance by the State of its intention to provide new housing when resources become available. The applicant submits, for example, that the person who is first on the waiting list in her municipality has been waiting for new council housing since 1968. She herself became no. 6,820 on that list in 1999. | 1 |
train | 001-99339 | ENG | HUN | ADMISSIBILITY | 2,010 | FELCSER v. HUNGARY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | The applicant, Ms Krisztina Felcser, is a Hungarian national who was born in 1972 and lives in Budapest. She was represented before the Court by Mr I. Maklári, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 June 2001 an action was brought with a view to evicting the applicant from her service flat. A first-instance decision, requiring the applicant to vacate the flat and the plaintiff to arrange for alternative accommodation, was adopted on 11 June 2003. Part of this judgment was quashed and remitted on 16 March 2004. The Buda Central District Court gave judgment on 2 December 2004. On 14 June 2005 the Budapest Regional Court reversed this decision and established the fee payable by the applicant for the past use of the flat. On 27 March 2006 the Supreme Court rejected the applicant's petition for review. In the meantime, the applicant filed a motion for execution against the plaintiff in respect of her claim for alternative accommodation. On 10 May and 22 September 2005 the District and the Regional Court respectively rejected this motion, observing that this claim was not enforceable until the applicant vacated the flat. | 0 |
train | 001-61272 | ENG | TUR | CHAMBER | 2,003 | CASE OF DEMADES v. TURKEY | 3 | Preliminary objections dismissed (ratione temporis, ratione loci, victim, non-exhaustion of domestic remedies);Violation of Art. 8;Violation of P1-1;Not necessary to examine Art. 13;Just satisfaction reserved;Costs and expenses award - Convention proceedings | Georg Ress | 10. The applicant is a Cypriot national of Greek-Cypriot origin, born in 1929 and living in Nicosia. 11. The applicant states that he is the registered owner of a plot of land (Registration number: 1071, Sheet / Plan: XII/20 E, Plot 122) situated on the sea front in the district of Kyrenia in northern Cyprus. He also maintains that he is the owner of a two-storey house, which he built on the above-mentioned plot of land. He submits that the house was fully furnished and equipped and that it was used by him and his family on a regular basis not only for weekend and holiday purposes but also as a home. 12. The applicant states that since 1974 he has been prevented by the Turkish armed forces from having access to his property, using and enjoying possession of it as well as developing it. In addition, he claims that according to evidence his home is currently occupied by officers and/or other members of the Turkish armed forces. 13. On 30 June 2003 the “Parliament of the Turkish Republic of Northern Cyprus” enacted the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus”, which entered into force on the same day. | 1 |
train | 001-105707 | ENG | HRV | CHAMBER | 2,011 | CASE OF MAJSKI v. CROATIA (No.2) | 3 | Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant, who is of Serbian origin, was born in 1949 and lives in Vukovar. 6. On 28 October 2004 the applicant submitted an application for the post of deputy county state attorney in the Vukovar County State Attorney’s Office. He relied on section 22(2) of the Constitutional Act on the Rights of National Minorities and section 63(2) of the State Attorneys Act (see paragraphs 17 and 19 below). 7. On 11 January 2005 the State Attorneys Council (Državnoodvjetničko vijeće), after a secret ballot, unanimously adopted a decision appointing D.K.I. deputy county state attorney in the Vukovar County State Attorney’s Office. It found that both candidates satisfied the statutory requirements to be appointed deputy state attorney but gave priority to D.K.I., having regard to her extensive experience of working on civil and administrative law cases. The decision contained an information notice (pouka o pravnom lijeku) to the effect that administrative dispute proceedings could be instituted against it by bringing an action in the Administrative Court (Upravni sud Republike Hrvatske) within thirty days of its service. The information notice reads as follows: “Against this decision an administrative dispute may be instituted by bringing an action in the Administrative Court within thirty days of the service of the decision.” 8. On 4 February 2005 the applicant instituted administrative dispute proceedings in the Administrative Court by bringing an action under section 23 of the Administrative Disputes Act (see paragraph 26 below) against the State Attorneys Council’s decision of 11 January 2005. He again relied on section 22(2) of the Constitutional Act on the Rights of National Minorities. 9. On 16 March 2005 the Administrative Court declared the applicant’s action inadmissible, finding that the contested decision did not constitute an “administrative act” within the meaning of section 6(2) of the Administrative Disputes Act (see paragraph 24 below). Therefore, instead of instituting administrative dispute proceedings by bringing an action (against an administrative act), the applicant should have lodged “a request for the protection of a constitutionally guaranteed right” (zahtjev za zaštitu ustavom zajamčenog prava), a remedy provided in section 66 of the Administrative Disputes Act (see paragraph 34 below). The Administrative Court also held that the applicant’s action could not have been, even in substance, regarded as such a request, because he had not relied on any provision of the Constitution, but only on the Constitutional Act on the Rights of National Minorities. 10. On 18 July 2005 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Administrative Court’s decision. In so doing the applicant, alleging a violation of his right of access to court, relied on Article 6 § 1 of the Convention. 11. On 13 February 2008 the Constitutional Court dismissed the applicant’s constitutional complaint. The relevant part of that decision reads as follows: “The Constitutional Court finds that the complainant’s rights under Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms were not breached in the proceedings before the Administrative Court because the Administrative Court did not proceed contrary to the legal views established by the European Court of Human Rights in the application of that provision to individual cases. ... The Constitutional Court notes that in its practice it has established the rule that there is a remedy before the Administrative Court (a request under section 66 of the Administrative Disputes Act) against a decision on appointment of a deputy state attorney, and that this remedy has to be used before a constitutional complaint is lodged with the Constitutional Court (decision no. U-III-4364/2005 of 19 December 2005).” 12. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia 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) and 76/2010) read as follows: “The right to appeal against decisions adopted in the first-instance proceedings before a court or other authorised body shall be guaranteed. The right of appeal may exceptionally be excluded in cases provided by law if other legal protection is ensured.” “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.” “Every national of the Republic of Croatia shall have the right, under equal conditions, to take part in the conduct of public affairs, and to be admitted to public service.” 13. In its decisions no. U-III-1733/2000 of 24 November 2004 (published in the Official Gazette no. 179/2004 of 17 December 2004), no. U-III-2808/2007 of 13 February 2008 (published in the Official Gazette no. 26/2008 of 29 February 2008) and no. U-III-3071/2006 (published in the Official Gazette no. 42/2009 of 6 April 2009) the Constitutional Court held that in cases where the first-instance courts had wrongly informed parties on legal remedies by indicating longer time-limits for lodging appeals against their decisions than those provided in the relevant legislation, and the parties lodged their appeals outside of the statutory time-limits but within the time-limits indicated by the first-instance courts, those appeals could not be declared inadmissible as lodged out of time. To do so would run contrary to the constitutional right to appeal guaranteed by Article 18(1) of the Constitution, and the constitutional right to a fair hearing, in its part concerning access to court, guaranteed by Article 29(1) of the Constitution (see preceding paragraph). 14. In its judgment no. Zpa-5/2004-5 of 2 December 2004, following a request for the protection of a constitutionally guaranteed right (see paragraph 34 below) the Administrative Court quashed the decision of the National Judicial Council on appointment of a municipal court judge. It held that every candidate satisfying the statutory requirements had the right to equal participation in a competition for public office. Therefore, by appointing a candidate who did not satisfy the statutory requirements for appointment as a judge of a municipal court, the National Judicial Council violated the other candidate’s constitutional right to “equal access to public service” guaranteed by Article 44 of the Constitution (see paragraph 12 above). 15. The relevant provision of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia 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 of the Republic of Croatia 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 right [complained of], a constitutional complaint may be lodged only after this remedy has been used. (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 to have been exhausted only after a decision on these legal remedies has been given.” 16. In its decision no. U-III-4364/2005 of 19 December 2005 (Official Gazette no. 6/2006 of 13 January 2006) the Constitutional Court held that a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below) must be lodged against a decision of the State Attorneys Council on appointment of a deputy state attorney before a constitutional complaint under section 62 of the Constitutional Court Act. 17. The relevant provisions of the Constitutional Act on the Rights of National Minorities (Zakon o pravima nacionalnih manjina, Official Gazette of the Republic of Croatia nos. 155/2002 and 80/2010), which entered into force on 23 December 2002, read as follows: “(2) The representation of members of national minorities in the organs of State administration and judicial organs shall be secured in accordance with special legislation, and taking into account the proportion of members of national minorities in the total population at the level in respect of which the organ of state administration or judicial organ is established, and acquired rights. (4) In filling the posts referred to in paragraphs 2 and 3 of this section, priority shall be given under the same conditions to members of national minorities.” 18. On 23 March 2006 the Administrative Court delivered its judgment in case no. Zpa-39/2005, where an aggrieved candidate, member of a national minority, lodged a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below) against a decision of the National Judicial Council on appointment of a municipal court judge. He argued that the contested decision had breached his right guaranteed by Article 44 of the Constitution (see paragraph 12 above) in conjunction with section 22(4) of the Constitutional Act on the Rights of National Minorities (see paragraph 17 above). The Administrative Court dismissed his request (only) because in his application for the post of a municipal court judge he had not expressed the wish to be treated as a member of a national minority and had not relied on section 22(4) of the Constitutional Act on the Rights of National Minorities. 19. The relevant provision of the State Attorneys Act (Zakon o državnom odvjetništvu, Official Gazette of the Republic of Croatia nos. 51/2001, 16/2007, 20/2007 (corrigendum), 146/2008), as in force at the material time, provided as follows: “(1) Deputy state attorneys shall be appointed in a manner, under the conditions and according to a procedure that guarantees they possess the expertise, independence and moral standing necessary to discharge the duty of a state attorney. (2) Any Croatian national who holds a law degree and has passed the bar exam may be appointed a deputy state attorney.” “A person may be appointed a deputy state attorney in a county state attorney’s office if he or she has, as a holder of public office in the judiciary, exercised judicial duties, or has been an advocate, notary public or notary public’s assessor, or lecturer of law courses at a law faculty for at least ten years, or has worked in another legal profession for at least twenty years after passing the bar exam.” 20. The State Attorneys Act provided that decisions of the State Attorneys Council rendered in disciplinary proceedings (section 114) and decisions on removal from the office of a state attorney (section 118(5)) could be challenged by instituting administrative disputes proceedings before the Administrative Court in the form of an action under section 23 of the Administrative Disputes Act. However, the State Attorneys Act had no provisions on remedies available against decisions of the State Attorneys Council on appointment of state attorneys. 21. In its decision no. Us-6683/2004 of 17 November 2004 the Administrative Court held for the first time that a decision of the State Attorneys Council on appointment of a deputy state attorney was not an administrative act within the meaning of section 6(2) of the Administrative Disputes Act. It also held that such a decision could only be contested before that court by lodging a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below). 22. The Administrative Disputes Act (Zakon o upravnim sporovima, the Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and the Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part provides as follows: 23. Section 6(1) provides that administrative dispute proceedings may be initiated only against an administrative act. 24. Section 6(2) provides that an administrative act, within the meaning of the Act, is an act whereby a State organ, in the exercise of public authority, decides on a right or obligation of an individual or an organisation in an administrative matter. 25. Section 10(1) provides that an administrative act may be challenged for: (a) misapplication of substantive law, (b) lack of jurisdiction, or (c) procedural errors or incorrect findings of fact. 26. Section 23 provides that administrative dispute proceedings are instituted by bringing an action. 27. Section 24(1) provides that the action has to be brought within thirty days from the service on the plaintiff of the administrative act (that is, a decision) being contested by the action. 28. Section 27(1) provides that a statement of claim must contain: (a) the first and last name, or the name and the seat, of the plaintiff; (b) the administrative act being contested by the action; (c) a brief statement of the cause of action; as well as (d) to which direction and to what extent it is proposed to quash the administrative act, and (e) the signature of the plaintiff. The statement of claim must be accompanied by the original or a copy of the contested act. 29. Section 29(1) provides that if the action is incomplete or incomprehensible, the president of the panel shall invite the plaintiff to rectify the shortcomings within a certain time-limit. In doing so, the president should instruct the plaintiff as to what has to be done and how and warn him or her of the consequences of failing to comply with the court’s request. 30. Section 29(2) provides that if the plaintiff does not rectify the shortcomings in his action within the time-limit fixed, and they are of such a nature as to prevent the court proceeding with the case, the court shall declare the action inadmissible as deficient. 31. Section 30 provides that the Administrative Court must declare an action inadmissible if, inter alia, the contested decision does not constitute an administrative act within the meaning of section 6 of that Act. 32. Sections 52-59 provide for the remedy of reopening of proceedings before the Administrative Court and regulate the procedure following a petition for reopening. 33. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court (that is, in administrative disputes), the provisions of the Civil Procedure Act should apply mutatis mutandis. 34. Section 66 reads as follows: “A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, a decision], and no other judicial protection is ensured, shall be decided by the [Administrative Court], by applying the provisions of this Act mutatis mutandis.” 35. According to the conclusion reached at the plenary session of judges of the Administrative Court held on 26 October 1987, an action against an administrative act is to be considered a request for judicial protection within the meaning of section 66 of the Administrative Disputes Act if from the content of the action it transpires that it may concern a breach of rights or freedoms guaranteed by the Constitution. In such cases the Administrative Court could not review every breach of procedural or substantive law but only those that amount to breaches of constitutionally guaranteed rights or freedoms. 36. According to the Administrative Court’s case-law (judgment no. Zpa-5/2004-5 of 2 December 2004), the requirements for affording judicial protection under section 66 of the Administrative Disputes Act, which must be met in their totality, are: (a) the request has to concern rights or freedoms expressly guaranteed by the Constitution, (b) those rights or freedoms were allegedly breached by a final decision which does not have the characteristics of an administrative act, and (c) the legal system does not provide for another judicial avenue of redress. If the request lodged under section 66 of the Administrative Disputes Act does not concern a right or freedom guaranteed by the Constitution, it should be declared inadmissible (decision no. Zpa-4/2003 of 15 December 2004). The time-limit for lodging such a request is the same as the time-limit for bringing an action against an administrative act under section 23 of the Administrative Disputes Act (see paragraphs 26-27 above), that is, thirty days from the service of the contested decision (Zpa-9/05 of 13 April 2005). 37. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, the Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and the Official Gazette of the Republic of Croatia no. 53/1991) provide as follows: “(1) By notice on legal remedies a party is informed whether he or she may lodge an appeal against the decision or institute administrative dispute proceedings or other judicial proceedings. (3) Where administrative dispute proceedings may be instituted against the decision, the notice shall indicate in which court and within what time-limit the action should be brought. Where other judicial proceedings may be instituted, it [the notice] shall indicate before which court and within what time-limit the proceedings should be instituted. (4) When incorrect information has been given, a party may follow the legislation in force or the notice. A party which followed the incorrect information shall not suffer any adverse consequences as a result.” 38. In its decision no. Zpa-9/2005-4 of 13 April 2005 the Administrative Court held that an incorrect information as regards the remedies available against a decision of the State Attorneys Council did not give rise to the rights stipulated in section 210 of the Administrative Procedure Act (see preceding paragraph). 39. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) reads as follows: “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” | 1 |
train | 001-58835 | ENG | GBR | CHAMBER | 2,000 | CASE OF SANDER v. THE UNITED KINGDOM | 1 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed | Nicolas Bratza | 8. In March 1995 the applicant, an Asian, appeared together with J.B. and G.C. before the Birmingham Crown Court, composed of a judge and a jury, to be tried for conspiracy to defraud. 9. After the defence had stated its case, the judge started his summingup, which he had almost completed by Friday evening when he adjourned. 10. On Monday morning a juror arrived at the court and handed an envelope to the court usher containing the following complaint: “I have decided I cannot remain silent any longer. For some time during the trial I have been concerned that fellow jurors are not taking their duties seriously. At least two have been making openly racist remarks and jokes and I fear are going to convict the defendants not on the evidence but because they are Asian. My concern is the defendants will not therefore receive a fair verdict. Please could you advise me what I can do in this situation.” 11. The juror who had written the complaint was asked not to join the other jurors. The judge discussed the complaint with counsel in chambers and then adjourned and listened to submissions in open court. The defence asked the judge to dismiss the jury on the ground that there was a real danger of bias. The judge, however, decided to call the jury back into court, at which stage the juror who had written the complaint joined the others. The judge read out the complaint to them and told them the following: “Members of the jury, this morning I received a note from one of your number expressing extreme concern that some of your number are not taking your duties seriously, are making openly racist remarks and jokes about Asians and may not reach your verdicts upon the evidence but because of some racial prejudice. I am not able to conduct an inquiry into the validity of those contentions and I do not propose to do so. This case has cost an enormous amount of money and I am not anxious to halt it at the moment, but I shall have no compunction in doing so if the situation demands. When you took the oath or affirmed as jurors it was, you will remember, to bring in true verdicts according to the evidence. That is solemn and binding and means what it says. I am going to adjourn now and I am going to ask you all to search your conscience overnight and if you feel that you are not able to try this case solely on the evidence and find that you cannot put aside any prejudices you may have will you please indicate that fact by writing a personal note to that effect and giving it to the jury bailiff on your arrival at court tomorrow morning. I will then review the position. Thank you very much.” 12. The next morning the judge received two letters from the jury. The first letter, which was signed by all the jurors including the juror who had sent the complaint, stated the following: “We, the undersigned members of the jury, wish to put on record to the Court our response to yesterday's note from a juror implying possible racial bias. 1. We utterly refute the allegation. 2. We are deeply offended by the allegation. 3. We assure the Court that we intend to reach a verdict solely according to the evidence and without racial bias.” 13. The second letter, which the judge commended, was written by a juror who appeared to have thought himself to have been the one who had been making the jokes. The juror in question explained at length that he might have done so, that he was sorry if he had given any offence, that he was somebody who had many connections with people from ethnic minorities and that he was in no way racially biased. 14. The judge decided that he would not discharge the jury and told them the following: “Ladies and gentlemen, the events of yesterday afternoon were clearly distressing for you, but I am sure you will see and realise that when a judge receives a note from one of your number raising those sort of issues it is the judge's duty to bring it to the attention of the whole jury. Whether the suggestions were well or ill-founded is not something I or any judge can decide, nor is it something that can be investigated by the judge. It would be an improper activity. I took the course I did in the exercise of my discretion and I am sorry you were offended and upset. However, all twelve of you have this morning utterly refuted the allegation, expressed your deep offence at it and assured the Court that you intend to reach a verdict or verdicts solely according to the evidence and without racial bias. One of your number has also written at length a most cogent and balanced letter, and it is quite clear to me that each and every one of you are conscious of the oath or affirmation that you have taken and are dutifully prepared to abide by.” 15. On 8 March 1995 the jury found the applicant guilty, but acquitted G.C., who was also Asian. On 20 April 1995 the judge imposed on the applicant a sentence of five years' imprisonment. 16. The applicant was given leave to appeal against conviction. In his appeal he raised, inter alia, the following ground: The judge should have reacted to the juror's complaint by dismissing the jury; in any event, the juror who had written the complaint should not have been segregated from the other members of the jury in the early stages and the judge should not have disclosed to the jurors the contents of the complaint. 17. On 1 March 1996 the Court of Appeal dismissed the applicant's appeal. As regards the above-mentioned ground it considered the following: The court had regard to the letter signed by all the members of the jury, and the letter of the juror who was probably responsible for the remarks that had given offence, and found that the trial judge did not err in reaching the conclusion that there was no real risk of bias. Moreover, the judge was right to confront the jury with the problem and ask them to consider it. It was perhaps unfortunate that the juror who had written the complaint was for a time segregated from the other members of the jury, as this led to his identification. However, it would be unrealistic to suppose that the jury would not have wanted to know who the author of the complaint was and the judge dealt with the possibility of tensions among the jurors perfectly sensibly in the direction he gave to them. | 1 |
train | 001-67997 | ENG | MDA | ADMISSIBILITY | 2,005 | PENTIACOVA AND 48 OTHERS v. MOLDOVA | 1 | Inadmissible | Nicolas Bratza | The applicants, Valentina Pentiacova, Nichifor Avasiloaie, Nicolaie Bugan, Alexandru Bulgac, Vladimir Caranfil, Ion Ceban, Chiril Cebotari, Valeriu Cerniavschi, Mihail Chircu, Galina Chiriacova, Tamara Ciorba, Alina Condrat, Tatiana Costina, Olesea Frija, Natalia Ghetmacenco, Mihail Grozov, Maria Gudumac, Adriana Hristiniuc, Natalia Iacovenco, Ana Istratieva, Maria Lozinschi, Ana Lungu, Diana Maliavca, Petru Meriacri, Tudor Meriacri, Iacob Mocanu, Veaceaslav Muşchei, Victor Neagov, Iacob Ninescu, Ion Nicolaev, Mihai Nicolaev, Constantin Novac, Eugenia Paşcova, Ghenadie Petrea, Eduard Porumb, Eduard Pritula, Nicolae Pruteanu, Ion Puşcaş, Maria Serbu, Mariana Solomon, Chiril Spirliev, Rita Stoian, Gavriil Tofan, Anatol Ţoncu, Dumitru Tulbu, Ion Vacari, Ion Vartic, Dumitru Zlatov and Victor Zorilă are Moldovan nationals, who live in the Republic of Moldova. Adriana Hristiniuc is the daughter of Andrei Hristiniuc, who was a patient of the Spitalul Clinic Republican haemodialysis section for about two years, but who died on 11 July 2004. Ana Lungu is the widow of Gheorghe Lungu, who was a patient of the SCR haemodialysis section for about ten years, but who died on 25 April 2003. Ion Vacari is the widower of Lidia Vacari, who was a patient of the SCR haemodialysis section, but who died on an unspecified date. They are represented before the Court by Mr Vladislav Gribincea, acting on behalf of “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The respondent Government are represented by their Agent, Mr V. Pârlog, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. All the applicants (except Adriana Hristiniuc, Ana Lungu and Ion Vacari, see above) are suffering from chronic renal failure (a gradual and progressive loss of the ability of the kidneys to excrete waste, concentrate urine, and conserve electrolytes) and consequently they need haemodialysis (a medical procedure that uses a machine to filter waste products from the bloodstream and to restore the blood’s normal constituents). They are all disabled on account of their disease and receive State disability allowances which vary between 60 Moldovan Lei (MDL) and MDL 450. The applicants have their haemodialysis done at a Chişinău hospital called Spitalul Clinic Republican (the “SCR”), where approximately one hundred patients are treated. The applicants submit that before 1997 the expense of their haemodialysis was covered entirely by the hospital. Between 1997 and 2004 the hospital’s budget was reduced and only strictly necessary procedures and medication were provided free to them. From 1 January 2004 the situation became more or less identical to that existing before 1997, with the exception of the frequency of haemodialysis sessions (see below). There are four more hospitals in the Republic of Moldova that perform haemodialysis - another hospital in Chişinău called Spitalul de Urgenţă (the “SU”), and hospitals in Bălţi, Cahul and Comrat. The applicants submit that, unlike the SCR, the SU was financed from the budget of the Chişinău Municipality and therefore always provided its patients with all the necessary medication free. They also argue that there are administrative barriers presenting the applicants who do not live in Chişinău from receiving treatment at the SU. As to the other three hospitals, the applicants submit that the quality of the haemodialysis treatment provided by them is inferior to that of the SCR. According to the parties, the following are necessary for haemodialysis treatment: a haemodialysis package, heparin, physiological saline, syringes, CaCl (10%), glucose (10-40%), euphylin 2.4%, alcohol and vitamins. There are also some medications and accessories which are necessary in some cases, namely riboxin, antibiotics, plaster, gauze and blood. According to the applicants, before 1 January 2004 the hospital provided them free with the haemodialysis procedure and some basic medication and accessories such as the haemodialysis package, heparin, physiological saline, syringes and CaCl (10%). They had to pay for the rest of the necessary medication. In 2002, the applicants were allegedly told by the hospital authorities that the haemodialysis unit at the SCR might close due to insufficient financing from the State budget. The applicants were forced to protest before the Ministry of Finance and in front of the President’s residence, and consequently the hospital continued to provide them with haemodialysis, but, as previously, without full coverage. After 1 January 2004 the hospital started to provide them free with almost all the necessary medication. The hospital does not provide them, however, with a drug called Eprex, which operates to raise the haemoglobin level, or with calcium, Amonosteril and Ketosteril. In order to increase their level of haemoglobin, the applicants are usually given blood transfusions. Before 1 January 2004 the applicants were not provided with free blood by the hospital. After that date the hospital started to provide free blood, but the applicants still have to wait until it becomes available. Since they sometimes need blood urgently, they have to buy it. The applicants also submit that no medical investigation for the determination of anaemia status is performed at the SCR and that the doctors only establish the existence of anaemia. According to the Government, before 1 January 2004 the treatment of the applicants was carried out in accordance with the provisions of Law no. 267 of 3 February 1999 on the minimum of medical assistance guaranteed by the State (see below). In accordance with that law, the applicants received only the strictly necessary medication free. They had to buy the rest of the medication prescribed by their doctors. Haemodialysis treatment has never been stopped and has never been refused to anybody. According to the official documents provided by the Government, in 2003 the haemodialysis section of the SCR received MDL 5,685,729 (the equivalent of 354,000 euros (EUR) at the time) from the State budget. On 1 January 2004 a new medical insurance system was implemented in Moldova and in accordance with the new legislation the applicants started to receive all the necessary medication free (see below). If a patient needs some particular medication not provided by the State, then the doctor recommends that the patient buys it. According to a directive of the Ministry of Health of 12 March 2004, the State spends MDL 322 (the equivalent of EUR 20 at the time) for one day of hospitalisation, MDL 688 (the equivalent of EUR 44 at the time) for a haemodialysis of the first degree and MDL 1,207 (the equivalent of EUR 78 at the time) for a haemodialysis of the second degree. According to the applicants, in the USA, Canada and EU countries, renal failure patients receive nine hours of haemodialysis in three sittings per week. The same practice was followed in Moldova before 1997. After 1997 the practice changed and the patients started to receive eight hours of haemodialysis in two sittings per week. “Only applicants that are in bad physical condition or ill are allowed to undergo the third haemodialysis permanently”. The Government submitted a document from the haemodialysis section of the SCR according to which, in July 2003, twenty-six applicants underwent two haemodialysis sessions per week; four applicants underwent three sessions per week and the rest two or three haemodialysis sessions per week. According to the Government, the number of haemodialysis sessions is determined in each case by the doctors, who consider the gravity of the disease, the presence or absence of complications and the results of laboratory investigations. In their application lodged on 30 April 2003 the applicants submitted that there were twenty haemodialysis machines at the SCR which were all old and in a bad technical condition. In their observations of 1 September 2004 they submitted that before their application was lodged with the Court half of the haemodialysis machines were in bad technical condition; however, they had been replaced after the application was lodged with the Court on 30 April 2003. They also stated: “In 2001 the majority of the haemodialysis machines performed dialysis on an acetate basis. After the application was lodged with the Court, the number of machines that performed haemodialysis on a bicarbonate basis increased. Today the majority of the applicants are undergoing bicarbonate-based haemodialysis. The bicarbonate-based haemodialysis is much better assimilated by most of the applicants.” The Government submit that before December 2003 there were twenty haemodialysis machines, eleven of which were new and the rest of which were old. In December 2003 the old machines had become unusable because of the shelf-life provision in their documentation and accordingly they had been replaced with new machines of German origin. According to the applicants, before the application was introduced, the water used for haemodialysis was not distilled. “After the application was lodged with the Court a water-filtration system was purchased and installed. After the new system was installed, they began to feel much better....” The Government submit that a contract has been signed with a German company and in the next five years the number of haemodialysis machines will double. According to the applicants, many of them live in the provinces and have to travel to Chişinău each time they need the treatment. Although there is no legal obligation in this respect, there is a practice according to which the local authorities cover the travel expenses for persons suffering renal failure who have to go to Chişinău for haemodialysis. The applicants submit that this practice is usually followed and most of them get reimbursed. However, there are cases when these expenses are not covered and it is too expensive for the applicants to pay themselves. According to the Government, the obligation to cover the transportation expenses of invalids of the first and second degrees is provided for in Section 41 of the Law 821 on the protection of invalids (see below). The Government submitted copies of the payment rolls proving the payment of all the travel expenses and the applicants did not make any comment on them. On 24 May 2003 the applicants sent the Court a copy of a letter addressed to them and to several Chişinău newspapers by the doctors of the SCR’s haemodialysis section, together with a chart setting out the expenses of each patient. The letter was signed by the medical staff of the Haemodialysis section of the SCR but not by the applicants. The chart was drawn up on 16 May 2003 and bore the signatures of all the patients of the haemodialysis section of the SCR. The applicants’ representative admitted that all the applicants had signed the chart. According to the letter signed by thirty-two doctors, there was a media campaign led by some Chişinău newspapers and news agencies after the present application was lodged with the Court. The doctors stated that the information presented by the newspapers was erroneous and misleading. They submitted that the situation of renal failure patients from the SCR had been over-dramatised for political reasons related to the forthcoming local elections and that it did not reflect reality. The doctors argued that the death rate of renal failure patients had diminished tenfold in comparison with the 1980s and that State financing of haemodialysis had increased threefold in the last two years. “We understand that the state of the country’s economy is not perfect for one to have everything; and that is how it is in the case of health protection”. The doctors contradicted the statement made by the applicants’ representatives in various newspaper articles according to which all the haemodialysis machines were old. According to the doctors, eight machines were brand new. They also disagreed that the situation of the patients of the SCR was worse than that of the patients of the SU. They argued that their patients were provided with free basic services and medication in exactly the same conditions as patients from other hospitals, and that it was a general practice in Moldova that doctors would ask the patients to buy supplementary medication not covered by the “legal guaranteed minimum”. The doctors also referred to the death of Gheorghe Lungu and stated that he had been their patient for ten years. According to them, in 1995 he had had both his kidneys removed and in the last year of his life he had suffered terminal chronic renal failure and arthritis-like tuberculosis. The submitted chart contained information as to the coverage of the applicants’ expenses for services/medication and for travel expenses. According to the chart, from the total number of forty-nine applicants who were patients of the SCR, three applicants (Chiril Cebotari, Tamara Ciorba and Ion Puşcaş) had the services and medication not covered by the hospital paid for by the local authorities of their hometowns. Another three applicants (Galina Chiriacova, Natalia Iacovenco and Victor Neagov), in addition to the services and medication covered by the hospital, also had the rest partially covered by the local authorities of their hometowns. Only four applicants (Maria Lozinshi, Constantin Novac, Gavriil Tofan and Eduard Pritula) did not have their travel expenses covered by the local authorities, and three of those had been without cover for only two months. In their application submitted on 30 April 2003 the applicants argued that their disability allowance was insufficient to pay for the medication necessary for the haemodialysis which was not provided free by the State. According to them, the minimum weekly expense associated with the haemodialysis amounted to MDL 100 per person. Therefore they could not afford the procedure. They submitted that many of them were forced to undergo the procedure without all the necessary medication and were caused unbearable pain and suffering. According to them, there were cases of patients who refused to undergo the procedure for lack of money, and died. According to the applicants, “as a result of the reduced number of haemodialysis sessions ... the level of microelements in the blood decreases significantly and that causes headaches, vomiting, sickness, cramps...” The applicants submit that the scarcity of funds made the death rate among renal failure patients higher than in other countries. They invoke the case of Gheorghe Lungu, an applicant who died in 2003. According to them, the death rate in the USA is 5.5 deaths per 100 patients per year while at the SCR the death rate before 2004 was 7-10 and 8-11 deaths. “The increased death rate was determined by the inadequacy of haemodialysis and by the poor anaemia status. By improving the quality of haemodialysis, the death rate significantly decreased after August 2003, when the new haemodialysis machines and the water filtration system were installed”. According to the Government, in the last four to five years there have been no deaths due to the insufficiency of haemodialysis. The Government contests the death rate invoked by the applicants, arguing that the applicants had failed to give the names of the persons who had allegedly died because of insufficient or improper medical care. As to the case of Gheorghe Lungu, the Government submitted that he had survived for ten years without kidneys and that he had died in 2003 of chronic arthritis-like tuberculosis and terminal renal failure. The Government submitted an autopsy report in support of their argument and the applicants did not comment on it. The Government submitted a fifteen minute video, filmed on 4 May 2004 in the haemodialysis section of the SCR. The tape contains a brief presentation of the haemodialysis section and interviews with a doctor from that section; a patient who had undergone haemodialysis at the SCR for one year; a patient who had undergone haemodialysis at the SCR for ten years and an applicant in the present case; a patient who had undergone haemodialysis at the SCR for five years; and a patient who had undergone haemodialysis at the SCR for four years. The doctor made a brief presentation of the haemodialysis section and stated in particular that the section had ninety-eight patients and that nobody has ever been refused haemodialysis treatment. Three of the patients stated that they received two haemodialysis sessions per week, but that they could receive a third session if need be. The fourth patient answered that he received two haemodialysis sessions per week. All the patients stated that they had never been refused a haemodialysis treatment; that they received all the necessary medication free; that their transportation expenses were covered and that they had never been discriminated against. Three of the patients stated that they sometimes used to spend the night at the hospital and that in those cases they were provided with free food. The fourth patient stated that he never needed to spend the night at the hospital. All the patients stated that they had never been maltreated by the hospital personnel and that they considered that the State took proper care of them. The applicants’ representative submits that the interviewer asked the patients leading questions aimed at obtaining answers convenient to the Government. He also argues that the video shows the present situation of the haemodialysis section and that it does not refer to the situation prior to 2004. The Constitution of the Republic of Moldova provides in Article 36: “(2) The minimum level of health care protection provided by the State shall be free.” Law no. 267-XIV of 3 February 1999, on the legal minimum of medical assistance guaranteed by the State, provides: “Section 1. In accordance with the Constitution, the State guarantees to provide the population of the Republic of Moldova with the minimum level of health care, hereinafter ‘the guaranteed minimum’, in conformity with the Annex attached to the present law. Section 2. (1) The guaranteed minimum shall be provided by all public health-care institutions. (2) The guaranteed minimum shall be provided to all the citizens of the Republic of Moldova. (3) Foreign citizens and stateless persons shall be provided with health care within the guaranteed minimum in the limits provided for in Section 4 (c). Section 4. – The guaranteed minimum shall comprise: ... c) urgent medical assistance at the pre-hospitalisation and hospitalisation stage, when the patient’s life is endangered by his or her state of health. Section 5. The financing of the guaranteed minimum, in accordance with the State budget law for the current year, shall be carried out by the Government and the local authorities. Section 6. Medical services over and above the guaranteed minimum shall be paid for by the individual patient, and the money obtained shall remain at the disposal of the health-care institutions...” Law no. 821 of 24 December 1991 on the social protection of invalids provides: “Section 41. Invalids of the first and second degree, invalid children and persons accompanying invalids of the first and second degree or an invalid child shall be compensated for their travel expenses (except taxis) by the local administration organs.” According to Annex 3 (8) of Law no. 1463-XV of 15 November 2002, in the State budget for 2003 MDL 5 million was allocated for the treatment of patients suffering renal failure. Law no. 1585 of 27 February 1998, on compulsory medical insurance, entered into force on 1 January 2004 and provides: “Section 1. (1) Compulsory medical insurance is a system of health protection based on insurance premiums and on funds created for this purpose. The system of compulsory medical insurance offers the citizens of the Republic of Moldova equal possibilities for obtaining necessary and quality medical assistance. (2) Compulsory medical insurance is realised by means of contracts concluded between insured persons and the insurer....” The Government sent the Court four letters in which the Presidents of the Court of Appeal, the Bălţi District Court and the Orhei District Court, stated that if renal failure patients brought actions concerning insufficient medical care, their courts would examine them. They also stated that no similar cases had been examined by their courts. The President of the Briceni District Court stated that his court had examined a case in which a hospital was obliged to pay compensation to a renal failure patient; however the letter did not state what the compensation was for and no copy of the relevant judgment was attached to it. It appears from the parties’ submissions that after the new law on medical insurance entered into force on 1 January 2004 the situation of the haemodialysis patients improved considerably in respect of the supply of free medication. In December 2003 half of the haemodialysis machines from the SCR which were old were replaced with new ones. On an unspecified date after the application was introduced with the Court a new system of filtration of water was purchased and installed in the SCR haemodialysis section. | 0 |
train | 001-86231 | ENG | SVK | CHAMBER | 2,008 | CASE OF Z. v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1972. He is serving a prison sentence in the Košice-Šaca prison. 5. On 23 July 1996 the applicant’s father, a former police officer, attacked the applicant’s sister with a knife. She suffered moderate injuries to her left arm. When the applicant began to defend his sister, the father turned to attack him. The applicant suffered several injuries to his arms. During the struggle the applicant seized a machete from his father and inflicted a number of blows on him. The applicant’s father died of a haemorrhage shortly thereafter. 6. On 24 July 1996 criminal proceedings were brought against the applicant. A lawyer was appointed to defend him. Between August and November 1996 several expert opinions were obtained and a number of witnesses were heard. 7. On 27 November 1996 the investigator transmitted the case to the Košice Regional Prosecutor’s Office, with the proposal that the applicant be indicted for murder. 8. On 13 December 1996 the Košice Regional Prosecutor’s Office discontinued the proceedings, concluding that the applicant had acted in self-defence. This decision became final on 24 December 1996. 9. On 5 March 1997 the General Prosecutor filed a complaint in the interest of the law against the above decision. On 16 April 1997 the Supreme Court upheld the complaint and quashed the decision of 13 December 1996. The Supreme Court sent detailed instructions to the Regional Prosecutor’s Office on the action to be taken with a view to establishing the relevant facts. The case was returned to the police investigator. 10. Between 24 June 1997 and 11 November 1997 the investigator took action at regular intervals with a view to establishing the facts of the case. This included questioning of a number of witnesses and obtaining expert opinions and documentary evidence. The applicant’s counsel was notified of and had the option of attending the questioning of witnesses. 11. In the meantime, on 18 August 1997 and 9 September 1997 the applicant requested that a different lawyer be appointed to defend him, as he had lost confidence in the lawyer who had been appointed on 24 July 1996. On 8 September 1997 the applicant asked the police investigator to notify him of all steps taken in the criminal proceedings, so that he could attend and defend his rights in person. On 11 September 1997 the investigator replied to the applicant that the law did not require his presence during the interrogation of witnesses. The applicant would be summoned whenever his presence was required under the relevant provision of the Code of Criminal Procedure. On 16 September 1997 different counsel was appointed to assist the applicant. 12. On 25 September 1997 the applicant consulted the file. On 1 October 1997, in the presence of his counsel, he submitted his comments on several witness statements. 13. On 12 December 1997, after the applicant had perused the file, the Regional Prosecutor indicted the applicant before the Regional Court in Košice. 14. On 18 December 1997 the Regional Court judge asked for permission to withdraw, as he had known the victim. On 19 December 1997 the case was transferred to a different judge. 15. On 3 March 1998 the Regional Court returned the case to the Regional Prosecutor. The decision stated that the prosecuting authority had failed to comply in full with the instructions set out in the Supreme Court’s decision of 16 April 1997. 16. On 14 April 1998 the Regional Prosecutor lodged a complaint, submitting reasons. On 21 May 1998 the Supreme Court dismissed the prosecutor’s complaint. The decision was delivered to the Regional Court on 22 June 1998. 17. On 20 July 1998 the investigator requested information about the applicant’s criminal record. In August 1998 the investigator examined and cross-examined witnesses and the applicant. Further investigative measures were also carried out. Documentary evidence was obtained and an expert was heard in September 1998. Three witnesses were examined in October 1998. On 30 October 1998 the investigator submitted the file to the Regional Prosecutor’s Office. 18. On 5 November 1998 the prosecutor filed a new indictment against the applicant with the Regional Court. 19. On 23 and 26 March 1999 the Regional Court heard an expert in forensic medicine. On 30 March 1999 it again returned the case to the prosecuting authorities, noting that several of the Supreme Court’s instructions relating to the establishment of the facts of the case had not yet been complied with. The applicant and the public prosecutor challenged this decision. The public prosecutor later withdrew his complaint. 20. On 7 July 1999 the Supreme Court dismissed the applicant’s complaint. The decision stated that the public prosecutor had complied with the Supreme Court’s earlier instructions taken as a whole. However, there had been substantial procedural shortcomings in the examination of the applicant and several witnesses. Those shortcomings needed to be rectified. 21. On 30 August 1999 and on 4 and 24 September 1999 the applicant and several witnesses were cross-examined. 22. On 4 October 1999 the Regional Prosecutor again indicted the applicant on a murder charge before the Regional Court in Košice. 23. At a preliminary hearing on 1 December 1999 the public prosecutor withdrew the indictment. The case was returned to the police investigator as a result. 24. On 11 January 2000 the applicant, his mother and sister refused to make statements. 25. On 10 February 2000 the public prosecutor lodged an indictment against the applicant. As the Regional Court judge involved considered himself biased, the case was transferred to a different judge on 22 February 2000. 26. On 22 May 2000 the Regional Court adjourned the main hearing as the applicant’s counsel was unable to attend for serious family reasons. 27. On 12 June 2000 the applicant refused to make a statement before the Regional Court. His statements made in the course of the pre-trial proceedings were read out and the applicant confirmed them. The Regional Court heard a witness. It decided that the hearings should be held in the applicant’s presence. The case was adjourned with a view to hearing other witnesses. 28. On 19 June 2000 the Regional Court heard witnesses. The case was adjourned as the expert in forensic medicine was ill. The court later established that she would be on sick leave until 14 September 2000. 29. On 27 September 2000 and 18 October 2000 the Regional Court heard several witnesses and experts. On 28 November 2000 it took further evidence. 30. On 6 December 2000, after both the applicant and the public prosecutor had stated that they had no further proposals for evidence to be taken, the Regional Court in Košice convicted the applicant of murder and sentenced him to ten years’ imprisonment. With reference to the experts’ conclusions, the Regional Court 31. On 22 February 2001 and 20 March 2001 the applicant appealed. Relying on the evidence in the case he argued that the first-instance court had erred in the legal qualification of his action. He had acted in self-defence and his action did not constitute a criminal offence. 32. On 6 June 2001 the Supreme Court, referring to the evidence included in the file, upheld the first-instance conclusion that the applicant had committed murder. The Supreme Court accepted that the applicant had initially acted in legitimate defence, in that he had protected his sister from their father’s attacks. In the subsequent stage, however, after he had separated his father from his sister, the applicant had inflicted more than 50 injuries on his father using a machete that was 45 centimetres in length. That action had been in excess of legitimate defence. After the attack the applicant had tied up his wounded father, and then rolled him up in a carpet without attempting to provide assistance. In view of the the Supreme Court reduced the applicant’s sentence to seven years’ imprisonment. | 1 |
train | 001-84336 | ENG | TUR | CHAMBER | 2,008 | CASE OF VARNAVA AND OTHERS v. TURKEY | 2 | Preliminary objections dismissed (Article 35-1 - Continuing situation;Article 35-3 - Ratione temporis);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient | Alvina Gyulumyan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre | 13. The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court’s consideration of the merits of the Loizidou v. Turkey case in 1996, there was a Turkish military presence of more than 30,000 personnel throughout the whole of the occupied area of northern Cyprus which was constantly patrolled and had checkpoints on all main lines of communication (Loizidou v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996VI). 14. In November 1983 there was the proclamation of the “Turkish Republic of Northern Cyprus” (the “TRNC”) and the subsequent enactment of the “TRNC Constitution” on 7 May 1985, which was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the “TRNC” legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus. 15. According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations. 16. United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. 17. Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations (see further below paragraph 101). 18. The events of July and August 1974 and their aftermath gave rise to four previous applications by the applicant Government against the respondent State under former Article 24 of the Convention. 1. and 2. The first (no. 6780/74) and second (no. 6950/75) applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention (“the 1976 report”) in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 3. The third application (no. 8007/77) lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 (“the 1983 report”). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission’s 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed. 4. The fourth application, Cyprus v. Turkey [GC] (no. 25781/94, ECHR 2001IV) concerned four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus. As regarded the missing persons and their relatives, the Court adopted the findings of fact of the Commission bearing in mind the latter’s careful analysis of all material evidence including the findings reached by it in its 1976 and 1983 reports (Comm. Rep., 4 June 1999, annexed to the Court’s judgment). Like the Commission, the Court did not consider it appropriate to estimate the number of persons who fell into the category of “missing persons”. The Commission’s findings had been summarised as follows; “25. The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktaş, “President of the TRNC”, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Mr Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission’s earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries. 26. The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims’ relatives.” 19. The Court held that there had been no breach of Article 2 of the Convention by reason of an alleged violation of a substantive obligation under that Article in respect of any of the missing persons (paragraph 130); that there had been a continuing violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances (paragraph 136); that no breach of Article 4 of the Convention had been established (paragraph 141); that there had been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the Greek-Cypriot missing persons in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance (paragraph 150); that no breach of Article 5 of the Convention had been established by virtue of the alleged actual detention of Greek-Cypriot missing persons (paragraph 151); and that it was not necessary to examine the applicant Government’s complaints under Articles 3, 6, 8, 13, 14 and 17 of the Convention in respect of the Greek-Cypriot missing persons (paragraph 153); that there had been a continuing violation of Article 3 of the Convention in respect of the relatives of the Greek-Cypriot missing persons (paragraph 158); and that it was not necessary to examine whether Articles 8 and 10 of the Convention had been violated in respect of the relatives of the Greek-Cypriot missing persons, having regard to the Court’s conclusion under Article 3 (paragraph 161). 20. The facts are disputed by the parties. 21. The first applicant, an ironmonger, was born in 1947; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His wife, the second applicant, was born in 1949 and resided in Lymbia. 22. The applicants were represented by Mr. Achilleas Demetriades, a lawyer practising in Nicosia, under an authority signed by the second applicant in her own name and on behalf of the first applicant. 23. In July 1974 the first applicant, responding to the declared general mobilisation, enlisted as a reservist in the 305 Reservists Battalion which had its headquarters in Dhali village. He continued his service at the outposts of Lymbia until 89 August 1974. On 89 August 1974 all the reserve soldiers of the 305 Reservists Battalion, among them the applicant, were brought to the area of Mia Milia and undertook the manning of Cypriot outposts along the front line with the Turkish military forces which extended between Mia Milia and Koutsovendis. 24. On the morning of 14 August 1974, Turkish military forces, supported by tanks and having air cover, launched an attack against the Cypriot area where the applicant and his battalion were serving, in order to capture the area from them. The Cypriot area line of defence was broken through and the Turkish military forces began advancing towards the area of Mia Milia and as a result the Cypriot forces began retreating. During the retreat that followed, the Cypriot forces dispersed in all directions. After a while the area around was captured by the Turkish military forces and the applicant was cut off in it. As a result the trace of the applicant was lost and he is today still considered to be missing. 25. Mr. Christakis Ioannou of Pano Dhikomo and now of Stavros Refugee Camp Strovolos, who had been a prisoner of the Turkish Military Forces and/or Turkish authorities and was freed, stated that at Adana prison in Turkey, where he had been taken on 31 August 1974 and held, there were another 40 persons in the same room for 34 days. Among them was the applicant. After the said period they were split up and ever since then he has not seen the applicant again. 26. The first applicant, a student, was born in 1954; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His father, the second applicant, was born in 1907 and resided in Nicosia. 27. The applicants are represented by Dr. Kypros Chrysostomides, a lawyer practising in Nicosia, under an authority signed by the second applicant in his own name and on behalf of the first applicant. 28. In July 1974 the first applicant was serving as a Second Lieutenant in the 1st Company of the 256 Infantry Battalion stationed at Xeros, which took part in various operations against the Turkish forces. On about 30 July 1974 the battalion moved up to the Lapithos area in order to support the Greek Cypriot forces there. The soldiers were split up into various groups and the applicant was in charge of one of these. The applicant’s group, consisting of ten men in all, including Stelios Christofi Onoufriou and Xenophon Christoforou (both now missing), as well as Nakis Nicolaou and Petros A. Hadjiyianni, was ordered to take up positions on the Lapithos heights. During their stay at Lapithos the Greek Cypriot forces were continuously attacked by the Turkish forces from all sides. The Greek Cypriot forces remained at their posts defending them until 5 August 1974. 29. On 5 August 1974 Turkish forces launched a strong attack from all sides against the Greek Cypriot forces’ positions while other Turkish troops managed to encircle Lapithos. Because of Turkish superiority in manpower and armour the Greek Cypriot forces were ordered to retreat towards the centre of the village where the Company base was. The applicant arrived with his comrades at the centre of the village and was informed by the inhabitants that Lapithos was surrounded by Turkish troops. Then they hid their weapons in an orchard and subsequently put on civilian clothes which they found in various houses. In the afternoon of 5 August 1974 the applicant with some comrades attempted to break through the Turkish lines and arrive at the Cypriot Government controlled areas. This attempt was unsuccessful and with the exception of Nakis Nicolaou they all returned to Lapithos again where they spent the night. At about 09.00 hours on 6 August 1974 Turkish troops entered Lapithos and started extensive searches from house to house. The applicant and all his comrades were warned by the inhabitants of the village about the searches and they dispersed in order to avoid capture. Since then none of the members of the group has seen the applicant again. 30. Nicos Th. Tampas of the 256 Infantry Battalion and leader of the first group which was manning the Lapithos heights at about 5 August 1974 in a statement mentioned that at approximately 21.00 hours on 6 August 1974, while he was walking in Lapithos looking for his comrades, he entered a warehouse. In it he found the applicant looking after Georghios Allayiotis who was wounded in the head. After talking for a little while with the applicant he went away leaving him and Georghios Allayiotis there. That was the last time that he saw the applicant. He was arrested by the Turks on 9 August 1974 while he was in Lapithos. He was detained in various prisons in Cyprus and Turkey and was released on 22 October 1974. 31. Christodoulos Panyi of Vatyli, now of Strovolos, in his statement declared that while he was a prisoner in the Adana prison he saw and recognised the applicant whom he had known earlier. 32. The first applicant, a student, was born in 1954; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His father, the second applicant, was born in 1929 and resided in Nicosia. 33. The applicants are represented by Dr. Kypros Chrysostomides under an authority signed by the second applicant in his own name and on behalf of the first applicant. 34. In July 1973 the first applicant enlisted with the National Guard in order to do his national service. He was posted with the 70 Engineers Battalion which was stationed at the site of the former British Military Hospital (B.M.H.) in Nicosia. On 5 August 1974, a section of the battalion consisting of 48 men, including the applicant, was sent to Lapithos on a specific mission in the Lapithos and Karavas area (Kyrenia district). The mission began at about noon and finished at about 18.00 hours on the same day. After receiving instructions from the group leader the men spent the night at Lapithos and intended to complete the mission the following morning. 35. At about 04.30 hours on 6 August 1974, the Turkish Army launched a fullscale attack from all sides in the Karavas and Lapithos area. The applicant’s group leader ordered his men to split up into three groups and to withdraw towards Vasilia (also Kyrenia district) where they would all meet. The soldiers split up into three groups under the respective command of the platoon leaders. The applicant was in one of the groups which intended to withdraw following a route along the coast. 36. The men first reached the main NicosiaKyrenia road near the "Airkotissa" restaurant. While they were having a short rest, they heard shouting and the group leader sent the applicant and another soldier to investigate. As they had not returned after about 15 minutes the remainder of the group left for Panagra (also in the Kyrenia district). On their way there, they were ambushed by Turkish soldiers and amidst the fighting and confusion that followed, the remaining group dispersed. Three soldiers from this group, Petros Constantinou (of Morphou, now of Moniatis, Limassol), Panayiotis Alexandrou (of Pera Chorio Nisou, Nicosia) and Manolis Manoli (of Lapithos, now of Engomi, Nicosia), managed to reach their destination. Until that time when the group dispersed, none of its members including the applicant, had been killed, injured or captured by the Turks. 37. Costas A. Sophocleous, of Nicosia, stated that, when he was a prisoner in Turkey from 30 July until 28 October 1974, he met the applicant. They were together in the same prison in Turkey and were subsequently transferred to Cyprus whereupon the said Costas A. Sophocleous was released but not the applicant. 38. Alexandros Papamichael, of Limassol, who was a prisoner in Adana, Turkey, stated that he recognised the first applicant from a photograph that was shown him by the second applicant and he had been with him in the same prison. 39. Finally, the second applicant mentioned in a signed statement that he identified his missing son in a photograph published in "Athinaiki", a Greek newspaper, on 28 September 1974. In this photograph Greek-Cypriot prisoners were shown on a boat en route to Turkey. 40. The first applicant, a photographer, was born in 1953; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His mother, the second applicant, was born in 1914 and resided in Nicosia. 41. The applicants are represented by Mr. Achilleas Demetriades under an authority signed by the second applicant in her own name and on behalf of the first applicant. 42. On 20 July 1974 the first applicant enlisted as a reservist in Nicosia. He was posted in the 1st Company of the 301 Infantry Battalion commanded by Mr. Costas Papacostas. On 21 July he telephoned his mother and told her that he was well and that he was going to be moved to the Kyrenia district. Indeed the whole battalion was ordered to move on the following day to the area of Ayios Ermolaos. The 1st Company took up defensive positions at a height called "Kalambaki", near the Turkish Cypriot village of Pileri. 43. At about 04.30 hours on 26 July 1974 the 1st Company came under attack from the Turkish Cypriot villages of KriniPileri. The Turkish military forces that carried out the attack consisted of a paratroops battalion, twenty tanks, as well as highangle guns. They succeeded in breaking through the Greek Cypriot lines and infiltrated the right flank of the 1st Company in order to encircle it and enclave its men. The commander ordered the Company to regroup at the Greek Cypriot village of Sysklepos. There they were ordered by their battalion to regroup again at Kontemenos where they arrived at about 15.00 hours. After a rollcall they found out that six soldiers of the 1st Company were absent, including the applicant. The area in which the 1st Company had been initially stationed was captured by the Turkish military forces. 44. Mr. Nicos Nicolaou of Strovolos, who was a prisoner at Adana prison (Turkey) in September 1974, stated that one day, when the prisoners were in the yard, a Turk was calling their names. Among other names, he heard the name of the applicant. He saw the applicant whom he happened to know previously. As the applicant was going back to his cell Mr. Nicolaou noticed that he was lame in one leg. On 11 September 1974 Mr. Nicolaou was taken to Antiyiama prison (Turkey) and since then he has not seen the applicant again. 45. The first applicant, a student, was born in 1955; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His mother, the second applicant, was born in 1935 and resided in Limassol. 46. The applicants are represented by Dr. Kypros Chrysostomides under an authority signed by the second applicant in her own name and on behalf of the first applicant. 47. In 1972 the first applicant enlisted in the National Guard to do his military service. He was subsequently promoted to sergeant. 48. On 14 July 1974 the applicant visited his relations at Polemidhia and told them that he would be demobilised on 20 July. He returned to his unit on the same day. On 19 July 1974 he telephoned his father and told him that he would not be released after all because of the coup that had taken place in the meantime. On 22 July 1974 the applicant’s father was informed by Nicos Hadjicosti, a Limassol factory owner, that he had seen his son at the company’s headquarters at Synchari and that he was well. On 23 July 1974 the father of the applicant was informed by Andreas Komodromos that the applicant had left Synchari with the men of the Headquarters Company and had gone to Aglandjia. 49. On 24 July 1974 Nikiforos Kominis with 17 soldiers, including the applicant and Efthymios Hadjipetrou, set out from Aglandjia in two vehicles to reconnoitre the ground of the KoutsoventisVounos area. Among them were Phaedros Roussi and Yiannis Melissis. After Kominis had marked the Turkish positions on paper, he went at about 12.00 hours to the headquarters of one of the Commando Units in order to relay by telephone the results of the reconnaissance mission. After twenty minutes three buses were seen driving on a street from the direction of Vounos village. At about the same time a Greek officer by the name of Votas accompanied by three other soldiers went near the men of the reconnaissance patrol. The officer ordered three or four soldiers to come down on the street and search the buses. The buses were full of Turkish soldiers who started firing at the Greek-Cypriot men as soon as they became aware of their nationality. The applicant was wounded in the right hand and on the left side of his ribs. Mr. Andreas Komodromos cleaned his wounds with water, loaded his gun and told him to go back, which he did. After that the applicant was not seen again by his unit. 50. According to the statement of Yiannis Melissis, who had been a prisoner of the Turks at Adana and Amasia in September 1974, he happened to meet the applicant during his captivity. They both stayed with others in Cell No. 9 until 18 September. They were chatting together every day and became friends. On 18 September Yiannis Melissis was brought back to Cyprus and was released on 21 September 1974. The applicant had given him a letter to the applicant’s father which he forgot in his pocket in the clothes that he changed at the Hotel and Catering School in Nicosia. All those clothes belonging to the prisoners were burned. 51. The second applicant in her statement mentioned that she had recognised her son in a photograph that was published in the Greek newspaper "Athinaiki" on 28 September 1974. The photograph shows Cypriot prisoners transported to Turkey on a Turkish destroyer in July 1974. 52. The first applicant, a car mechanic, was born in 1951; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His father, the second applicant, was born in 1921 and resided in Strovolos. 53. The applicants are represented by Mr. Achilleas Demetriades under an authority signed by the second applicant in his own name and on behalf of the first applicant. 54. In July 1974, in response to the general mobilisation, the first applicant enlisted as a reserve sergeant in the Headquarters Company of the 251 Infantry Battalion stationed at Glykiotissa, Kyrenia, with Captain Michael Polycarpos in charge. 55. On the morning of 20 July 1974 Turkish military forces, supported by naval units and having air cover, succeeded in landing with their armour. All the men of the Headquarters Company, including the applicant, were trying during the whole of the day to prevent the Turkish landing which was taking place in the area of "Pikro Nero", Kyrenia. At around 12.00 hours on 21 July the Turkish military forces which had landed, supported by tanks and having air cover, attacked the Cypriot forces that were defending the area. Owing to the superiority of the Turkish military forces in men as well as in weapons the 251 Infantry Battalion was ordered to retreat towards Trimithi village. The applicant was present during the regrouping of the battalion. Two hours after the regrouping the commander of the battalion (who went missing with 4050 other soldiers, including the applicant serving as the commander’s driver) led his men out of Trimithi village, reaching a ravine between the villages of Ayios Georghios and Templos where they took up battle positions. A number of commandos of the 33rd Battalion arrived in the same ravine. At around 15.00 hours on 22 July 1974, Turkish military forces surrounded the Cypriot forces in the ravine (between Ayios Georghios and Templos) and opened fire against them with all their guns. Then the commander ordered a counterattack intending to break through the Turkish military forces’ lines and at the same time to retreat towards Kyrenia. During the counterattack and the retreat the applicant’s trace was lost. 56. On 4 September 1974 the "Special News Bulletin" a daily issue of the Turkish Cypriot administration published a photograph of Greek-Cypriot prisonersofwar under the caption "GreekCypriot prisonersofwar having their lunch. Yesterday they were visited by a representative of the Turkish Red Crescent. He toured all the prisonersofwar camps in the area of the island under the Turkish control, in order to ascertain the needs of the prisoners." In that photograph four of the prisoners were identified. Among them was the first applicant who was identified by the second applicant. 57. A former prisoner, Mr. Efstathios Selefcou, of Elio, now at Eylenja, in a signed statement to the Cypriot Police said that during his transportation from Cyprus to Turkey he saw and talked to the first applicant whom he knew very well since they had been together at secondary school. 58. All abovementioned prisoners had been taken to Adana prison and since that time the applicant had been missing. 59. The first applicant, a bank employee, was born in 1938 and lived at Yialousa; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His wife, the second applicant, was born in 1938 and resided in Nicosia. 60. The applicants are represented by Dr. Kypros Chrysostomides under an authority signed by the second applicant in her own name and on behalf of the first applicant. 61. On 18 August 1974 about three or four saloon cars as well as a bus and two tanks, all full of Turkish and Turkish Cypriot soldiers turned up at Yialousa and stopped near the police station, along the main road. The soldiers got out of their vehicles and ordered all those who were there to gather at the nearby coffeehouse of Christos Malakounas. About 35 persons gathered there. Subsequently, a Turkish officer told them that from that time they would be under Turkish administration and ordered them to make a census of the Greek Cypriot inhabitants of the village starting from the age of 7 to 70 and that he would be back on the following day to collect the lists. On the following day, the same civilian and military vehicles (tanks) returned and parked near the police station. A number of Turks got off, marched to Malakounas coffeehouse and asked for the lists. Another group of Turkish soldiers were carrying out a housetohouse search. They imposed a curfew and, having taken the lists, they took with them for questioning nine persons, including the first applicant. They put them on a bus and drove them outside the village in the direction of Famagusta. The said Greek Cypriots were still missing. 62. On the same day, the village of Yialousa was visited by United Nations men to whom the arrest of the nine Greek Cypriots was reported by their covillagers. 63. According to the applicants, Representatives of the International Red Cross in Cyprus visited Pavlides Garage in the Turkishoccupied sector of Nicosia and on 28 August 1974 recorded the names of 20 Greek Cypriots held there, including the nine persons from Yialousa (citing document EZY284D). Costas M. Kaniou, Sofronios Mantis, Ioannis D. Constantis also saw the said detainees at the Pavlides Garage, during the same period that they were detained there; they were released later. 64. On 27 August 1974 a group of Turkish Cypriot civilians came to Yialousa looking for Pentelis Pantelides, Loizos Pallaris, Michael Sergides and Christakis Panayides. Having found them, they led them to the Savings Bank in order to search and seal the building. They all entered the building. After having emptied two safes they ordered that the third one should be opened, but they were told that the keys were with the applicant. Subsequently they left, after having shut and sealed the outside door. After 1012 days the same group looked for the same persons and went again to the bank building. They had the two keys for the safe which the applicant always carried with him. Loizos Pallaris opened the safe. The keys were in a leather case which the applicant had, but his personal keys were not included. The Turkish Cypriots took the contents of the safe, sealed the gate and left. 65. The first applicant, a moulder, was born in 1955; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His father, the second applicant, was born in 1928 and resided in Strovolos. 66. The applicants are represented by Mr. Achilleas Demetriades under an authority signed by the second applicant in his own name and on behalf of the first applicant. 67. In 1974 the first applicant was doing his national service in the 70 Engineers Battalion stationed at the site of the former British Military Hospital (B.M.H.) in Nicosia. On 5 August 1974 a section of the battalion consisting of 48 men, including the applicant, was sent to Lapithos on a specific mission in the Karavas and Lapithos area. The mission began at about noon and was completed at about 18.00 hours the same day. After receiving instructions from the section leader, Efstratios Katsoulotou, the men spent the night at Lapithos and intended to complete their mission the following morning. At about 04.30 hours on 6 August 1974 the Turkish military forces launched a fullscale attack from all sides in the area of Karavas and Lapithos. The Commander of the Engineers ordered his men to split up into three groups, withdraw towards Vasilia and meet there. The three groups set off intending to reach the prearranged point. On their way they were ambushed by the Turkish military forces. Because of the Turkish military forces’ fire and the confusion that followed all the Engineers dispersed. Up to the time of the dispersion no member of the group had been killed, injured or captured by the Turkish military forces. 68. Later on Mr. Costas Themistocleous of Omorphita, now of Nicosia, who was taken as a prisoner to Adana prison in Turkey, saw the applicant there on or about 17 October 1974, while he was about to return to Cyprus. They did not speak to each other but waved. Mr. Themistocleous recognised the applicant since he had known him since they were children. 69. The first applicant, a worker, was born in 1947; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His wife, the second applicant, was born in 1949 and resided in Limassol. 70. The applicants are represented by Mr. Achilleas Demetriades under an authority signed by the second applicant in her own name and on behalf of the first applicant. 71. On 20 July 1974, following the general mobilisation, the first applicant enlisted as a reservist in the 399 Infantry Battalion stationed at Bogazi, Famagusta. He was put in the Support Company of the Battalion (B.C.S.C.). On 20 July the battalion captured the Turkish Cypriot village of Chatos. On 22 July the battalion moved to the Mia Milia area to reinforce the Greek Cypriot forces there and to man the Greek-Cypriot outposts on the front line. 72. On the morning of 14 August 1974 Turkish military forces, supported by tanks and having air cover, launched a heavy attack against the Greek- Cypriot forces in the area, where the applicant was with his battalion, intending to occupy the area. Owing to the superiority of the Turkish military forces the Greek-Cypriot defence line was broken, the Turkish military forces began to advance towards the Mia Milia area, and the Greek Cypriot forces began to retreat. The area was, in a short while, occupied by the Turkish military forces and the applicant was enclaved in it. His trace was lost. 73. The exprisoner of war, Mr. Costas Mena of Palaekythro, now at Koracou, stated that during his detention at Antiyama, Turkey, he saw the applicant who was detained in cellblock No. 9. On 18 October 1974 all the prisoners at Antiyama were taken to Adana. There they were all lined up in four rows. A Turkish military officer walked in front of the line and picked out some of the prisoners, who were taken away from the line. From the first row the applicant was picked out and taken away. Since then Mr. Mena has not seen the applicant ever again and he has been missing until today. 74. The respondent Government disputed that the applicants had been taken into captivity by the Turkish army during the military action in Cyprus in 1974. They considered that the inevitable conclusion from the information provided in the application forms was that all the alleged "missing persons", except for Savvas Hadjipanteli, were military personnel who died in action in July-August 1974. 75. The Government noted that, since the introduction of these applications, files relating to the same “missing persons” had been submitted by the Government of Cyprus to the Committee on Missing Persons (CMP) in Cyprus during 1994 and 1995. In these files there were no assertions that these people had been seen in any of the alleged prisons in Turkey. The names of the alleged witnesses listed in application nos. 16064/90 (Christakis Iannou), 16065/90 (Christodoulos Panayi), 16066/90 (Costa Sophocleous), 16068/90 (Nicos Nicolaou), 16069/90 (Yiannis Melissis), 16070/90 (Efstathios Selefcou), 16073/90 (Costas Themisthocleous) and 16073/90 (Costas Mena) were not cited in support. The alleged sightings were therefore without foundation. 76. As regarded Savvas Hadjipanteli (no. 16071/90), who was a civilian, the Government noted that the International Red Cross had visited the Pavlides Garage where he had allegedly been held but his name, contrary to the applicants’ assertion, did not appear in the list of Greek Cypriots held. In any event, it was a transit centre where people were not held for more than a few days before being released or moved elsewhere. In the file submitted to the CMP, there is only a reference to witnesses seeing the key case which he was alleged to carry continually on his person. The materials of the ICRC who paid regular visits to prisoners and internees in Turkey also showed that none of the alleged missing persons had been brought to Turkey or detained. All prisoners that had been taken to Turkey were repatriated between 16 September 1974 and 28 October 1974 and lists of those concerned were handed over to the Greek-Cypriot authorities. 77. As concerned the alleged identification of the missing persons in photographs, the Government pointed out that a scientific investigation of certain published photographs and documentary film had been carried out by Professor Pierre A. Margot of the Institute of Forensic Science and Criminology of the Law Faculty of the University of Lausanne at the request of the Third Member of the CMP. This had shown that it was extremely dubious that anyone could be identified from these documents and that any alleged identification by relatives was unreliable given the quality of the material and their emotional feelings. 78. The Government of Cyprus submitted that the first applicants went missing in areas under the control of the Turkish forces. 79. These two applicants had been brought with their units to the area of Mia Milia to man Cypriot outposts along the front line. On 14 August Turkish armed forces launched the attack which gained them control over the whole of northern and eastern Cyprus by 16 August. The attack on Mia Milia involved ground forces supported by tanks and air cover. When the Turkish forces broke through the Cypriot line of defence and advanced on Mia Milia, the Cypriot forces retreated and dispersed in all directions. The Turkish forces rapidly controlled the entire surrounding area. Many Greek Cypriot soldiers, including the two applicants, were cut off and completely surrounded. They could not have escaped as the intervening Government would have known of their fate. If they were either killed or wounded in the area under Turkish control, the respondent Government was under an obligation to explain what happened to them. 80. This first applicant was in charge of soldiers amongst those defending Lapithos. After the Turkish forces encircled Lapithos, the Greek-Cypriot forces were ordered to retreat. The applicant’s group hid their weapons, put on civilian clothing and unsuccessfully tried to break out of the village. When the Turkish forces entered the village next morning, the applicant’s group dispersed to avoid capture. At about 21.00 hours on 6 August, the applicant was seen by Nicos Th. Tampas in a warehouse tending a soldier injured in the head (George Allayiotis, also still missing). Tampas was later captured and detained. His was the last reported sighting of the first applicant. It was most likely that the first applicant had remained with the injured man and was taken into detention by the Turkish forces who were in control of the entire area. Only one man was known to have escaped from the village and he, unlike the first applicant, had local knowledge of the terrain. 81. Under attack from the Turkish army, the first applicant’s unit was ordered to split into three group’s and withdraw westwards. The applicant’s group reached the Nicosia-Kyrenia road, 200 metres from the Airkotissa restaurant where they had a short rest. The applicant and another man were sent to investigate shouting coming from the restaurant. After 15 minutes when they did not return, the group left for Panagra. They were ambushed en route – six of them managed to escape and the rest were all missing. At the time that the applicant and the other soldier were sent to the restaurant, there were clearly Turkish forces in the area. The most plausible explanation for the two men not returning, in the absence of any sound of fighting or shooting, was that they had been detained, either to prevent them giving away the Turkish positions, for information or as prisoners of war. 82. On 26 July 1974 the first applicant was discovered to be missing from his unit at roll call after they had broken through an encircling manœuvre by Turkish forces. The area in which his unit had been stationed was captured by Turkish forces. It was not known whether the applicant was injured and detained or injured and died of injuries or killed at once. Whatever happened to him however occurred in an area controlled by the Turkish forces. The respondent Government had been under an obligation to notify the Cypriot Government as to what had happened to him but had not done so. 83. This applicant was seen wounded in his right hand and the left side of the ribs after a clash between Greek-Cypriot forces and three buses full of Turkish soldiers coming from Vounos village. His wounds were cleaned by a witness Komodromos and he was told to make his way uphill with two other men, one of whom was also injured, to the monastery where the Greek Cypriot forces were. The other two men were later found by the same man who went to get help. The Greek Cypriot forces could not however reach them due to the presence of Turkish forces. The other two men were discovered dead two days later when the Turkish forces withdrew. It was clear that the applicant was found either dead by the Turkish forces or else found and detained in an injured condition. The latter was more likely. However the respondent Government had not provided information about either the finding of a dead combatant or the detention of a wounded prisoner of war. 84. This applicant was amongst those attempting to prevent the invasion of Kyrenia. Some individuals were identified as killed in the operation; the applicant was not amongst them. The respondent Government had not provided information that the applicant was found dead or otherwise and the intervening Government had no evidence that this applicant was dead. It had to be assumed that the applicant had been detained alive. 85. This was further corroborated by the photograph published in the "Special News Bulletin" issued daily by the Turkish Cypriot administration on 4 September, of Greek Cypriot prisoners-of-war having their lunch. Four prisoners in the photograph had been identified. The first applicant was identified by his father, the second applicant. This identification took place at the time, not with the benefit of hindsight and no other person has suggested that the photograph was of someone else. 86. By 16 August Turkish forces were in control of the northern and eastern Cyprus including the Karpas peninsula where the first applicant worked as general cashier in the Savings Bank in Yialousa. On 18 August Turkish and Turkish Cypriot soldiers arrived in the village and a Turkish officer ordered a census of the Greek Cypriots between 7 and 70 years of age. The next day, the lists were handed over and Turkish soldiers carried out searches. They left, taking with them on a bus, nine individuals, including the first applicant. This was reported by fellow villagers. 87. On 27 August, after the applicant had been detained nine days, Turkish Cypriot civilians came to the village asking for four named individuals, two of whom worked at the Savings Bank. They took the four men to the bank and searched it. They emptied two safes and were told that the applicant had the keys to the third. After 10-12 days the Turkish Cypriots returned, looking for the two bank employees. They had the two keys for the remaining safe which the first applicant had always carried with him: the keys were in a leather case belonging to the applicant although his own personal keys had been removed. The Turkish Cypriots took the contents of the safe. It was highly probable that the Turkish Cypriots had obtained the keys from those holding the first applicant, showing that he was alive and in detention for at least nine days. There was some evidence that he was detained after those nine days, at least until 28 August, at the Pavlides garage. 88. This first applicant withdrew with his section from Lapithos towards Vasilia. They were ambushed by Turkish military forces and dispersed on account of the fighting and confusion. There has been no news of the applicant since. The Turkish forces were in sufficient control of the area to undertake a successful ambush. The intervening Government had no knowledge of the first applicant, which meant that he had not escaped. Nor was there any evidence that he was killed in the ambush. It was overwhelmingly likely that he had been detained by the Turkish armed forces. 89. In 2007, in the context of the activity of the Committee of Missing Persons (see below paragraphs 90-102) human remains were exhumed from a mass grave near the Turkish Cypriot village of Galatia in the Karpas area. After anthropological and genetic analyses, the remains of applicant, Savvas Hadjipanteli (application no. 16071/90, see paragraphs 59-64, 76, 86-87 above) were identified, along with the remains of the other eight missing persons from Yialousa village and two other missing Greek Cypriots. The bodies of the nine missing persons from Yialousa were lined up next to each other in the grave, with two other bodies on top at a shallower depth. Several bullets from firearms were found in the grave. The medical certificate issued on 12 July 2007 in regard to Savvas Hadjipanteli, indicated a bullet wound to the skull, a bullet wound in the right arm and a wound on the right thigh. His family was notified and a religious funeral took place on 14 July 2007. 90. The following paragraphs are taken from the Commission’s Report in the interstate case (paragraphs 181-190): 91. The CMP was set up in 1981. According to its terms of reference, it “shall only look into cases of persons reported missing in the intercommunal fighting as well as in the events of July 1974 and afterwards.” Its tasks have been circumscribed as follows: “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are alive or dead, and in the latter case approximate time of the deaths.” It was further specified that “the committee will not attempt to attribute responsibility for the deaths of any missing persons or make findings as to the cause of such deaths” and that “no disinterment will take place under the aegis of this committee. The committee may refer requests for disinterment to the ICRC for processing under its customary procedures.” “All parties concerned” are required to co-operate with the committee to ensure access throughout the island for its investigative work. Nothing is provided as regards investigations in mainland Turkey or concerning the Turkish armed forces in Cyprus. 92. The CMP consists of three members, one “humanitarian person” being appointed by the Greek-Cypriot side and one by the Turkish-Cypriot side and the third member being an “official selected by the ICRC... with the agreement of both sides and appointed by the Secretary-General of the United Nations”. 93. The CMP has no permanent chairman, the presidency rotating on a monthly basis between all three members. Decisions are to be taken by consensus to the extent possible. According to the procedural rules agreed upon in 1984, the procedure is to be conducted as follows: "1. Individual or collective cases will be presented to the CMP with all possible information. The CMP will refer each case to the side on whose territory the missing person disappeared; this side will undertake a complete research and present to the CMP a written report. It is the duty of the CMP members appointed by each side, or their assistants, to follow the enquiries undertaken on the territory of their side; the third member and/or his assistants will be fully admitted to participate in the enquiries. 2. The CMP will make case decisions on the basis of the elements furnished by both sides and by the Central Tracing Agency of the ICRC: presumed alive, dead, disappeared without visible or other traceable signs. 3. If the CMP is unable to reach a conclusion on the basis of the information presented, a supplementary investigation will be undertaken at the request of a CMP member. The third CMP member and/or his assistants will participate in each supplementary investigation, or, as the case may be, investigators recruited by the CMP with the agreement of both sides." 94. The 1984 rules state as “guiding principles” that “investigations will be conducted in the sole interest of the families concerned and must therefore convince them. Every possible means will be used to trace the fate of the missing persons.” The families of missing persons may address communications to the committee which will be passed on to its appropriate member. That member will eventually provide the family with "final information as to the fate of a particular missing person", but no interim information must be given by any member of the committee to the family of a missing person during the discussion of a particular case. 95. The committee’s entire proceedings and findings are strictly confidential, but it can issue public statements or reports without prejudice to this rule. According to the 1984 procedural rules, a press release will be issued at the close of a meeting or series of meetings and occasional progress reports will also be published. Individual members may make additional statements to the press or the media, provided they comply with the rule of confidentiality, avoid criticism or contradiction to the joint statement and any kind of propaganda. 96. Due to the strict confidentiality of the CMP’s procedure, no detailed information about the progress and results of its work is available. However, from the relevant sections of the regular progress reports on the UN Operation in Cyprus submitted by the UN Secretary-General to the Security Council it appears that the committee’s work started in May 1984 with a limited, equal number of cases on both sides (Doc. S/16596 of 1.6.1984, para. 51); that by 1986 an advanced stage had been reached in the investigation of the initial 168 individual cases, supplementary investigations being started in 40 cases in which reports had been submitted (Doc. S/18102/Add. 1, of 11 June 1986, para. 15); and that, while no difficulties were encountered as regards the organisation of interviews or visits in the field, real difficulties then arose by the lapse of time and, even more importantly, lack of cooperation by the witnesses. 97. This prompted the committee to issue a lengthy press release on 11 April 1990 (Doc. S/21340/Annex). There the committee stated that it considered the co-operation of the witnesses as absolutely fundamental, but that the witnesses were often reluctant, unwilling or unable to give full information as to their knowledge about the disappearance of a missing person. However, the committee could not compel a witness to talk. The explanation of the witnesses’ reluctance to testify was that they were afraid of incriminating themselves or others in disappearances, and this despite the witnesses being told by the committee that the information given would be kept strictly confidential and being reassured that they would “not be subject to any form of police or judicial prosecution”. The committee appealed to the parties concerned to encourage the witnesses to give the very fullest information in their knowledge. It further stated: "In order to further allay the fears of the witnesses, the Committee, so as to give the strongest guarantees to the witnesses, is examining measures that could be taken to ensure that they would be immune from possible judicial and/or police proceedings solely in connection with the issue of missing persons and for any statement, written or oral, made for the Committee in the pursuit of activities within its mandate." 98. In the same press release, the committee pointed out that it considered as legitimate the desire of the families to obtain identifiable remains of missing persons. However, despite systematic enquiries on burial places of missing persons, on both sides, it had not been successful in this respect. It recalled that according to its terms of reference it could not itself order disinterments. Moreover, while there was access to all evidence available, the committee had not reached the stage of finding a common denominator for the appreciation of the value of this evidence. Finally, the committee stated that it was considering the possibility of requesting that the two sides furnish it with basic information concerning the files of all missing persons, so as to allow it to have a global view of the whole problem. 99. In December 1990, the UN Secretary-General wrote a letter to the leaders of both sides observing that so far the committee had been given details on only about 15 % of the cases and urging them to submit all cases. He further emphasised the importance of reaching consensus on the criteria that both sides would be ready to apply in their respective investigations. Moreover, the committee should consider modalities for sharing with affected families any meaningful information available (Doc. S/24050, of 31 May 1992, para. 38). On 4 October 1993, in a further letter to the leaders of both communities the UN Secretary-General noted that no improvement had been made and that the international community would not understand that the committee, nine years after it had become operational, remained unable to function effectively. Only 210 cases had been submitted by the Greek-Cypriot side and only 318 by the Turkish-Cypriot side. He again urged both sides to submit all cases without further delay and the committee to reach a consensus on the criteria for concluding its investigations (Doc. S/26777, of 22 November 1993, paras. 88 - 90). 100. On 17 May 1995 the UN Secretary-General, on the basis of a report of the CMP’s third member and proposals by both sides, put forward compromise proposals on criteria for concluding the investigations (Doc. S/1995/488, of 15 June 1995, para. 47), which were subsequently accepted by both sides (Doc. S/1995/1020, of 10 December 1995, para. 33). By December 1995, the Greek Cypriot side submitted all their case files (1493). However, the committee’s third member withdrew in March 1996 and the UN Secretary-General made it a condition for appointing a new one that certain outstanding questions, including classification of cases, sequence of investigations, priorities and expeditious collection of information on cases without known witnesses, be settled beforehand (Doc. S/1996/411, of 7 June 1996, para. 31). After being repeatedly urged to resolve these issues (Doc. S/1997/437, of 5 June 1997, paras. 24 -25), both parties eventually came to an agreement on 31 July 1997 on the exchange of information on the location of graves of missing persons and return of their remains. They also requested the appointment of a new third member of the CMP (Doc. S/1997/962, of 4 December 1997, paras. 21 and 29-31). However, by June 1998, no progress had been made towards the implementation of this agreement. The UN Secretary-General noted in this context that the Turkish-Cypriot side had claimed that victims of the coup d’état against Archbishop Makarios in 1974 were among the persons listed as missing and that this position deviated from the agreement (Doc. S/1998/488, of 10 June 1998, paras. 23). 101. A new third member of the CMP had, by the time of the Commission’s report, been appointed (ibid. para. 24). The Committee has not completed its investigations and accordingly the families of the missing persons have not been informed of the latter’s fate. 102. In 2006 the CMP began a substantial exhumation project on identified burial sites with a view to identifying the remains of bodies and ensuring their return to their families. A special unit to provide information to families had also been set up. Some 160 sets of bones had been submitted for analysis and identifications of missing persons, including Savvas Hadjipanteli, had been made and were likely to continue. | 1 |
train | 001-77074 | ENG | RUS | ADMISSIBILITY | 2,006 | SIROTIN v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Nikolay Ivanovich Sirotin, is a Russian national, who was born in 1951 and lives in the village of Donskoy of the Zernogradskiy District of the Rostov-on-Don Region. The respondent Government are represented by Mr P. Laptev, the 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. In 2003 the applicant lodged a civil action against the Zernogradskiy District Social Security Service (hereafter – the Service), seeking payment of pension arrears and increase of his monthly pension. On 2 June 2003 the Zernogradskiy District Court of the Rostov Region awarded the applicant 14,687.50 Russian roubles (RUR, approximately 409 euros) in pension arrears, and monthly payments of 3,937.50 RUR (approximately 110 euros). The court also held that the applicant’s monthly pension was to be adjusted in line with the minimum monthly wage. On 16 July 2003 the Rostov-on-Don Regional Court upheld the judgment. Enforcement proceedings were instituted on 4 August 2003. However, the Service continued to underpay the applicant monthly pension. At the time the application was communicated, the applicant claimed that the judgment of 2 June 2003 remained unenforced. According to the Government, on 11 December 2003 the Zernogradskiy District Social Security Service credited RUR 24,750 to the applicant’s account. Since January 2004 the applicant has received monthly pension of RUR 3,937.50. | 0 |
train | 001-22548 | ENG | SVK | ADMISSIBILITY | 2,002 | SKALA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Jozef Skála, is a Slovakian national, who was born in 1944 and lives in Žilina. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was a member of the Corps of National Security (“the police”) from 1964. He was attached to the State Security Service, the then secret police. The National Security Corps Service Act of 1970 entitled members of the police, in case of their dismissal, to several allowances the amount of which depended on the duration of their service in the police. On 31 December 1990 the applicant was dismissed for redundancy pursuant to Section 100 (1) (a) of the National Security Corps Service Act of 1970, as amended. Prior to the applicant’s dismissal, on 10 May 1990, the aforesaid Act was amended in that, pursuant to Section 114a (3), members of the police who were dismissed for redundancy between 9 May 1990 and 31 December 1990 were not entitled to the above allowances. On 30 May 1995 the applicant filed a petition to the Constitutional Court pursuant to Article 130 (3) of the Constitution. He alleged that his fundamental rights were violated in that, as a result of enactment of Section 114a of the National Security Corps Service Act of 1970, he was deprived of allowances to which he had been entitled, in case of dismissal, throughout his previous service in the police. The applicant explained that he had unsuccessfully requested persons who had standing to do so to bring proceedings before the Constitutional Court with a view to having the conformity of the relevant law with the Constitution determined. On 12 July 1995 the Constitutional Court rejected the petition as being manifestly ill-founded. The decision stated that in the applicant’s case there was no appearance of a violation of rights which the Constitutional Court could examine in proceedings under Article 130 (3) of the Constitution. In a letter of 26 February 1996 the president of the Constitutional Court informed the applicant, in reply to the latter’s complaint, that the Constitutional Court lacked jurisdiction to examine whether a law was in conformity with the Constitution in proceedings brought under Article 130 (3) of the Constitution. On 4 September 1996 the applicant claimed, before the Žilina District Court, compensation for damage caused by the above amendment to the National Security Corps Service Act of 1970. The applicant requested that the District Court seize the Constitutional Court with the preliminary issue whether or not Section 114a of the National Security Corps Service Act of 1970 was in conformity with the Constitution. On 5 May 1997 the Žilina District Court dismissed the applicant’s request that the proceedings concerning his claim for damages be stayed and that the preliminary question be submitted to the Constitutional Court. The decision stated that the District Court did not share the applicant’s view that Section 114a of the National Security Corps Service Act of 1970, as amended on 10 May 1990, was contrary to the Constitution, or to any law or to any international treaty to which the Slovak Republic was a party as required by Article 109 (1) (b) of the Code of Civil Procedure. On 30 September 1997 the Žilina Regional Court upheld the District Court’s decision of 5 May 1997. On 19 January 1998 the Žilina District Court delivered a judgment by which it dismissed the applicant’s claim for damages. The District Court noted that the applicant did not complain that his former employer had acted unlawfully when it had not paid the allowances in question to the applicant upon the termination of his service in the police. The decision stated that the aim of the applicant’s action was to invalidate Section 114a of the National Security Corps Service Act of 1970. As the applicant had failed to show that the defendant - the Slovak Republic represented by the Ministry of the Interior - had caused damage to him, his action could not be granted. The applicant appealed and claimed that the question whether Section 114a of the of the National Security Corps Service Act of 1970 was in conformity with the Constitution should first be determined by the Constitutional Court. On 28 July 1998 the Žilina Regional Court upheld the District Court’s judgment of 19 January 1998. Article 130 (3) of the Constitution, as in force at the relevant time, provides that the Constitutional Court may start proceedings upon a petition (“podnet”) lodged by legal or natural persons alleging a violation of their rights. In accordance with the Constitutional Court’s practice (decision I. ÚS 96/93 of 16 November 1993), the Constitutional Court cannot proceed with a petition under Article 130 (3) of the Constitution when the issue to be determined depends on the assessment whether or not a law is in conformity with the Constitution as such proceedings can be brought only by one fifth of the Members of Parliament, by the President of the Slovak Republic, by the Government, by a court (in the context of examination of a case pending before it) or by the General Prosecutor. Pursuant to Article 109 (1) (b) of the Code of Civil Procedure, a court shall suspend proceedings when it comes to the conclusion that a generally binding legal rule concerning the subject-matter of the case before it is contrary to the Constitution, to a law or to an international treaty by which the Slovak Republic is bound. In such a case the issue concerning the possible conflict of laws shall be submitted for adjudication to the Constitutional Court. | 0 |
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