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train | 001-108590 | ENG | RUS | CHAMBER | 2,012 | CASE OF FETISOV AND OTHERS v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - finding of violation sufficient | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 6. All the applicants were held in various Russian remand prisons at some point in time. Their individual circumstances are detailed below. 7. The applicant in case no. 43710/07, Mr Andrey Anatolyevich Fetisov, is a Russian national who was born in 1967. 8. On 22 August 2006 Mr Fetisov was arrested on suspicion of drugtrafficking. Following a period of initial detention at the Gukovo town police ward (изолятор временного содержания г. Гуково), on 30 August 2006 he was transferred to remand prison IZ-61/3 of Novocherkassk in the Rostov Region. On various dates between 9 October and 12 December 2006 Mr Fetisov effected further short stays in the Gukovo ward. 9. On 20 March 2007 Mr Fetisov was found guilty of drug-trafficking at last instance and sentenced to nine years’ imprisonment. On 17 May 2007 he left the remand prison for transfer to a correctional colony. 10. In prison IZ-61/3, Mr Fetisov stayed the first night in cell 168, one week in cell 181, and subsequently in cells 245 (after 28 September 2006) and 291 (after 12 December 2006). The last two cells measured 19 and 34 square metres, respectively. 11. The parties disagreed on the number of sleeping places and detainees. According to the Government, cell 245 had four places, and cells 181 and 291 eight places each. Mr Fetisov submitted that all the cells had twice as many places. 12. In the Government’s submission, cell 245 accommodated “up to four persons”, and cells 181 and 291 – “up to eight persons”. Mr Fetisov asserted that cell 245 housed up to twenty inmates and cell 291 up to twenty-five. 13. The Government produced in evidence certificates showing the number of beds and detainees, issued by the prison governor on 29 June 2009, and three pages from the prison population register. The extracts show that on 20 September 2006 an eight-person cell 181 accommodated eight inmates, that on 28 September 2006 a four-person cell 245 housed four inmates, and that on 13 December 2006 an eight-person cell 291 held eight detainees. It does not appear that the design capacity was exceeded in any other cells within the prison on those dates. 14. Mr Fetisov submitted eight written statements from his co-detainees dated 19 October and 7 November 2007. Each of them stated that he had been detained in cell 291 together with Mr Fetisov and that the cell had measured approximately 40 square metres, had been equipped with 16 beds and had actually accommodated 20 to 25 prisoners. There had been no ventilation and frequent interruptions of the water supply. Further to the Court’s request, the Government produced the cell records for those individuals from which it appears that six of them had shared cell 291 with Mr Fetisov from 12 December 2006 until January or February 2007, the seventh inmate from 26 December 2006 to 22 March 2007, and the eighth person from 22 April to 17 May 2007. 15. The applicant in case no. 6023/08, Mr Valeriy Viktorovich Savinov, is a Russian national who was born in 1957. 16. On 4 February 2006 Mr Savinov was arrested on a charge of kidnapping and placed in a temporary detention ward in Kazan. On 13 February 2006 he was transferred to remand prison IZ-16/1 of Kazan in the Tatarstan Republic. 17. In prison IZ-16/1, Mr Savinov stayed in cells 7 (until 12 April 2006), 15 (until 25 September 2006), 5 (until 2 October 2006), 11 (until 9 October 2006), 8 (until 11 February 2007), and 68 (until 20 August 2007). On the latter date he was transferred to a prison in Moscow. On 11 October 2007 Mr Savinov was convicted at last instance and subsequently sent to serve his sentence in a correctional colony. 18. The cells presented the following characteristics: cell 7: 40 square metres and 10 sleeping places; cell 15: 25 square metres and 6 sleeping places; cells 5 and 11: 20 square metres and 5 sleeping places; cells 8 and 68: 16 square metres and 4 sleeping places. 19. The parties disagreed on the number of detainees who had been held together with Mr Savinov. 20. The Government submitted that “the number of detainees had not exceeded the number of beds”, relying on the certificates issued by the prison governor on 29 June 2009. They also produced four statements by prison warders (two undated and the other two dated 24 June 2009), according to which Mr Savinov had had a personal sleeping place and bed linen, and fourteen statements by detainees, including Mr P. (all dated 24 June 2009) who had been held in cells 5, 7, 8, 11, 15, 67 and 68 during various periods of time in 2008 and 2009. Finally, they enclosed extracts from the prison population register of prison IZ-16/1, covering one day per month in the period from February 2006 to January 2008. The extracts showed that during the respective periods of Mr Savinov’s stay, cell 7 housed 8 to 10 persons, cell 15 – 5 or 6 persons, cells 5 and 11 – 5 persons, cells 8 and 68 – 3 or 4 persons, and that the total prison population had varied but never exceeded 586 persons. 21. Mr Savinov claimed that the Government had falsified the documents concerning the number of detainees. He prayed in aid an article, entitled The Kazan Jailhouse: the Past and the Present, published in Issue 10, October 2006, of Crime and Punishment, a magazine of the Federal Penitentiary Service. The relevant extracts read as follows: “Prison no. [IZ-16/]1 with a design capacity of 600 persons currently houses 780 suspects and defendants. Thus, the overcrowding is still significant... Renovation and construction works are in full swing. In January 2005 a new wing with 120 places was put in operation... The conditions are fully compatible with European standards: wooden floors in cells, mirrors above sinks, isolated toilets, radios, TV sets, shower stalls on each floor. This wing... accommodates underage detainees...” (page 51) 22. Mr Savinov listed the names (five full names and two first names) of the co-detainees, including Mr P., with whom he stayed in cell 68 from 26 November 2007 to 28 January 2008. He submitted that he had shared the bed with Mr P. on the second tier of the bunk beds. Further to the Court’s request for information, the Government submitted cell records in respect of five inmates whose full names were listed. It appears that only three of them had actually shared cell 68 with Mr Savinov. The first names of the remaining two detainees were insufficient for reliable identification. 23. The applicant in case no. 11248/08, Mr Amangeldy Sebepovich Telyubayev, is a Russian national who was born in 1977. 24. On 29 May 2002, 19 May and 6 June 2005 the Sol-Iletskiy District Court of the Orenburg Region convicted Mr Telyubayev of various crimes and sentenced him to imprisonment. In 2007 Mr Telyubayev petitioned the Orenburg Regional Court for supervisory review of the judgment of 29 May 2002. In order to take part in the supervisory review hearing on 27 August 2007, he was taken from the correctional colony where he was serving his sentence. Before reaching his destination, Mr Telyubayev transited through several remand prisons. 25. From 10 to 12 August and then from 12 to 15 September 2007 Mr Telyubayev was accommodated in cell 203 in remand prison IZ-66/1 of Yekaterinburg. The cell measured 33 square metres and was equipped with 16 sleeping places. The cell population varied from 3 to 12 inmates. 26. From 13 to 17 August and then from 7 to 11 September 2007 Mr Telyubayev was held in cell 116 in remand prison IZ-74/3 of Chelyabinsk. Cell 116 was designed for four inmates and had 16 square metres of floor space. The parties disagreed on the number of detainees in cell 116. According to the Government, there were four persons; Mr Telyubayev maintained that the actual number was as high as ten. 27. Finally, between 18 August and 6 September 2007, Mr Telyubayev had to stay in cell 59 in remand prison IZ-56/1 of Orenburg. It was 16 square metres in size with eight sleeping places and accommodated three to seven detainees. 28. The Government submitted certificates issued by the governors of prisons in Yekaterinburg, Chelyabinsk and Orenburg on 25 and 29 June 2009 listing the cells in which Mr Telyubayev had been held, statements by warders of the Yekaterinburg prison who asserted that Mr Telyubayev had been assigned his personal sleeping place, and extracts from the registers for verification of the number of detainees in prisons 66/1 (Yekaterinburg), 74/3 (Chelyabinsk) and 56/1 (Orenburg). 29. The extracts from the register of prison 74/3 cover the dates from 7 to 11 September 2007 and show that cell 116 had four places and housed as many detainees. Some extracts from the register of prison 66/1 relate to an earlier period of Mr Telyubayev’s stay in 2005 and at that time cell 203 had accommodated on average thirty prisoners. However, the entries relating to various dates in August and September 2007 indicated that the design capacity of cell 203 had not been exceeded and ranged from 3 to 12 inmates. Finally, the extracts of 27 August and 6 September 2007 from the register of prison 56/1 indicated the population of cell 59 as five and six persons, respectively. 30. The applicant in case no. 27668/08, Mr Rail Kurbanovich Shakurov, is a Russian national who was born in 1970. 31. On 31 August 2007 Mr Shakurov was taken into custody. On 10 September 2007 he was placed in remand prison IZ-16/1 of Kazan. 32. In prison IZ-16/1, Mr Shakurov stayed in cells 127 (the first night), 3 (from 11 September to 22 October 2007 and from 14 May to 17 November 2008), 21 (from 22 October 2007 to 14 May 2008), 40 (from 17 November to 31 December 2008 and from 30 January to 16 April 2009), 66 (from 31 December 2008 to 30 January 2009), and 44 (from 16 April 2009 until at least June 2009). 33. The parties disagreed on the measurements of some cells and on the number of detainees who had been held together with Mr Shakurov. 34. According to the Government, the cells presented the following characteristics: cell 127: 65 square metres and 16 sleeping places; cell 3: 40 square metres and 10 sleeping places; cells 21, 40, 44 and 66: 16 square metres and 4 sleeping places. 35. The Government indicated that the design capacity of the cells had never been exceeded, relying on the certificates established by the prison governor on 29 June 2009. They also produced four statements by prison warders (dated 24 June and 17 July 2009), according to which Mr Shakurov had had a personal sleeping place and bed linen, and two statements by detainees (dated 24 June 2009) who had been held in cell 66 since April 2009. Finally, they enclosed extracts from the prison population register for prison IZ-16/1, covering several days per month in the period from September 2007 to March 2009. The extracts showed that during the respective periods of Mr Shakurov’s stay, cell 3 housed 7 to 10 persons and cells 21, 40 and 44 housed 4 persons. The Government produced photographs of the cells and the shower room, from which it appears that they were in a good state of repair. In response to the Court’s request for information, they submitted floor plans of the facility, which confirmed the accuracy of the cell surface area as they had given it. 36. In Mr Shakurov’s submission, cells 66 and 44 measured only 4.8 sq. m. He produced hand-written lists of individuals who were detained in the same cell with him. The lists contained their full names, dates of birth and their signatures. The lists show that: from 10 to 13 October 2008, cell 3 housed 18 inmates; from 17 to 20 October 2008, cell 3 housed 18 inmates; from 24 to 27 October 2008, cell 3 housed 20 inmates; from 2 to 5 November 2008, cell 3 housed 18 inmates. from 17 to 20 November 2008, cell 40 housed 4 inmates; from 1 to 15 January 2009, cell 66 housed 4 inmates; from 17 April to 4 May 2009, cell 44 housed 4 inmates. 37. Further to the Court’s request, the Government submitted cell records for the individuals named in Mr Shakurov’s lists. It can be seen from the records that as many as eight or ten persons whom Mr Shakurov had listed as his co-detainees in cell 3 had actually been held in other cells. 38. On 18 April 2011 Mr Shakurov complained to the Court that the prison authorities had opened and stamped the Court’s letter of 14 February 2011. He enclosed a copy of the letter bearing the prison stamp dated 1 March 2011. In his view, tampering with his correspondence amounted to a violation of his right of individual petition under Article 34 of the Convention. 39. In a letter of 23 June 2011 sent in response to the Court’s request for comments, the Government acknowledged that the Court’s letter of 14 February 2011 had been opened in prison IZ-16/1. They pointed out that an inquiry had identified the officials responsible for the opening and enclosed the order of the acting prison governor of 6 June 2011. The order shows that the letter was opened and stamped by Major A.Kh., the head of the correspondence unit, who thus breached the requirements of the Federal Penitentiary Service’s circular letter of 17 December 2010 in the part concerning the timely delivery of the Court’s letters to detainees in closed envelopes. The acting prison governor issued a disciplinary warning to Lieutenant-Colonel R.Kh., his deputy for human resources. In respect of Major A.Kh., it was decided “to maintain the warning that had been previously imposed by an order of 25 October 2010”. 40. The applicant in case no. 31242/08, Mr Anatoliy Ivanovich Korobeynikov, is a Russian national who was born in 1953. 41. On 29 November 2006 Mr Korobeynikov was placed in remand prison IZ-48/1 of Lipetsk. On 20 November 2007 he was convicted at last instance and was transferred, ten days later, to a correctional colony in the Lipetsk Region. 42. In prison IZ-48/1, Mr Korobeynikov stayed in cell 4 (from 29 November to 7 December 2006), cell 161 (from 7 to 12 December 2006), cell 190 (from 12 December 2006 to 18 January 2007), cell 157 (from 18 January to 31 May 2007), cell 144 (from 31 May to 19 June 2007), cell 141 (from 19 to 27 June 2007), and cell 176 (from 27 June to 30 November 2007). 43. According to the Government, the cells presented the following characteristics: cell 4: 48 square metres and 12 sleeping places; cells 161, 190 and 157: 12 square metres and 3 sleeping places; cells 144, 141 and 176: 16 square metres and 4 sleeping places. 44. The applicant gave the same number of sleeping places but claimed that the cells had been much smaller. Thus, in his submission, cell 4 measured only 20 sq. m, cell 157 – 9 sq. m, and cells 144, 141 and 176 – approximately 10 sq. m. 45. The parties agreed that the number of detainees did not exceed the number of sleeping places. In support of their submissions, the Government produced certificates issued by the prison governor on 22 June 2009. Subsequently, the Government also submitted floor plans of the facility, which corroborated their indications of the cell surface areas. 46. The applicant in case no. 52133/08, Mr Khamil Kamil oglu Balammedov, is a stateless person who was born in 1962 in the Azerbaijan SSR. 47. On 17 January 2007 Mr Balammedov was taken into custody and placed in remand prison IZ-47/6 of St Petersburg. On 3 April 2008 he was convicted at last instance and subsequently transferred to a correctional colony in the Yamalo-Nenets Region. 48. In prison IZ-47/6, Mr Balammedov stayed in cell 1/2 (from 21 February to 4 July 2007), cell 3/11 (from 4 to 30 July 2007), cell 1/3 (from 30 July to 16 January 2008), cell 403 (from 16 January to 19 April 2008), and cell 419 (from 19 April to 17 May 2008). 49. According to the Government, the cells presented the following characteristics: cells 1/2 and 1/3: 396 square metres and 99 sleeping places; cell 3/11: 81 square metres and 20 sleeping places; cells 403 and 419: 25 square metres and 4 sleeping places. 50. Mr Balammedov claimed that cell 1/3 actually measured 25 by 7 metres, that is 175 square metres, and accommodated 140 to 160 inmates who had slept in turns. He pointed out that, judging from the number of detainees in the prison (1,342) and the sanitary norm of 4 square metres per inmate, the total prison surface should have been no less than 5,368 square metres; however, the cleaning contracts submitted by the Government referred to a much smaller area of 1,500 square metres. 51. Further to the Court’s request for information, the Government produced floor plans of the facility, which corroborated their indications of the cell surface. 52. The Government submitted certificates issued by the prison governor on 25 June 2009, and undated statements by prison warders who stated that Mr Balammedov had at all times had a personal sleeping place and that the cell population had been as follows: cell 1/2 housed 78 to 99 persons; cell 3/11 – 17 to 20 persons; cell 1/3 – 81 to 99 persons; cell 419 – 2 to 4 persons. 53. The Government also produced five pages from the prison population register for prison IZ-74/6, covering dates in March, August, September and November 2007. The extracts indicated that cells 1/2 and 1/3 accommodated no more than 97 inmates. Mr Balammedov replied that the extracts covered the dates when the overcrowding had been the least severe. 54. Cells 1/2 and 1/3 featured separate toilet rooms equipped with four and five pans and four and five sinks, respectively. In cells 3/11, 403 and 419 the toilet pan was separated from the living area by a brick partition 1.2 metres high. 55. The exercise yards of the first wing (cells 1/2 and 1/3) measured 700 sq. m and were equipped with benches, pavilions and sheds. Those in the third wing (cell 3/11) ranged from 30 to 60 sq. m in size, and those in the fourth wing (cells 409 and 419) from 8 to 20 sq. m. 56. Personal dignity is protected by the State and may not be undermined for any reason (Article 21 § 1). No one may be subject to torture, violence or any other cruel or degrading treatment or punishment (Article 21 § 2). 57. Detention on remand must be based on the principles of lawfulness, fairness, presumption of innocence, equality before the law, humanism, respect for human dignity and must be carried out in accordance with the Russian Constitution, international legal principles and norms and international treaties, to which Russia is a party, and must not involve torture or other actions that purport to cause physical or moral suffering to the suspect or defendant (section 4). 58. Detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should dispose of no less than four square metres of personal space in his or her cell (section 23). 59. If certain actions impairing an individual’s personal non-property rights or encroaching on other intangible assets have caused him or her nonpecuniary damage (physical or mental suffering), the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage. The amount of compensation is determined by reference to the gravity of the perpetrator’s fault and other significant circumstances. The court also takes into account the extent of physical or mental suffering in relation to the victim’s individual characteristics (Article 151). 60. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, and (iii) unlawful administrative punishment (Article 1070). 61. Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated for if the damage was caused (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment, and (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100). 62. Chapter 25 sets out the procedure for a judicial examination of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts about inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point 7). 63. A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255). 64. If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no. 2). 65. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation... 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness...” 66. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules lay down the following guidelines: “1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ... 10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.” “18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2. In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. 18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation. 19.3. Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. 27.1. Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. 27.2. When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.” 67. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...” | 1 |
train | 001-92418 | ENG | SVK | CHAMBER | 2,009 | CASE OF K.H. AND OTHERS v. SLOVAKIA | 1 | Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | 6. The applicants are eight female Slovakian nationals of Roma ethnic origin. 7. The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries. Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital, when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents. 8. The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice. The lawyers were authorised to review and photocopy the women’s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence were not destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights. 9. The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002. The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so. 10. On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted. 11. The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records. 12. Six applicants brought an action against the J.A. Reiman University Hospital (Fakultná nemocnica J. A. Reimana) in Prešov (“the Prešov Hospital”) on 13 January 2003. 13. On 18 June 2003 the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003. 14. With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse. It was not contrary to the plaintiffs’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment. 15. On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. There was no indication that the applicants’ right to have any future claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised. In particular, under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient’s claim for damages. 16. H.M. and V.Ž., the two remaining applicants, brought an identical action against the Health Care Centre (Nemocnica s poliklinikou) in Krompachy (“the Krompachy Hospital”) on 13 January 2003. 17. On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein. 18. The applicants appealed against the decision concerning the photocopying of the documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages. 19. On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records. 20. On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital, the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention. 21. As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could. However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State, to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies. This would enable an independent expert, possibly abroad, to examine them, and also provide a safeguard in the event of the possible destruction of the originals. 22. Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them. 23. On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 of the Convention in the proceedings leading to the Regional Court’s judgment of 17 February 2004. As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting interests. Reference was made to the explanatory report to that Act. Furthermore, Article 8 of the Convention did not encompass a right to make photocopies of medical documents. 24. On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court’s judgment of 24 March 2004. 25. On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint as being premature. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court’s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned. 26. Subsequently seven applicants were able to access their files and to make photocopies thereof under the newly introduced Health Care Act 2004 (see paragraph 35 below) in circumstances which are set out in the decision on the admissibility of the present application. 27. As regards the eighth applicant, Ms J. H., the Prešov Hospital only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure. On 22 May 2006 the Director of the Prešov Hospital informed the applicant that her complete medical file had not been located and that it was considered lost. On 31 May 2007 the Ministry of Health admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure the proper keeping of the medical file of Ms J. H. 28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated. 29. Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons’ rights. 30. Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on the proposal of the person concerned where it is feared that it will be impossible to take such evidence later. 31. Article 79 § 2 obliges a plaintiff to submit the documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons. 32. Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court. Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for the determination of the point in issue. 33. Until 31 December 2004, the following provisions of Health Care Act 277/1994 (Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force: “Section 16 – Medical records 1. The keeping of medical records shall form an inseparable part of health care. 2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ... 3. Medical records shall be archived for a period of 50 years after the patient’s death. ... 5. A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities. 6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ... 8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ... 11. An excerpt from a person’s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.” 34. The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows: “Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.” 35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts (Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force on 1 November 2004 and became operative on 1 January 2005. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows: “Section 25 – Access to data included in medical records 1. Data included in medical records shall be made available by means of consultation of the medical records to: (a) the person concerned or his or her legal representative, without any restriction; ... (c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ... (g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ... 2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.” 36. Point 8 of the Recommendation adopted on 13 February 1997 deals with the rights of persons whose medical data have been collected. The relevant part provides: “Rights of access and of rectification 8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form. 8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if: a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ...” | 1 |
train | 001-86877 | ENG | RUS | CHAMBER | 2,008 | CASE OF VLASOV v. RUSSIA | 3 | Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Violations of Art. 8;Violations of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1957 and lives in Moscow. He was the director of a diamond manufacturing and export company (“the company”). 7. On 9 July 1999 a criminal case (no. 144129) was opened against the applicant. He was suspected of having smuggled diamonds by using forged export contracts, an offence under Article 188 § 4 of the Criminal Code. 8. On 18 August 1999 the applicant was arrested. On 20 August 1999 a prosecutor remanded him in custody. 9. On 16 September 1999 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s request for release on bail. On 7 October 1999 the Moscow City Court upheld the refusal on appeal. 10. On 14 October 1999 a deputy Prosecutor General extended the applicant’s detention until 9 January 2000. On 16 December 1999 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order because, in the court’s view, the applicant’s “character” justified the detention. On 17 January 2000 the Moscow City Court upheld that decision on appeal. 11. On 30 December 1999 a deputy Prosecutor General extended the applicant’s detention until 18 May 2000. On 19 April 2000 the Preobrazhenskiy District Court dismissed the applicant’s appeal against the extension order, finding that the order had been “lawful and justified”, but without giving further grounds in support of this finding. 12. On 16 May 2000 a deputy Prosecutor General extended the applicant’s detention until 18 August 2000. On 4 August 2000 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order, finding that it had been lawful and justified. On 27 December 2000 the Moscow City Court upheld that decision on appeal. 13. On 16 August and 18 September 2000 the acting Deputy Prosecutor General extended the applicant’s detention until 18 September and 18 November 2000 respectively. On 26 September 2000 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension orders, finding that they had been justified on account of the applicant’s “character” and the absence of “gross violations” of the criminal-procedure laws. On 9 January 2001 the Moscow City Court upheld that decision on appeal, referring to the applicant’s “character” and the gravity of the charges against him. 14. On 17 November 2000 the Prosecutor General extended the applicant’s detention until 18 February 2001. On 31 January 2001 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension order, finding that the applicant’s “character” and the gravity of the charge rendered his detention lawful and justified. On 23 April 2001 the Moscow City Court upheld that decision on appeal. 15. On 9 December 2000 the applicant was additionally charged with offences under Articles 188 § 3 (smuggling), 191 § 2 (unlawful trade in precious stones), and 327 (forgery of official documents) of the Criminal Code. 16. On 28 December 2000 fifteen counts of smuggling, unlawful export of precious stones and forgery of documents were severed into a new criminal case, which was given the number 9307. 17. On 18 February 2001 the investigation into the remaining charges in the framework of case no. 144129 was stayed. On 26 February 2002 the investigation resumed and has since been pending. 18. On 12 January 2001 the applicant was given access to the case file. Further to the prosecution’s requests, on 16 February and 16 April 2001 the Moscow City Court extended the applicant’s detention until 18 April and 18 August 2001 respectively. On each occasion the court noted that there were no grounds to vary the preventive measure imposed on the applicant, in spite of the arguments advanced by the defence and the personal sureties offered on the applicant’s behalf by a Member of Parliament and a member of the Russian Academy of Sciences. It also referred to the gravity of the charges and to the applicant’s “character”. On 11 April and 23 May 2001 the Supreme Court upheld the City Court’s decisions on appeal, finding that there were “no sufficient grounds to vary the preventive measure”. 19. According to the Government, the applicant’s counsel, Mr Korolev and Mr Dudnik, were deliberately dilatory in dealing with the case-file materials. On 26 February 2001 the investigator asked the president of the Moscow bar to ensure counsel’s regular attendance. On 28 March and 25 April 2001 the investigator’s superior repeated that request. The Government produced four reports of 1, 8 and 18 June 2001. In these reports investigation officers described private conversations with the applicant’s representatives, who allegedly stated that they would procrastinate until the maximum period of the applicant’s detention had expired. 20. On 13 July 2001 case no. 9307 was submitted for trial before the Golovinskiy District Court of Moscow. 21. On 6 August 2001 the District Court remitted the case for further investigation. On 3 October 2001 that decision was set aside by the Moscow City Court, and the trial resumed. 22. On 11 December 2001 the District Court fixed a hearing for 25 December but then adjourned it to 28 January 2002 because the applicant’s counsel had gone on holiday. 23. On 28 January 2002 the District Court refused the applicant’s petition for release. On 21 February 2002 the Moscow City Court upheld that decision on appeal. 24. On 15 March 2002 the District Court extended the applicant’s detention until 29 April 2002, finding that his release would hinder “a thorough, comprehensive, and objective examination of the case”. 25. On 1 April 2002 the District Court remitted case no. 9307 for further investigation. It found that the charges were formulated vaguely, that the applicant had not been questioned as a suspect, that his access to the file had been unlawfully restricted, and that the severing of certain charges had not been justified. These defects were to be remedied by the investigation. The court authorised the applicant’s further detention. 26. On 12 July 2002 the Golovinskiy District Court released the applicant on bail. 27. The hearing fixed for 26 July 2002 had to be adjourned until 9 September 2002 because one lawyer was involved in concurrent proceedings and the other was on leave. 28. On 2 October 2002 the hearing was adjourned on account of the prosecutor’s illness. On 18 March and 13 May 2003 the hearings were postponed at the applicant’s request. 29. On 28 July 2003 the Golovinskiy District Court found the applicant guilty of smuggling and unlawfully trading in diamonds. The applicant was sentenced to five years and six months’ imprisonment, suspended for three years. On 29 November 2003 the Moscow City Court upheld that judgment on appeal. 30. On 24 December 1999 the investigator refused leave for a visit by the applicant’s mother and his wife. She stated that the investigator had discretion to authorise visits, but was not obliged to do so. 31. According to the Government, on unspecified dates in 1999 the applicant was allowed to see his wife on “humanitarian grounds”. 32. On 27 October 2000 the investigator refused counsel’s request of 28 September 2000 to allow the applicant to see his wife. The investigator indicated that the applicant’s wife was aware “of certain circumstances that [were] relevant to the matters under investigation” and also had “an interest in the outcome [of the case]”. As “family visits [could] be used to establish contact with other members of the organised criminal group or obstruct the establishment of the truth”, the wife’s visit would be “inopportune”. 33. On 4 January 2001 the investigator refused a visit by the applicant’s seven-year-old daughter, stating that the applicant could use the visit to obstruct the investigation. 34. On 17 January, 23 February, 12 and 13 March, 12 April, 14 May, 1 June and 2 July 2001 the investigator allowed the applicant to see his mother and/or daughter. According to the Government, in 2001 and 2002 the applicant was granted twenty-six family visits. 35. On 20 December 1999 the applicant sent a complaint about the refusal to allow family visits and interference with his correspondence to the Basmanniy District Court of Moscow. On the following day the head of the correspondence department of the remand centre refused to post the complaint, citing the following reasons: “The court will not accept the complaint for examination in its present form. I also consider it necessary to explain that, under the Custody Act: (a) the investigator may approve no more than two visits per month but by law he is not obliged to do so (section 18 § 3); (b) pursuant to section 20 § 2, all correspondence is subject to censorship, including by the investigator who is in charge of the criminal case. The complaint has no prospects of success (жалоба бесперспективна).” 36. On 22 December 1999 the applicant complained to the Ministry of Justice and the Prosecutor General’s Office that his complaint had not been posted. On 13 January 2000 the applicant’s complaint to the Ministry of Justice was returned to him. No reply from the Prosecutor General’s Office was received. 37. On 9 February 2000 the investigator refused to post the applicant’s letters to his wife and mother. She returned them to the director of the remand centre with the following note: “I am returning you the letters by Mr Vlasov, the defendant in criminal case no. 144129, addressed to Mrs L. Vlasova and dated 11, 24 and 28 January 2000, and to Mrs I. Vlasova, of 11 and 25 January 2000. On the basis of section 20 § 2 of the Custody Act these letters may not be sent to the addressees.” 38. The applicant submitted to the Court copies of handwritten letters to his mother, dated 11, 24 and 28 January 2000. 39. On 6 March 2000 the applicant issued forms of authority to his counsel, Mr Kuznetsov and Ms Vasilyeva. By a letter of 20 March 2000, the first deputy director of the Investigations Department of the Ministry of the Interior returned the forms to the director of the remand centre, advising him as follows: “I would ask you to explain to Mr Vlasov, the defendant in criminal case no. 144129, that, pursuant to section 17 of the Custody Act and paragraph 12.11 of the Internal Rules for Remand Centres (approved by order no. 486 of 20 December 1995), detainees may enter into civil transactions on the basis of a form of authority certified by the head of the remand centre. Since the forms of authority issued by Mr Vlasov to Mr V. Kuznetsov and Ms M. Vasilyeva list actions which, under the civil legislation currently in force, are not civil transactions, there are no grounds for forwarding these forms to Mr Kuznetsov or Ms Vasilyeva.” 40. On 30 August 2000 the applicant’s counsel submitted to the investigator a series of documents concerning the customs proceedings to which the applicant’s company was a party. On 28 September 2000 the investigator refused to transmit these to the applicant and appended them to the case-file, indicating that the applicant would be able to read them only after the investigation had been completed. 41. According to the Government, in 2001 the applicant sent no letters to his relatives. His letters to public authorities were not subject to censorship and were posted without delay. Incoming letters were handed over to him on the day of receipt. 42. On 29 May 2001 counsel for the applicant asked for permission to pass to his client (i) a copy of a complaint to the Supreme Court, and (ii) a book “International instruments on human rights”. The director of the remand centre made a handwritten note on the petition: “I agree to accept a copy of the complaint”. 43. On 28 March and 5 September 2000 the applicant complained to the Presnenskiy District Court of Moscow about the interception of the authority forms and commercial documents. By decisions of 7 April and 9 June 2001, the District Court disallowed the applicant’s complaints, finding that the law did not provide for judicial review of the investigator’s decisions concerning restrictions on family visits, correspondence or exchange of documents. On 3 October 2001 the Moscow City Court confirmed on appeal that the applicant’s complaints were not amenable to judicial review. 44. On 4 and 11 September 2000 the applicant complained to the Basmannyy District Court of Moscow about the restrictions on family visits and correspondence imposed by the investigator. On 10 July 2001 the Basmannyy District Court, by a non-procedural communication, informed him that these complaints could not be examined by a court. 45. The applicant complained to the Constitutional Court that he had not been able to obtain judicial review of restrictions on family visits, correspondence and exchange of documents. 46. By a decision of 21 December 2001 (no. 298-O), the Constitutional Court confirmed its constant case-law to the effect that all decisions by an investigator or prosecutor which affected an interested party’s constitutional rights and were not related to the merits of the criminal charge were amenable to judicial review (see paragraph 75 below). It emphasised that this approach was fully applicable to the investigator’s decision concerning restrictions on family visits, correspondence or exchange of documents. The Constitutional Court held that the judicial decisions refusing examination of the applicant’s complaints were to be reviewed in accordance with the established procedure. 47. On 8 July 2004 the Presnenskiy District Court of Moscow re-examined many of the complaints lodged by the applicant in course of the criminal proceedings in 2000 and 2003, including those concerning restrictions on correspondence, exchange of documents and family visits. The District Court dismissed those complaints for the following reasons. 48. The District Court found that the refusal to transmit customs documents from the lawyer to the applicant had been justified because the former had indicated that the documents were related to the criminal case. On that basis the documents had been included in the case file as evidence, in accordance with the Code of Criminal Procedure. The applicant had been advised that he would be able to study the documents in question when examining the case file following completion of the preliminary investigation. 49. With regard to the refusal to pass the power of attorney of 29 March 2000, the District Court held that the Internal Rules for Remand Centres (those issued both by the Ministry of the Interior and by the Ministry of Justice) prohibited detainees from authorising their representatives to carry out any actions other than civil transactions. As the scope of the applicant’s power of attorney had not been confined to civil transactions, the refusal had been lawful. The District Court did not refer to a specific provision of the Internal Rules for Remand Centres. 50. As to the restrictions on family visits, the District Court referred to the relevant provisions of the Custody Act and the Internal Rules for Remand Centres. It noted that the decision on whether or not to allow a family visit was to be taken by the investigator in the light of the The decisions made by the investigator in the applicant’s case had subsequently been reviewed and approved by the Investigations Committee of the Ministry of the Interior and by the Prosecutor General’s Office. Accordingly, the District Court concluded that the decisions had been lawful and justified. 51. Finally, the District Court found that five of the applicant’s letters to his relatives had been intercepted by the investigator because they either contained information on the criminal case, revealing secret information from the preliminary investigation, or expressed contempt for the law-enforcement authorities, which might foster a negative attitude among his relatives towards the law-enforcement bodies and thus obstruct the establishment of the truth in the criminal case. The District Court held that the interception of those letters had been compatible with the domestic law and with international treaties, including Article 8 of the Convention. 52. On 27 December 2004 the Moscow City Court endorsed, in a summary fashion, the findings of the District Court. 53. From 27 August 1999 until his release on 12 July 2002 the applicant was held in special-purpose remand centre no. IZ-99/1 (formerly no. IZ-48/4, commonly known as “Matrosskaya Tishina”). 54. The applicant was held in ten different cells that measured either fourteen sq. m and had six sleeping places, or thirty-two sq. m and contained ten bunks. The design capacity of the cells was not exceeded. 55. The window frames were bricked in with semi-transparent glass cubes. In addition, there was a layer of thick bars with so-called “eyelashes”, that is, slanted plates, approximately two cm apart, welded to a metal screen. This construction gave no access to natural air or light. The Government submitted that the “eyelashes” had been removed on 25 November 2002. The applicant indicated that between February 2000 and summer 2002 private fans had been prohibited in the cells, but that ventilation was on during the day. 56. The lavatory pan was placed in the corner of the cell. The Government produced a photo of the pan showing that it was separated from the living area by an eighty-five-centimetre-high tiled brick partition and shower curtains above it. The applicant responded that the partition and curtains had apparently been a recent development; during the period of his detention there had been no tiles and the hanging of curtains of any kind had been prohibited. Furthermore, until 22 August 2001 the walls had been covered with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls or writing on them. 57. Open-air exercise was permitted for one hour a day and a shower could be taken for twenty minutes once a week. 58. The cells were constantly lit with fluorescent lighting. The applicant claimed that insufficient lighting had impaired his eyesight, which had fallen by 2.5 dioptres. On 21 June 2001 he asked to see an ophthalmologist and repeated his request no fewer than seven times between 30 July 2001 and 20 June 2002. The Government explained that no consultation had been arranged because the medical unit of the remand centre had no resident ophthalmologist and because the applicant had often been absent for court hearings. The applicant responded that the hearings had not started until 28 January 2002, that is, more than seven months after he had asked for consultation. 59. Finally, the applicant submitted that he had been the only non-smoker in his cells and had suffered from passive smoking. The Government indicated that the separation of non-smokers from smokers had been materially impossible. 60. In support of his submissions the applicant produced affidavits by his former cellmates, Mr I., Mr Ku. and Mr Ko. 61. The applicant was transported from the remand centre to the courthouse and back more than 120 times. Transport was arranged by officers of the Convoy Regiment of the Moscow Police Department (конвойный полк ГУВД г. Москвы). 62. The prison vans (Gaz-3307 and Gaz-3309) in which the applicant was transported had a passenger cabin which was 3.8 m long, 2.35 m wide, and 1.6 m high. The cabin was divided into two multi-occupancy cubicles, designed for twelve inmates each, and one single-occupancy cubicle. The cubicles were equipped with benches. On 7 February 2001, in response to the applicant’s complaints, the officer-in-command of the Convoy Regiment ordered that he be transported in a separate van. The applicant specified that a separate van had been made available to him only thirteen times. 63. The Government submitted that the prison-van heaters and interior lights had been powered by the van engine. The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. The Government asserted that the applicant had received breakfast and dinner at the remand prison and that he had been allowed to bring his own food to court. It follows from the certificate issued by the head of remand centre no. IZ-99/1 that dry rations had been given to detainees from 2003 onwards. 64. In their post-admissibility submissions the Government enclosed two reports prepared by the officer-in-command of the Convoy Regiment on 28 March and 3 April 2006. According to these reports, the design capacity of prison vans had never been exceeded in 2001-2003 and the travel time from remand centre no. 99/1 to the Golovinskiy District Court had been in the range of two to three hours, depending on traffic. 65. The applicant denied that the van had been heated or sufficiently ventilated. He indicated that the travel time between the remand centre and the court had been excessively long, and sometimes as long as three or four hours. During the entire journey he had been kept in the locked van without food or drink or access to a toilet. 66. The applicant produced a detailed table which listed the time he had spent before departure in the “waiting cubicle” at the remand centre, the time on the way to the courthouse and the time on the way back. The table covered the period from 25 December 2001 to 22 March 2002, in which he had been transported on twenty days. Of those twenty times, on six occasions the aggregate travel time on a given day had ranged from five to seven hours and on a further eleven occasions it had been longer than seven hours, with a maximum of 10.5 hours on 25 December 2001. The table also indicated that on four days the design capacity of the prison van had been exceeded by at least ten additional persons. 67. Between 20 February 2001 and 17 June 2002 the applicant sent nine complaints about the “torturous” conditions of transport to many officials, including the director of the remand centre, the Prosecutor General and the officer-in-command of the Convoy Regiment. According to the Government, the officer-in-command of the Convoy Regiment had acknowledged that there had been “some irregularities” in the transport of detainees and ordered that the applicant be transported by a separate van. A copy of that report was not made available to the Court. 68. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). At the material time, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”). 69. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. 70. After his or her arrest the suspect was placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction. 71. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that date a defendant’s detention was “before the court” (or “pending trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted, which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file. 72. The Custody Act (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995) provides as follows: “Suspects and defendants have the right: ... (5) to meet with relatives and other persons listed in section 18; (6) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests... ... (8) to maintain correspondence and to use writing utensils; ... (18) to enter into civil transactions.” “Upon written consent of the official or authority in charge of the criminal case, a suspect or defendant may have up to two meetings per month with relatives and other persons, each visit to last for up to three hours...” “Suspects and defendants may correspond with relatives and other persons, without any limitation on the number of incoming and outgoing letters or telegrams... Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship. Censorship is carried out by the administration of the remand prison and, if necessary, by the official or authority in charge of the criminal case. Letters that contain information which may obstruct the establishment of the truth in a criminal case or facilitate the commission of a crime, are drafted with use of cryptography or cipher, or contain State or other secrets protected by law, may not be sent to the addressee or returned to the suspect or defendant. Instead, they are remitted to the official or authority in charge of the criminal case...” 73. The Internal Rules for Remand Centres of the Ministry of the Interior (order no. 486 of 20 December 1995, in force until 12 May 2000) provided as follows: “8.1 Suspects and defendants may send and receive any number of letters or telegrams. 8.2 Letters and telegrams are sent and received through the administration of the remand centre. Correspondence by suspects and defendants is subject to censorship. 8.9 Letters and telegrams addressed to victims or witnesses, as well as those containing any information whatsoever in respect of the criminal case [in issue], insults, threats, calls to violence, commission of crimes or other offences, information on security measures in the remand centre, its employees, ways of transmission of prohibited items, and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities... are not dispatched to the addressee... and [are] handed over to the official or authority in charge of the criminal case. 12.11 A suspect or defendant may draft a power of attorney authorising another person to carry out a civil transaction. The power of attorney must be drafted in an established form and certified by the head of the remand centre in accordance with Article 185 § 3 of the Civil Code. The administration of the remand centre must supply a blank power of attorney to a suspect or defendant, at his or her request and at his or her own expense, and, if necessary, explain the procedure for filling it out. The power of attorney is passed or sent to the person whose is named therein, through the official or authority in charge of the criminal case. 16.1 A suspect or defendant may be allowed a family visit on the basis of a written consent issued by the official or authority in charge of the criminal case. The consent is valid for one visit only.” 74. The Internal Rules for Remand Centres of the Ministry of Justice (order no. 148 of 12 May 2000) provided as follows: “84. Letters... are received and dispatched through the administration of the remand centre. Correspondence of detainees is subject to censorship. 91. Letters and telegrams addressed to suspects and defendants who are at large, victims, witnesses, as well as those containing any information whatsoever in respect of the criminal case [in issue], insults, threats, calls to violence, commission of crimes or other offences, information on security measures in the remand centre, its employees, ways of transmission of prohibited items, and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities... are not dispatched to the addressee... and [are] handed over to the authority in charge of the criminal case. 92. All correspondence by the detainees shall be recorded in a special register in which the dates of receipt and dispatch are noted... 122. By consent of the official or authority who is in charge of the criminal case, a suspect or defendant may issue a power of attorney to his or her representative for conducting a civil transaction. The power of attorney must be certified by the head of the remand centre, in accordance with Article 185 § 3 of the Civil Code.” 75. On 23 March 1999 the Constitutional Court issued Ruling no. 5-P on the constitutional compatibility of those provisions of the RSFSR Code of Criminal Procedure which restricted the possibility of lodging appeals against an investigator’s decisions to certain procedural actions. The Court considered that the constitutional right to judicial protection against actions or decisions impairing citizens’ rights and freedoms could not be restricted and that the interested party should therefore have the right to lodge a complaint with a court. It held that all decisions by the investigative authorities affecting constitutional rights and freedoms should be amenable to judicial review, provided that examination of their lawfulness and justification would not prejudge the merits of the criminal case. | 1 |
train | 001-57962 | ENG | AUT | CHAMBER | 1,995 | CASE OF PFARRMEIER v. AUSTRIA | 2 | Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | John Freeland | 6. On 5 April 1986 Mr Harald Pfarrmeier was stopped by the police after he had parked his car at the side of the road with its headlights on and the engine running. He refused to submit to a breath test. In a "sentence order" (Straferkenntnis) of the same day the Bregenz district authority (Bezirkshauptmannschaft) imposed on him a fine of 9,000 Austrian schillings (ATS) with 360 hours' imprisonment in default of payment, for an offence under section 99(1)(b) taken together with section 5(2) of the Road Traffic Act (Straßenverkehrsordnung - see paragraphs 13 and 14 below). 7. The applicant appealed against that decision to the Vorarlberg regional government (Amt der Landesregierung), which dismissed the appeal on 11 November 1987. 8. On 7 January 1988 Mr Pfarrmeier applied to the Administrative Court (Verwaltungsgerichtshof). He complained, in particular, that the impugned decision was unlawful and that there had been a procedural irregularity. On 23 March 1988 the Administrative Court quashed the decision of the regional government (section 42(2), sub-paragraphs 1 and 3, of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) - see paragraph 21 below) and referred the case back to it. 9. The Vorarlberg regional government, giving a second ruling on 23 December 1988, upheld the Bregenz district authority's decision on the issue of guilt, but reduced the fine to ATS 5,000 and the penalty in default to 200 hours' imprisonment. 10. On 10 February 1989 the applicant applied to the Constitutional Court (Verfassungsgerichtshof). He complained of an infringement of the right of property, of the principle that all citizens are equal before the law and of the right to a "fair procedure" in criminal proceedings under Article 6 (art. 6) of the Convention. On 10 March 1989, at the conclusion of a consideration of the case in private, the Constitutional Court declined to accept the appeal for adjudication (Article 144 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) - see paragraph 17 below), since, in view of Austria's reservation in respect of Article 5 (art. 5) of the Convention, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court. 11. At Mr Pfarrmeier's request, it referred the application to the Administrative Court on 24 April 1989. 12. Reiterating in substance the arguments he had set out before the Constitutional Court, the applicant complained, in particular, of a faulty assessment of the evidence by the administrative authority concerned. The Administrative Court ruled for the second time and dismissed the appeal, after proceedings that were wholly in writing; the applicant had not asked it to hold a hearing. It gave the following reasons: "However, having regard to the Administrative Court's limited supervisory power in proceedings relating to an application for review of an administrative decision, it is not for the court to ascertain whether the assessment made of the evidence in a given case is correct in the sense, for example, that a statement which incriminates the applicant corresponds to the facts and not the reply (decision of 3 October 1985 delivered by a full court, Zl. 85/02/0053). Accordingly, the applicant's complaint that he did not speak to the reporting police officer about a night's drinking session cannot be entertained. ... The respondent authority was entitled, without disregarding the requirement that the assessment of the evidence has to be conclusive, to draw from the established facts mentioned above the conclusion that objective circumstances - and not merely the subjective belief of the reporting police officer - supported the suspicion that the applicant was under the influence of drink. ... As regards the applicant's complaint that his lawyer was not allowed to examine the witness Widlroither in the proceedings before the authority, reference is made to the Administrative Court's settled case-law, according to which neither the holding of a hearing nor the possibility of examining witnesses is an essential part of lawful administrative criminal proceedings (see the decision of 13 June 1986, Zl. 86/18/0065, and the one of 19 February 1987, Zl. 86/02/0159). As to the alleged unconstitutionality of Austria's reservation in respect of Article 5 (art. 5) of the European Convention on Human Rights, reference is made to the decision delivered by a full court on 8 May 1987, Slg NF no. 12.466/A. Since the alleged unlawfulness of the impugned decision has not been made out in the application, it falls to be dismissed as unfounded, under section 42(1) of the Administrative Court Act. ..." 13. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests. 14. In its 1971 version, section 99(1) of the Act provided: "It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than 5,000 and not more than 30,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person ... (b) to refuse to submit to a breath test where the conditions laid down in section 5 are satisfied; ..." 15. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 25 below), section 7 of the Traffic Police Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic." 16. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides: "Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law." 17. By Article 144 para. 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. Article 144 para. 2 provides: "Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." 18. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. 19. Section 39(1) of the Administrative Court Act provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect. Section 39(2) reads as follows: "Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where 1. the proceedings must be stayed (section 33) or the application dismissed (section 34); 2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2)); 3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3)); 4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court; 5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed; 6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further." Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982. 20. Section 41(1) of the Administrative Court Act provides: "In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary." 21. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. By section 42(2), "The Administrative Court shall quash the impugned decision if it is unlawful 1. by reason of its content, [or] 2. because the respondent authority lacked jurisdiction, [or] 3. on account of a breach of procedural rules, in that (a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or (b) the facts require further investigation on an important point, or (c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority." 22. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)). 23. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held: "From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation." 24. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen). 25. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows: "The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution." | 1 |
train | 001-107255 | ENG | HRV | ADMISSIBILITY | 2,011 | BAJCETIC v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | The applicant, Ms Branka Bajčetić, is a Croatian national who was born in 1954 and lives in Zagreb. The present application was lodged by the applicant’s guardian and daughter, G.B., on behalf of her mother – the applicant. She was represented before the Court by Ms Lovorka Kušan and Mr Zlatko Kušan, lawyers practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. By a decision of the Zagreb Municipal Court (Općinski sud u Zagrebu) of 10 July 2003 the applicant was divested of her legal capacity on account of her mental illness. She did not participate in those proceedings but was represented by her father. By a decision of the Zagreb Welfare Centre, Peščenica Office (Centar za socijalnu skrb Zagreb, Ured Peščenica – “the Centre”) of 16 September 2003 the applicant’s mother, J.S., was appointed her legal guardian. On 28 August 2006 the Centre appointed the applicant’s brother M.S. her new legal guardian. The change was due to M.S.’s statement that their mother, J.S., was no longer able to take care of the applicant’s interests owing to her own illness. On 1 October 2006 the applicant’s father died and inheritance proceedings were instituted before a public notary in Zagreb. The applicant did not participate in these proceedings in person, but was represented by her brother, M.S. The written record of a hearing held on 29 November 2006 states that the present heirs, that is, the applicant’s mother J.S. and her brother M.S., agreed that J.S. would inherit all movables from her husband, while M.S. and the applicant would inherit a flat in Zagreb, Ivanićgradska Street, so that M.S. would become the owner of two-thirds of the flat and the applicant of one-third. On the same day a decision on inheritance was issued confirming that agreement. On 27 August 2007 the applicant’s daughter, G.B., submitted a request with the Centre, asking that she be appointed her mother’s legal guardian. She explained that for the past five years she had been studying in France and had now returned to Croatia and was willing to care for her mother and fully capable of doing so. She added that all the family members supported her request. On 2 October 2007 G.B. informed the Centre that on 1 October 2007 M.S. had thrown the applicant out of the flat where she had been living up to then (the one left by her late father) and changed the lock. G.B. asked the Centre to take urgent measures to protect the interests of the applicant. She reiterated this request again on 4 October and on an unspecified date. She requested the Centre to bring a civil action against M.S. for disturbance of possessions. On 4 October 2007 G.B. also lodged a request for supervision of the Centre’s work with the Ministry of Health and Social Care (Ministarstvo zdravstva i socijalne skrbi – the “Ministry”). She complained that her request of 27 August 2007 to be appointed the applicant’s legal guardian had not been registered or processed. A lawyer of the Centre had kept the request in a drawer and had only handed it back to G.B. on 1 October 2007 at G.B.’s insistence; G.B. had then had it recorded in the Centre’s incoming mail register. She further alleged that M.S. had thrown the applicant out of the flat where she had been living, had moved into the flat himself and had been showing it to potential buyers. G.B. also maintained that the Centre had not protected the applicant’s interests but on the contrary had already sent an expert to estimate the value of the flat. On 5 October 2007 the Centre employees visited the flat and found the applicant and M.S there. The applicant said that she had no problems with her brother. On 11 October 2007 the Ministry asked the Centre to reply to G.B.’s allegations. On 17 October 2007 the Centre asked M.S. to reply to G.B.’s allegations. On 8 January 2008 G.B. again urged the Centre to take measures to protect the applicant’s interests. She alleged that the applicant had been released from a psychiatric hospital on 13 December 2007. Although M.S. had given the applicant the keys to the flat in mid December 2007, he continued to take the keys away and give them back to her as he wished. He had also locked all but one of the rooms of the flat, including those where items necessary for the applicant’s daily life were kept, such as her clothes, the washing machine and the switch that regulated the heating. Furthermore, he had prevented G.B. from living in the flat with the applicant, despite the applicant not being capable of taking care of herself because of her mental condition. Since M.S. no longer lived in the flat, the applicant lived alone. Thus, she had lived in the flat for a week with no supervision, after which her condition had worsened and she had had to be hospitalised again. G.B. further maintained that M.S. had been shouting at and threatening the applicant, which had caused her intense fear and worsened her condition. He had forbidden the applicant to visit their mother, J.S., in an old people’s home, threatening to beat her up if she did otherwise. G.B. continued that on 3 January 2008, on the applicant’s birthday, M.S. had forbidden the applicant to invite her for lunch, and after that had again taken the keys to the flat from the applicant and had not returned them to her. He had also been receiving the applicant’s pension payments and spending them as he wished. G.B. asked as a matter of urgency that he be dismissed as the applicant’s legal guardian. On 10 January 2008 a hearing was held in the Centre on the subject of changing the applicant’s legal guardian. On the same day G.B. made a statement in the Centre that she objected to the sale of the flat where the applicant had lived unless M.S. provided another, smaller flat for the applicant. On 4 February 2008 the Centre appointed G.B. the applicant’s legal guardian. On the same day the Centre appointed an attorney, B.L., the applicant’s guardian ad litem in the proceedings concerning the sale of the flat in Ivanićgradska Street. He was expressly authorised to take all actions in order to sell the flat. At a hearing held on 3 March 2008 in the Centre G.B. said that the applicant had been discharged from a psychiatric hospital on 20 February 2008 and that since then they had been living together in a rented flat, because M.S. had prevented them from living in the flat in Ivanićgradska Street. She also stated that M.S. was still receiving the applicant’s pension payments and asked that they be paid to her and her mother. An appeal lodged by G.B. against the decision of 4 February 2008 concerning the authorisation given to B.L. as regards the sale of the flat in Ivanićgradska Street was dismissed on 17 April 2008 by the Ministry. At a hearing held on 21 May 2008 in the Centre, G.B. was informed that in the meantime M.S. had returned a bank card for the bank account into which he had been receiving the applicant’s pension payments. The card was handed over to G.B. However, M.S. had not handed over the applicant’s pension for October, November and December 2007 and January 2008. At a hearing held in the Centre on 23 June 2008 an offer made by M.S. to buy the applicant’s share of the flat in Ivanićgradska Street was accepted by the Centre. By a decision of 27 June 2008 the Centre authorised B.L. to conclude a sale agreement with M.S. and to deposit the sum of 24,000 euros (EUR) in the applicant’s bank account. On 3 August 2008 G.B. lodged an appeal against that decision, arguing that a decision on inheritance had already been adopted unlawfully, since M.S. had represented the applicant in these proceedings although he was an interested party. She further argued that the price did not correspond to the market value of the applicant’s share of the flat. On 20 May 2009 the Ministry dismissed the appeal. On 27 July 2009 G.B. lodged an administrative action with the Administrative Court (Upravni sud Republike Hrvatske) against the Ministry’s decision. At a hearing held on 11 November 2009 in the Centre G.B. was informed that M.S. had paid an amount of 174,250 Croatian kunas (HRK) into the applicant’s bank account. The proceedings concerning the sale of the flat are still pending before the Administrative Court. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read: “(1) An adult who, on account of mental illness or other reasons, is unable to care of his or her own needs, rights and interests, or who presents a risk to the rights and interests of others, shall be partially or completely divested of his or her legal capacity by a court of law in non-adversarial proceedings. ...” “The competent social welfare centre shall place under guardianship a person ... divested of his or her legal capacity ...” “(1) The guardian shall care for the person, rights, obligations and well-being of the ward with due diligence, manage his or her assets and take measures aimed at enabling the ward to have an independent professional and personal life. ...” “(1) The guardian represents the ward. ...” “In order to take more important measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.” | 0 |
train | 001-111525 | ENG | SRB | CHAMBER | 2,012 | CASE OF HAJNAL v. SERBIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicant was born in 1985 and lives in Subotica, Serbia. 6. On 8 August 2005 the applicant was arrested by the Subotica police and brought to their station concerning an alleged burglary. In their report the police stated that the applicant, together with a number of others, had been caught after the act and that several objects used for the commission of the alleged crime had been seized. The applicant gave a statement to the officers. According to the minutes of his interrogation, the applicant confessed to one count of attempted burglary, and then signed the document using his nickname, notwithstanding a prior reference in the same minutes noting that he was “illiterate”. The minutes further stated that, pursuant to Article 177 of the Code of Criminal Procedure (see paragraph 60 below), the applicant had read them, at his own request, and had had no objections. 7. On 17 August 2005, at around 4.00 a.m. according to his own estimate, the Subotica police again brought the applicant, together with several others, to their premises in order to question him about a criminal offence. There was no prior attempt to serve him with the summons. The Government maintained that the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence. 8. The applicant maintained that his lawyer, V.J.Đ., had been informed of this arrest by his relatives and had hence managed to arrive in time to briefly talk to him before the interrogation. The applicant apparently told V.J.Đ. that he had already been physically abused by the police, who had attempted to obtain his confession. V.J.Đ. himself stated that the applicant had seemed “mentally broken” and had been walking with a limp. 9. The subsequent police interrogation began at 1.35 p.m. and ended by 1.40 p.m., at which point the applicant was released. The Municipal Public Prosecutor (Opštinski javni tužilac) had been informed of the hearing at 8.30 a.m., but did not attend it. In the course of the interrogation the applicant was asked to give a statement concerning “a burglary of a store in Veliki Radanovac”. The applicant, however, declined to do so and noted that he had retained V.J.Đ. as his legal counsel. The minutes of the interrogation further stated that the applicant was “illiterate”, and bore his fingerprint instead of a signature. With reference to Article 177 of the Code of Criminal Procedure, the minutes, lastly, noted that the applicant had read them, at his own request, and had had no objections. The minutes were also signed by V.J.Đ. 10. The applicant maintained that he had been provided with no food whilst in police custody. 11. On 18 August 2005, at around 4.00 a.m. according to the applicant’s own estimate, he was brought, yet again, by the Subotica police to their premises, without having been previously summoned. The Government maintained that, just like before, the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence. 12. The applicant claimed that he had once again been beaten by the officers who had attempted to obtain his confession. The applicant apparently asked that V.J.Đ. be informed of his arrest, but the police ignored this demand. Instead, the applicant was provided with a legal aid lawyer, N.D., who, it is claimed, appeared only briefly to sign the minutes of the interrogation and left shortly thereafter. 13. The minutes in question contained: (i) an indication that the applicant was being charged with numerous counts of burglary; (ii) his detailed confession of how he had committed those offences; (iii) his statement to the effect that he did not want to retain V.J.Đ. as his legal counsel; and (iv) his declaration that he had given his statement in the absence of “any physical or mental coercion”. 14. The minutes further noted the questions posed by N.D., including whether the applicant was trying to protect anyone with his confession. The Municipal Public Prosecutor had been informed of the hearing on 17 August 2005 at 12.20 p.m., but did not attend it. Finally, the minutes stated that the applicant was “illiterate”, but then went on to note, with reference to Article 177 of the Code of Criminal Procedure, that he had read them, at his own request, and had had no objections. The applicant did not sign the minutes, having instead left his fingerprint. The interrogation lasted between 2.40 p.m. and 3.40 p.m., following which the applicant was released. 15. The applicant maintained that he had been provided with no food whilst in the police station. 16. On 24 August 2005, at around 5.15 a.m. according to his own estimate or at 9.00 a.m. according to official records, the police arrested the applicant once more, but, this time, ordered his detention for a period of 48 hours. The applicant received no prior summons. He was, however, provided with a detention order, which stated that he had been deprived of his liberty on suspicion of having committed numerous burglaries. The order relied on a number of provisions of the Code of Criminal Procedure (see paragraph 57 below), but did not contain any substantiation as to the factual circumstances warranting the applicant’s detention or his prosecution. 17. On the same day the police issued a report supplementing the criminal charges against the applicant, as well as another three defendants, concerning thirteen separate counts of burglary. The report included, inter alia, a description of the crimes and referred to the evidence obtained. 18. On the same day V.J.Đ. lodged an appeal on behalf of the applicant. Therein, inter alia, he maintained that the impugned detention order had been merely a template devoid of any meaningful reasoning. V.J.Đ. further informed the investigating judge that, following her son’s detention, the applicant’s mother had been contacted by a lawyer who had offered his services. In particular, the lawyer had said that he knew that the applicant had already retained V.J.Đ. but explained that it would be better for him to change legal counsel as this would facilitate his release from police custody. 19. On the same day the investigating judge of the Municipal Court (Opštinski sud) in Subotica rejected the above appeal. She recalled, inter alia, that on 18 August 2005 the applicant had been heard in the presence of his legal aid lawyer, that the prosecuting authorities had obtained several witness statements incriminating the applicant, and that the applicant had both been convicted of crimes in the past and had “continued committing crimes” thereafter. The judge lastly specified that there were six separate criminal cases pending concurrently against the applicant before the Municipal Court in Subotica, indicating that he had “committed” several property-related crimes in a short period of time. This, in turn, meant that, if released, the applicant was likely to re-offend and/or abscond. 20. Lastly, on the same day the applicant was examined by the on-duty doctor of the District Prison (Okružni zatvor) in Subotica, but “no disease was established, i.e. he was [deemed] healthy”. The Government provided a certificate to this effect issued by the prison doctor on 12 January 2011, as well as copies of the relevant medical protocol dated 24 August 2005. The said protocol, however, was mostly illegible. 21. On 25 August 2005 the Municipal Public Prosecutor’s Office in Subotica requested that a preliminary judicial investigation (istraga) be instituted against the applicant in respect of numerous counts of burglary, and proposed that his detention be extended. 22. On the same day the investigating judge instituted the proceedings sought and extended the applicant’s detention for an additional month. Before so doing, she invited the applicant to give a statement in the presence of V.J.Đ. and the Deputy Public Prosecutor and informed him about the evidence put forth by the prosecution. The applicant, however, refused to respond to the charges in question. He referred, instead, to the abuse suffered at the hands of the police, as well as the alleged breach of his procedural rights up to that point. In the reasoning as regards the applicant’s continued detention, inter alia, the judge stated that the applicant could, if released, re-offend, abscond or unduly influence the witnesses. 23. On 26 August 2005 the applicant’s continued detention was confirmed by the three-judge panel of the Municipal Court, which fully accepted the reasoning of the investigating judge. 24. On 30 August 2005 the Municipal Court’s three-judge panel confirmed the investigating judge’s decision to institute a preliminary judicial investigation. 25. In the following weeks the investigating judge heard many witnesses, including witnesses Đ.D. and P.D. On 1 September 2005 the former stated that his head had been slammed against the wall by the police in order to elicit his statement, whilst the latter recounted that he too had been threatened by the police with a baseball bat and for the same purpose. 26. On 16 September 2005 the Municipal Public Prosecutor’s Office indicted (optužilo) the applicant for the crimes in question. 27. On 4 October 2005 V.J.Đ. filed a formal objection against the indictment (podneo prigovor protiv optužnice), but on 6 October 2005 the three-judge panel of the Municipal Court rejected this objection. 28. On 21 November 2005 V.J.Đ. informed the Municipal Court that the applicant had recently been photographed by the police in prison. He requested clarification as to what had been the legal basis for this exercise, and expressed concern that the photograph could be used to unlawfully secure his client’s identification in the course of future identity parades. The Government submitted that the applicant had been photographed only once, on 25 August 2005, upon admission to the prison, and, further, that this photograph had been used solely for the purpose of supplementing his prison identity papers (lični list). 29. On 7 December 2005 V.J.Đ. wrote again to the Municipal Court, stating that on 26 August 2005, 18 November 2005 and 6 December 2005 he had visited the applicant in prison, and that each time prison staff had been present during their conversations. Indeed, they had been close enough to be able to both hear and see everything. V.J.Đ. requested an explanation as to why the applicant had not been entitled to unsupervised communication with his counsel. As it subsequently transpired, on 26 August 2005 the Municipal Court had issued a standing permit (stalna dozvola) to V.J.Đ., authorising him to visit the applicant in prison. The said permit stated that visits could last up to 30 minutes and take place under the supervision, i.e. in the presence, of an official to be designated by the prison governor. The Government maintained that the supervision in question meant visual observation only, not listening to the conversations between the applicant and his lawyer. 30. Between 9 December 2005 and 21 March 2006 four hearings were held or adjourned before the Municipal Court. 31. In the presence of the Deputy Public Prosecutor, the applicant described the abuse which he had suffered whilst in police custody, and gave a physical description of the officer who had engaged in his ill-treatment on 17 August 2005. The applicant added that on this day he had sustained injuries to his legs and back, and had also been temporarily unable to hear on his left ear. Upon release the applicant went to a local hospital but was denied treatment because he had forgotten to bring his medical insurance card. When the applicant returned with this card, however, the hospital staff told him “to come back tomorrow”. On 18 August 2005, having been beaten by the officers once again, the applicant asked for V.J.Đ. to be informed of his arrest, but officer D.M. refused to do so. Officer M.V. was also present. The applicant explained that he had, ultimately, been coerced into signing a statement already prepared by the police without his participation. At one point, N.D., his police-appointed lawyer, appeared in the interrogation room merely in order to stamp and sign the same statement. As regards the charges against him, the applicant specifically denied some of them whilst in respect of others he refused to answer questions. 32. Officer D.M. stated that the minutes of 17 and 18 August 2005 were accurate, that he had not personally seen the applicant being abused or even heard anything to that effect. The officer also had no recollection as to whether the applicant had been duly summoned to appear before the police, but recalled that the applicant had constantly moved around, which was why he had been difficult to find. 33. Officer M.V. noted that he had not taken part in the interrogation of 17 August 2005, and had only a vague recollection of the interrogation which had taken place the next day. In particular, he remembered that the applicant had said that he did not want to retain V.J.Đ. as his counsel since the latter had always advised him to give no statements to the police and he had already had enough of the repeated arrests and interrogations. M.V. had no information to offer as to whether the applicant had been duly summoned to appear before the police, but recalled that the applicant’s police-appointed lawyer had been present throughout the interrogation. Finally, M.V. affirmed that the applicant’s statement was accurately recorded in the minutes of his interrogation, and added that he had personally informed the applicant of their content before he signed them. 34. More than a dozen witnesses were subsequently heard before the Municipal Court, some of whom confirmed that they had “bought merchandise” from the applicant. Witness R.K. further stated, inter alia, that in August of 2005 he had seen several persons fleeing a crime scene in a red car. 35. Witness L.K., however, stated that the police had beaten him with a baseball bat in order to force him to confess to a number of crimes, as well as to incriminate the applicant. In support of this allegation he provided the Municipal Court with a copy of a medical certificate documenting his injuries of 18 August 2005. 36. Witness Đ.D. stated that he had accompanied the applicant from the police station to the hospital, on which occasion he had seen that the applicant had been injured and had been “walking with a limp” (see paragraphs 8 and 31 above). 37. Witness N.D. stated that he had been invited by the police to act as the applicant’s legal aid lawyer on 18 August 2005. Prior to the interrogation, he had had a conversation with the applicant who had informed him that he had already retained legal counsel. The applicant was nevertheless willing to accept N.D. as his lawyer on that occasion only and in order to be released (da idem odavde). The applicant then confessed, in some detail, to the crimes in question. N.D. admitted that he had not inspected the case-file since the applicant had refused to communicate with him as regards the substance of the charges at issue, re-affirming that he had already retained a lawyer for this purpose. N.D. added that the applicant had had no visible injuries at that time, and that he had warned the applicant that the confession given to the police would be used as evidence against him. Officer M.V. interrogated the applicant. He did so by posing questions concerning specific places, burglaries and stores. N.D. lastly noted that he had not seen in his 33 years of practice a confession such as the applicant’s, and had therefore asked the applicant whether he was “protecting anyone”. The applicant had maintained that he was not. 38. Witness M.D. denied any connection to the applicant, but stated that he too had been physically abused by the police on a number of occasions. M.D. also provided a medical certificate in this regard. 39. On 22 March 2006 the Municipal Court decided to exclude the applicant’s statement of 18 August 2005 from the case file. It explained, inter alia, that there was indeed evidence to the effect that the applicant had been repeatedly arrested without having first been properly summoned which, in and of itself, indicated a sort of police harassment aimed at obtaining his confession. Further, there was no doubt that the applicant had chosen V.J.Đ. as his legal counsel and had never revoked this authorisation. The police, nevertheless, questioned the applicant in his chosen counsel’s absence, and appointed a legal aid lawyer for no apparent reason. 40. On 4 April 2006 the District Court (Okružni sud) in Subotica quashed this decision and declared the applicant’s statement of 18 August 2005 legally valid. It noted that, as indicated in the minutes of the same date, the applicant had specifically said that he did not want V.J.Đ. to act as his legal counsel. The issue of whether the applicant was duly summoned was irrelevant, and the conditions for the appointment of a legal aid lawyer were clearly fulfilled. The applicant was also properly advised of his procedural rights. 41. On 10 April 2006 officer Z.T. stated that on 8 August 2005 he had indentified a red car, which had apparently been seen leaving the crime scene, and had arrested the four or five persons whom he and his colleague had found in or around it. These persons were subsequently taken by other officers to the police station. 42. On 13 April 2006 the Municipal Court heard the parties’ closing arguments, found the applicant guilty of having, effectively, committed eleven burglaries, i.e. ten between 15 June 2005 and 7 August 2005 and one on 8 August 2005, and sentenced him to one and a half years’ imprisonment for a single crime of “extended burglary” (jedno produženo krivično delo teške krađe). The Municipal Court further observed that there were six separate criminal cases pending concurrently against the applicant and considered this as an aggravating circumstance in sentencing. The applicant’s detention was prolonged until the judgment in his case became final. The Municipal Court also noted that, in the meantime, it had already reviewed and extended the applicant’s detention on 16 September 2005, 13 October 2005, 12 September 2005 and 14 February 2006, and that each time its decisions had been confirmed by the District Court on appeal. As regards the applicant’s conviction concerning the burglaries committed between 15 June 2005 and 7 August 2005, the Municipal Court took note of the applicant’s confession of 18 August 2005, recalled that he had been found in possession of stolen property, and emphasised that several witnesses had confirmed that they had bought such property from the applicant. Concerning the burglary of 8 August 2005 the Municipal Court relied on the applicant’s confession of the same date and the statements given by witnesses R.K and Z.T. Testimony indicating that certain witnesses had been ill-treated by the police in order to incriminate the applicant was either dismissed as irrelevant or simply ignored. 43. On 23 May 2006 the Municipal Public Prosecutor’s Office lodged an appeal, seeking a harsher sentence. 44. On 29 May 2006 and 7 June 2006 V.J.Đ. filed an appeal on behalf of the applicant, noting, inter alia, that: (i) his statement of 18 August 2005 had been obtained as a result of police brutality and in the absence of his chosen counsel, there being no other evidence which could have warranted a conviction; (ii) the police-appointed lawyer had never offered any genuine legal representation to the applicant and had instead been there to assist the police in their interrogation; (iii) the applicant’s complaints of ill-treatment had simply been ignored by the Municipal Public Prosecutor’s Office; (iv) the prison staff had not allowed the applicant free communication with his chosen counsel; (v) the six separate criminal proceedings which had been pending concurrently against the applicant could not lawfully have been taken into account as an aggravating circumstance, but that since they were this amounted to an implied breach of the applicant’s right to be presumed innocent. 45. On 27 June 2006 the District Court rejected the appeals lodged by the parties. 46. On 25 July 2006 V.J.Đ. filed an appeal on points of law (zahtev za vanredno ispitivanje zakonitosti pravosnažne presude) on behalf of the applicant, re-stating his submissions made earlier. 47. On 15 November 2006, however, the Supreme Court (Vrhovni sud) rejected this appeal. 48. On 23 February 2007, having served his sentence imposed by the Municipal Court, the applicant was released from the District Prison in Novi Sad. 49. Article 65 of this Code reads as follows: “(1) Whoever acting in an official capacity uses force or threats or other inadmissible means ... with intent to extort a confession or another statement from an accused, a witness, an expert witness or another person, shall be punished with imprisonment of from three months to five years. (2) If the extortion of a confession or a statement is aggravated by extreme violence or if the extortion of a statement results in particularly serious consequences for the accused in the criminal proceedings, the offender shall be punished by a minimum of three years’ imprisonment.” 50. Article 3 provides, inter alia, that all State bodies and agencies shall respect the right of all persons to be presumed innocent unless and until their guilt has been established by a final court decision. 51. Article 4 § 1 provides, inter alia, that a suspect, when first questioned, shall be informed of the charges and evidence against him. 52. Article 12 prohibits, inter alia, any and all violence aimed at extorting a confession or a statement from the suspect and/or the accused, or indeed any other person involved in the proceedings. 53. Articles 18 § 2 and 178 provide that a court decision may not be based on evidence obtained in breach of domestic legislation, or in violation of ratified international treaties, and that any such evidence must be excluded from the case file. 54. Articles 19, 20, 46 and 235, read in conjunction, provide, inter alia, that formal criminal proceedings (krivični postupak) may be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio, such as the one at issue in the present case, the authorised prosecutor is the Public Prosecutor personally. The latter’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. It makes no difference whether the Public Prosecutor has learnt of the incident from a criminal complaint filed by the victim or another person, or indeed even if he has only heard rumours to that effect. 55. Article 224 provides, inter alia, that a criminal complaint may be filed in writing or orally with the competent Public Prosecutor, as well as that a court of law, should it receive a complaint of this sort, shall immediately forward it to the competent Public Prosecutor. 56. Article 61 provides that should the Public Prosecutor decide that there is no basis to press charges, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”. 57. Articles 5 § 2, 142, 144 § 1, 227 and 229, taken together, provide, inter alia, that a suspect may be arrested by the police, without an attempt to be summoned first, if: (i) he is in hiding or there is a danger of him absconding; (ii) there are circumstances indicating that he may tamper with evidence or influence witnesses and/or other participants in the criminal proceedings; and (iii) there are grounds to believe that he may re-offend. The suspect must, however, then either be brought before an investigating judge, within, in principle, a maximum of eight hours, or be formally detained by the police, which detention cannot exceed forty-eight hours. In the latter case, the suspect must be served with the provisional detention order within two hours as of his arrest and may lodge an appeal against it with the investigating judge who shall have to decide upon it within another four hours. Should the appeal be rejected and after the forty-eight hours have expired, the suspect shall either be released or brought to the investigating judge for questioning. The investigating judge shall have the power to order the suspect’s detention for up to one month. 58. Articles 5 § 1, 71, 72, 226 §§ 8 and 9, 227 § 2 and 228 § 1, read in conjunction, provide, inter alia, that a person arrested by the police shall have the right to remain silent, as well as the right to be heard in the presence of his chosen counsel, or, in the absence thereof and depending on the seriousness of the charges, be provided with a legal aid attorney paid for by the State. If the arrested person’s interrogation has been carried out in accordance with the law, his statement given on this occasion may be used as evidence in the subsequent criminal proceedings. 59. Articles 228 § 1, 229 § 5 and 226 § 8, taken together, further provide that, inter alia, the person arrested by the police shall have the right to contact his lawyer, directly or through family members, including by means of a telephone. 60. Article 177 §§ 1 and 4 provides, inter alia, that a person arrested by the police shall be entitled to read the minutes of his interrogation before he signs them, or have those minutes read to him. Should the person in question be illiterate, he shall be allowed to use his right hand index fingerprint instead of a signature. 61. Article 228 § 7 provides, inter alia, that the suspect shall be entitled to request that his medical examination be ordered by the investigating judge. The investigating judge’s decision to this effect, as well as the medical doctor’s subsequent opinion, shall be included in the case file. 62. Article 75 §§ 2 and 5 provides that a defendant, whilst in detention, shall have the right to confidential communication with his legal counsel. This communication may be supervised only during the pre-indictment stage of the proceedings, and even then only by means of visual, not audio, monitoring. 63. Article 193 provides that the costs of criminal proceedings shall include, inter alia, the defence counsel’s fees, whilst Article 196 § 1 states that should the court find the defendant guilty it shall order him to reimburse all costs. 64. Article 225 § 4 provides that general complaints (pritužbe) concerning the conduct of police operations may be filed with the competent Public Prosecutor. 65. Article 560 § 1 (3) provides, inter alia, that a person who due to an unlawful action undertaken by a State body or an error on its part has been deprived of his liberty in the absence of proper legal basis (neosnovano) shall be entitled to recover any damages suffered. 66. In accordance with Article 414 of the Code of Criminal Procedure 2001, as amended in September 2009, the re-opening of a criminal trial may be sought where the Constitutional Court or an international court has found that the convicted person’s rights have been breached in the trial. 67. Articles 157, 199 and 200 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights (prava ličnosti) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction (see, for instance, judgment no. 3879/03 adopted by the First Municipal Court in Belgrade on 29 April 2004, which has, in its relevant part, been upheld by the Supreme Court on 25 May 2006, awarding compensation for, inter alia, an implied breach of the presumption of innocence under Article 200; see also judgment no. 2939/01 rendered by the Municipal Court in Šabac on 20 February 2002, which was ultimately confirmed by the Supreme Court on 21 April 2004, ordering the cessation of discriminatory treatment and the publication of an apology under Articles 157 and 199). 68. Article 172 § 1 provides that a legal entity (pravno lice), which includes the State, shall be liable for any damage caused by one of “its bodies” to a “third person”. This provision includes State liability for any judicial or police misconduct and/or malfeasance (see, for example, the judgments of the Supreme Court of 10 November 2002, Rev. 6203/02, and 10 April 2003, Rev. no. 1118/03). 69. The Government provided the Court with case-law indicating that a plaintiff complaining about the lawfulness of his detention, as well as the related issues concerning his private life, including the unlawful taking of photographs, had been able to obtain redress before the domestic courts. Specifically, on 21 February 2006 the Municipal Court in Novi Sad, inter alia, applied Article 200 of the Obligations Act, recognised the alleged breaches of Articles 5 and 8 of the Convention, and ordered the respondent State to pay the plaintiff a specified amount of compensation (Pbr. 1848/05). On 8 November 2006 the District Court in Novi Sad upheld this judgment and increased the compensation awarded (Gž. br. 3293/06). 70. The relevant sections of this report read as follows: “203. The CPT’s delegation heard numerous allegations of deliberate physical ill-treatment of persons deprived of their liberty by the police throughout Serbia. Some of the allegations concerned ill-treatment at the time of or immediately following apprehension, whereas others related to ill-treatment during police questioning and, more particularly, during interrogation by officers of the criminal police. Many detainees interviewed by the delegation alleged that they had been slapped, punched, kicked or beaten with batons during police custody. A number of allegations received included recent accounts of beatings on the palms of the hands or soles of the feet, the placing of a plastic bag over the detainee’s head to cause temporary asphyxiation, or the infliction of electric shocks on different parts of the body. The ill-treatment alleged was in several cases of such a severity that it could well be considered to amount to torture. ... Further, in almost all of the police stations visited in Belgrade, the delegation found baseball bats and similar non-standard and unlabelled objects in offices used for interrogation purposes. 204. The information at the CPT’s disposal suggests that persons suspected of a criminal offence run a significant risk of being ill-treated by the police in Serbia at the time of their apprehension and during the first hours in police custody. The number and severity of allegations of police ill-treatment received calls for urgent action by the national authorities ... 206. As regards fundamental safeguards against ill-treatment of persons deprived of their liberty by the police (e.g. the right to have the fact of one’s detention notified to a close relative or third party; the rights of access to a lawyer and a doctor), at present their practical implementation leaves a lot to be desired; the CPT has made detailed recommendations in this area ...” 71. The relevant sections of this report read as follows: “13. The number of allegations of ill-treatment by the police heard by the CPT’s delegation in the course of the 2007 visit was lower, and the ill-treatment alleged less severe, than during the Committee’s first periodic visit in 2004. That said, the delegation did receive a number of allegations of physical ill-treatment (consisting of punches, kicks, truncheon blows, blows with a thick book or with a wet rolled newspaper, and handcuffing to fixed objects in a hyper-extended position) during questioning by criminal police officers, in order to obtain confessions or other information. It would appear that juveniles suspected of serious criminal offences are particularly exposed to physical violence. Further, the delegation received some accounts of verbal abuse and threats during questioning ... 14. Most of the allegations of ill-treatment related to periods some time before the delegation’s visit; consequently, any injuries which might have been caused by the ill-treatment alleged would almost certainly have healed in the meantime ... 15. It should also be noted that, in several police stations visited (e.g. in Bor, Inđija, Kovin, Petrovac na Mlavi, Negotin and Ruma), the delegation again found – in offices used for police interviews – various non-standard issue items (such as baseball bats, iron rods, wooden sticks, thick metal cables, etc). The CPT reiterates its recommendation that any non-standard issue objects be immediately removed from all police premises where persons may be held or questioned. Any such items seized during criminal investigations should be entered in a separate register, properly labelled (identifying the case to which they refer) and kept in a dedicated store. ... 19. As stressed by the CPT in the report on its first visit to Serbia, it is axiomatic that judges must take appropriate action when there are indications that ill-treatment by the police may have occurred. In this connection, it should be noted that some persons interviewed during the 2007 visit alleged that the investigating judges before whom they had been brought with a view to being remanded in custody ignored their complaints of police misconduct ...” | 1 |
train | 001-105016 | ENG | CZE | ADMISSIBILITY | 2,011 | DEDIC v. THE CZECH REPUBLIC | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | The applicant, Petr Dědič, is a Czech national who was born in 1973 and lives in Týn nad Vltavou. He was represented before the Court by Ms K. Petrusová, a lawyer practising in Prague. On 29 October 1999 the applicant, who was working as a car mechanic, was dismissed from his job with immediate effect for underperforming in his duties. On 7 December 1999 he brought an action requesting the court to find the dismissal invalid and the work contract still in effect. On 15 January 2001 the first hearing was held before the Prague District Court. As the parties failed to reach an agreement and requested a report concerning the service of the dismissal, the hearing was adjourned. On 8 June 2001 the applicant asked the court to summon his father and grandfather as witnesses. On 18 February 2002 he informed the court that he had changed his legal counsel. On 15 April 2002 the judge of the District Court invited the applicant to indicate the whereabouts of the witnesses he had proposed to be heard. On 6 May 2002 the applicant provided the information. On 25 June 2002 the České Budějovice District Court, whose assistance was requested because of its proximity to the witnesses, held a hearing and heard three witnesses. On 18 October 2002 the applicant applied to supplement his action by claiming compensation for unpaid salary from November 1999 to May 2000. On 26 November 2002 the applicant sent a letter to the president of the Prague District Court in which he complained that the court had not ordered a new hearing to conclude the proceedings. On 12 December 2002 the vice-president of the Prague District Court apologised for the delays and explained that they were caused by, among other things, the workload of the judge, difficulties with obtaining the report from the post office, and the assistance of the České Budějovice District Court. On 16 December 2002 the District Court rejected the applicant’s application to supplement his action. On 6 January 2003 the applicant again complained to the presidents of the Prague District Court and the Prague Municipal Court about the length of the proceedings. On 27 January 2003 the vice-president of the Municipal Court apologised to the applicant; however, he found his complaint justified only with regard to the period from January to July 2000. On 27 March 2003 the District Court rendered a judgment in which it found the dismissal invalid as it had not been served in accordance with the Labour Code. The judgment was served on the applicant on 3 June 2003. On 29 July 2003 a judge of the Municipal Court declined to rule on the defendant’s appeal as the District Court had not fully decided on the action. On 3 October 2003 the applicant lodged a constitutional appeal complaining that the proceedings before the lower courts had been lengthy. On 5 November 2003, following a hearing, the District Court supplemented the first judgment and determined that the work contract was still valid. The judgment was served on the applicant on 24 February 2004, following his complaint of 13 January 2004. On 13 January 2004 the applicant supplemented his constitutional appeal. On 11 March 2004 the Constitutional Court rejected the applicant’s constitutional appeal. It held that the proceedings had indeed been lengthy but at that stage it would be unreasonable and redundant to interfere. On 23 April 2004 the Municipal Court, following a hearing, upheld the first judgment and changed the supplementary judgment by holding that in the light of the wrongful dismissal the further validity of the working contract was self-evident. On 2 and 7 July 2004 both parties filed an appeal on points of law. On 28 June 2005 the Supreme Court quashed the second part of the judgment, remitted this issue to the Municipal Court and dismissed the remainder of the appeals. On 15 November 2005 the Municipal Court, following a hearing, upheld the supplementary judgment of the District Court. The judgment became final on 13 January 2006. On 3 January 2007 the applicant claimed compensation under Law no. 82/1998 for non-pecuniary damage arising from the excessive length of the above proceedings, which he evaluated at 300,000 Czech korunas (CZK) (approx. 10,925 euros (EUR)). On 12 February 2007 the applicant supplemented his initial claim by asking for compensation for pecuniary damage incurred as legal costs. In a letter of 17 September 2007 the Ministry of Justice acknowledged, referring to the case-law of the Court, that the proceedings, which had lasted more than six years, had been unreasonably lengthy and had suffered from administrative malpractice within the meaning of section 13 of Law no. 82/1998. The Ministry concluded, however, that the acknowledgment of the delays represented sufficient satisfaction for non-pecuniary damage. As for pecuniary damage, the Ministry rejected the claim for lack of any causal link. On 2 January 2008 the applicant brought a civil action for compensation in respect of pecuniary and non-pecuniary damage against the Ministry. On 30 June 2008 the District Court dismissed the action finding that apart from during the period from January to July 2000 the courts had acted in reasonable time. The court further reasoned that labour disputes should be decided quickly owing to their consequences on the personal and social life of the claimants, but underlined that in the present case the invalidity of the dismissal had been pronounced already in May 2004. The overall length was only slightly beyond the appropriate length and thus the acknowledgement of the violation of the applicant’s right represented sufficient satisfaction. On 27 January 2009 (served on 17 March) the Municipal Court upheld this judgment. It reiterated that, in the light of the actual complexity of the case, the length of the proceedings had been inappropriate but only to a small extent. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. the Czech Republic ((dec.), no. 40552/02, §§ 11- 24, 16 October 2007). | 0 |
train | 001-57906 | ENG | GRC | CHAMBER | 1,994 | CASE OF THE HOLY MONASTERIES v. GREECE | 2 | Preliminary objection rejected (ratione personae);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 6-1;No violation of Art. 9;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14+6;No violation of Art. 14+9;No violation of Art. 14+11;No violation of Art. 14+P1-1;Pecuniary damage - reserved;Costs and expenses award - Convention proceedings | N. Valticos | 6. The applicant monasteries, which were founded between the ninth and thirteenth centuries, accumulated a considerable amount of property, in particular through donations made before the creation of the Greek State in 1829, but a large part of this property was expropriated during the early years of the State’s existence. The monasteries themselves also gave away whole tracts of land to the State or to individuals who had none. During the Byzantine and Ottoman empires the monasteries and religious institutions in general were almost the only institutions discharging important social, cultural and educational functions; even in the nineteenth century after the creation of the modern Greek State, they still discharged some of these functions. The State never challenged their ownership, and the monasteries always relied on adverse possession as a subsidiary means of establishing it, particularly in cases where Byzantine or Ottoman title deeds were lacking or had been destroyed. On several occasions the State published decrees in the Official Gazette in which their ownership was acknowledged (decrees of 25 January, 28 and 31 March, 14 June, 4 and 18 August 1933, etc.). 7. Apart from property thus amassed over the centuries, the monasteries acquired numerous plots of land and buildings more recently, either as gifts or legacies or through purchase. 8. Under Law no. 4684/1930, their land and buildings were classified as either "property to be realised" (ekpiitea perioussia) or "property to be retained" (diatiritea perioussia). The second category included property considered necessary for the needs of a given monastery, having regard, inter alia, to the number of its members and to its historic value as a place of pilgrimage, and they were listed in a decree adopted on a proposal by the Minister for Education and Religious Affairs. Responsibility for managing the property to be retained was vested in the Holy Monasteries and its exercise was governed by a decree of 5 March 1932. This provided, among other things, that the revenue arising from this management was to be applied to making good the monasteries’ deficit, repairing and maintaining buildings and furthering educational and charitable purposes. Responsibility for managing the property to be realised was vested in the Office for the Management of Church Property (Organismos diikisis ekklisiastikis perioussias). 9. The 1952 Constitution authorised the government to expropriate land for the benefit of destitute farmers and stockbreeders for a period of three years from its entry into force. In pursuance of this transitional provision (Article 104), the Greek Orthodox Church and the State concluded an agreement which was ratified by the State in a decree (no. 2185) of 8 October 1952. Article 36 para. 5 of that decree stated in substance that the State would from then on waive its rights under Article 104 of the Constitution relating to expropriation or compulsory leasing of property of the Greek Church. By the agreement, which covered "the purchase by the State of Greek Orthodox Church land for the purposes of restoring it to destitute farmers and stockbreeders", the Church and the monasteries would transfer to the State four-fifths of their agricultural land and two-thirds of their pastures and would receive in return a third of the real value of that property. Annexed were lists giving the type, location and area of the land thus sold to the State and of that kept by the monasteries. Under Article 8(a) agricultural land and pastures that were part of the "property to be retained" of the monasteries of Agia Lavra and Mega Spileo Kalavriton were not covered by the agreement. 10. The Office for the Management of Church Property ("the ODEP"), a public-law entity under the supervision of the Ministry of Education and Religious Affairs, was set up by Law no. 4684/1930 and replaced the General Ecclesiastical Fund that had existed since 1909. In section 7 of the Law it was made responsible for the management of all the movable and immovable property belonging to the Holy Monasteries, but responsibility for the property to be retained was taken away from it after a time. The ODEP’s function, as laid down in section 2, was (1) to realise the monasteries’ property, (2) to manage ecclesiastical property other than that belonging to the churches and (3) to make use of the revenues. 11. The ODEP was run by a board of governors, whose members originally included the Archbishop of Athens, two senior Church dignitaries, a senior member of the Supreme Administrative Court, a legal adviser, the head of the Treasury, a representative of the Bank of Greece and a representative of a commercial bank. Decree no. 2631/1953 reduced the number of members to seven, three of whom were laymen appointed by the Ministry of Education and Religious Affairs. Under regulations issued in 1981, which are still in force, the number of lay members was increased to four. By Regulation 12, the ODEP’s revenue had to be applied to Church purposes, in particular the financing of missionary and educational events and the remuneration of certain members of the clergy. 12. The ties binding the Hellenic nation - and later the Greek State - to the Orthodox Church go back several centuries. The interdependence of State and Church was already apparent in the administrative reorganisation of the Church which followed the restructuring of the Byzantine State. The Church’s historical role grew more important after the collapse of the Byzantine Empire. The Ecumenical Patriarch of Constantinople was recognised as millet basi - the spiritual leader, at the same time answerable to the Sublime Porte, of the Orthodox community, which became integrated into the administrative machinery of the Ottoman Empire through the Church. 13. The Greek Orthodox Church was proclaimed to be "autocephalous" in a royal decree of 23 July 1833 and was at the same time given its first Charter, which was very noticeably imbued with the spirit of State control; the Church was independent of the State only in matters of doctrine. Article 3 of the Constitution of 11 June 1975, in its references to the Patriarchal Tome of 1850 and the Synodical Act of 1928, on the one hand, and to the Holy Synod of the Hierarchy ("Synod of serving metropolitans") as the supreme Church authority, on the other, evidences the intention of breaking with the old tradition of State control. The proclaimed independence of the Church is not, however, unlimited, as is shown by the fact that the Greek Orthodox Church is the church of the "dominant religion" and embodies the religion of the State itself. 14. The Law of 27/31 May 1977 (Law no. 590/1977) on the "Charter of the Greek Church" also provides for interdependence of Church and State. Section 1(4) attributes to the Church and a number of its institutions, including the monasteries, legal personality in public law "as regards their legal relations". Under section 2, the Church is to co-operate with the State in fields of common interest, such as the Christian upbringing of young people, enhancing the status of the institution of marriage and of the family, caring for those in need of protection and safeguarding sacred relics and ecclesiastical monuments. The Church’s role in public life is reflected more markedly by the presence of the Minister for Education and Religious Affairs at the sessions held to elect the Archbishop of Athens and by the participation of the Church authorities in all official State events. The provisions on the Church’s finances and staffing testify even more eloquently to this interdependence. As to financing, the Law provides that the State is to contribute to the Church’s expenses (section 46(1)), that the Church’s resources are to be managed in a manner determined by decision of the Standing Holy Synod, approved by the Holy Synod of the Hierarchy (section 46(2)), and that managerial acts are subject to the State’s financial supervision (section 46(4)). As to staffing, the provisions governing public servants are to apply by analogy to the staff of Church public-law entities. 15. Section 39(1) of the Law describes the Holy Monasteries as ascetic religious institutions whose members live according to monastic principles, the sacred rules of asceticism and the traditions of the Christian Orthodox Church. The Holy Monasteries come under the spiritual supervision of the local archbishop (section 39(2)). The organisation and furtherance of spiritual life within the monasteries and the running of them are the responsibility of the monastic councils and conform to the holy rules and monastic traditions (section 39(4)). The Holy Monasteries are public-law entities (section 1(4)). They may be founded, merged or dissolved by means of a presidential decree, adopted on a proposal by the Minister for Education and Religious Affairs after consultation of the local archbishop and with the approval of the Standing Holy Synod (section 39(3)). The decisions of the monastery councils are preparatory in nature, taking effect only after they have been ratified by the higher Church authority. Judicial review lies only against the decisions of the latter authority. The Holy Synod of the Hierarchy, the supreme Church authority, has power to regulate the internal organisation and administration of the Church and the monasteries; it scrutinises the decisions of the Standing Holy Synod, of the archbishops and of the other Church legal entities including the monasteries (section 4(e) and (g)), over which the State exercises no authority. The ecclesiastical legal persons which make up the Greek Church, in the broad sense, constitute an entity distinct from the public service and enjoy complete autonomy. 16. The monastery of Ano Xenia was founded on Mount Othris in Thessaly in the ninth century. Its possessions include 278.70 hectares of forest surrounding the monastery buildings, olive groves, vineyards and other agricultural land with appurtenant buildings and a house and flats in Volos. The monastery estimates the value of its real property at more than 180 million drachmas (GRD). 17. Founded in the province of Boeotia in 947, the monastery of Ossios Loukas was a major cultural centre during the Byzantine period. The monastery complex and its mosaics are regarded as important works of Byzantine art. The monastery’s immovable property includes a hotel in Athens, a farm and several tracts of farming land around the monastery. A ministerial decree of 25 January 1933 contains a detailed list of these assets. The monastery estimates the value of the commercially exploitable real property at more than GRD 130 million, excluding all the monastery’s own buildings and treasures and the adjoining agricultural land. 18. The monastery of Agia Lavra Kalavriton, founded in the province of Achaea in 961, was likewise a major cultural centre in the Peloponnese. It was destroyed during the revolution of 1826 and rebuilt in 1830. In addition to the monastery complex, its properties include a number of churches and appurtenant buildings and adjoining land, several tracts of farming land, a forest, an oil-processing plant and numerous flats, offices and shops in Athens and Patras. Their value is said to exceed GRD 485 million, excluding the monastery complex and the churches. 19. The monastery of Metamorphosis Sotiros was built in Meteora in 1344 and enjoyed enormous prestige both on account of its location and as a centre for the arts. Its real property includes large areas of woodland, a farm, a flat and shops in Trikkala and Kalambaka. A ministerial decree of 16 October 1933 contains a list of the monastery’s agricultural land. The monastery assesses the value of its property at more than GRD 465 million. 20. The monastery of Asomaton Petraki was founded in 1000. Its development was most marked in the seventeenth and eighteenth centuries. It owns a very substantial amount of property, consisting of several buildings in Athens, large areas of agricultural land and forest, tourism facilities and urban land, which it values at GRD 43,230 million; it also owns marble quarries on Mount Parnassus. A ministerial decree of 14 February 1933 lists the monastery’s properties. 21. The monastery of Chryssoleontissa was founded on the island of Aegina in the thirteenth century and states that much of its landed property - in particular, uninhabited islands - was expropriated at the beginning of the twentieth century. Apart from the monastery complex itself, its immovable property includes agricultural land, olive groves, houses and flats on Aegina, and various shops, offices and flats in Athens. It estimates its wealth at more than GRD 880 million. 22. The monastery of Phlamourion Volou stands on the western slopes of Mount Pelion in the province of Magnesia. Its property includes two forests of an area of 8,241 hectares and 1,049 hectares, agricultural land and blocks of flats in Volos. 23. The monastery of Mega Spileo Kalavriton in Achaea was destroyed in 840 and rebuilt in 1280. Apart from the monastery complex and the surrounding woodland, its property includes several tracts of farming land, forests and offices in Athens; their value is said to exceed GRD 950 million. 24. Law no. 1700/1987 was published in the Official Gazette of 6 May 1987 and changed the rules on the management and representation of monastery property within the charge of the ODEP, most of whose members were now to be appointed by the State. It also provided that within six months of its publication the State would become the owner of all monastery property unless the monasteries proved title (kyriotita) established either by a duly registered deed (metegrammeno) or by a statutory provision or by a final court decision against the State. In this connection, it should be noted that only real-property transactions concluded since 1856 have had to be registered (section 9 of the Law of 30 October 1856 on the registration of immovable property and of rights in rem relating thereto); similarly, the Civil Code has required legacies and inheritances to be registered only since 1946. Except in the Dodecanese, Greece does not have any official land survey. The factors which prompted the State to enact new rules on Church property are set out in the explanatory memorandum to the bill. The following passages should be noted: "This bill deals with the question of the immovable property in the Church’s possession today, a question that since the beginning of the modern Greek State has caused friction not only between State and Church but also between the latter and ... the people; under the present system, many national treasures remain unexploited ... The Church’s current possessions are largely the remnants of a period in which the Church’s existence was dependent solely on its own property and even on its own labour. Since then, its operating conditions have radically changed. The State covers nearly all its needs. Concurrently with the provisions of this bill, provision is being made for the first time for subsidies from the State budget to the Holy Monasteries and the Church in general, so that they may expand their spiritual mission, which is so necessary for the nation and for the Orthodox faith in Greece and abroad ... A large part of this immovable property has been wasted in unlawful and disadvantageous transactions or usurped by skilful exploiters, while the rest has largely been abandoned or is being utilised detrimentally by third parties. This national heritage is continually shrinking and tending to disappear as a productive source of wealth for the country’s agriculture, stockbreeding and forestry. Furthermore, most of the lands now in the Church’s possession belong to the State. They are occupied without legal title and with the State’s toleration. This national property is constantly being diminished by illegal sales and encroachments which lead to usurpations of land and uncontrolled development; this is a situation which undermines the Church’s authority. It should be remembered that since 1952 the State has legislated to make the transfer of four-fifths of the monasteries’ property to the State compulsory, for the benefit of those who do not have any land (Decree no. 2185/1952). This statutory obligation has not hitherto been enforced." 25. The following provisions are relevant: "Section 1 1. As soon as this Law enters into force, the Office for the Management of Church Property (the ODEP) shall automatically be vested with the exclusive management and representation of all the immovable property of the Holy Monasteries, in respect of which it shall henceforth have full power to take or defend legal proceedings, whether the property belongs, under the legislation in force, to the category of ‘property to be retained’ or to that of ‘property to be realised’. ... 3. ... [T]he conditions and procedures governing the sale, leasing, grants of rights of user, and utilisation by the ODEP ... of movable and immovable monastery property, together with any other matter connected with the management of that property, shall be laid down in a presidential decree adopted on a proposal by the Minister for Education and Religious Affairs, the Minister for the Economy and the Minister of Agriculture. The same decree may authorise other administrative bodies to determine the details of its implementation in a regulatory decision. In the specific case of the sale of urban immovable property belonging to the monasteries or of the granting of any right in rem relating to it, the consent of the monastery concerned shall be required, failing which the contract shall be null and void. Section 2 1. A right of user over any immovable property of the monasteries which, on the entry into force of this Law, is in the ownership (kyriotita) or the possession (katokhi) [of the ODEP] or of the Holy Monasteries or of third parties may be granted by the ODEP ..., for the purposes of utilisation and development ..., preferably either to farmers already members of agricultural co-operatives or becoming members in virtue of the grant, or to agricultural co-operatives and public bodies. In exchange for such a grant, the ODEP shall pay the monastery concerned 5% of the gross revenue from the grant for the monasteries’ needs. For the purposes of the present provision, the following shall be regarded as immovable property: agricultural land and land capable of agricultural use, forests and wooded areas in general, pastures, meadows ... and quarries, mines and fish farms. 2. Within six months of the entry into force of this Law, the ODEP ... may, by contract to be signed by the Greek State as the representative of the Holy Monasteries and by the Minister for Education and Religious Affairs, the Minister for the Economy and the Minister of Agriculture as representatives of the Greek State, transfer to the State the ownership of the monasteries’ immovable property, together with such of the Holy Monasteries’ land as was included in the urban development plan after 1952. Such a transfer of ownership to the Greek State shall have no effect on the validity of any grant of a right of user made in accordance with the conditions set out in the preceding subsection, except for the required payment of a percentage of the revenue, which shall be paid to the entity provided for in section 9 of this Law and shall be used for educational purposes. Until this entity is created, the percentage shall be paid to a special account at the Bank of Greece in the name of the Minister for Education and Religious Affairs. 3. Immovable property belonging to the Holy Monasteries which is intended solely for cultivation by the monks themselves shall be exempt from the provisions of this section; it shall be delimited for each monastery according to the number of resident monks and in the light of the requirements of environment protection. Land earmarked for children’s holiday camps or to meet the needs of other Church institutions shall likewise be exempt. This property shall be designated by a decision of the Minister for Education and Religious Affairs, the Minister of Agriculture and the Minister of Public Works and the Environment, after consultation of the ODEP ... in respect of each holy monastery, each children’s holiday camp and each Church institution. Section 3 1. If nothing has taken place at the end of the six-month period provided for in subsection (2) of section 2, ownership of the monasteries’ property shall be regulated in accordance with the following provisions: A. Immovable property in use (nomi) by or the possession (katokhi) of the Holy Monasteries when this Law comes into force shall be deemed to be the property of the Greek State irrespective of the manner in which it is managed or utilised unless a monastery’s ownership (a) derives from a title deed that antedates the day on which the Bill was tabled and has already been registered or will be registered within a strict time-limit of six months from the entry into force of this Law or (b) has been recognised in a statutory provision or in a final court decision against the State. The same shall apply to buildings which belong to the monasteries or are in their possession but are occupied by third parties. B. The Holy Monasteries’ and third parties’ use and possession of immovable property deemed to belong to the State in accordance with the preceding subsection and ownership of which has not passed to the State under section 2 shall be terminated and be transferred automatically to the Greek State. All forms of management or utilisation of these buildings shall cease, irrespective of the category to which the property belongs under the current legislation. From that date the State shall exercise the rights associated with the ownership, use and possession of the property vis-à-vis third parties, the Holy Monasteries and bodies responsible for managing those monasteries’ property. The Minister of Agriculture shall henceforth manage this property in accordance with the provisions of the legislation already in force and of this Law. This change shall not affect the validity of any grant of a right of user made under subsection (1) of section 2, except for the requirement relating to the percentage of revenue to be paid to the entity provided for in section 9, which will now be assigned to the national education service ... 2. For the purposes of this section, the following shall be deemed to be immovable property: agricultural land and land capable of agricultural use, forests and wooded areas in general, pastures, meadows ... and quarries, mines and fish farms. Building land shall also be deemed to be immovable property even if it is entered in the urban development plan, on condition that the entry was made after 1952. 3. The Holy Monasteries which do not own sufficient immovable property may be granted, without consideration, land already in their possession in virtue of subsection (1) of this section, but solely for the purposes of cultivation by the monks themselves. Such land shall be delimited according to the number of resident monks and in the light of the requirements of environment protection. Such grants shall be made within a strict time-limit of one year from the deadline provided for in subsection (1) of this section, by means of a contract between the State ... on the one hand and the legal person responsible ... for managing the monasteries’ property on the other." 26. Section 4 provides that within two months of the expiry of the six-month period referred to in section 3(1)(A) any legal or natural person in possession of one of the buildings "deemed to belong to the State" must transfer it to the head of the appropriate agriculture or forestry department, failing which the latter will make an administrative eviction order, enforceable within fifteen days of its being served. The evicted person may apply for judicial review of such an order, but this will not have any suspensive effect (subsection (4)); furthermore, it is open to such a person, if he asserts rights in rem over the building, to apply to the civil courts under Articles 1094-1112 of the Civil Code (subsection (7)). 27. The arrangements for implementing sections 3 and 4 are to be specified in a presidential decree, to be adopted on a proposal by the Minister for Education and Religious Affairs, the Minister for the Economy and the Minister of Agriculture. To the Court’s knowledge, this has still not been issued. 28. Section 8 provides that the ODEP’s governing body shall be composed of a chairman and a vice-chairman, appointed by the Cabinet on a proposal by the Minister for Education and Religious Affairs, and six other members and their substitutes, half of whom are to be appointed by the Standing Holy Synod and half by the Minister for Education and Religious Affairs. Section 9 provides for the creation, on a proposal by the Minister for Education and Religious Affairs and the Minister for the Economy, of a private-law entity to be responsible for implementing educational programmes to be established by the Ministry of Education and Religious Affairs. Section 10 provides for the inclusion in the State budget of an appropriation to support and maintain the monasteries and strengthen the Church’s cultural work. The Minister for Education and Religious Affairs is to allocate the available funds with a view to implementing a special programme that he will draw up each year on a recommendation by the Standing Holy Synod. 29. Law no. 1700/1987 provides that it is not to apply to property of the Holy Monasteries which come under the Ecumenical Patriarchate of Constantinople or the patriarchates of Alexandria, Antioch and Jerusalem, or under the Holy Sepulchre or the Holy Monastery of Sinai. 30. The chairman and the other members of the ODEP’s governing body were appointed by the Minister for Education and Religious Affairs on 10 and 16 July 1987 (pursuant to section 8 of Law no. 1700/1987). On 20 July the Greek Church challenged the lawfulness of their appointment in the Supreme Administrative Court (Symvoulio tis Epikratias) by means of an application for judicial review coupled with an application for a stay of execution. On 19 August 1987 the Supreme Administrative Court’s committee for hearing applications for stays of execution held that any attempt by the ODEP’s new governing body to exercise the powers conferred on it by Law no. 1700/1987 would be likely to compromise relations between Church and State; it consequently allowed the application and stayed the decisions until the Supreme Administrative Court had ruled on the merits. On 11 September 1987 some of the monasteries, including three of the applicant monasteries and their archimandrites, also appealed against the decisions, alleging, among other things, that Law no. 1700/1987 infringed the Greek Constitution (Articles 3 para. 1, 13 para. 1 and 17) and the European Convention. 31. The Supreme Administrative Court gave its ruling on 7 December 1987 (judgment no. 5057/1987), stating: "... The provisions of Article 3 para. 1 of the Constitution safeguard the holy canons and traditions of the Orthodox Church. However, this constitutional protection ... cannot be regarded as extending to the canons and traditions relating to purely administrative matters. Such matters, which are affected by the passing of time and the advent of new ideas, necessarily lend themselves to changes designed to promote the common interests of Church and State. The ordinary legislature regulates them according to society’s needs, in accordance with Article 72 para. 1 of the Greek Constitution. It cannot, however, ... by means of the Church’s Charter or other statutory provisions, undertake a radical reform of the basic administrative institutions, which have long been solidly established in the Orthodox Church ... Furthermore, the same provisions also guarantee the Church’s autonomy, which includes the power to determine its own affairs through its own organs composed as provided for by law and to be governed by the Holy Synod of the Hierarchy and the Standing Holy Synod constituted in accordance with the law and the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1929 concerning the composition of these bodies. In the view of the majority of this Court, the provisions of Law no. 1700/1987, which vests the management and representation of the Holy Monasteries’ property in the ODEP, a public-law entity integrated into the administrative framework of the Church and a majority of whose board of governors’ members are appointed by the State, are not incompatible with the Church’s autonomy - guaranteed by the Constitution - or with freedom of religion or with Articles 9 and 11 of the Rome Convention ... or with the Charter of the United Nations ... or with the Final Act of Helsinki ..., as these matters, unconnected with doctrine or worship, are purely administrative and unrelated to the Church’s basic administrative institutions; consequently, they must be freely regulated by the ordinary legislature ... Furthermore, the provisions of Law no. 1700/1987 do not materially affect those institutions as the management of monastery and Church property had always been vested in the ODEP, whose board of governors - as constituted under Law no. 4684/1930 - was composed, for the greater part, of lay members appointed by the State ... The grounds of nullity are accordingly ill-founded and must be rejected. However, one of the senior members of the Court has expressed the following opinion, in which he is joined by one of the junior members (paredri). Article 3 of the Constitution, which provides that the Greek Church is to be governed by ‘the Synod of serving metropolitans’ safeguards not only the Church’s autonomy in the sense that it is governed by metropolitans elected by it but also the right to manage and dispose of, at its discretion ..., the movable and immovable property of every kind belonging to it in order to achieve its non-profit-making aims, namely the establishment and promotion of the Orthodox faith of its members. Monastic life in monastic communities, which are vital parts of that Church ... and which, despite their status as public-law entities, derive, like the Church itself, from an area lying outside the jurisdiction of the State, has always constituted a fundamental mode of the worship of God. To deprive all the monasteries of the management and representation of all their existing and future ... property and to assign those powers to the ODEP without their consent ... is consequently an unacceptable restriction of their autonomy and of that of the Church ... These provisions entail, in the first place, a breach of the aforementioned Article of the Constitution, which does not allow the Church’s administrative institutions to be altered to the point of removing its autonomy, and, secondly, seriously hamper the practice of worship through monastic life, since they prevent the ‘unrestricted’ practice of monastic worship, as secured in Article 13 para. 2 of the Constitution. Lastly, it must be pointed out that from 1953 the ODEP was run by a board of governors a majority of whose members were appointed by the Church and which was chaired by the Archbishop of Athens ...; the precedents to the contrary cited by the majority relate to isolated special cases and not to the monasteries’ property as a whole. The minority consequently consider the grounds of nullity to be well-founded. The applicants also maintained that the provisions of Law no. 1700/1987, which vested the management and representation of the monasteries’ property in the ODEP - an entity separate from the Church and not controlled by it - and authorised the transfer of that property to the State without any compensation, were contrary to Articles 17 and 7 para. 3 (a) of the Constitution as they made mandatory provision for an unacceptable transfer of that property, deprived the Holy Monasteries of their ownership and introduced unconstitutional restrictions on property rights. Article 7 para. 3 (a) of the Constitution prohibits any general confiscation. Article 17 ... provides that ownership is under the protection of the State but that rights deriving from it cannot be exercised to the detriment of the public interest ... No one may be deprived of his property unless in the public interest, duly made out, in the eventualities and according to the procedure laid down by law and in every case subject to full prior compensation ... This latter provision of the Constitution prohibits any deprivation of property that does not satisfy the foregoing conditions; nothing, however, prevents the legislature from restricting the right of ownership on the basis of objective criteria and in the public interest, on condition that such restrictions do not nullify the right and make it ineffective ... In the view of the majority of the Court, the provisions of Law no. 1700/1987, ... which provide for the transfer to the Greek State of the ownership of the monasteries’ agricultural land and of other immovable property owned by the Holy Monasteries without any title deed, are not contrary to Article 17 of the Constitution as they do not deprive the Holy Monasteries of their ownership (idioktissia); the Law in fact means that this immovable property does not belong to them. Moreover, the provisions of the Law concerning the sale of the Holy Monasteries’ urban immovable property or the granting of rights in rem relating to it by decision of the ODEP ... do not infringe the Holy Monasteries’ right of ownership inasmuch as their implementation is subject to the agreement of the Holy Monastery which owns the immovable property, failing which the contract is void. Lastly, the provisions relating to the ... utilisation by the ODEP of urban immovable property and mines, quarries and fish farms belonging to the Holy Monasteries or any other Church institution and those relating to the management and representation of ... agricultural property ... and the present or future utilisation of urban immovable property do not entail any deprivation of ownership since the ownership as such remains in the hands of the Holy Monasteries, and in any case the revenue from the ODEP’s management of this property is used for ecclesiastical purposes ...; the provisions lay down constitutional restrictions on ownership which are designed to serve at one and the same time the monasteries’ interest and the public interest. In consequence, this ground of nullity, together with the complaints relating to Article 12 paras. 5 and 6 and Article 20 para. 1 of the Constitution and Article 1 of the Paris Protocol of 20 March 1952 (P1-1)..., are ill-founded and must be rejected ... Two senior members of the Court, joined by one of the junior members, have expressed the following opinion. Transferring the management and representation of the whole of the monasteries’ property to the ODEP on the aforementioned terms, even ‘as an amendment to the legal provisions in force’ (section 1(3) of Law no. 1700/1987), does not amount to a restriction of ownership, which is allowed by the Constitution, but interferes unacceptably and without full compensation with the very essence of the right of ownership. This is all the more evident as the only possibility left open to the monasteries is either to consent or to object to the sale of their urban property or the granting of a right in rem relating to it by the ODEP, without being able to decide the matter for themselves: such a decision belongs exclusively to the ODEP, which has unfettered discretion to determine, without even consulting the monasteries, the sale of agricultural land and ‘the present and future utilisation’ of their immovable property such as is provided for in section 7 of Law no. 1700/1987. As to the monasteries’ movable property, some of which is extremely valuable (icons in monastery museums, precious relics, shares, etc.), they are managed by the ODEP without any restrictions whatever. Furthermore, it should be noted that Law no. 1700/1987 does not specify how the income from monastic property is to be applied; on the other hand, it appears from sections 2(2), 3(1)(B) and 9 of Law no. 1700/1987 that the State’s revenue from the ‘utilisation or granting of the use of monastic and Church property’ is to be transferred to a private-law entity set up under section 9 which does not have any ecclesiastical objectives. The provisions of Law no. 1700/1987 are thus wholly contrary not only to Article 17 of the Constitution but also ... to the provisions of the Rome Convention (Article 1 of the Protocol) and the treaty establishing the European Economic Community, and they engage the Greek State’s international responsibility. Consequently, the minority consider this ground of nullity to be well-founded. ... As to the submission that the provisions of Law no. 1700/1987 infringe Article 4 para. 1 of the Constitution because they establish discrimination between the Greek Orthodox Church and the monasteries coming under the Ecumenical Patriarchate, the Ecumenical Patriarchate itself, the patriarchates of Alexandria, Jerusalem, the Holy Sepulchre and the Holy Monastery of Sinai and the monasteries of other denominations or religions, the complaint is ill-founded since the Greek Orthodox Church, as an instrument and expression of the dominant religion according to the terms of Article 3 para. 1 of the Constitution, does not occupy the same position as the other Orthodox churches and other denominations or religions, such that the statutory provisions in issue do not offend the constitutional principle of equal treatment of comparable legal situations. ... Moreover, it is alleged that the provisions of Law no. 1700/1987 infringe Article 5 para. 1 of the Constitution in that Orthodox citizens who wish to support the monasteries financially are impeded in their self-fulfilment since, contrary to their wishes, the management of donations would vest not in the monasteries but in the ODEP. Furthermore, it is submitted that these provisions infringe the individual freedom of religion of the members of monastic communities and of those who would like to found a monastery by dedicating their assets to that end. The first limb of the ground is ill-founded since the individual right of free self-fulfilment, secured in Article 5 para. 1 of the Constitution, is not an absolute right; it is subject to the restrictions laid down in the Constitution and in law. In the instant case the restrictions deriving from the aforementioned provisions of Law no. 1700/1987 ... do not infringe Article 5 para. 1 of the Constitution. The ground is also ill-founded in its second limb, since it refers vaguely to possible damage sustained by the applicants in the future. ..." The Supreme Administrative Court nevertheless quashed the Minister for Education and Religious Affairs’ decision of 16 July 1987 (see paragraph 30 above), on the ground that the composition of the ODEP’s governing body did not satisfy the requirements of section 8 of Law no. 1700/1987. 32. The passing of Law no. 1700/1987 had produced a sharp reaction from the Greek Church. With a view to calming the situation, the Government and the Holy Synod of the Hierarchy held a series of meetings and concluded a preliminary accord under which the monasteries would, by means of a further agreement, transfer part of their property to the State. An essential condition of the preliminary accord was that the Greek Church would have to seek from each monastery council full powers to sign the further agreement. 33. On 11 May 1988 the Standing Holy Synod duly concluded a further agreement with the State, whereby 149 monasteries, including the applicant monasteries of Asomaton Petraki, Ossios Loukas and Phlamourion Volou, transferred their agricultural and forest property to the State; 47 monasteries declared that they were not affected by the agreement since they did not have any substantial property of that kind. Parliament ratified the agreement in section 1 of Law no. 1811/1988, section 2(3) of which provided: "On publication of this Law, the management of the urban property of the Holy Monasteries that are not parties to the agreement shall revert to the Standing Holy Synod of the Greek Church. The provisions of Law no. 1700/1987 shall apply to the remainder of these monasteries’ property." Section 2(1) provided that monasteries which were not parties to the agreement could join it within a renewable period of one year from the commencement of the Law; the operation of Law no. 1700/1987 was not, however, suspended during that period. 34. Under clause 2 of the agreement, the monasteries parties to it are to cede to the State all their agricultural and forest property except for the land surrounding them within a radius of 200 metres; a monastery’s opinion must be sought before any leisure facilities, restaurants or business are established in its vicinity and operated. Furthermore, the monasteries are authorised to retain a proportion of their original real property - provided that the total area of land retained does not exceed 500,000 sq. m of forest or 200,000 sq. m of agricultural land - and 20% of land "usable for tourism purposes"; the Greek Church is allotted 40% of land included in the town development plan after 1952. Lastly, land in the monasteries’ possession by virtue of a title deed or which has passed to them under a will or a deed of gift is exempt from transfer. A special committee set up in each prefecture by a decision of the Prefect is to determine which land is to be transferred to the State and which is to be kept by each monastery. In exchange for the transfer of ownership, the State undertakes to pay a stipend to eighty-five preachers and to spend 1% of the budgetary appropriations earmarked for the Church on financially supporting the monasteries that are parties to the agreement (clause 4). 35. Under clause 3 of the agreement, the ODEP was destined to be wound up once the operations had been concluded; in fact the ODEP was dissolved after Parliament’s ratification of the agreement and the members of its staff were assigned to other State bodies in accordance with section 3 of Law no. 1811/1988. The management of the urban property and part of the agricultural and forest property remaining in the ownership of the monasteries parties to the agreement is to be their responsibility, while the Greek Church, having taken over the rights and obligations of the ODEP and having exclusive authority to act, is to be responsible for the property to be realised. The Standing Holy Synod is to lay down in canonical decisions published in the Official Gazette the manner in which ODEP property transferred to the Greek Church on the abolition of the ODEP is to be managed and utilised. Lastly, the monasteries parties to the agreement have capacity to take legal proceedings in any dispute relating to the property they retain under it (clause 5). 36. Some of the monasteries - including Phlamourion Volou - which had authorised the Greek Church to negotiate and sign the agreement with the State applied to the courts, alleging that the agreement was null and void. They argued, inter alia, that (1) the agreement had been concluded by the Standing Holy Synod, a purely administrative body of the Greek Church with no legal personality of its own or any legal capacity; (2) the archbishops and metropolitans who had taken part in the drawing up of the agreement were not the Standing Holy Synod’s statutory representatives; (3) the tracts of land which the monasteries had undertaken to transfer were not precisely delimited and the agreement made no mention of their location, area or boundaries; (4) the Greek State had not acted through its statutory representative; (5) at the time that the agreement was concluded, the ODEP was responsible for the management and representation of the monasteries’ property and ownership of that property had already been transferred to the State under section 3 of Law no. 1700; (6) the authorisations issued by the monasteries to the Standing Holy Synod had not been in the form of notarial documents as required by law; and (7) the conditions that were stipulated by the monasteries for concluding the agreement and which appeared in the authorisations to act were not reproduced in the actual text of the agreement. 37. On 26 January 1990 the Athens Court of First Instance gave judgment against the monastery of Phlamourion Volou. 38. On 4 December 1990 the Athens Court of Appeal dismissed an appeal by the monastery against that judgment. It noted, in particular, like the court below but in more detail, that by Law no. 1811/1988 the legislature had expressed the intention of ratifying the agreement in its entirety even if it contained formal or substantive defects which might have rendered it null and void under enactments in force at the time it was concluded. Complaint no. 5 was rejected by the Court of Appeal on the ground that the monastery of Phlamourion Volou had no locus standi, since at the time the agreement was concluded it had ceased to be the owner of the land in question. As for complaints nos. 3 and 7, the court held that because of the large number of monasteries involved, the agreement could only distinguish in a general way between the land to be transferred and the land to be retained and it assigned the task of laying down the precise boundaries to a committee to be set up in each prefecture. Furthermore, the wording of clause 2 of the agreement did not suffice on its own to show that the full powers granted to the Standing Holy Synod had been exceeded or that there had been any misuse of powers on the part of the archbishops who had signed the agreement; if that had been the case and if land not covered by the authority to act had been transferred to the State, it would have amounted to a deprivation of property incompatible with Article 17 of the Constitution, a defect that could not have been cured by the ratification. It was, however, impossible to determine whether the full powers had been exceeded as the appellant had not stated whether the relevant committee had already carried out its task. Lastly, the disputed agreement was an agreement for value, as the State undertook to support the monasteries that were parties to it by transferring to them 1% of the budgetary appropriations earmarked for the Church and to meet the cost of remunerating eighty-five preachers. 39. In a circular of 5 January 1989 the Ministry of Agriculture requested prefectures to set up the committees provided for in clause 2 of the agreement of 11 May 1988 (see paragraph 34 above). No action has yet been taken to this end. Another circular, of 20 February 1989, drew the authorities’ attention to the fact that ownership of the immovable property belonging to the monasteries not parties to the agreement had been transferred to the State under Law no. 1700/1987. The circular also reminded the authorities of the possibility of transferring some of this property to agricultural co-operatives and of using the eviction procedure provided for in section 4 of Law no. 1700/1987 (see paragraph 26 above). 40. In practice, the transfer operations - and in particular the determination of which property is to pass to the State under Law no. 1700/1987 and Law no. 1811/1988 - have not been completed. 41. In the proceedings before the Commission and the Court the applicant monasteries relied on several judgments whereby proceedings brought against the State by non-applicant monasteries had been stayed (judgments no. 455/1987 of the Ioannina Court of First Instance and no. 175/1988 of the Chalcis Court of First Instance) and an appeal by another monastery had been declared inadmissible (judgment no. 335/1987 of the Lasithi Court of First Instance) on the ground that the monasteries concerned had ceased to have locus standi once Law no. 1700/1987 had come into force. In particular, proceedings were declared inadmissible in an action brought by a non-applicant monastery for a declaration of ownership arising, according to the monastery, from short adverse possession; the Patras Court of First Instance (in judgment no. 35/1991) also held that the ownership, possession and use of the disputed land had automatically passed to the State under section 3(1)(A) and (B) of Law no. 1700/1987 and pointed out that the monastery in question was not one of those that had signed the agreement of 11 May 1988. 42. In a letter of 7 February 1992 the Ministry of Agriculture replied as follows to a request from the Agent of the Government for information about the implementation of Laws nos. 1700/1987 and 1811/1988: "... Laws nos. 1700/1987 and 1811/1988, which regulate questions of Church property, have not been implemented as the procedures laid down in them for transferring to the State the land falling to it and for distinguishing that land from the land to be retained by the monasteries have not yet been carried out ... A problem has arisen with the management of the monasteries’ forest land ..., because the proceedings whereby the State is to take possession of the land have not been set in motion ... and also because of disagreements between the State and the Holy Monasteries concerning the interpretation of the Laws in question ... [I]t appears from document no. 147224/21.12.1991 of the Regional Development Department of our Ministry ... and from the fact that the Ministry of Education has set up a team to study the problem of Church property that the State intends to re-examine the issue in order to resolve it." 43. Counsel for the applicant monasteries stated at the hearing before the Court that, to date, none of the land in dispute had been transferred to agricultural co-operatives or the State. He maintained, however, that since the entry into force of Law no. 1700/1987 the administrative authorities had refused to grant the authorisations necessary for carrying out certain day-to-day operations. In this connection he relied on and produced correspondence between the Kalambaka forestry authority, on the one hand, and the co-operative at Vlakhava and the monastery of Metamorphosis Sotiros, on the other; the forestry authority had prevented the co-operative from cutting down trees in forests belonging to the monastery by virtue of Decree no. 2185 of 1952 (see paragraph 9 above), although the co-operative had already, in 1985, paid the monastery for the felling. Similarly, the forestry authority of Almiros in Magnesia had declined to approve the four-year plan for exploiting a forest belonging to the monastery of Ano Xenia, on the ground that there was uncertainty about the ownership of the forest. | 1 |
train | 001-58107 | ENG | GRC | CHAMBER | 1,997 | CASE OF PAPAGEORGIOU v. GREECE | 3 | Preliminary objection rejected (six month period);Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Not necessary to examine Art. 13+6-1;Non-pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed | C. Russo;N. Valticos | 6. On 23 December 1987 Mr Papageorgiou and 109 other persons brought an action in the Athens District Court (Irinodikio) against their employer, the Public Electricity Company (Dimossia Epikhirissi Ilektrismou, “the DEI”), to recover the sum of 268,800 drachmas (GRD). That was the amount which the DEI, relying on the provisions of Law no. 1483/1984, had deducted from their salaries between 1 January 1982 and 31 December 1987 for the benefit of the Manpower Employment Organisation (Organismos Apaskholissis Ergatikou Dinamikou, “the OAED”). The hearing before the District Court was set down for 8 February 1988. 7. On 4 February 1988 the DEI applied to the District Court for leave to serve a third-party notice (anakinossi dikis meta prosepiklisseos is paremvassi) on the OAED, arguing in particular that if it lost the case, it would be entitled to an indemnity from the OAED, for whose benefit it had deducted the sums claimed. A hearing was set down for 16 March 1988. 8. On 8 February 1988 the hearing of the first action was adjourned to 16 March 1988 so that the two actions could be joined. However, the hearing on 16 March 1988 was cancelled because the parties’ lawyers failed to appear. 9. As he now wished to continue on his own with the action brought on 23 December 1987, the applicant applied to the District Court on 26 October 1988 for a new hearing, which was set down for 14 December 1988. 10. On 12 December 1988 the DEI made a further application to the District Court for leave to serve a third-party notice on the OAED. A hearing was set down for 7 February 1989. 11. On 14 December 1988 the hearing was adjourned to 7 February 1989 so that the two actions could be joined. 12. In a judgment (no. 749/1989) of 20 April 1989 the District Court allowed the applicant’s claim in part and ordered the DEI to pay him the sum of GRD 190,383; in addition, it ordered the OAED to repay that amount to the DEI. 13. On 26 June and 10 July 1989 respectively the DEI and the OAED appealed to the Athens Court of First Instance (Polymeles protodikio) against that judgment. On an application by the applicant, a hearing was set down for 12 January 1990. 14. On that date the Court of First Instance noted that the applicant had himself obtained an expedited hearing, but had not served a summons on the DEI to attend because he had considered that the OAED’s appeal was inadmissible as it had also been brought against the DEI. It decided to declare the appeal against the DEI admissible and to adjourn the hearing of the appeal concerning Mr Papageorgiou in order to avoid the risk of delivering contradictory decisions (judgment no. 2371/1990). 15. On 3 April 1990 the applicant, having served summonses on both the OAED and the DEI, applied for a new hearing before the Court of First Instance, which was held on 28 September 1990. 16. In a judgment (no. 9189/1990) of 30 November 1990 the Court of First Instance reduced the amount awarded to the applicant by the District Court to GRD117,213. 17. On 13 March 1991 the DEI appealed on points of law; the OAED intervened in the appeal proceedings in order to lend support to the DEI’s arguments. In one of its grounds of appeal the DEI challenged the Court of First Instance’s jurisdiction; in its view, the issue over the obligation to make contributions was a matter of insurance law and therefore had to be decided by the administrative courts. However, the hearing initially set down for 29 September 1992 had to be adjourned because of a strike by members of the Athens Bar. The strike lasted until April 1993. 18. On 21 October 1992 the applicant applied for a new hearing, which was set down for 19 October 1993. 19. On 19 November 1993 the Court of Cassation, relying on the provisions of section 26 of Law no. 2020/1992 – adopted by Parliament on 28 February 1992 (see paragraph 25 below) – set aside the judgment appealed against on the following grounds: “... 3. It results from the principle of separation of powers ... that the legislature is not precluded from abolishing by means of new legal rules – through extinguishment – rights acquired under legal rules that were in force in the past, even if those rights have been recognised by final court decisions. This, however, is not the case with new rules which are not of general application and which consequently infringe the principle of equality (Article 4 § 1 of the Constitution) or the right of property (Article 17 of the Constitution); in such circumstances the courts may not give effect to such rules ... In the instant case, after the judgment under appeal had been delivered (30.11.1990) and the appeal on points of law lodged (14.3.1991), Law no. 2020 of 28 February 1992 was passed, section 26 of which provides ... In the judgment under appeal (no. 9189/1990) the Court of First Instance, sitting as a court of appeal, found that [the applicant] was a permanent employee of the DEI, which had given him a contract of employment and paid him a monthly salary; between 8 October 1984 and 31 December 1987 the relevant organs of the DEI had made deductions for the benefit of the OAED from his monthly income, which, as the additional insurance of DEI employees was incompatible with the aforementioned insurance branches ..., were illegal. The deductions comprised 1% of his income for unemployment benefit and 1% for the DLOEM, making a total of 117,213 drachmas that was paid to the OAED. [The Court of First Instance] subsequently awarded that amount to the [applicant]. However, after the entry into force of section 26 (2) of Law no. 2020/1992, which is not contrary to the provisions of Articles 4 and 17 of the Constitution, the judgment under appeal must be set aside and the proceedings struck out ...” 20. It would appear that this judgment was not served on the applicant, who claims that he became aware of it on 22 December 1993. 21. Article 74 § 5 of the Constitution provides: “A government or private member’s bill containing provisions unrelated to the principal subject matter of the bill shall not be put before Parliament. No additional provision or amendment shall be put before Parliament if it is unrelated to the principal subject matter of a government or private member’s bill. Disputes will be referred to the Chamber of Deputies for resolution.” 22. The relevant provisions of the Code of Civil Procedure read as follows: “The parties shall be responsible for taking procedural steps on their own initiative unless the law provides otherwise.” “1. The parties shall be responsible for the service of judgments. 2. Where a judgment is not final, it shall be deemed to have been served if the parties, their legal representatives ... or their lawyers were present at the hearing.” 23. Section 18 (4) of Law no. 1346 of 13/14 April 1983 reads as follows: “Employees subject to the provisions of Legislative Decree no. 3868/1958 ... who receive a monthly salary are not entitled to the aforementioned family benefits if and for so long as they are receiving from their employer – pursuant to statute, a collective agreement, an arbitration award, company regulations or any other provision ... –benefit for dependent children exceeding the amount of benefit paid by the OAED ...” 24. Contributions to the OAED are dealt with in section 20 of Law no. 1483/1984, which provides: “(1) Employers’ and employees’ contributions to the OAED ... constitute welfare deductions for the benefit of the aforementioned bodies, which perform a welfare role, and the contributions shall continue to be payable notwithstanding any entitlement of beneficiaries who are employees to similar benefit from their employers or other institutions. (2) Under no circumstances shall any claim be made for repayment of any contributions referred to in the preceding paragraph that have been paid to the OAED … before publication of this Law. Any pending proceedings concerning claims for repayment of such contributions shall be struck out. ...” 25. On 28 February 1992 Parliament enacted a law (no. 2020/1992) entitled “rules on the special tax on the consumption of petroleum products and other provisions”. Section 26 of that Law provides: “(1) Employers’ and employees’ contributions in the insurance branches under the responsibility of the OAED ... shall be deemed to be welfare deductions for the benefit of those bodies and shall be payable notwithstanding any entitlement of the insured to similar benefits from their employers or other institutions. (2) No claims shall be made for repayment of contributions referred to in the preceding paragraph that have been paid to the OAED ... before publication of this Law and any claim relating to such contributions shall be extinguished and any claim pending in any court for the repayment of such contributions shall be struck out. ...” It was indicated in the explanatory report that the purpose of the provision was to settle the issue whether contributions to the OAED (in particular those relating to benefit for dependent children) were “welfare deductions”, that is to say contributions payable by those liable to make them even where the risk covered by the insurance would never materialise. 26. In two judgments of 30 June 1988 (no. 1288/1988) and 17 December 1990 (no. 1989/1990), respectively concerning disputes between the Greek Post Office (“the ELTA”) and its employees and the Greek Railways Board (“the OSE”) and its employees, the Court of Cassation clarified the meaning of section 20 of Law no. 1483/1984 and especially of the words “continue to be payable” contained in section 20 (1). At the same time it upheld the decisions of the courts below in which the OSE and the ELTA had been ordered to pay compensation to some of their employees for the deductions from their salaries made for the benefit of the OAED. More particularly, in its judgment of 30 June 1988, the Court of Cassation said: “... It is apparent from the aforementioned provisions and from the fact that ELTA staff are entitled to a State pension and to medical cover ..., that it is inconceivable and not intended by the legislature that staff should receive additional cover from the OAED for unemployment benefit and family benefit ... Before Law no. 1483/1984 was adopted and as the full court of the Court of Cassation held in its judgment no. 403/1981, the ELTA’s employees had no obligation under the Law to make contributions to the OAED; section 20 of the aforementioned Law – as indicated by the words ‘continue to be payable’ – does not impose any such obligation on employees. Consequently, that section does not apply where there is no obligation to make contributions, which is the position with the ELTA’s staff ...” In its judgment of 12 December 1990 the Court of Cassation said that no obligation to make contributions was created by the entry into force of section 20 of Law no. 1483/1984, as it was provided that the contributions continued to be payable, which meant that where no contributions had been payable previously, the aforementioned Law did not create such an obligation. | 1 |
train | 001-114050 | ENG | SVN | CHAMBER | 2,012 | CASE OF ŠTEFANČIČ v. SLOVENIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing) read in the light of Article 6 - (Art. 6) Right to a fair trial (Article 6-3-d - Witnesses) | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens | 5. The applicant was born in 1966 and lives in Škofja Loka. 6. On an unspecified date, the applicant and another individual, M.K., were charged under Article 196, paragraph 2 of the Slovenian Penal Code with the criminal offence of unlawfully manufacturing and trading in narcotics. They were accused of being involved in the organisation of drug trafficking which had been carried out by J.G., who had already been convicted of this in London. Another person, D.M., who had been convicted in Freiburg (Germany), was involved in the trafficking. 7. By letter of 7 January 2000 and during a telephone call on 14 January 2000, the applicant’s lawyer was informed of the investigating judge’s decision to question J.G. as a witness in London, where he was being held in a prison. 8. On 18 January 2000 the investigating judge, accompanied by M.K.’s representative and the public prosecutor, questioned J.G. in London. J.G. had specified that his participation to the meeting was conditional upon the fact that he would not be compelled to answer questions put by the defence; as a consequence, M.K.’s representative was unable to put any questions to him. 9. During questioning, J.G. explained that he had met D.M. in 1990 in Germany. D.M. later contacted him about transporting a car from Slovenia to elsewhere in Europe and mentioned people from Slovenia, including the applicant, who would organise the transport. J.G. and D.M. came together to Slovenia on 12 February 1998 and stayed in the Hotel Medno. They were visited there by the applicant and M.K. On this occasion, J.G. received an envelope from the applicant: he stated that he thought that it contained money for the purchase of a car, but later realised that it was a package of heroin and that he was supposed to smuggle drugs in the future. According to J.G.’s version of events, he came to Slovenia again on 26 February 1998, taking a train from Feldkirch (Austria) to Ljubljana. In Ljubljana he met M.K., who told him about the first drug transfer from Hungary to Germany and gave him a mobile phone with a Slovenian SIM card. Later that day, J.G. met the applicant and M.K. at the Hotel Medno. They told him where in Hungary he had to go, but that plan was never implemented. J.G. subsequently bought a car for a drug transfer from Croatia to Hamburg. His contact with M.K., who, unlike the applicant, could speak English, was made using the mobile phone which had been given to him during his second visit to Slovenia. J.G. met the applicant and M.K. in Munich and Stuttgart, where they told him about a new drug transfer from Croatia to Great Britain. He was again given instructions by M.K. using the mobile phone. J.G. identified both the applicant and M.K. from a series of photographs. 10. The trial court subsequently called: (i) witness D.Š., who testified that he had introduced the applicant to D.M. in the context of a business involving the sale of apartments; (ii) an undercover agent who was involved in another case and whose testimony was consequently held by the trial court to be inadmissible in the proceedings concerning the applicant; and (iii) an anonymous witness, who also confirmed that the applicant and D.M. knew each other because they had both been present at the meeting concerning the sale of certain apartments. The court also admitted as evidence: (i) the statement taken from J.G. on 18 January 2000 in London; (ii) the guest records of the Hotel Medno relating to the dates 13 and 27 February 1998; (iii) the records of phone calls made on the Slovenian SIM card found in possession of J.G. on the date of his arrest; and (iv) the judgment of the Freiburg Regional Court concerning the criminal proceedings against D.M. 11. That judgment had established that D.M. and J.G. knew each other and that they had planned a drug transfer from Slovenia to Central Europe. Moreover, it had been D.M. who had introduced J.G. to the applicant and M.K. The Freiburg Regional Court had further established that on 12 February 1998 D.M. and J.G. had gone to the Hotel Medno in Ljubljana, where they had met the applicant and M.K., that a second visit to Slovenia had taken place on 26 February 1998, that J.G. had received a mobile phone from M.K. which had been used to give him instructions about the drug transfers, that J.G. had delivered drugs in Hamburg and in Great Britain and that he had met the applicant and M.K. twice in Germany. 12. At a hearing on 18 May 2000, the court read out J.G.’s statement of 18 January 2000. While the public prosecutor and M.K.’s representative agreed to this, the applicant’s representative objected and requested that J.G. be examined in court. His request was rejected by the court, referring to section 340 of the Criminal Procedure Act 1994 (hereinafter, “the CP Act” – see paragraph 22 below). 13. At a hearing on 29 May 2000, the applicant requested that his mother, brother and wife be called to give evidence relating to his state of health and his medical appointments during the period in question. The court rejected the request, finding that the applicant’s state of health could be verified on the basis of his medical records. 14. On 31 May 2000 the applicant was convicted and sentenced to nine years’ imprisonment for being part of a criminal enterprise, together with J.G. and D.M., which had drug trafficking from Croatia to Western Europe as its purpose. The court found that the applicant and his co-accused, M.K., together with D.M., had organised and assisted the sale of heroin which had been trafficked by J.G. on two occasions in March 1998. On one occasion, 30 kg of heroin had been trafficked to Hamburg, and on another occasion, 54 kg of heroin had been trafficked to London. The court also found that the applicant had not attended any medical appointments on the dates on which the alleged acts were committed. 15. In its judgment, the court rejected the applicant’s argument that J.G. should have been examined at trial. The court relied on the fact that J.G. had been sentenced to sixteen years in prison and that it could not therefore have been expected that the British authorities would bring him before a Slovenian court in order to testify. It also rejected the applicant’s argument that J.G. was mentally ill, finding that his answers had been clear and coherent and that the issue of his mental state had already been assessed by the Freiburg Regional Court, which had found that his testimony had been fully credible. The court also observed that the defence had been aware that J.G. would not answer questions other than those put to him by the investigating judge or the prosecutor. It further found that M.K.’s representative, who had been present at the examination, had not even attempted to put questions to J.G., nor had she asked the investigating judge to do so on her behalf. 16. In its reasons for convicting the applicant, the court stated that it had followed the description of the relevant events given by J.G. on 18 January 2000, which had been coherent and supported by corroborating evidence. The evidence, including telephone records and train tickets, had supported J.G.’s statement regarding the trips he had taken in order to bring the drugs to Hamburg and London. In particular, the train tickets found on J.G. on the date of his arrest had corresponded to the dates of his alleged meetings with D.M. Moreover, from the date on which he had received the mobile phone from M.K. until the date of his arrest in London, J.G.’s Slovenian SIM card had recorded that calls had been received from different telephone boxes in the area near Škofja Loka, the city where the applicant and M.K. had lived. These phone calls had matched with the dates and locations of the drug transfers which J.G. had allegedly undertaken under the instructions of the applicant and M.K. 17. In addition, the court found that J.G. had picked out the applicant and M.K. from twenty-four photos of different people and “had previously described both of them and stated that he had met them on several occasions”. It further stated: “On the basis of the above, the court considers it proven that the accused colluded with D.M. and J.G. for the purpose of committing criminal offences. The witnesses confirmed that [the applicant] had met D.M., and that [his co-accused] had also enquired about him. J.G. indicated the time from which he had been D.M.’s friend and from which they had reconnected. Immediately after J.G.’s release from hospital, D.M. contacted him and took advantage of his position. It can also be seen from the Freiburg Regional Court’s judgment that D.M. was in contact with J.G. on a continuous basis. All four of them were together on 12 February and 13 February in the Hotel Medno, where they started planning the trafficking.” 18. The applicant appealed. He alleged that the judgment had been based predominantly on J.G.’s statement, which was of questionable credibility. He submitted that the documents in the case file had shown that J.G. was mentally ill, had been treated in a psychiatric hospital several times, including most recently shortly before his arrest, and that he was easily manipulated. For those reasons, the applicant had requested that the court call J.G. for examination at trial. Referring to Article 6 of the Convention, the applicant alleged that his right to examine a key witness should have had precedence over the logistical difficulties and financial consequences connected with the organisation of the witness’s attendance at the hearing. He also complained about the court’s refusal to call his mother, his brother and the representative of his co-accused as witnesses. 19. On 6 December 2000 the Ljubljana Higher Court dismissed the appeal. It agreed with the lower court as regards the credibility of J.G.’s testimony. In relation to the fact that J.G. had not been examined at the hearing, it found the following: “The court’s decision to read out the testimony of J.G. was made under section 340, paragraph 1, point 1, on the well-founded basis that J.G. was serving a sixteen-year prison sentence in London. The representative of the accused had been informed of the examination before the British court beforehand but decided not to attend. The other examinations of this witness and the final judgment of the German court, which have been mentioned already, were sufficient to assess the credibility of this witness. Article 6 of the Convention was not violated because the accused were unable to directly examine this witness, contrary to the appellant’s incorrect contention. The proven credibility of this witness was such that the participation of both accused [in J.G.’s questioning] could not have affected [his statement’s] evidential value ... As can be seen from the written grounds of the judgment, the court also relied on J.G.’s statements obtained in the proceedings before the British courts and the final judgment of the German court, which were valid evidence because their lawfulness was not questionable as [a result of the fact that] the judgments were final. Although M.K.’s representative was unable to put any questions to J.G. (in accordance with the conditions set by J.G.), the rights of the defence were not violated as otherwise the witness would have refused to participate. In this connection, the court rightly found that the [applicant’s] representative could have put questions to J.G. through the investigating judge but did not make use of this possibility.” 20. The applicant and M.K. lodged appeals on points of law. On 3 April 2003 the Supreme Court of Slovenia upheld their appeals in part in respect of the legal qualification of the offence and reduced their sentences to eight years’ imprisonment each. It dismissed the remainder of the appeals. It found that the applicant’s representative had been given an opportunity to participate in the examination of J.G. and should have been aware of the possibility that the witness would not be examined again at trial, as stipulated in section 167, paragraph 2 of the CP Act (see paragraph 22 below). It also dismissed the applicant’s argument that he could not have afforded his representative’s travel expenses, finding that no request had been made to cover such expenses from State funds. 21. On 25 July 2003 the applicant lodged a constitutional appeal alleging a violation of his defence rights. On 6 December 2004 the Constitutional Court dismissed the appeal as manifestly ill-founded. It endorsed the reasons given by the Supreme Court. 22. The relevant provisions of the CP Act (Zakon o kazenskem postopku, Official Gazette no. 63/94) read as follows: “... (2) ” “... (4) The state prosecutor, the accused and his defence counsel may attend the examination of a witness. The injured party may attend the examination of a witness only if the witness is not likely to appear at the main hearing. ... (6) If a person who has been sent a notice of any intended questioning fails to appear, the questioning may be performed in his absence. ... (7) The parties and defence counsel present during a questioning session may seek clarification of certain matters by putting questions to the accused, witness or expert. As a rule, the questions shall first be put by the state prosecutor, then by the accused and his counsel and finally by the investigating judge. The investigating judge shall not allow a question or an answer if they are not permitted or are irrelevant to the matter considered. ... Persons present at a questioning session shall have the right to demand that their remarks concerning the asking of individual questions be entered in the record, and may propose that individual pieces of evidence be taken. ...” “If the parties and defence counsel did not attend certain a questioning session and the investigative judge considers that it would be advantageous for the further course of the procedure if they were acquainted with critical evidence, he shall inform them that this evidence will be available within a specific period and that they may make motions for new evidence to be taken.” “(1) ... Witnesses and experts proposed by the prosecutor in the indictment and by the accused in his defence to the indictment, except those whose examination at the main hearing is not necessary in the opinion of the presiding judge, shall also be summoned to the main hearing. ...” “(1) If it transpires in the course of the main hearing that a witness or an expert is unable to appear in court or his appearance would involve great difficulty, and the panel maintains that his testimony is important, the panel may order that he be examined outside the main hearing by the presiding judge, or a judge on the panel, or the investigating judge of the court in whose territory the witness or the expert resides. ... (3) The parties and the injured person shall always be advised when and where a witness shall be examined, or when and where an inspection or reconstruction of an event shall take place, and shall be instructed that they may attend these events. If the defendant has been remanded in custody, the panel shall determine whether his presence is necessary during these actions. ...” “(1) In addition to the instances specified in the present Code, the records of the testimonies of witnesses, co-defendants or convicted persons who were involved in the offence, as well as expert reports and expert opinions, may on the basis of a decision of the panel be read out only in the following instances: (i) if the persons questioned have died, or have been affected by a mental disease, or cannot be found, or are unable to appear in court due to old age, illness or some other weighty reason, or their appearance would involve great difficulty; (ii) if witnesses or experts refuse to testify at the main hearing without legal justification. (2) Subject to the consent of the parties, the panel may decide that the record of a previous examination of a witness or an expert, or the written findings and opinion of the expert, be read out in court in the absence of the witness or the expert, whether or not the witness or the expert were summoned to appear at the main hearing. ... (4) The reasons for the reading out of the record shall be indicated in the record of the main hearing ...” “After the examination of each witness or expert, as well as after the reading of each record or other written document, the presiding judge shall invite the parties and the injured person to make comments if they so wish.” 23. The Constitutional Court held that the “extreme ill-health” of two witnesses (the alleged victims of a crime) was a “justified and unavoidable derogation” from the principle of direct examination of witnesses. Nevertheless, the accused should have been given the opportunity to question the victims, and in this respect it was enough that he had been invited, during the investigation, to be present at their examination conducted by the investigating judge (decision Up-207/99 of 4 July 2002; see also judgment no. III Kp 11324/2010 of the Ljubljana Higher Court of 9 June 2010). In a decision of 18 October 2007 (Up-849/05), the Constitutional Court considered that it was not possible to refer to a violation of the right to examine the witnesses for the prosecution when the authorities had acted with due diligence in their efforts to ensure that the accused had the benefit of this right (it is worth noting that in this case, according to the Constitutional Court, the statements of the victims were not the sole and key evidence against the accused). 24. In a judgment of 21 May 2009 (no. I Ips 14/2009), the Supreme Court noted that, according to section 340(1) of the CP Act (see paragraph 22 above), the records of statements could be read at trial in the event that the witnesses could not be found. If the accused was provided with an opportunity “to be present at the hearing of this evidence”, the statements in question could be read out even without his consent. Furthermore, there was no violation of the procedural rights of the accused if he and his counsel were summoned to attend the examination of a witness who could not give evidence at trial (see judgment no. I Ips 507/2008 of 9 April 2009, and judgment no. I Ips 190/2006 of 17 May 2007). Conversely, such a violation would occur when, in the absence of any obstacle to such an act, the investigating judge failed to inform the suspect of the examination of a witness whose statements were subsequently read out at trial (see judgment no. I Ips 88/2008 of 16 October 2008). 25. Section 340 of the CP Act indicates the cases in which it is admissible to make an exception to the principle that evidence at the main hearing shall be taken directly before the trial chamber (the “principle of immediacy” – see Supreme Court judgment no. I Ips 330/2006 of 24 April 2008). A party who has explicitly agreed to the reading of a witness’s testimony cannot rely upon the right to cross-examine the witness in question at the trial hearing (see decision no. Kp 115/2000 of the Celje Higher Court of 23 March 2000, and decision no. Kp 28/2008 of the Koper Higher Court of 6 February 2008). | 0 |
train | 001-58082 | ENG | NLD | CHAMBER | 1,996 | CASE OF TERRA WONINGEN B.V. v. THE NETHERLANDS | 3 | Lack of jurisdiction (complaint inadmissible);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings | N. Valticos | 7. The applicant company have their registered office in The Hague. Their business includes the development of real property. 8. The company owns 288 flats in six adjacent blocks situated on the Merellaan in Maassluis, in a neighbourhood known as the NoordNieuwlandsepolder-zuid. These blocks of flats were built around 1970 on land which, between 1961 and 1967, was levelled up to a height of 3-4 metres above normal Amsterdam level (Normaal Amsterdams Peil) with silt dredged up from various docks of the nearby port of Rotterdam. 9. In 1985 it was reported that a smell of mineral oil had been noticed in a garden in the Noord-Nieuwlandsepolder-zuid during digging. This and a survey by Rotterdam’s Department of Works of places where harbour silt had been discharged led the Rhine Estuary Regional Authority (Openbaar Lichaam Rijnmond - a now defunct administrative body which used to exercise within the Rhine estuary region authority transferred to it from the Provincial Executive (Gedeputeerde Staten)) to include the neighbourhood in its 1985 programme of measures to be taken under the Soil Cleaning (Temporary Provisions) Act (Interimwet Bodemsanering - see paragraph 29 below) and order the Rhine Estuary Central Department for Environmental Protection (Dienst Centraal Milieubeheer Rijnmond) to undertake an exploratory inspection (oriënterend onderzoek - see paragraph 32 below) of the neighbourhood. The findings were such that in 1986 the Public Health Inspectorate (Inspectie Volksgezondheid) advised the local residents not to eat fruit and vegetables grown in their own gardens or allotments. The Provincial Executive of the province of South Holland ordered a further inspection (nader onderzoek - see paragraph 32 below) in December 1986. In July 1990 the Rhine Estuary Central Department for Environmental Protection submitted a report on its further inspection. It found that pollution caused by the heavy metals arsenic and mercury and by "drins" (a group of compounds used as insecticides), especially dieldrin and isodrin, was severe in places; where it occurred, it was generally present up to surface level. There were also moderate cadmium and lead pollution levels. The report noted that no covering layer of clean soil had been applied. The chapter headed "Findings" ("Conclusies") included the following: "It can be said that the additional concentration of chemicals as a result of the pollution of the soil is undesirable but not, given present (relatively limited) scientific knowledge, that it will cause noticeable or measurable harm to health." (p. 139) The final chapter, headed "Recommendations", stated that in unfavourable circumstances young children, if exposed to the pollution found, might absorb more than the acceptable daily intake (ADI) of the pollutants concerned and that in many places the quantity of "drins" in the actual contact zone exceeded concentration level C given in the assessment tables of the Soil Cleaning Guidelines (see paragraph 31 below). It was therefore recommended that an inspection should be carried out with a view to possibly cleaning the soil (saneringsonderzoek - see paragraph 32 below) and determining "how the detrimental effects of the soil pollution on public health and the environment can be eliminated, so as to achieve a result acceptable from the point of view of environmental hygiene" (p. 141). 10. In a letter of 1 November 1990 the Provincial Executive informed the local residents that the further inspection had led them to conclude that further soil cleaning measures were necessary. The letter referred to the "undesirable situation" caused by the presence of pollutants and their proximity to the surface and reiterated the advice to residents not to eat fruit and vegetables from their gardens. The letter went on to state that the Provincial Executive had decided in principle to have the soil cleaned. The draft of the decision was made available for public inspection for four weeks from 5 November 1990 (see paragraph 33 below). 11. In a letter dated 26 March 1991 the Provincial Executive informed the municipal authorities of Maassluis that it had decided to order an inspection with a view to possibly cleaning the soil. The Provincial Executive’s implementation programme (uitvoeringsprogramma) for soil cleaning from 1992 onwards (see paragraph 32 below) included the Noord-Nieuwlandsepolder-zuid. 12. On 18 April 1990 the applicant company let a third-floor flat in one of their blocks in the Merellaan to a Mr W. as from 1 May 1990. The agreed rent was 790.25 Netherlands guilders (NLG) a month. 13. On 9 July 1990 Mr W. applied to the Rent Board in Schiedam for a ruling as to the fairness of the rent (section 17 (1) of the Rents for Housing Accommodation (Huurprijzenwet Woonruimte) Act - see paragraph 21 below). A report established by a Rent Board inspector on 1 October 1990 stated that there was neither serious overdue maintenance nor any "absolute or relative zero condition", i.e. ground for reducing the rent to the legal minimum (absolute of relatieve nulpunten). In the inspector’s view, the standard of the flat should be assessed at 132 points under the applicable point-rating system (see paragraphs 25-26 below). At the hearing before the Rent Board on 30 January 1991 Mr W. submitted a copy of the Provincial Executive’s letter of 1 November 1990 (see paragraph 10 above) but did not contest the inspector’s findings. 14. The Rent Board gave its ruling on 17 April 1991. It found that in view of factual circumstances relied on by the applicant company but overlooked by the inspector the standard of the flat should be assessed at 134 points. On that basis it concluded that the agreed rent was not fair and assessed the fair rent at NLG 783.07. It does not appear from the ruling that account was taken of the Provincial Executive’s letter. 15. On 24 June 1991 the applicant company applied to the District Court of Schiedam for a binding decision (see paragraph 22 below). They contested certain factual assumptions made by the Rent Board in regard to noise levels and argued that the Rent Board had made a miscalculation; the correct standard rating of the flat should be 142 points. On that basis they sought an order to set the rent at NLG 832.14 or, in the alternative, at the sum originally agreed (NLG 790.25). 16. In the course of the ensuing proceedings, Mr W. argued that there was an "objectionable situation" (hinderlijke situatie) that justified reducing the points rating by 20 points and setting the rent at the legal minimum, NLG 395 (point 4 of Schedule IV to the Housing Rents Ordinance (Besluit huurprijzen woonruimte) - see paragraph 28 below). He submitted the following documents: (a) a copy of the Provincial Executive’s letter of 1 November 1990 (see paragraph 10 above); (b) a copy of a decision given by the Rotterdam District Court on 4 June 1991 in a different but similar case concerning a flat in Rotterdam; (c) a copy of the letter of 26 March 1991 from the Provincial Executive to the municipal authorities of Maassluis (see paragraph 11 above); (d) the Provincial Executive’s implementation programme for soil cleaning from 1992 onwards (see paragraph 11 above). The applicant company, besides adducing further argument in support of their factual allegations, argued, inter alia, that the soil pollution should not be taken into account. Relying on the passage from the report of the further inspection quoted at paragraph 9 above, they said that it did not appear from the report that there was "pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment". In addition, the pollution found could not affect the standard of a third-floor flat without a garden. All things considered, there was no reason to deduct any points at all on this ground. 17. The District Court gave its decision on 10 March 1992, assessing the standard of the flat at 123 points and setting the rent at NLG 399.75 with effect from 1 May 1990. Having regard to the fact that, after a further inspection as provided for by the Soil Cleaning (Temporary Provisions) Act, the Provincial Executive had designated the area as one where soil cleaning was required, and had set it down in its annual soil-cleaning programme for 1992 as a site to be dealt with in accordance with that Act, the court found it established that there was an "objectionable situation" that justified reducing the points rating by 20 points and setting the rent at the legal minimum. Referring to its own precedent of 5 June 1990 (see paragraph 38 below), it dismissed the applicant company’s arguments that are summarised in the preceding paragraph. It did so in the following terms: "8.3.... we consider that it is not for us to go into the question whether the Provincial Executive acted correctly in making the decision pursuant to section 2 (1), second sentence, of the Soil Cleaning (Temporary Provisions) Act, or whether that decision was well-founded. We should not even address such questions indirectly by weighing the findings of the investigation (on a case-by-case basis) when determining whether the (absolute) zero condition, as formulated under point 4 of Schedule IV to the Ordinance implementing the Rents for Housing Accommodation Act ..., is satisfied. 8.4. The `serious danger etc.’ in the polder is necessarily implied by the decision of the Provincial Executive to designate the site as one where soil cleaning is required [saneringsgeval]; consequently, it is also established that the absolute zero condition (which is formulated in identical terms) is satisfied. 8.5. It makes no difference in this connection that the accommodation in question is a third-floor flat without a garden of its own. The pollution is present `in the immediate vicinity’ of the accommodation. The [applicant company] have acknowledged that this expression is - justifiably – construed broadly in the relevant case-law." 18. The applicant company did not lodge an appeal against this decision (see paragraph 23 below). 19. The following is a statement of the relevant domestic law and practice as they stood at the time of the events complained of. 20. Rents for certain categories of housing accommodation are determined by the Minister for Housing, Planning and Environment Protection. With regard to all other housing accommodation, landlords and tenants of housing accommodation are in principle free to agree a rent between themselves (section 3 of the Rents for Housing Accommodation Act). 21. However, section 17 (1) entitles both the landlord and the tenant, within three months of entering into the tenancy agreement, to apply to the Rent Board for a ruling on the fairness of the agreed rent. 22. Parties are deemed to have agreed the rent found by the Rent Board to be fair unless within two months one of them applies to the District Court for a different decision (section 17 (8)). 23. By section 28 (3) of the Rents for Housing Accommodation Act, no appeal lies against the decision of the District Court other than an appeal on points of law "in the interests of the law" (cassatie "in het belang der wet" - see paragraph 37 below). 24. Detailed substantive provisions for the implementation of the Rents for Housing Accommodation Act are to be found in the Housing Rents Ordinance ("the Ordinance"). The Ordinance is binding on the Rent Board and the District Court (sections 15 (1) and 28 (1) of the Rents for Housing Accommodation Act). 25. According to section 5 (1) (a) of the Ordinance, the fairness of the rent for self-contained accommodation (zelfstandige woonruimte) such as the flat let to Mr W. by the applicant company must be assessed in accordance with the point-rating system set out in Schedule I to the Ordinance. 26. Under Schedule I, points are awarded for features relating to the standard of the accommodation itself - such as the type of dwelling (house or flat), the size of the rooms, bathroom facilities and the standard of heating installations - and for features relating to the surroundings (such as the proximity of public transport, schools and shops). Up to thirty points are deducted for the age of the accommodation and up to twenty for "objectionable situations" (such as persistent noise or pollution). The "zero condition" system is succinctly explained in the explanatory memorandum to the Ordinance as follows: "In the Government’s view, certain deficiencies of a technical or residential nature [technische en woontechnische gebreken] are so serious that they ipso facto stand in the way of rent increases. Section 6 (3) refers in this connection to the serious deficiencies listed in Schedule IV to this Ordinance. These deficiencies are commonly referred to as `zero conditions’. If there is such a deficiency, the Rent Board need not assess the seriousness of the situation [hinder] but must find without more ado that it is not reasonable to raise the rent. It must so hold even if the tenant does not explicitly rely on this deficiency. The presence of a deficiency of the type referred to is considered unacceptable in view of the danger it presents. The deficiency ought therefore to be cured as soon as possible or the accommodation ought no longer to be occupied. However, as long as the accommodation continues to be occupied despite the unacceptable situation, it is not fair to raise the rent." 27. The range within which the rent is fair is calculated according to the resultant points rating. As a rule, the rent determined by the Rent Board and by the District Court will be at the higher end of the range (section 7 (1) of the Ordinance); however, the rent may be reduced if one of the "very serious deficiencies" or "absolute zero conditions" set out in Schedule IV to the Ordinance is established. 28. Schedule IV originally listed deficiencies relating to the accommodation itself, such as lack of a flush lavatory or cooking facilities, lack of main drainage, or gas pipes or electricity cables so dangerous that the public utility companies were not prepared to supply gas or electricity. Another such "absolute zero condition" was if accommodation was in such a poor state of repair that it was unsafe and therefore unfit for habitation. As of 1 July 1986, and without any separate explanatory memorandum, a fourth point was added to Schedule IV: "The further inspection under the Soil Cleaning (Temporary Provisions) Act has indicated pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment." 29. In 1982, partly owing to the discovery in 1980 of cases of very extensive soil pollution, the Soil Cleaning (Temporary Provisions) Act (of 29 December 1982) was enacted. It entered into force on 15 April 1983. Its purpose was to set rules "aimed at eliminating within a short time or preventing soil pollution and its harmful effects where existing or potential pollution of the soil is such that there is a serious danger to public health or the environment". Section 2 (1) of this Act provided as follows: "Over a period of five consecutive years, the Provincial Executive shall each year draw up a programme for cleaning polluted soil. The programme shall indicate the cases within the territory of the province in which existing or potential pollution of the soil is such that there is a serious danger to public health or to the environment. The programme shall also indicate the cases in respect of which it must be determined whether such circumstances apply." 30. An explanation of various expressions used in the interim Act and directions as to the manner in which the Act was to be implemented were given in the Soil Cleaning Guidelines. 31. According to the Soil Cleaning Guidelines, in the seventh revised version (December 1991), the possible danger had to be assessed as follows: "During the parliamentary discussions of the bill [which eventually entered into force as the interim Act] this criterion was given the following construction. Direct and frequent contact between human beings or plant or animal life and the pollutants must either be present or imminent and it must be either certain or likely that such contact will be potentially detrimental to public health or the environment. On this construction, stress must be laid on the imminence of such contact and the probability of such detrimental effects. The expression `serious danger’ therefore indicates an unacceptably increased risk rather than an acute threat ... [Part II of the Guidelines] mentions three aspects which fall to be considered, namely the nature and concentration of the pollutants, the local pollution situation and the use made of the soil. The nature and concentration of the pollutants give an impression of the extent of the pollution and its possible effects. The local pollution situation gives an idea of the extent to which spreading or contact may occur. The use of the soil determines the likelihood of exposure to the pollutants and the resulting risks. A consideration of these three aspects taken together [integrale afweging] must lead to an answer to the question whether cleaning is at all necessary or required as a matter of urgency ..." (paragraph 1.6 of Part I of the Soil Cleaning Guidelines) To assist in assessing the nature and concentration of the pollution, tables were drawn up listing the concentrations of various pollutants which, if exceeded, made action necessary. Concentration level A was the reference level below which no action was required. Concentration level B was the level indicating the need for a further inspection. Concentration level C necessitated an inspection with a view to possibly cleaning the soil as a matter of urgency. 32. The stages in the preliminaries to soil cleaning, as they appeared from the Guidelines, were the following: a) preliminary measures, not laid down in the soil-cleaning programme: (i) a survey of the places where soil pollution might be expected (inventarisatie). This might be based on complaints from individuals, as in the present case (see paragraph 9 above), an inspection of documents relating to land use or dumping, reports submitted by municipalities, or any other relevant information; (ii) an exploratory inspection, the purpose of which was to gain a general idea of the nature, location and concentration of pollutants. This inspection was a limited one; b) further measures, laid down in the soil cleaning programme: (iii) a further inspection, more extensive than the exploratory one, to obtain information which would make it possible to assess the dangers to public health and the environment, and hence to judge the necessity and urgency of cleaning the soil; (iv) an inspection with a view to possibly cleaning the soil, the purpose of which was to enable a decision to be made on the necessary measures in the light of the budgetary and technical possibilities; (v) the drawing up of a plan for actually cleaning the soil. 33. Section 5 of the Soil Cleaning (Temporary Provisions) Act provided as follows: "1. Before finally adopting a cleaning programme, the Provincial Executive shall make the draft available for public inspection with the reports of the inspections on which it is based. They shall at the same time send the draft to the Provincial Council [Provinciale Staten], the municipalities in their province and the Inspector [of Public Health]. 2. Before doing so, they shall give notice of the fact of making the draft available for public inspection in the Government Bulletin [Nederlandse Staatscourant] and in one or more daily papers or newspapers distributed in the province. These announcements shall also mention that members of the public are entitled to lodge objections in accordance with subsection (4) below. 3. For a period of one month from the day on which the draft of a programme is made available for public inspection, anyone may inspect free of charge the documents thus made available. 4. During the period referred to in subsection (3) above, may lodge written objections to the draft, stating their reasons, with the Provincial Executive." 34. Paragraph 2.2.7 of Part I of the Soil Cleaning Guidelines made it clear that the final programme had to set out the Provincial Executive’s views on any objections received and that such objections were to be appended to the final programme. Although the Act did not provide for any form of appeal against the adoption of the programme, the objections were brought to the attention of the Minister, who was empowered to modify the provincial programme in a reasoned decision. 35. The Soil Cleaning (Temporary Provisions) Act was significantly amended by the Act of 2 July 1992. A number of its provisions, including sections 2 and 5, were repealed. The interim Act as a whole was repealed by the Act of 10 May 1994 (Official Gazette (Staatsblad) 1994, no. 331), its provisions being incorporated into the Soil Protection Act (Wet bodembescherming). 36. Section 100 of the Judicial Organisation Act provides as follows: "1. Except for an appeal on points of law [filed by the Procurator-General with the Supreme Court] `in the interests of the law’, an appeal on points of law against a judgment delivered by a district court in a civil case shall be allowed only: - on the ground that the judgment did not state the reasons on which it was based; - on the ground that the judgment was not delivered in public; - on the ground of want of competence; on the ground that the district court exceeded its jurisdiction. 2. Except for an appeal on points of law `in the interests of the law’, appeals on points of law against a decision [beschikking] delivered [following proceedings in camera where that is required by law] by a district court in a civil case shall be allowed only on the grounds set out in paragraphs 1, 3 and 4 of subsection (1) above." 37. An appeal on points of law "in the interests of the law" may be lodged with the Supreme Court (Hoge Raad) by its Procurator-General (procureur-generaal) at his discretion and does not affect the parties’ rights and obligations as determined in the judgment or decision appealed against (sections 95 and 98 of the Judicial Organisation Act). 38. As mentioned in paragraph 28 above, no explanation was given for introducing point 4 of Schedule IV to the Ordinance. This situation has contributed to uncertainty as to how that provision is to be construed. The first problem relates to the construction of the expression "under or in the immediate vicinity of the accommodation". It is usually assumed in legal writing and the relevant case-law that this expression should be interpreted broadly. The second problem relates to the question that was also at issue in the instant case: whether courts should themselves decide whether the "further inspection under the Soil Cleaning (Temporary Provisions) Act" justifies the conclusion that "pollution of the soil" is "such as to cause serious danger to public health or the environment", or alternatively assume that such serious danger is present when the competent authorities have decided on the basis of a further inspection in a particular case that soil cleaning measures are required. There is a difference of opinion on the latter point. A number of district courts have adopted the first view - see the following decisions: Amsterdam District Court, 14 December 1990, Woonrecht (Housing Law Reports) 1991, nos. 23 and 24; Zaandam District Court, 26 September 1991, Woonrecht 1991, no. 63. Others have adopted the alternative view - see the following decisions: Dordrecht District Court, 23 March 1989, Nederlandse Jurisprudentie (Netherlands Law Reports - NJ) 1989, no. 874, Woonrecht 1990, no. 1; Schiedam District Court, 5 June 1990, Woonrecht 1990, no. 87; Rotterdam District Court, 5 June 1990, Woonrecht 1990, no. 88; Zutphen District Court, 22 December 1992, Woonrecht 1992, no. 30; Assen District Court, 30 August 1993, Woonrecht 1993, no. 80. It would appear that the latter view is also that of the Deputy Minister (Staatssecretaris) for Housing, Planning and Environment Protection (who sets the rents for certain categories of housing accommodation and in so doing has regard to Schedule IV to the Ordinance), in the light of his letter of 15 June 1990, published in Woonrecht 1990 at p. 212. This letter includes the following statement: "Your view is that one may conclude from the drafting history and the wording of the fourth absolute zero condition in Schedule IV that this condition should always apply automatically in those cases in which the Provincial Executive has decided that the situation is as set out in section 2 (1), second sentence, of the Soil Cleaning (Temporary Provisions) Act. I can agree with your conclusion, while pointing out that the area in question should have been included in the soil-cleaning programme on the basis of the findings of a further inspection." In a case in which the Judicial Division (Afdeling Rechtspraak) of the Raad van State had to consider a rent decision of the Secretary of State in which point 4 of Schedule IV had been applied to accommodation in the Steendijkpolder in Maassluis (see next paragraph), it held that the Secretary of State "[had] not erred in considering it relevant that the Provincial Executive of the province of South Holland, in applying section 2 of the Soil Cleaning (Temporary Provisions) Act, [had] established on the basis of the report of the further inspection that there was a serious danger as referred to above" (judgment of 1 November 1991, Woonrecht 1991, no. 32). 39. As indicated in the previous paragraph, a number of the above-mentioned decisions and judgments relate to the Steendijkpolder, a polder adjoining the Noord-Nieuwlandsepolder-zuid which the municipal authorities of Maassluis had had levelled up with polluted harbour silt and then sold as building land. Point 4 of Schedule IV has consistently been held to be applicable to rents in that area: see the Schiedam District Court’s decision of 5 June 1990, Woonrecht 1990, no. 87, and the judgment of the Judicial Division of the Raad van State of 1 November 1991, Woonrecht 1991, no. 32. Mention may be made in passing of a judgment of the Hague Court of Appeal which seems also to adopt the alternative view. In its judgments of 6 December 1990 (cases nos. 14,668, 14,669 and 14,670, cited in the report of the Supreme Court’s judgment of 9 October 1992, NJ 1994, no. 286), the Hague Court of Appeal established that the municipality (gemeente) of Maassluis was liable in tort for the sale of the Steendijkpolder as building land. The Court of Appeal’s reasoning included the following: "With regard to the liability of [the municipality of] Maassluis, the Court of Appeal notes first of all that as the Government [rijksoverheid] has decided in accordance with section 2 et seq. of the Soil Cleaning (Temporary Provisions) Act that the soil should be cleaned, it must be held to have been established that there is in the present case a `serious danger to public health or to the environment’ within the meaning of that Act (section 2 (1))." No submissions challenging this reasoning were made in the ensuing appeals on points of law. In any event, the Supreme Court in its abovementioned judgment of 9 October 1992 held the appeals to be unfounded and so allowed the judgment of the Court of Appeal to stand. | 1 |
train | 001-87411 | ENG | BIH | CHAMBER | 2,008 | CASE OF TOKIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA | 3 | Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 5-1;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1934 and lives in Lukavac. 6. On 16 August 1999 the local police searched the applicant and found a hand grenade on him. The police acted on a tip-off because the applicant had a history of violent outbursts, including the killing of his first wife. 7. On 24 January 2000 he was charged with possessing a prohibited weapon. 8. On 14 November 2001 the Gračanica Municipal Court found the applicant not guilty by reason of insanity (paranoid schizophrenia) and imposed a hospital order on him under Article 63 of the Criminal Code of the Federation of Bosnia and Herzegovina 1998 (“old Criminal Code”). The decision entered into force on 28 January 2002. 9. On 28 June 2002 he was placed in Zenica Prison Forensic Psychiatric Annex. 10. On 4 July 2003 the Gračanica Municipal Court reviewed the necessity of the applicant’s continued confinement pursuant to Article 480 § 1 of the Code of Criminal Procedure of the Federation of Bosnia and Herzegovina 1998 (“old Code of Criminal Procedure”). It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex that the applicant’s condition did not allow for his discharge. 11. On 11 November 2003 the applicant lodged a complaint with the Human Rights Chamber concerning the lawfulness of his detention. 12. On 3 March 2004 the Gračanica Municipal Court relinquished jurisdiction in favour of the Social Work Centre in Gračanica pursuant to Article 420 of the Criminal Code of the Federation of Bosnia and Herzegovina 2003 (“new Criminal Code”). 13. On 23 November 2004 the Social Work Centre in Gračanica established that the applicant’s mental disorder no longer warranted his confinement and ordered his conditional discharge. He was released from Zenica Prison Forensic Psychiatric Annex on 8 December 2004. 14. In the light of the applicant’s release, on 26 June 2007 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), the legal successor of the Human Rights Chamber, held that it was no longer justified to continue the examination of the applicant’s case. 15. The applicant was born in 1971 and lives in a care home in Fojnica. 16. On 31 March 1999 he threatened Z.B. with a knife on the premises of the Social Work Centre in Goražde. 17. On 16 April 1999 he was charged with threatening behaviour. 18. On 17 June 1999 the Goražde Municipal Court found the applicant not guilty by reason of insanity (schizophrenia) and imposed a hospital order on him under Article 63 of the old Criminal Code. The decision entered into force immediately. 19. On 21 June 1999 the applicant was placed in Zenica Prison Forensic Psychiatric Annex. 20. On 26 November 2001 the Goražde Municipal Court established that the applicant’s mental disorder no longer warranted his confinement and ordered his conditional discharge. He was released on 9 January 2002. 21. On 17 January 2002 the Goražde Municipal Court recalled the applicant to Zenica Prison Forensic Psychiatric Annex, after he had been found to be abnormally aggressive by Sarajevo Psychiatric Hospital. 22. On 21 January 2003 the applicant complained of the unfairness and outcome of the criminal proceedings (which had ended on 17 June 1999) to the Human Rights Chamber. 23. On 20 January 2004 the Goražde Municipal Court relinquished jurisdiction in favour of the Social Work Centre in Goražde pursuant to Article 420 of the new Criminal Code. 24. Relying on section 22 of the Mental Health Act of the Federation of Bosnia and Herzegovina 2001 (“Mental Health Act”), on 18 February 2004 the Social Work Centre in Goražde reviewed the necessity of the applicant’s continued confinement. It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex that the applicant’s condition did not allow for his discharge. The applicant appealed to the Cantonal Ministry for Social Affairs in Goražde pursuant to the instructions of the social work centre. 25. On 10 May 2004 the Cantonal Ministry for Social Affairs in Goražde declined jurisdiction and, since it was unable to determine the competent body to which to transfer the file, dismissed the appeal. The applicant lodged a further appeal with the Goražde Cantonal Court. 26. On 9 July 2004 the Goražde Cantonal Court dismissed the appeal because the applicant had not appealed to the competent second-instance body. The Goražde Cantonal Court was silent regarding which body was competent at second instance. 27. On 22 November 2004 the applicant complained of the unlawfulness of his detention to special chambers which had been created within the Constitutional Court on 1 January 2004 with a mandate to decide on cases received by the former Human Rights Chamber (namely, the Human Rights Commission within the Constitutional Court). 28. On 13 June 2006 the Social Work Centre in Goražde established that the applicant’s mental disorder no longer warranted his confinement and ordered his unconditional discharge. It relied on section 25(2) of the Mental Health Act. The applicant was released from Zenica Prison Forensic Psychiatric Annex on 16 June 2006. 29. On 26 June 2007 the Constitutional Court, the legal successor of the Human Rights Chamber, dismissed the applicant’s complaint of 21 January 2003 as out of time and that of 22 November 2004 as incompatible ratione temporis: the Constitutional Court had jurisdiction to deal only with those unresolved cases of the former Human Rights Chamber which had been introduced by 31 December 2003. 30. The applicant was born in 1966. He is still in Zenica Prison Forensic Psychiatric Annex. 31. On 12 July 1999 the applicant killed his parents under the delusion that they were trying to kill him. On the same day, having surrendered himself to the police, the applicant was remanded in custody. 32. On 21 September 1999 he was charged with two counts of murder. 33. On 9 November 1999 the Mostar Cantonal Court found the applicant not guilty by reason of insanity (schizophrenia) and imposed a hospital order on him under Article 63 of the old Criminal Code. The decision entered into force on 22 November 1999. 34. On 28 November 2000 the applicant was transferred from the remand section of Mostar Prison to Zenica Prison Forensic Psychiatric Annex. 35. On 20 December 2002 and 22 October 2003 the Mostar Cantonal Court reviewed the necessity of the applicant’s continued confinement pursuant to Article 480 § 1 of the old Code of Criminal Procedure (notwithstanding the fact that the Code was in force only until 31 July 2003). It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex that the applicant’s condition did not allow for his discharge. 36. On or around 23 March 2004 the Mostar Cantonal Court relinquished jurisdiction in favour of the Social Work Centre in Mostar pursuant to Article 420 of the new Criminal Code. 37. On 7 November 2005 the applicant complained to the Constitutional Court of the unlawfulness of his detention. His application and a number of other similar applications were subsequently joined. 38. On 21 December 2006 the Constitutional Court found that the applicant (like others in a similar situation) had found himself in a legal vacuum following the 2003 reform of the criminal legislation. Furthermore, it held that Zenica Prison Forensic Psychiatric Annex was not an appropriate institution for the detention of mental health patients. As a result, the Constitutional Court found breaches of Article 5 §§ 1 and 4 of the European Convention on Human Rights and ordered the competent authorities to undertake such legislative and other measures as might be necessary within three months of delivery of the decision. The decision was delivered on 7 February 2007. It would appear that the applicant and the other complainants did not seek any compensation. 39. The applicant was born in 1982 and lives in Sarajevo. 40. On 19 January 2003 he entered a tram and stabbed I.D. for no apparent reason. I.D. survived the attack. 41. On 21 January 2003 the applicant killed E.G. under the delusion that he was persecuting his mother. He was remanded in custody the same evening. 42. On 17 March 2003 the applicant was charged with murder. 43. On 20 March 2003 he was transferred from the remand section of Sarajevo Prison to Zenica Prison Forensic Psychiatric Annex 44. On 9 April 2003 the Sarajevo Cantonal Court found the applicant not guilty by reason of insanity (hebephrenic schizophrenia) and imposed a hospital order on him under Article 63 of the old Criminal Code. The decision entered into force on 24 April 2003. 45. On five occasions (28 November 2003, 9 June 2004, 11 March 2005, 10 April 2006 and 16 November 2006), the Sarajevo Cantonal Court reviewed the necessity of the applicant’s continued confinement pursuant to Article 480 § 1 of the old Code of Criminal Procedure (although the Code was no longer in force). It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex and Sarajevo Psychiatric Hospital that the applicant’s condition did not allow for his discharge. 46. On 17 May 2005, 23 May 2006 and 8 February 2007 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the decisions of 11 March 2005, 10 April 2006 and 16 November 2006 respectively. 47. On 21 December 2006 the Constitutional Court examined a number of joined applications (including that of Mr Hadžić) and found breaches of Article 5 §§ 1 and 4 of the European Convention on Human Rights (see paragraphs 37-38 above). 48. On 25 June 2007 the Sarajevo Cantonal Court established that the applicant’s mental disorder no longer warranted his confinement and ordered his conditional discharge. It relied on Article 480 § 2 of the old Code of Criminal Procedure (although the Code was no longer in force). The applicant was released from Zenica Prison Forensic Psychiatric Annex on 10 July 2007. 49. There are two legal regimes applicable to psychiatric detention. 50. First of all, the competent civil court can order compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm (see sections 22(1), 29(1) and 31(1) of the Mental Health Act of the Federation of Bosnia and Herzegovina 2001; Zakon o zaštiti osoba sa duševnim smetnjama; published in the Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) no. 37/01 of 15 August 2001; amendments published in OG FBH no. 40/02 of 21 August 2002; “Mental Health Act”). The patient concerned must be summoned by the court, where this is possible, and must be examined in person by a psychiatrist (see sections 30(3) and 31(2) of the Mental Health Act). Proceedings must be concluded within seven days and a court decision must be issued within next three days (see sections 45(2) and 53(1) of the Non-Contentious Proceedings Act of the Federation of Bosnia and Herzegovina 1998; Zakon o vanparničnom postupku; published in OG FBH no. 2/98 of 20 January 1998; amendments published in OG FBH nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005). A court decision ordering civil psychiatric detention must always indicate the duration of such detention; that period cannot be longer than one year, but is renewable (see sections 33-35 of the Mental Health Act). The patient concerned, among other authorised persons and bodies, has the right to appeal within eight days (see section 37 of the Mental Health Act). The competent second-instance court must give a decision within three days (ibid.). A civil psychiatric detainee has the right to seek judicial review of his or her detention at any time (see section 40 of the Mental Health Act). 51. Secondly, the competent criminal court can impose a hospital order (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi) on an offender who at the time of committing a criminal offence was suffering from a mental disorder affecting his or her mental responsibility, if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence. However, there is an important difference in this regard between the old and new criminal legislation (the latter entered into force on 1 August 2003). While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility, it can no longer be imposed against those who have been found not guilty by reason of insanity (see Article 74 § 1 of the Criminal Code of the Federation of Bosnia and Herzegovina 2003; Krivični zakon Federacije Bosne i Hercegovine; published in OG FBH no. 36/03 of 29 July 2003; amendments published in OG FBH nos. 37/03 of 31 July 2003, 21/04 of 17 April 2004, 69/04 of 7 December 2004 and 18/05 of 23 March 2005). 52. Accordingly, as from 1 August 2003 an offender who has been acquitted on the grounds of insanity can be placed in psychiatric detention only by the competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm (see paragraph 50 above). Any such acquittal is therefore reported to the competent social work centre which must initiate the appropriate procedure (see Article 410 § 1 of the Code of Criminal Procedure of the Federation of Bosnia and Herzegovina 2003; Zakon o krivičnom postupku Federacije Bosne i Hercegovine; published in OG FBH no. 35/03 of 28 July 2003; amendments published in OG FBH nos. 37/03 of 31 July 2003, 56/03 of 14 November 2003, 78/04 of 31 December 2004, 28/05 of 11 May 2005, 55/06 of 20 September 2006, 27/07 of 18 April 2007 and 53/07 of 8 August 2007). 53. The relevant authorities had until 1 September 2003 to verify the status of all those who had been acquitted on the grounds of insanity pursuant to the old criminal legislation, to terminate the application of any hospital orders which were still pending and to initiate the procedure in which the competent civil court would decide whether to prolong the detention of any such mental health patient (see Article 420 of the Criminal Code 2003 and the instructions of the Ministry of Justice of the Federation of Bosnia and Herzegovina no. 03-02-3132/03 of 22 December 2003). | 1 |
train | 001-22206 | ENG | PRT | ADMISSIBILITY | 2,001 | INOCENCIO v. PORTUGAL | 1 | Inadmissible | null | The applicant [Aníbal Armando Inocêncio] is a Portuguese national who was born in 1935 and lives at Covilhã (Portugal). He is a lawyer and acted in person before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 November 1995 the Covilhã Municipal Council decided to impose an administrative fine (coima) of 500,000 Portuguese escudos (PTE) on the applicant for carrying out work on his house without obtaining the necessary building permit – an administrative offence (contra-ordenação) under Legislative Decree no. 445/91. On 11 December 1995 the applicant challenged that decision in the Covilhã District Court. On 16 March 1996 the District Court upheld the fine; however, its decision was quashed by the Coimbra Court of Appeal (Tribunal da Relação) in a judgment of 25 September 1996, on the ground that State Counsel had not been present at the hearing in the Covilhã District Court. In an order of 9 December 1996 the judge of the Covilhã District Court set the case down for hearing on 6 February 1997 and requested the applicant to appoint a lawyer, stating that it was “not acceptable to conduct one’s own case in criminal proceedings”. On 9 January 1997 the applicant appealed against the order, alleging, in particular, a breach of Article 6 § 3 (c) of the Convention. In an order of 4 February 1997 the judge declared the appeal admissible and decided that it should not be heard by the appellate court until a decision had been given on the merits of the case. At the hearing on 6 February 1997 the judge, noting that the applicant was absent and considering his presence to be necessary, adjourned the hearing until 27 February 1997. At the hearing on 27 February 1997 the judge, noting that the applicant was in the section of the courtroom reserved for lawyers, asked him to take his place in the dock. The applicant replied that he was a lawyer and reaffirmed his intention to conduct his own case. The judge again asked him to take his place in the dock and, when the applicant again refused to do so, decided to exclude him from the courtroom and to appoint Mr P.C. as his official defence counsel. Mr P.C. requested an adjournment of five minutes in order to confer with the applicant, and the judge allowed his request. Once that time had elapsed, the hearing resumed in the applicant’s absence. After hearing evidence from a witness and the addresses of State Counsel and counsel for the defence, the judge ordered the applicant to return to the courtroom and delivered his judgment, upholding the fine of PTE 500,000. On 14 March 1997 the applicant, acting in person, appealed against that decision to the Coimbra Court of Appeal. He submitted, in particular, that his right to defend himself in person had been infringed. He also stated that the court had not heard evidence from the two witnesses called by him and argued that that had amounted to a further infringement of his defence rights. He relied, in particular, on Article 6 §§ 1 and 3 (b) and (c) of the Convention. In a judgment of 11 February 1998 the Court of Appeal dismissed that appeal and the one he had lodged on 9 January 1997. It stated, inter alia: “... It is still generally accepted – and this court has consistently held ... – that the accused must be assisted by counsel... The purpose of the defence in criminal proceedings is not merely to assist the accused but also to serve the interests of justice... Article 64 of the Code of Criminal Procedure implies that an accused cannot defend himself in person; that assertion has already been upheld by this Court of Appeal and the Lisbon Court of Appeal... Even where the accused has had appropriate legal training, statute law requires him to be assisted by counsel, who will be required to retain his composure, since it may be assumed that the accused would display a certain degree of agitation which would be harmful to his case and to the proper administration of justice... It follows that, where purely technical steps need to be taken by the defence, counsel cannot be replaced by the accused, even if the latter is a lawyer. In the instant case, the appeal was not filed by counsel for the defence; consequently, it cannot be entertained.” No appeal lay against that decision. Legislative Decree no. 445/91 of 20 November 1991 on the rules governing construction work by private individuals made it an administrative offence to carry out work on a house without obtaining the relevant permit from the local council (Article 54 § 1 (a)). Under Article 54 § 2, the maximum administrative fine that could be imposed for a breach of that provision was PTE 20,000,000. The rules governing administrative offences are laid down in Legislative Decree no. 433/82 of 27 October 1982. Article 1 of the Legislative Decree defines an administrative offence as an unlawful and reprehensible (censurável) act, contravening a legal provision which makes the offender liable to an administrative fine. The amount of the fine must be determined in each case by reference to the seriousness of the offence, the degree of guilt (culpa) attributable to the offender, the offender’s financial circumstances and the financial benefit he derived from carrying out the unlawful act in question (Article 18). Administrative fines may not in any circumstances be replaced by a custodial sentence. They may only give rise to enforcement proceedings (Article 89). Lastly, Legislative Decree no. 433/82 provides that the Criminal Code and the Code of Criminal Procedure are to apply, on a subsidiary basis, in relation to procedural matters. Article 32 of the Constitution, entitled “Safeguards in criminal proceedings”, provides in paragraph 8 that persons accused in proceedings relating to an administrative offence must be allowed to exercise their defence rights. | 0 |
train | 001-57602 | ENG | GBR | CHAMBER | 1,981 | CASE OF X. v. THE UNITED KINGDOM | 2 | Violation of Art. 5-4;No violation of Art. 5-1;Not necessary to examine art. 5-2;Just satisfaction reserved | null | 8. The applicant, a United Kingdom citizen born in 1934, died in 1979. At the time of lodging his application with the Commission he was detained in Broadmoor Hospital, a special secure mental hospital for the criminally insane. His complaints were directed against his recall to Broadmoor Hospital in April 1974, following a three-year period of conditional discharge. He claimed that his recall was unjustified, that he was not promptly given sufficient reasons for his re-detention, and that he had no effective way of challenging the authorities’ action. 9. In England and Wales the law relating to the confinement of persons of unsound mind, and more particularly the compulsory detention of patients concerned in criminal proceedings, is contained in the Mental Health Act 1959 ("the 1959 Act"). At present, a review of the relevant provisions of the Act is under way. A "patient" is defined by section 147 par. 1 as "a person suffering or appearing to suffer from mental disorder"; according to section 4 par. 1, "mental disorder" means "mental illness, arrested or incomplete development of mind, psychopathic disorder, any other disorder or disability of mind". The "responsible medical officer" (as referred to in subsequent paragraphs of this judgment) is defined by section 80 par. 1 as being "the medical practitioner in charge of the treatment of the patient". 10. Section 60 par. 1 of the 1959 Act empowers criminal courts to direct where appropriate that a person convicted of an offence shall be dealt with by way of medical treatment rather than by way of punishment, if necessary in a special secure mental hospital for the criminally insane (section 40 of the National Health Service Reorganisation Act 1973). Thus, where a person is convicted before a Crown Court - prior to 1971, a Court of Assize or Quarter Sessions - of an offence other than an offence the sentence for which is fixed by law, the court may, pursuant to section 60 par. 1, by order (hereafter referred to as a "hospital order") authorise his admission to and detention in such hospital as may be specified in the order. The conditions which must be met include the following: a) the court must be satisfied, on the written or oral evidence of two medical practitioners (at least one of whom has special experience in the diagnosis or treatment of mental disorders), that the offender is suffering from mental illness, psychopathic disorder, subnormality or severe subnormality; and that the mental disorder is of a nature or degree which warrants the detention of the patient in a hospital for mental treatment; b) the court must be of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a hospital order. 11. Under section 65 par. 1, where it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public, the court may by further order (hereafter referred to as a "restriction order") direct that the hospital order shall be subject to special restrictions in respect of discharge, either without limit of time or during such a period as may be specified in the order. Before making a restriction order, the court must hear oral evidence from at least one of the medical practitioners mentioned above. 12. Where a restriction order has been made, responsibility for the control of the patient, though not for his treatment, is vested in the Home Secretary. Thus, the Home Secretary has special powers under section 66 of the 1959 Act in connection with the discharge of restricted patients. If he is satisfied that the restriction order is no longer required for the protection of the public, he may direct that the patient shall cease to be subject to the special restrictions (sub-section 1). While a restriction order is in force, he may, "if he thinks fit", discharge a patient from hospital either absolutely or subject to certain conditions; where he absolutely discharges him the restriction order ceases to have effect (sub-section 2). If the discharge is conditional, the Home Secretary may, at any time during the continuance in force of the restriction order, by warrant recall the patient to hospital (sub-section 3). 13. According to section 66 par. 6 to 8 of the 1959 Act, the Home Secretary may at any time refer to a Mental Health Review Tribunal for their advice the case of a patient who is for the time being subject to a restriction order. The patient himself may not apply directly to such a Tribunal, but he may ask the Home Secretary in writing to do so. Where so asked by a patient who is detained in hospital, the Home Secretary must refer the patient’s case to the Tribunal within two months of the receipt of the request unless during that period he discharges the patient absolutely or conditionally. Such requests may only be made at certain specified intervals, namely one year after the date of the relevant hospital order, one year after that and thereafter once every two years. In the case of a patient conditionally discharged and subsequently recalled, application may be made six months after readmission, one year after readmission and thereafter biennially. 14. Mental Health Review Tribunals, set up under section 3 of the 1959 Act, consist of a lawyer, a psychiatrist (independent of the detaining authority who examines the patient) and a third member with suitable qualifications. One of the functions of such a Tribunal is to advise the Home Secretary periodically about the patient’s condition (see the preceding paragraph). The Home Secretary takes this advice into consideration, but is not bound by it. He may therefore reject the advice where medical opinion is not unequivocal, there is a conflict with other advice he has received or the interests of public safety so require. Rule 19 of the Mental Health Review Tribunals Rules provides that a Tribunal shall consider a reference made by the Home Secretary in whatever informal manner they think appropriate, that they may interview the patient and that they shall interview him if he so requests. In practice, a restricted patient may, like any other detained patient, be legally represented or accompanied by members of his family, or both. The dossier of papers supplied to the Tribunal by the Home Office is not generally disclosed to the patient himself and only partially disclosed to the legal representative, if any. In particular, the home circumstances report is never sent to the legal representative and the up-to-date medical report only if the responsible medical officer agrees. Advice from Mental Health Review Tribunals about restricted patients is regarded as confidential to the Home Secretary. Patients and the representatives are simply told that the Minister’s decision has been taken in the light of Tribunal advice. 15. According to the evidence submitted by the Government, there are four ways by which the need for continued detention of a restricted patient may come to be reviewed by the Home Office: - there may be a recommendation from the medical officer responsible for the patient that the patient should be discharged; - the patient may ask for his case to be referred to a Mental Health Review Tribunal (see paragraph 13 above); - the patient may write about his case to a Member of Parliament who brings it to the attention of the Secretary of State; - the patient himself may write to the Secretary of State asking that he be discharged. 16. The person responsible for initially taking a recalled patient "into custody" will usually be a police officer, but may also be a social worker, a probation officer, a nursing officer or "any person authorised in writing by the managers of the hospital" (see sections 40 par. 1 and 66 par. 3 (b) of the 1959 Act). At the end of 1980 ministerial circulars issued to the relevant authorities, including the police, the probation service and the special hospitals, announced that "in order to meet criticisms made by the European Commission of Human Rights", a new two-stage procedure for informing recalled patients of the reasons for their re-detention was to be introduced. At the first stage of this procedure, the person taking the patient into custody should inform the patient in simple terms that he is being recalled to hospital on the authority of the Home Secretary pursuant to the provisions of the 1959 Act and that a further explanation will be given later. A detailed account of the reasons for the recall must then be provided to the patient by the medical staff at the hospital where he is to be detained; this is to be done as soon as possible after the patient’s admission to hospital and in any event within 72 hours of admission. The responsible medical officer is also required to ensure that the officer who supervised the patient during release and a responsible member of the patient’s family (or his legal adviser) are informed of the reasons. 17. Any person who is detained may make an ex parte, that is to say, a unilateral, application for a writ of habeas corpus to a Divisional Court of the Queen’s Bench Division or, if no such Court is sitting at that time, to a single judge (of the High Court) in court or, if there is none, to such a judge wherever he may be found. Habeas corpus is a common law remedy, developed both by statute and by the courts themselves, by which a person may challenge the legality of his detention. Applications are given priority over other business. The case is considered on the basis of affidavit evidence, as to which cross-examination does not take place in practice. The normal procedure is for applications to be made by counsel; only in exceptional circumstances would a court hear an applicant in person. The judge or the Divisional Court may, where the illegality is clear, order that the writ issue forthwith but more commonly will arrange for the person holding the detainee to be notified of the application and be given an opportunity of appearing before the full court to justify the detention. If at the hearing the Divisional Court is not satisfied that the detention is lawful, it will issue the writ which will have the effect of procuring the release of the person detained. There is in this respect no limitation on access to the courts by patients detained under the 1959 Act. According to the Government, such patients may apply at any time for a writ of habeas corpus save that where an application fails a fresh application made on the same grounds but without fresh evidence to support it will not succeed. 18. The scope of review open to the courts in habeas corpus proceedings can be extensive. Under sections 3 and 4 of the Habeas Corpus Act 1816, the courts may inquire into the truth of the facts stated in the return to a writ of habeas corpus where the applicant is confined "otherwise than for some criminal or supposed criminal matter and except persons imprisoned for debt or by process in any civil suit". 19. However, the operation in practice of the remedy of habeas corpus is by no means uniform and the case-law is not free from apparent contradiction. One factor partially explaining the apparently contradictory nature of the case-law is, as the Government pointed out, that the scope of review undertaken by the courts varies according to the context in which the application for a writ is brought. In particular, where the liberty of the subject has been restrained on account of an order made in purported exercise of a discretionary power vested by statute in the executive authorities, the scope of review will to a large extent be governed by the terms of the relevant statute. In habeas corpus proceedings, in examining an administrative decision to detain, the court will always inquire whether the applicant has been lawfully detained in accordance with the requirements stated in the relevant legislation. Furthermore, even an order for detention that is technically good on its face can be upset, inter alia, if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose (see R. v. Governor of Brixton Prison, ex parte Sarno (1916) 2 King’s Bench 742 and R. v. Brixton Prison (Governor), ex parte Soblen (1962) 3 All England Law Reports 641), or if the decision to detain is supported by no sufficient evidence or is one which no reasonable person could have reached in the circumstances (see Shahid Iqbal (1978) 3 Weekly Law Reports 884 and Zamir v. Secretary of State (1980) 2 All England Law Reports 768). Subject to the foregoing, the court will not be able to review the grounds or merits of a decision taken by an administrative authority to the extent that under the legislation in question these are exclusively a matter for determination by that authority. If the return to the writ on its face shows a valid authority for the detention, it will in effect be for the applicant to establish that the detention is illegal (see Re Wajid Hassan (1976) 2 All England Law Reports 123 and Zamir v. Secretary of State, loc. cit.). 20. In 1965 and 1966, the applicant received psychiatric treatment for delusions. He was diagnosed as having a paranoid psychosis. On 22 October 1968, he appeared at the Sheffield Assizes and pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. The facts before the court were that the applicant had struck a workmate in the mouth with a heavy spanner. Following his conviction, the court remanded him in custody for medical reports. At the adjourned hearing on 7 November 1968, oral reports were given by two medical practitioners concerning the applicant’s mental health; the court made an order under section 60 of the 1959 Act for his admission to and detention in Broadmoor Hospital, a special secure mental hospital for the criminally insane. The court also made a restriction order against the applicant for an indefinite period in accordance with section 65. 21. During X’s detention in Broadmoor Hospital, his case was frequently reviewed by the hospital authorities. In January 1970, his case was referred, at his own request, to a Mental Health Review Tribunal. In the light of the Tribunal’s advice, the Home Secretary decided not to authorise the applicant’s discharge or transfer to another hospital. However, in January 1971, the responsible medical officer was able to report an improvement in X’s condition to the extent that he recommended that X should be conditionally discharged. On 19 May 1971, the Home Secretary ordered the applicant’s conditional discharge under section 66 par. 2 of the 1959 Act. The conditions to be observed were that the applicant should reside at the matrimonial home, be under the supervision of a probation officer and attend a psychiatric out-patients’ clinic as directed by the responsible medical officer at Broadmoor Hospital. 22. Throughout the time of his conditional discharge the applicant lived with his wife. He committed no further criminal offence. After an initial period of unemployment, he eventually settled into stable employment. He was seen at regular intervals by the nominated probation officer and a consultant psychiatrist at Sheffield. Reports on his mental condition indicated that he continued to suffer from mental disorder, but until April 1974 the probation officer, the responsible medical officer at Broadmoor to whom the probation officer was reporting and the consultant psychiatrist in Sheffield saw no reason why he should not stay at liberty. 23. On Friday, 5 April 1974, however, the applicant’s wife visited the probation officer and told him that the applicant’s condition had not, for a long time, been as she had described in her previous progress reports. On the contrary, she said, he remained deluded and threatening, using obscene language, accusing her of loose morals, and drinking quite heavily. She told the probation officer that she had reached the end of her endurance and intended to leave her husband the following day, but was afraid to stay in the house with him that night. The probation officer alerted the responsible medical officer at Broadmoor. The medical officer was aware of X’s previous history, including his record of impulsive and dangerous conduct under stress; he also had copies of the psychiatric reports prepared on X during the latter’s period of conditional release. In consequence, the doctor became alarmed at the possibility of a recurrence of violent behaviour by X, especially if X came to know of his wife’s intention to leave him. The doctor did not judge it necessary to seek to have the wife’s complaints verified since it was in his view sufficient that the complaints had been made and that the probation officer found them credible. The doctor therefore referred the matter to the Home Secretary who, acting on his advice, ordered the applicant’s immediate recall to Broadmoor Hospital in pursuance of section 66 par. 3 of the 1959 Act. 24. On the afternoon of the same day, shortly after his return home from work, X was taken into custody by the police. There is no evidence as to what exactly the police said to the applicant on detaining him. X maintained that he received no explanation other than the warrant order itself. The Government referred to the usual procedure then applied in cases of this kind whereby the person concerned was simply informed that he was being recalled to Broadmoor by the Home Secretary. X was detained overnight and escorted back to Broadmoor Hospital on the following day. 25. According to the applicant, on his arrival at the hospital he was not given any explanation for his recall, although he inferred from interviews with the responsible medical officer some time after his readmission that it had something to do with complaints from his wife. The Government maintained that immediately on X’s return to Broadmoor the responsible medical officer sought to explain to him the reasons for his recall, and in particular the fears and anxieties expressed by his wife. However, since X was at this time extremely resentful, disturbed and suffering from delusions, it is possible, so the Government submitted, that he did not fully understand or appreciate the explanations afforded to him. 26. On the Saturday morning before being escorted back to Broadmoor, X had instructed solicitors to apply for a writ of habeas corpus on his behalf. The following Monday, the solicitors spoke on the telephone to the responsible medical officer who, in confidence, mentioned in general terms the wife’s visit to the probation officer, her anxiety regarding aspects of the applicant’s behaviour and his, the doctor’s, action in advising recall because of concern for the wife’s safety. The application - which was made ex parte - came before the Divisional Court on 24 May. With the agreement of X’s counsel, the application was adjourned in order to enable further information to be sought; the Court wished in particular to know more about the reasons that had led to the Home Secretary’s action. One of the judges remarked: "It really needs more information, ... and very often the patient himself is unable to give it. One has to look to the sources which have called for his recall." 27. The same day, the applicant’s solicitors wrote to the Home Office requesting information as to the reasons for their client’s recall. By letter dated 31 May 1974, the Home Office replied: "In April 1974 the supervising probation officer reported to the responsible consultant psychiatrist at Broadmoor that [X’s] condition was giving cause for concern. In the light of the advice subsequently received from the consultant the Home Office considered it necessary for the protection of the public and in [X’s] own interest that he would be recalled to hospital immediately for further observation and treatment." The solicitors also approached the probation service in Sheffield, but the probation service declined to supply them with the information sought. 28. On 21 June 1974, the adjourned application for a writ of habeas corpus was heard in the Divisional Court of the Queen’s Bench Division. The Court had before it the Home Office letter of 31 May 1974, letters from three of the applicant’s former workmates stating that they found nothing unusual about his behaviour, and affidavits from the applicant himself, from his general practitioner and from the consultant psychiatrist in Sheffield. Exhibited to the two latter affidavits were medical reports supplied at the request of X’s solicitors and covering the period of conditional discharge. In his report, dated 12 June 1974, the consultant psychiatrist wrote: "For quite a time I felt that whilst one was sitting on a time-bomb I had no clear evidence that he was in fact likely to be harmful to somebody. Nevertheless I felt very apprehensive throughout the whole of his period ... In my opinion the man is a querulous suspicious person liable to paranoid ideation and inevitably presents a risk to the community ..." He also confirmed views he had expressed in September 1971 in a letter to the Sheffield probation service. In this letter he spoke of the need to "steer [X] clear of depressed situations which could lead to murder or serious bodily harm to other people", and added: "The greatest danger in handling him is to lose one’s judgement to such an extent that one minimises the degree to which he has shown evidence of a striking paranoid psychosis." Counsel for the applicant, stating that his client had not the slightest idea why the probation officer had alerted the responsible medical officer at Broadmoor, explained: "... although enquiries have been made, no information has been obtained on that point so that it is difficult for the applicant or his advisers to know whether there was sufficient justification for the course taken by the Home Secretary." 29. At the close of the hearing, the Divisional Court rejected the application. Although the record of the proceedings contained in the transcript is not entirely clear, it would appear that the Court, in reaching its conclusion, had regard to the discretion vested in the Home Secretary under section 66 par. 3 of the 1959 Act, the apprehension expressed by the consultant psychiatrist, and the fact that the probation officer saw possible signs of impending danger to other people. The concluding remarks of one of the judges on the Court were as follows: "Unless the Broadmoor authorities, [the consultant psychiatrist] and the Home Secretary take this view, then people life [X] cannot be released from hospital except in the most exceptional circumstances. The only possible way this can operate is by letting people out on licence, with very careful supervision, and an immediate reaction in the event of any signs of new danger ..." 30. Following X’s readmission to Broadmoor, his responsible medical officer was of the opinion that he should be further detained for treatment and medical reports indicated that he remained in a psychotic state. In July 1975, X asked the Home Secretary to refer his case to a Mental Health Review Tribunal in accordance with section 66 par. 8 of the 1959 Act (see paragraph 13 above); X claimed to have made an earlier request in February 1975, but there is no record of this, either in the Home Office or at Broadmoor. The hearing before the Mental Health Review Tribunal took place in October 1975. The Tribunal’s advice, which was not communicated to X or his solicitors, was to the effect that the patient continued to suffer from mental illness but could now be released provided he remained subject to certain conditions. In December 1975, the responsible medical officer having noted an improvement in the patient’s state, the Home Secretary agreed in principle to a conditional discharge if suitable arrangements could be made. X left the hospital in February 1976 on leave. In July of that year, the Home Secretary consented to his conditional discharge. X died on 17 January 1979. | 1 |
train | 001-91990 | ENG | POL | CHAMBER | 2,009 | CASE OF WIKTORKO v. POLAND | 3 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1957 and lives in Olsztyn. 6. On the evening of 27 December 1999 the applicant met with her friend. 7. Subsequently the applicant took a taxi to go home and refused to pay the allegedly exorbitant fare without obtaining a proper bill. As a result, the driver did not let the applicant out of the taxi in front of her house but took her to a soberingup centre in Olsztyn. The applicant called the police from the taxi as she felt threatened by the driver’s behaviour. So did the driver as regards the applicant’s behaviour. 8. Subsequently, the applicant was detained in the soberingup centre. She refused to undergo a breathalyser test. The applicant submitted that she had had two beers. The Government maintained that she had been in a state of “average intoxication”. 9. The applicant submitted that the staff of the centre had insulted her and that she had been brutally manhandled and beaten. She had also been forcibly stripped naked by two men and a woman. Afterwards, she had been forcibly put into a disposable gown. 10. The Government submitted that it was the applicant who had been aggressive towards the staff and had verbally insulted them. They had therefore had no choice but to undress her by force as she had refused to undress herself and had subsequently resisted their legitimate efforts to dress her in a disposable gown. 11. They further argued that she had had to be placed in restraining belts because after being put to bed she had been kicking the doors of the room and screaming abuse, waking other patients. 12. The parties’ submissions are concordant as to the fact that the applicant was subsequently restrained by belts, tied to a bed and locked in a cell until the morning of 28 December 1999, when she was released. The applicant submitted that she had remained in the cell, restrained by the belts, for approximately ten hours. The Government did not challenge this submission. 13. On 29 December 1999 the applicant obtained a medical certificate concerning her condition. The relevant part of the certificate read: A bloody bruise on the left hip, at the front, of approximately 3 cm in diameter, abrasion at the wrist at the elbow side; mobility and rotation of the shoulder limited (unclear whether passive or active movements concerned); the [applicant] complained of pain in her jaw at the left side; the jaw at that side swollen. 14. Shortly afterwards the applicant filed a complaint against the staff of the centre with the head of the district police in Olsztyn. She submitted that she had not been intoxicated, that nothing in her conduct had justified the decision to deprive her of her liberty and that she had been brutally manhandled and undressed by the staff of the centre. 15. On 21 January 2000 the head of the district police refused to institute an investigation in her case. The grounds of the decision read: On 29.12.1999 Ms A. Wiktorko complained to the Town Police Station that on 27/28 December a taxi driver and the staff of the sobering-up centre had used physical force against her and insulted her. In her formal complaint that a criminal offence had been committed, which she submitted on 4 January 2000, she [explained] that on 27 December 1999 at 11 p.m. approximately a driver of a taxi No. [...] had first insulted her verbally and afterwards had taken her to the sobering-up centre where she had been detained against her will and physical force, resulting in bruises and scratches, had been used against her by the staff. A number of persons were requested to provide information, but no one confirmed the applicant’s allegations. The taxi driver stated that Ms Wiktorko had been taken to the sobering-up centre because she had not wanted to pay the fare or to leave the taxi and that she had herself agreed to be taken there; while she could have left the taxi at any time; she was detained at the centre by the police, not by the taxi driver himself as she says; furthermore she did not want to have a breathalyser test but when she was already in the centre she did not want to undress herself and when she was put in the room for the patients she was hitting the door with her hands and other parts of her body inflicting injuries on herself so that restraining belts had to be used for fear that her life and health might be endangered.” On 31 January 2000 the Olsztyn district prosecutor upheld this decision. 16. On 8 February 2000 the applicant appealed. In particular, she reiterated that her detention had been completely unjustified as she had not been intoxicated. She had had two beers on the evening of 27 December 1999 which by no standards could be described as intoxication, still less as intoxication justifying deprivation of liberty in a soberingup centre. She had been illtreated by the staff of the centre after her arrest, but the decision of 21 January 2000 had obviously failed to elucidate the facts of the case. She submitted that during her detention she had been stripped naked. She stressed that the police had failed to grant her access to the file concerning her detention and that the investigation had been superficial. 17. On 21 February 2000 the head of the district police in Olsztyn decided to investigate the applicant’s allegations. 18. On 17 March 2000 an expert prepared an opinion as to the applicant’s health upon her release on the basis of the file of the investigation. The opinion reiterated the findings of the certificate of 29 December 1999 and stated that the injuries could have been sustained both as a result of the use of force against the applicant or of her behaviour after she had been undressed and put into the cell. 19. The investigation was subsequently discontinued by the police and on 19 April 2000 the district prosecutor confirmed this decision. The written grounds of the decision read: “During the investigation factual findings were made, witnesses were questioned, the [applicant’s] medical records were examined and a medical expert was appointed with a view to establishing the injuries and circumstances in which they might have been sustained. It was established on the basis of this material that on 27 December 1999 Anna Wiktorko, having drunk alcohol and having refused to pay for the taxi, had been taken by the taxi-driver to [the sobering-up centre]. Afterwards she was taken, in the presence of a police patrol, to the building of the centre. Once she was inside, a decision was taken to detain her in the centre, regard being had to her behaviour which was vulgar and offensive towards those who were present there. As she did not want to comply with the regulations in force by taking a breathalyser test and by voluntarily undressing and changing into a gown, the staff used force against her in order to make her change her clothes and put her in a room for detainees. As she continued to be aggressive and to destroy property and could have harmed herself, she was put in restraining belts so that she could calm down. The applicant’s complaints were not confirmed by the witnesses. Her behaviour was reprehensible and it was necessary to put her in the sobering-up centre. It has not been established that physical force was used against her over and above what was necessary to calm her down. Hence, as there was no indication that a criminal offence had been committed the investigation has to be discontinued.” 20. The applicant, represented by a lawyer, appealed to the regional prosecutor. She submitted that she had not been intoxicated and that the actions of the employees of the centre had infringed her personal rights, her dignity and her bodily integrity. She also submitted that her procedural rights had been breached in that the police had failed to inform her representative about any of the investigative measures that had been taken during the proceedings. It was also submitted that during the investigation the applicant should have had an opportunity to confront the employees of the centre. 21. On 7 June 2000 the Olsztyn regional prosecutor, having regard to the applicant’s procedural arguments, quashed the contested decision of 19 April 2000. He noted that there had been significant discrepancies between the applicant’s testimony and that given by other persons, which had to be elucidated. 22. On 2 August 2000 the Olsztyn-North district prosecutor discontinued the proceedings, finding that no criminal offence had been committed. The written grounds of the decision read: “In the evening of 27 December 1999 [the applicant] called a taxi [...] After the trip a disagreement as to the amount of the fare to be paid arose between her and the driver. As the parties disagreed, [the driver] decided to solve the problem with the assistance of the police. After he had called the dispatch centre [of the taxi company], he drove to the vicinity of the sobering-up centre and waited for the police to come. They then waited for the patrol to come; at that time the driver entered the building of the centre, while the applicant stood by the taxi and also called the police from her mobile phone. It is noted that the driver did not commit the offence of unlawful deprivation of property against the applicant, given that at that time both parties wanted to solve the problem with the assistance of the police; it is also noted that at that time the applicant could simply have walked away or used her phone. After police officers A.R. and W.K. arrived at the scene, they tried to obtain a friendly resolution of the situation, but to no avail. Having regard to the vulgar and aggressive behaviour of the applicant, who smelled of alcohol, the officers decided that she should be detained in the sobering-up centre, where she refused to take a breathalyser test. Hence, the doctor on duty decided, on the basis of a general examination, that the applicant was in a state of intoxication justifying her detention for up to twelve hours. Staff member M.P [a woman] subsequently tried to make the applicant change into a disposable garment. As the applicant offered stubborn resistance, M.P. requested other members of staff, L. Z. and T.P. [men] to help her; the applicant was dressed in a gown with their assistance and put into the room for intoxicated persons. The applicant continued to be aggressive; therefore physical force against her was used and she was put in restraining belts. It transpires from the provisions governing the organisation of the sobering-up centres and job descriptions of the members of staff, the staff acted in compliance with law on the basis of the applicable legal provisions and there is therefore no basis for a well-founded suspicion that a criminal offence of unlawful deprivation of liberty or coercion had been committed. On the basis of section 41 of the Law on Education ... in Sobriety and the Fight against Alcoholism and sections 19 and 20 of the ... ordinance a bill for PLN 250 was drawn for the applicant to pay for the costs of her detention. It should be unequivocally stated that the conduct of the staff toward the applicant was lawful. During the investigations all persons involved in the applicant’s arrest and detention were questioned. The ample evidence gathered in the case did not give rise to a suspicion that a criminal offence had been committed. Subsequently, the decision reiterated the findings of the medical report (see paragraph 3 above). The decision further read: In her submissions the applicant complained that the staff of the centre had breached her dignity and ... Having in mind that the injuries which the applicant suffered and the insults can be examined in proceedings instituted by a private bill of indictment, it is open to the applicant to bring such a bill within 14 days from the service of the present decision. 23. The applicant appealed, reiterating the arguments she had submitted in her previous appeal. She also submitted that she had been humiliated by the staff of the centre as she had been forcibly undressed and tied to a bed with restraining belts until the morning of 28 December 1999. This had made it impossible for her to go to the toilet. 24. On 25 October 2000 the Olsztyn Regional Court upheld the decision to discontinue the proceedings. In its decision, which consisted of twenty lines, the court observed that the evidence gathered in the case had led it to the logical conclusion that the applicant had been intoxicated and that therefore her detention in the sobering-up centre and the use of force against her had been justified. 25. The Law on Education in Sobriety and the Fight against Alcoholism (Ustawa o wychowaniu w trzeźwosci i przeciwdziałaniu alkoholizmowi) provides for measures which may be applied in respect of intoxicated persons. Sections 39-40 set out measures which may be applied to such persons. 26. Pursuant to section 39 of the Law, soberingup centres are to be set up and managed by the authorities of municipalities with more than 50,000 inhabitants. Section 40 of the Law, as applicable at the relevant time, provided, in so far as relevant: “1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons’ life or health, may be taken to a soberingup centre or a public health care facility, or to their place of residence. 2. In the absence of a sobering-up centre, such persons may be taken to a [police station]. 3. [Intoxicated] persons who have been taken to a sobering-up centre or a [police station] shall remain there until they are sober but for no longer than twenty-four hours. ...” 27. The Ordinance of the Minister of Health and Social Welfare of 23 October 1996 on the procedure for dealing with intoxicated persons, the organisation of soberingup centres and the scope of health care and rules on assessing the fees connected with admittance to and stays in soberingup centres (Rozporządzenie Ministra Zdrowia i Opieki Społecznej w sprawie trybu doprowadzania osób w stanie nietrzeźwości organizacji izb wytrzeźwień i zakresu opiekli zdrowotnej oraz zasad ustalania opłat związanych z doprowadzeniem i pobytem w izbie wytrzeźwień) set out detailed rules relating to detention in a sobering-up centre. 28. Section 9 of the Ordinance provided, in so far as relevant: “1. A person taken to a sobering-up centre shall promptly be given a medical examination. 2. Following the medical examination, a doctor shall ascertain whether such person should be placed in a sobering-up centre ..., or should be placed in a hospital or other medical establishment ..., or whether there are no signs of intoxication justifying placement in a sobering-up centre.” Its paragraph 13 (1) provided: “A replacement garment shall be issued to all detained persons.” 29. Section 16 of the Ordinance states that direct coercion may be applied in accordance with the rules laid down in section 18 of the 1994 Protection of Mental Health Act, which provides in particular that direct coercion can consist of immobilisation, among other methods. Section 16 of that Act further refers to the Ordinance of the Minister for Health and Social Welfare of 23 August 1995 on the form of application of direct coercion (w sprawie sposobu stosowania przymusu bezpośredniego), which determines the manner in which direct coercion may be applied. The latter ordinance provides, in so far as relevant: “9 (2). A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than four hours. If necessary, the doctor, after personal examination of the patient, may extend the use of immobilisation for subsequent periods of six hours. 13. A nurse on duty shall check the state of the immobilised or isolated person no less frequently then every 15 minutes, including when the person is asleep. The state of the person shall be recorded on the [patient’s] card without delay.” | 1 |
train | 001-67350 | ENG | HUN | CHAMBER | 2,004 | CASE OF MAGLODI v. HUNGARY | 4 | Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | null | 7. The applicant was born in 1970 and lives in Budapest. At present, he is detained at Budapest Prison. 8. On 10 June 1999 the applicant was arrested and interrogated on a charge of murder. He was charged with having murdered a man in 1997. The man's corpse had been found in the garden of a co-accused. The victim's identity was not yet known. On the next day the Budapest Regional Public Prosecutor's Office dismissed the applicant's complaint in respect of his arrest. In the ensuing proceedings he was assisted by a defence counsel of his choice. 9. On 10 and 24 June, 9 September, 3 November 1999 and 2 May 2000 the applicant was interrogated, but he refused to answers the questions put to him. His co-accused was interrogated on 21 and 23 June, 8 September 1999 and 3 May 2000. Witnesses were heard on 10 and 23 June, 10 and 16 July, 2, 3, 6 and 9 August, 10 and 29 September, 3 November 1999, 17 February, 1 and 13 March 2000 and 10 July 2001. 10. Meanwhile, on 12 June 1999 the Pest Central District Court, as confirmed by the Budapest Regional Court on 18 June 1999, ordered the applicant's detention on remand until 12 July 1999. The District Court considered that – given the seriousness of the charges against him – there was a risk of the applicant's collusion and absconding. 11. On 14 June 1999 a forensic pathologist was appointed. He submitted his final opinion on 19 October 1999. 12. On 8 July 1999 the Buda Central District Court, as confirmed by the Regional Court on 26 July 1999, prolonged the applicant's detention until 12 September 1999 for the same reasons given by the Pest Central District Court. 13. On 7 September and 2 December 1999 the Regional Court, as confirmed by an appeal panel of the same court on 23 September and 22 December 1999, prolonged, for the same reasons, the applicant's detention until 12 December 1999 and 12 April 2000, respectively. 14. On 10 April, 4 July and 6 October 2000 the Supreme Court prolonged the applicant's detention until 12 July, 12 October 2000 and 20 January 2001, respectively. It referred to the danger of the applicant's absconding, noting that a DNA-analysis was being carried out with a view to confirming the victim's identity. An expert in haemogenetics, who had been appointed to this end on 16 August 1999, submitted his final opinion on 17 October 2001. 15. On 6 November 2000 the Regional Court, as confirmed by an appeal panel of the same court on 15 December 2000, dismissed the applicant's request for release. 16. On 17 January 2001 the Supreme Court prolonged the applicant's detention until 20 April 2001 and dismissed his request for release. It invoked the danger that the applicant would abscond if released. 17. On 6 March 2001 the Regional Court dismissed the applicant's request for release. 18. On 19 April 2001 the Supreme Court prolonged the applicant's detention until 20 July 2001 on the ground that he might abscond. 19. On 2 May 2001 the investigation was closed and the case-file was made available to the defendants. On 22 May 2001 the Public Prosecutor's Office reopened the investigation with a view to completion of the case against the defendants. These proceedings ended on 20 June 2001. 20. Meanwhile, on 5 June 2001 the Regional Court, as confirmed by an appeal panel of the same court on 27 June 2001, dismissed the applicant's request for release. 21. On 13 July 2001 the Public Prosecutor's Office preferred a bill of indictment, accusing the applicant and two others of murder. The indictment listed several witnesses and two forensic medical experts. 22. On 17 July 2001 and 29 April 2002 the Regional Court, as confirmed by the Supreme Court on 16 August 2001 and 11 June 2002 respectively, upheld the applicant's detention on remand until the delivery of the first-instance judgment. The courts invoked the danger of the applicant's absconding. 23. On 8 July 2002 the applicant filed a request for release in which he referred to domestic jurisprudence and the Court's case-law concerning pre-trial detention. He argued, inter alia, that his absconding was unlikely in view of his close ties with his sick mother and paralysed father, his siblings and his 11-year old son, and of the fact that he had been living with his common-law wife for five years and that they had carried out a major renovation of their flat. 24. On 23 July 2002 the presiding judge refused, under section 95 § 4 of the Code of Criminal Procedure, to take a formal decision on the applicant's renewed request for release on the ground that it referred to no new circumstances. On 10 and 15 October 2002 the Regional Court held hearings. On 25 October 2002 a forensic psychiatrist was appointed to examine the defendants. He submitted his opinion on 17 January 2003. 25. On 8 January 2003 the Regional Court held a hearing and refused to release the applicant. On 3 February 2003 the Supreme Court dismissed his appeal, relying on the danger of absconding. 26. On 4 and 20 March 2003 the Regional Court held hearings and refused to release the applicant. 27. Further hearings took place on 16 April, 12 May, 3 and 11 June 2003. On the latter date the Regional Court delivered a judgment. In its 34page judgment the Regional Court convicted the applicant of murder and imposed a life sentence. 28. On 7 August 2003 the applicant appealed. On 27 October 2003 he completed his appeal. 29. On 5 May 2004 the Budapest Court of Appeal held a hearing. The court quashed the first-instance judgment, remitted the case to the Regional Court and prolonged the applicant's pre-trial detention. The applicant has been detained ever since. 30. Section 95 of the Code of Criminal Procedure, as in force in the relevant period, reads as follows: (1) Detention on remand, when ordered prior to the indictment, may last until the decision of the court in the preliminary proceedings before trial, up to a maximum of one month. Detention on remand can be prolonged by the District Court on one occasion, for two months at the most. After three months, detention on remand can be prolonged by a single judge of the Regional Court, on up to two occasions, but may not continue beyond one year after the remand order. Thereafter, the duration of detention on remand can only be extended by the Supreme Court. (2) Detention on remand, when ordered or upheld by the first-instance court after the indictment, may last until the first-instance judgment is pronounced... (3) When the length of the detention on remand ordered or upheld after the indictment a) exceeds six months and the first-instance court has not delivered a judgment, the first-instance court, b) exceeds one year, the Supreme Court shall review the reasonableness of the detention on remand. (4) The court ... may dispense with delivering a [formal] decision if ... a repeated request for release from pre-trial detention refers to no new circumstances. | 1 |
train | 001-85472 | ENG | POL | CHAMBER | 2,008 | CASE OF WILCZYNSKI v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1936 and lives in Dębica. 5. On 9 July 1998 demarcation proceedings involving the applicant’s land were instituted by the Head of the District Office of the Town of Dębica (Kierownik Urzędu Rejonowego Miasta Dębica). 6. On 1 January 1999 an administrative reform was introduced in Poland and the Mayor of the Czarna District (wójt gminy Czarna) became the competent body for examination of the demarcation proceedings. However, the District Office of the town of Dębica neither informed the Mayor about the proceedings nor transferred the case file to the Mayor. 7. On 16 August 2002 the Czarna District Office received another motion for instituting demarcation proceedings involving the applicant’s land. The motion was transferred to the Mayor of the Czarna District. 8. On 14 October 2002 a second set of demarcation proceedings concerning the same piece of land was instituted by the Mayor of the Czarna District. Acting under Article 31 section 1 of the 1989 Geodetic and Cartographic Act (ustawa z 1989 r. Prawo geodezyjne i kartograficzne) the Mayor appointed a geodesist, Mr C.B., to conduct the demarcation proceedings. None of the parties to the proceedings informed the Mayor that the same proceedings had already been instituted in 1998. 9. On 24 January 2003 the Czarna District Office received the applicant’s request for the adjournment of the demarcation proceedings because of his state of health. The appointed geodesist agreed to adjourn the proceedings and fixed the new date for 10 February 2003. 10. By letter of 31 January 2003 the Mayor of the Czarna District informed the applicant that due to the necessity of obtaining some additional information, the proceedings in respect of the applicant’s motion for a stay of the demarcation proceedings and the exclusion of the geodesist C. B. had been adjourned until 11 February 2003. 11. On 11 February 2003 the Czarna District Office received the applicant’s request for the adjournment of the demarcation proceedings fixed for 10 February 2003 because of the applicant’s medical appointment at a hospital in Kraków. The applicant also requested that the conduct of the demarcation proceedings be adjourned until spring time. He submitted that, given his health problems, he could not take part in any demarcation proceedings conducted in winter. 12. Further, by letter of 12 February 2003 the Mayor of the Czarna District informed the applicant that due to the necessity of obtaining some additional information, the proceedings in the applicant’s case had been adjourned once again until 4 March 2003. 13. On 14 February 2003 the applicant lodged a request with the Self-Government Board of Appeal to have the decision of 14 October 2002 declared null and void. The applicant submitted that the institution of the demarcation proceedings in 2002 was illegal as the same proceedings had already been instituted in 1998 and had not yet been terminated. 14. On 24 February 2003 the Self-Government Board of Appeal refused to examine the applicant’s request of 14 February 2003 as it found that such a request was not available to the applicant. 15. On 7 March 2003, the applicant applied to the Self-Government Board of Appeal asking for a re-examination of his request of 14 February 2003. 16. On 9 April 2003 the demarcation proceedings that had been instituted on 9 July 1998 were discontinued at the request of another party. The applicant appealed to the Self-Government Board of Appeal against this decision. 17. On 22 April 2003 the Self-Government Board of Appeal re-examined the applicant’s request of 14 February 2003 and dismissed it. The applicant lodged a complaint with the Regional Administrative Court. 18. On 5 June 2003 the Self-Government Board of Appeal quashed the decision of 9 April 2003 and remitted the case for reconsideration. 19. On 25 February 2005 the Regional Administrative Court (which had assumed the jurisdiction of the Supreme Administrative Court in the matter) dismissed the applicant’s complaint against the decision of 22 April 2003. The applicant requested to have this judgment together with its written grounds served on him. He was requested by the Regional Administrative Court to pay court fees for receiving the written grounds of the judgment. 20. Subsequently, the applicant lodged several requests for exemption from court fees. 21. On 25 March 2005 the Regional Administrative Court refused to exempt the applicant from court fees. The applicant lodged an interlocutory appeal (sprzeciw) with the Regional Administrative Court. 22. On 10 June 2005 the Regional Administrative Court dismissed the applicant’s interlocutory appeal. The applicant appealed against this decision. 23. On 18 October 2005 the Supreme Administrative Court dismissed the applicant’s appeal. 24. On 10 May 2006 the Mayor’s Office discontinued the proceedings instituted on 14 October 2002. In its reasoned grounds it justified its decision with reference to the Regional Administrative Court’s refusal to “lend” the case file with the result that it could not be examined by the Mayor’s Office. The applicant appealed. 25. On 25 July 2006 the Self-Government Board of Appeal quashed the decision of 10 May 2006. 26. On 17 January 2007 the Mayor discontinued the demarcation proceedings instituted on 14 October 2002. 27. On the same date the Mayor approved the demarcation border established by the geodesist C.B. in the course of the demarcation proceedings that has been instituted in 1998. The latter decision was not subject to appeal; however the party challenging the established border was entitled to request the Dębica District Court to examine the case. It results from the parties’ submissions that the applicant availed himself of this possibility. The proceedings before the Dębica District Court are still pending. 28. On 7 March 2003 the applicant lodged a complaint about the inactivity of the Mayor’s Office with the Self-Government Board of Appeal. 29. On 23 April 2003 the Self-Government Board of Appeal discontinued the proceedings initiated by the applicant’s complaint in view of the fact that the proceedings on the merits had been discontinued. The applicant lodged a complaint with the Supreme Administrative Court. 30. On 8 October 2003 the Supreme Administrative Court rejected the applicant’s complaint against the decision of 23 April 2003 as it found that such complaint was not available in the applicant’s case. 31. On an unknown date the applicant lodged another complaint about the inactivity of the Mayor’s Office with the Self-Government Board of Appeal. 32. On 15 March 2006 the Self-Government Board of Appeal found the applicant’s complaint well-founded and fixed a 30-day time limit for the administrative authorities to deal with the case. 33. For a presentation of domestic law, see: Kaniewski v. Poland, no 38049/02, 8 February 2006; Koss v. Poland, no 52495/99, 28 March 2006. 34. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of 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”), are stated in the Court’s decisions in the cases of Charzyński v. Poland no 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
train | 001-58244 | ENG | ROU | CHAMBER | 1,998 | CASE OF PETRA v. ROMANIA | 3 | Violation of Art. 8;Violation of Art. 25;Non-pecuniary damage - financial award | John Freeland;N. Valticos | 7. Mr Ioan Petra, who was born in 1941, is currently in custody in Aiud Prison (county of Alba), serving a fifteen-year sentence for murder imposed on 30 April 1991 by the Târgu-Mureş County Court. 8. On 10 January 1994, when the applicant was in custody at Mârgineni (county of Dâmboviţa), his wife wrote to the Commission to complain that her husband had not had a fair trial in the County Court. She also reported that he had encountered difficulties in sending letters from prison. 9. On 20 May 1994 the applicant himself sent the Commission a letter posted by his wife and asked that correspondence should be sent to him at home. On 22 July 1994 the Commission asked the applicant for additional information and documents in support of the application. 10. On 30 October and 19 November 1994 Mr Petra wrote to the Commission through his wife, reporting that the prison authorities would not allow him to fill in the application form. 11. On 21 January 1995 he sent the Commission a letter from Mârgineni Prison that was received on 14 February 1995. Written on regulation prison paper, it bore a registration number and had been sent from Bucharest in a Ministry of Justice envelope. Although mentioned as an enclosure, the judgment of 30 April 1991 was missing. This letter was written in a different hand from the earlier ones. 12. On 22 February 1995 the Commission sent the applicant an application form. The form was filled in by the applicant on 9 March 1995 and sent to the Commission by the Romanian Prison Service (Direcţia Generală a Penitenciarelor) on 17 April 1995. No mention was made in it of any hindrance of correspondence. 13. On 18 June 1995, in response to a question from the Commission concerning the different handwriting in the letters it had received, Mr Petra indicated that he had been assisted by a friend “wholly unconnected with the case, a man who is discreet and disinterested”. He added that the prison authorities had informed him that the documents requested by the Commission had been dispatched. However, the Commission never received any of them. Referring also to the right to respect for his correspondence, the applicant said that the prison governor, although very “flexible”, could not be of any greater assistance to him as the authorities were required to apply Law no. 23/1969 on the execution of sentences and its “secret” implementing regulations. In his view, it followed that there was a violation of Articles 8 and 25 of the Convention. 14. The applicant has stated that he never received the letter of 19 October 1995 in which the Commission informed him, among other things, that his application had been communicated to the Government. 15. On 9 December 1995 Mr Petra sent a letter through his wife to the Commission, informing it that on 26 September 1995 he had been transferred to Aiud Prison and that when he had sought permission to communicate his change of address, the reply had been “the Council of Europe is at Aiud and nowhere else” and that if he persisted, he would be put under the special prison regime. 16. On 4 January 1996 Mrs Petra informed the Commission that her husband had asked her to enquire about his application and to complain about the prison authorities’ systematic interference with his correspondence with the Commission. On 26 January 1996 the Commission sent a reply to Aiud Prison. 17. On 22 April 1996 the applicant’s wife wrote to the Commission to complain about the conditions in which her husband was being held, stating that he shared a 12 sq. m cell with five other prisoners and that the warders subjected him to inhuman treatment. The applicant had refused to give her the names of the warders who beat the prisoners, because he was too afraid. 18. Mr Petra did not learn that his application had been communicated to the Government until April 1996, when he received a copy of the letter of 19 October 1995 and relevant documents. 19. In a letter of 24 May 1996 posted by his wife the applicant again complained that his correspondence was being censored and stated that he was obliged to give his letters to the prison governor, who forwarded them to the Prison Service in Bucharest and that he was never certain that his letters were actually sent to Strasbourg. 20. On 13 June 1996 the Government submitted to the Commission all the documents concerning the court proceedings that had resulted in the applicant’s conviction. 21. On 3 January 1997 the Commission received two further letters sent from Bucharest in a Ministry of Justice envelope. The first of these, written by the applicant on regulation prison paper, was dated 4 December 1996, was stamped and bore a registration number. The second was a covering letter from the Head of the Prison Service, Major-General I.C. Two other letters from the applicant, dated 24 and 27 February 1997, each stamped and bearing a registration number, were sent together from Bucharest by the Ministry of Justice on 14 March 1997, again with a covering letter from Major-General I.C. 22. In a letter of 9 March 1997 posted by his wife Mr Petra informed the Commission that he had received the decision on the admissibility of his application. He added that his correspondence with the Commission was being routinely opened and that his letters were being sent to the Commission through the Prison Service. He said that he had written the letter secretly for fear of being denounced to Lieutenant-Colonel V.C., who had threatened him in the following terms: “I’ll give you Council of Europe!” (Te aranjez eu pe tine cu Consiliul Europei!). 23. On 14 August 1997 the Commission received another letter written from prison on regulation prison paper on 8 July 1997, which was stamped, bore a registration number and had been sent from Bucharest in a Ministry of Justice envelope on 30 July 1997. No mention was made in it of any hindrance of correspondence. 24. On 15 April 1998 the registry of the Court received the applicant’s memorial written on regulation prison paper; it was stamped, bore a registration number and had been sent from Bucharest in a Ministry of Justice envelope. 25. The relevant provisions of Law no. 23/1969 on the execution of sentences provide: “Convicted prisoners shall be entitled … to receive and send mail and sums of money.” “A convicted prisoner’s right to receive … and send mail shall be granted according to the nature of the offence he has committed, the length of his sentence, whether he is a reoffender, whether he is doing work, his conduct and his willingness to undergo rehabilitation measures. …” “Any mail, books, newspapers or magazines whose content the prison governor considers unsuited to the process of rehabilitating a prisoner shall be withheld and kept at the prison. They shall be returned to the prisoner when he is released. Mail whose content is unsuitable shall, if need be, be forwarded to the competent authorities.” 26. The relevant regulations of the implementing regulations of Law no. 23/1969, which were not published, provide: “Convicted prisoners shall be entitled to submit petitions and written or oral requests to the prison governor, the public prosecutor, the President of the County Court for the area in which he is being held or other bodies. The prison authorities shall provide convicted prisoners with writing materials.” “Requests and complaints addressed to central or local authorities shall be sent direct to those authorities by the prison authorities. Unsuitable requests shall be sent to the Prison Service so that the measures prescribed by law may be taken. …” “Prison governors shall dispatch requests and complaints within five days of the day on which they receive them. Convicted prisoners shall be informed of the outcome of their requests and complaints as soon as the replies have been received and shall sign to that effect.” According to the table annexed to the implementing regulations, prisoners convicted of murder are entitled to receive and send one letter every two months if they are working in prison and one letter every three months if they are not. | 1 |
train | 001-110301 | ENG | UKR | ADMISSIBILITY | 2,012 | BAZELYUK v. UKRAINE | 3 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger | The applicant, Mr Anatoliy Oleksandrovych Bazelyuk, is a Ukrainian national who was born in 1949 and lives in Odessa, Ukraine. On 30 October 2006 the local electricity supply company, O., cut off the electricity in the applicant’s house, allegedly because the electricity counter in his house was not properly sealed so the electricity used by him was not being properly metered. In November 2006 the applicant lodged a civil claim before the Kominternivskyy District Court of the Odessa Region against O., requesting that his house be re-connected to the electricity network, and claiming 3,000 Ukrainian hryvnas (UAH) (at the material time around 445 euros (EUR)) in compensation for non-pecuniary damage. The applicant alleged that without electricity he had not been able to properly store food, to cook and to relax in the evening. He also claimed costs and expenses. On 16 April 2007 the court found in part for the applicant. The court ordered O. to re-connect the applicant’s house to the electricity network, and awarded him UAH 1,500 in compensation for non-pecuniary damage (at the material time around EUR 212) and UAH 39.50 (at the material time around EUR 6) in costs and expenses. On 21 August 2007 the Odessa Regional Court of Appeal upheld this decision. O. appealed in cassation. The applicant stated that he had not been informed about it and had had no opportunity to comment on the defendant’s appeal in cassation. On 30 July 2008 the Supreme Court of Ukraine, in the absence of the parties, quashed the above decisions in so far as they had awarded the applicant compensation for non-pecuniary damage, and rejected his claim for damages. | 0 |
train | 001-58076 | ENG | GBR | CHAMBER | 1,996 | CASE OF BUCKLEY v. THE UNITED KINGDOM | 2 | No violation of Art. 8;No violation of Art. 14+8 | John Freeland | 7. The applicant is a British citizen and a Gypsy. She lives with her three children in caravans parked on land owned by her off Meadow Drove, Willingham, South Cambridgeshire, England. She is married but separated from her husband in 1991. 8. As far back as can be traced, the applicant's family have been Gypsies based in South Cambridgeshire. She has lived in caravans all her life and as a child travelled with her parents in this area. She continued this itinerant life until shortly before the birth of her third child in 1988. 9. In 1988 the applicant's sister and brother-in-law acquired a one-acre (approximately 4000 square metres) site off Meadow Drove, Willingham, and were granted personal, temporary planning permission for one living unit, comprising two caravans. 10. At her sister's invitation she moved on to this site in November 1988 when she was expecting her third child, because she had found it hard being constantly on the move with young children. During this period of settled living the two eldest children were able to attend a local school, where they integrated well. 11. On an unspecified date in 1988, the applicant acquired part of her sister's land (0.16 hectare) to the rear of the site, furthest away from Meadow Drove. She moved her three caravans on to this plot. 12. Her land is now part of a group of six adjacent sites which are occupied by Gypsies. One plot has received permanent planning permission for the residential use of three caravans. The site occupied by the applicant's sister enjoyed temporary permission until 4 August 1995. The remaining three sites have been occupied without planning permission and the occupants have been subject to enforcement proceedings (see paragraph 32 below). The occupants of two of those sites have also introduced applications before the European Commission of Human Rights. 13. The applicant has stated that she intends to resume her travelling life sometime in the future, and to pass on this tradition to her children. In 1993 she travelled with her sister to Saint Neots in Cambridgeshire because her father-in-law was dying. She was able to park on waste ground for two weeks, but had to move on shortly after the funeral. 14. On 4 December 1989 the applicant applied retrospectively to South Cambridgeshire District Council for planning permission for the three caravans on her site. She was refused on 8 March 1990 on the grounds that (1) adequate provision had been made for Gypsy caravans elsewhere in the South Cambridgeshire area, which had in the Council's opinion reached "saturation point" for Gypsy accommodation; (2) the planned use of the land would detract from the rural and open quality of the landscape, contrary to the aim of the local development plan which was to protect the countryside from all but essential development (see paragraph 30 below); and (3) Meadow Drove was an agricultural drove road which was too narrow to allow two vehicles to pass in safety. 15. On 9 April 1990 the Council issued an enforcement notice requiring the caravans to be removed within a month. The applicant appealed against the enforcement notice to the Secretary of State for the Environment (see paragraph 33 below). 16. An inspector was appointed by the Secretary of State to report on the appeal (see paragraph 33 below). The inspector visited the site and considered written representations submitted by the applicant and the District Council. In her report issued on 14 February 1991 the inspector observed that the local authority had granted planning permission to two caravan sites between the applicant's site and Meadow Drove (the applicant's sister's site and another), and to an agricultural workshop on land to the east of the site (which was occupied at the time of the inspection by an unauthorised road haulage business). The applicant's caravans were screened from the road because of these authorised and unauthorised developments. However, the inspector wrote that: "... whether seen or not, the development subject of these notices [i.e. the applicant's caravan site] extends development further from the road than that permitted. It thus intrudes into the open countryside, contrary to the aim of the Structure Plan [see paragraph 30 below] to protect the countryside from all but essential development." The inspector also found that the access road to the site was too narrow for two vehicles to pass, and thus that the use of the site for caravans would not be in the interests of road safety. She considered the applicant's special status as a Gypsy and observed that in January 1990 there were over sixty Gypsy families on unauthorised sites in the district of South Cambridgeshire. She continued: "It is therefore clear in my mind that a need exists for more authorised spaces. ... Nevertheless, I consider it important to keep concentrations of sites for gypsies small, because in this way they are more readily accepted by the local community. ... [T]he concentration of gypsy sites in Willingham has reached the desirable maximum and I do not consider that the overall need for sites should, in this case, outweigh the planning objections." She concluded by recommending that the appeal be dismissed. 17. The Secretary of State dismissed the appeal on 16 April 1991. The reasons given included the following: "The decisive issue in regard to the planning merits of your appeals is considered to be whether the undisputed need for additional gypsies' caravan site provision, in the administrative areas of the District Council, and of the County Council, is so pressing that it should be permitted to override the objections on planning policy and highway safety grounds to the retention of the use of the appeal site as a residential caravan site for gypsies. On this approach, the view is taken that the objections to the continued use of the appeal site as a residential gypsy caravan site are so strong, on planning policy and highway safety grounds, that a grant of planning permission could not be justified, either on a temporary or personal basis. In reaching this conclusion, full consideration has been given to policy advice in the Department's Circular 28/77, giving guidance to Councils on the need to provide adequate accommodation in the form of caravan sites, for gypsies residing in or resorting to their area. However, on the available evidence, the view is taken, in agreement with the officer's appraisal, that the concentration of gypsy caravan sites around the Willingham area has reached the desirable maximum, and the overall need for additional sites should not outweigh the planning and highway objections arising from the continued use of this particular site." The applicant did not appeal to the High Court because she was advised by counsel that no grounds arose in her case (see paragraph 34 below). 18. The applicant has been prosecuted for failure to comply with the enforcement notice of May 1990. On 7 January 1992 she was fined £50 and required to pay £10 costs. She has again been prosecuted on two occasions after the introduction of her application to the Commission on 7 February 1992. On 12 January 1994 the magistrates granted her an absolute discharge but ordered her to pay the prosecution costs. Finally, on 16 November 1994 she was fined £75 and ordered to pay £75 costs. 19. By a letter dated 20 May 1993, the Department of the Environment informed the District Council that the Secretary of State had decided to designate the area of South Cambridgeshire under section 12 of the Caravan Sites Act 1968 (see paragraph 37 below). It was noted that a small number of Gypsies still remained on unauthorised sites but that, in light of the provision made for sites which was greater than in any other district, it was considered "not expedient for adequate accommodation to be provided for Gypsies residing in or resorting to South Cambridgeshire district". The order designating the district of South Cambridgeshire came into force on 13 August 1993, but no longer applies because of the provisions of the Criminal Justice and Public Order Act 1994 (see paragraph 41 below). 20. On 19 September 1994 the applicant again applied for permission to station her caravans on her site, in the light of a change in the law (see paragraphs 40-42 below). 21. She was refused on 14 November 1994 on the grounds that (1) local planning policy dictated that development in open countryside should be restricted and no evidence to justify a departure from this policy had been advanced, and (2) adequate provision for Gypsies had been made along Meadow Drove (see paragraph 24 below). 22. The applicant (together with others occupying the neighbouring sites) appealed against this decision to the Secretary of State. A report was prepared by an inspector in May 1995. The inspector considered, first, whether the continued use of the land as a Gypsy caravan site would detract from the rural nature of the area, and, secondly, if so, whether there were any special circumstances sufficient to outweigh this objection. She found that the road safety objection, which had been one of the grounds of refusal in April 1991 (see paragraph 16 above), no longer applied. With regard to the first question, the inspector found that the applicant had a mobile home, three touring caravans and three sheds on her site. These were hidden from the road by the caravans on the sites in front and by an agricultural engineering business, the same depth as the applicant's site to the east. They were visible from other vantage points but could be adequately screened by planting hedges. However, she concluded that: "... the continued use of the rear plots considerably extends the depth of development south of the road. This intensification of use in itself inevitably detracts from the rural appearance and generally open character of the area, contrary to the objectives of national and local countryside policy. I must therefore conclude that the continued occupation of the land as gypsy caravan sites is harmful to the character and appearance of the countryside." "a relevant consideration that there is available alternative accommodation close by, which would enable the appellants to stay in the Willingham area and their children to continue at the local schools". On the other hand, "little weight [could] be given to the private sites at Cottenham. No substantive evidence was given by either the Council or the appellants as to whether plots were actually available there or their price". The inspector considered the impact of Circular 1/94 (see paragraph 43 below) on the applicant's case, but concluded that, although it placed greater emphasis on the provision of sites by Gypsies themselves, it was government policy that proposals for Gypsy sites should continue to be determined solely in relation to land-use factors. She concluded that there had been no material changes since the last appeal was heard and the present appeal should therefore be dismissed. 23. Accepting the inspector's conclusions and recommendations, the Secretary of State dismissed the appeal on 12 December 1995. The applicant has filed an appeal to the High Court, which is now pending. 24. In November 1992 the County Council opened an official Gypsy caravan site in Meadow Drove, about 700 metres away from the applicant's land. The site consists of fifteen pitches, each comprising a fenced, partially grassed area with hard standing for caravans and its own brick building containing a kitchen, shower and toilet. Each pitch is designed to accommodate one permanent caravan, one touring caravan, one lorry and one car. They are joined by a central road and the site stands in open countryside. 25. Between November 1992 (when the site opened) and August 1995, twenty-eight vacancies have arisen there. The District Council contacted the applicant by letters dated 17 February 1992 and 20 January 1994, informing her of the possible availability of pitches on this site and advising her to apply for one to the County Council. The applicant has never taken any action in this regard. 26. Since the site opened, the following incidents have reportedly taken place there: (1) an unsubstantiated allegation in May 1993 that one of the residents was in possession of a firearm; (2) a fight in December 1993 during which a resident on the site was punched in the eye by another; (3) in 1994 a car was brought on to the site and set alight; (4) in the same year there was an incident of domestic violence; (5) also in 1994, the warden's office on the site was burgled and damaged when temporarily vacant; (6) in 1995 a site resident was convicted of conduct likely to cause a breach of the peace after exchanging words and threatening gestures with a District Council refuse collector on the site; (7) in March 1995 four pitches were damaged by vandalism and/or fire. 27. There are authorised privately run sites at Smithy Fen, Cottenham, about 7 kilometres from Willingham. In May 1995 the cost of purchasing a pitch on one of them reportedly varied between £7,000 and £40,000. 28. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) ("the 1990 Act") consolidated pre-existing planning law. 29. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). 30. An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The local development plan in South Cambridgeshire restricts development in the countryside to that essential to the efficient operation of particular rural uses, such as horticulture, agriculture and forestry. 31. The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, para. 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). 32. If a development is carried out without the grant of the required planning permission, the local authority may issue an "enforcement notice", if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). 33. There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. 34. Again there is a further right of appeal "on a point of law" to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. 35. Part II of the Caravan Sites Act 1968 ("the 1968 Act") was intended to combat the problems caused by the reduction in the number of lawful stopping places available to Gypsies as a result of planning and other legislation and social changes in the post-war years. Section 16 defined "gipsies" as: "persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such". 36. Section 6 of the 1968 Act provided that it should be the duty of local authorities: "to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area". The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). 37. Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could "designate" that district or county (section 12 of the 1968 Act). The effect of designation was to make it an offence for any Gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10). In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of section 10. 38. By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, "the Cripps Report"). Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that: "Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law." The report made numerous recommendations for improving this situation. 39. Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on "statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management". It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report. Among other advice, it encouraged local authorities to enable self-help by Gypsies through the adoption of a "sympathetic and flexible approach to [Gypsies'] applications for planning permission and site licences". Making express reference to cases where Gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area. 40. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that "it would be to everyone's advantage if as many gypsies as possible were enabled to find their own accommodation", and thus advised local authorities that "the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions". In addition, approximately £100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating Gypsy sites. 41. Section 80 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act (see paragraphs 35-37 above) and the grant scheme referred to in paragraph 40 above. 42. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as "a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner's consent". Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act). 43. New guidance on Gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see paragraph 40 above). Councils were told that: "In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control." However: "As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ..." | 0 |
train | 001-98606 | ENG | AUT | CHAMBER | 2,010 | CASE OF KAMMERER v. AUSTRIA | 3 | No violation of Art. 6-1 and 6-3-c;Remainder inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicant was born in 1955 and lives in Axams. 6. On 30 June 2004 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft, DAA) issued a provisional penal order (Strafverfügung) against the applicant, imposing a fine under the Motor Vehicles Act (Kraftfahrzeuggesetz) for non-compliance with the obligations of registered owners to have their cars inspected on a regular basis for security reasons. 7. On 6 July 2004 the applicant lodged an objection to this decision. 8. On 12 July 2004 the DAA issued a penal order (Straferkenntnis) confirming its previous decision and imposing a fine of 72 euros (EUR), with twenty-four hours' imprisonment in case of default, on the applicant. 9. Assisted by counsel, the applicant appealed on 28 July 2004 to the Tirol Independent Administrative Panel (Unabhängiger Verwaltungssenat, IAP) alleging that he was not responsible for the regular car inspection since the car was permanently used by another person. Furthermore he argued that the car had been parked at the same spot for more than five weeks and was not in active use at the relevant time. He also requested that an oral hearing be held in which he and the actual user of the car could be heard as witnesses. 10. On 31 January 2005 the IAP scheduled an oral hearing for 22 February 2005. 11. A summons was served on the applicant's counsel on 3 February 2005, containing the standard text that the accused does not have to appear before the IAP personally but is free to send a representative instead. 12. On the morning of 22 February 2005 the replacement of the applicant's counsel informed the IAP that the applicant had been informed about the hearing only a few days before and that he could not attend the hearing since he was ill, neither could the requested witness appear as she was on holiday. He requested an adjournment of the hearing, but the IAP refused. 13. On 22 February 2005 the hearing took place in the absence of the applicant but in the presence of his counsel, who again requested that the hearing be adjourned to hear the applicant and the witness. The IAP dismissed the applicant's appeal and only amended a citation of the DAA's decision. It found that even though the car was used by somebody else the applicant, as the registered owner has to check that the car undergoes regular inspections. Therefore, the IAP did not consider it necessary to question the witness. As regards the request for an adjournment of the hearing, the IAP found that the applicant's interests had been taken care of by his counsel and that his presence had therefore not been necessary, all the more so as the facts were clear and it was only questions of law which had to be decided. 14. On 4 May 2005 the applicant lodged a complaint with the Constitutional Court in which he complained, inter alia, that the IAP had convicted him in absentia. 15. On 13 June 2005 the Constitutional Court declined to deal with the applicant's case since it did not involve a question of fundamental rights. 16. At the request of the applicant the Constitutional Court transmitted the case on 29 July 2005 to the Administrative Court. 17. On 15 September 2005 the applicant modified his complaint lodged with the Administrative Court. 18. On 27 January 2006 the Administrative Court refused to deal with the applicant's complaint under section 33a of the Administrative Court Act since the amount of the penalty did not exceed EUR 750 and no important legal issue was at stake | 0 |
train | 001-57518 | ENG | IRL | CHAMBER | 1,961 | CASE OF LAWLESS v. IRELAND (No. 3) | 2 | Questions of procedure rejected;No violation of Art. 7 | null | 1. The purpose of the Commission's request - to which is appended the Report drawn up by the Commission in accordance with the provisions of Article 31 (art. 31) of the Convention - is to submit the case of G.R. Lawless to the Court so that it may decide whether or not the facts of the case disclose that the Irish Government has failed in its obligations under the Convention. As appears from the Commission's request and from its Memorial, G.R. Lawless alleges in his Application that, in his case, the Convention has been violated by the authorities of the Republic of Ireland, inasmuch as, in pursuance of an Order made by the Minister of Justice under section 4 of Act No. 2 of 1940 amending the Offences against the State Act, 1939, he was detained without trial, between 13th July and 11th December 1957, in a military detention camp situated in the territory of the Republic of Ireland. 2. The facts of the case, as they appear from the Report of the Commission, the memorials, evidence and documents laid before the Court and the statements made by the Commission and by the Irish Government during the oral hearings before the Court, are in substance as follows: 3. G.R. Lawless is a builder's labourer, born in 1936. He is ordinarily resident in Dublin (Ireland). 4. G.R. Lawless admitted before the Commission that he had become a member of the IRA ("Irish Republican Army") in January 1956. According to his own statements, he left the IRA in June 1956 and a splinter group of the IRA in December 1956. 5. Under the Treaty establishing the Irish Free State, signed on 6th December 1921 between the United Kingdom and the Irish Free State, six counties situated in the North of the Island of Ireland remained under British sovereignty. 6. On several occasions since the foundation of the Irish Free State, armed groups, calling themselves the "Irish Republican Army" (IRA), have been formed, for the avowed purpose of carrying out acts of violence to put an end to British sovereignty in Northern Ireland. At times the activities of these groups have been such that effective repression by the ordinary process of law was not possible. From time to time, the legislature has, therefore, conferred upon the Government special powers deal with the situation created by these unlawful activities; and such powers have sometimes included the power of detention without trial. On 29th December 1937 the Constitution at present in force in the Irish Republic was promulgated. In May 1938 all persons detained for political offences were released. When the political situation in Europe foreshadowed war, the IRA resumed its activities and committed fresh acts of violence. At the beginning of 1939 the IRA published documents described by it as a "declaration of war on Great Britain". Following that declaration, the IRA, operating from territory of the Republic of Ireland, intensified its acts of violence on British territory. 7. In order to meet the situation created by the activities of the IRA, the Parliament of the Republic of Ireland passed the Offences against the State Act, 1939, which came into force on 14th June 1939. 8. Part II of the 1939 Act defines the "activities prejudicial to the preservation of public peace and order or to the security of the State". Part III contains provisions relating to organisations whose activities come under the Act and any which may therefore be declared an "unlawful organisation" by order of the Government. Section 21 of the 1939 Act provides as follows: "(1) It shall not be lawful for any person to be a member of an unlawful organisation; (2) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section and shall: (a) on summary conviction thereof, be liable to a fine not exceeding fifty pounds, or at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment; or (b) on conviction thereof on indictment, be liable to imprisonment for a term not exceeding two years." Part IV of the 1939 Act contains various provisions relating to the repression of unlawful activities, including, in section 30, the following provision relating to the arrest and detention of persons suspected of being concerned in unlawful activities: "(1) A member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid. (2) Any member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant. (3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four, hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours. (4) A person detained under the next preceding sub-section of this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence, or be released by direction of an officer of the Gárda Síochána, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section. (5) A member of the Gárda Síochána may do all or any of the following things in respect of a person detained under this section, that is to say: (a) demand of such person his name and address; (b) search such person or cause him to be searched; (c) photograph such person or cause him to be photographed; (d) take, or cause to be taken, the fingerprints of such person. (6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Gárda Síochána of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months." Part V of the 1939 Act is concerned with the establishment of "Special Criminal Courts" to try persons charged with offences under the Act. Lastly, Part VI of the 1939 Act contained provisions authorising any Minister of State - once the Government had brought that Part of the Act into force - to order, in certain circumstances, the arrest and detention of any person whom he was satisfied was engaged in activities declared unlawful by the Act. 9. On 23rd June 1939, i.e. nine days after the entry into force of the Offences Against the State Act, the Government made an order under section 19 of the Act that the IRA, declared an "unlawful organisation", be dissolved. 10. About 70 persons were subsequently arrested and detained under Part VI of the Act. One of those persons brought an action in the High Court of Ireland, challenging the validity of his detention. The High Court declared the detention illegal and ordered the release of the person concerned by writ of habeas corpus. The Government had all the persons detained under the same clauses released forthwith. 11. Taking note of the High Court's judgment, the Government tabled in Parliament a Bill to amend Part VI of the Offences against the State Act, 1939. The Bill, after being declared constitutional by the Supreme Court, was passed by Parliament on 9th February 1940, becoming the Offences against the State (Amendment) Act, 1940 (No. 2 of 1940). This Act No. 2 of 1940 confers on Ministers of State special powers of detention without trial, "if and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately" (section 3, sub-section (2) of the Act). Under section 3, sub-section (4) of the Act, however, a Government proclamation bringing into force the special powers of detention may be annulled at any time by a simple resolution of the Lower House of the Irish Parliament. Moreover, under section 9 of the Act both Houses of Parliament must be kept fully informed, at regular intervals, of the manner in which the powers of detention have been exercised. 12. The powers of detention referred to in the Act are vested in Ministers of State. Section 4 of the Act provides as follows: "(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section. (2) Any member of the Gárda Síochána may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section. (3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens. (4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act". 13. Under section 8 of the Offences against the State (Amendment) Act, 1940, the Government is required to set up, as soon as conveniently may be after the entry into force of the powers of detention without trial, a Commission (hereinafter referred to as "Detention Commission") to which any person arrested or detained under the Act may apply, through the Government, to have his case considered. The Commission is to consist of three persons, appointed by the Government, one to be a commissioned officer of the Defence Forces with not less than seven years' service and each of the others to be a barrister or solicitor of not less than seven years' standing or a judge or former judge of one of the ordinary courts. Lastly, section 8 of the Act provides that, if the Commission reports that no reasonable grounds exist for the continued detention of the person concerned, such person shall, with all convenient speed, be released. 14. After several years during which there was very little IRA activity, there was a renewed outbreak in 1954 and again in the second half of 1956. In the second half of December 1956 armed attacks were made on a number of Northern Ireland police barracks and at the end of the month a policeman was killed. In the same month a police patrol on border roads was fired on, trees were felled across roads and telephone wires cut, etc. In January 1957 there were more incidents of the same kind. At the beginning of the month there was an armed attack on Brookeborough Police Barracks during which two of the assailants were killed; both of them came from the 26-county area. Twelve others, of whom four were wounded, fled across the border and were arrested by the police of the Republic of Ireland. Thereupon, the Prime Minister of the Republic of Ireland, in a public broadcast address on 6th January 1957, made a pressing appeal to the public to put an end to these attacks. Six days after this broadcast, namely, on 12th January 1957, the IRA carried out an armed raid on an explosives store in the territory of the Republic of Ireland, situated at Moortown, County Dublin, for the purpose of stealing explosives. On 6th May 1957, armed groups entered an explosives store at Swan Laois, held up the watchman and stole a quantity of explosives. On 18th April 1957, the main railway line from Dublin to Belfast was closed by an explosion which caused extensive damage to the railway bridge at Ayallogue in County Armagh, about 5 miles on the northern side of the border. During the night of 25th-26th April, three explosions between Lurgan and Portadown, in Northern Ireland, also damaged the same railway line. On the night of 3rd/4th July a Northern Ireland police patrol on duty a short distance from the border was ambushed. One policeman was shot dead and another injured. At the scene of the ambush 87 sticks of gelignite were found to have been placed on the road and covered with stones, with wires leading to a detonator. This incident occurred only eight days before the annual Orange Processions which are widespread throughout Northern Ireland on 12th July. In the past, this date has been particularly critical for the maintenance of peace and public order. 15. The special powers of arrest and detention conferred upon the Ministers of State by the 1940 (Amendment) Act were brought into force on 8th July 1957 by a Proclamation of the Irish Government published in the Official Gazette on 5th July 1957. On 16th July 1957, the Government set up the Detention Commission provided for in section 8 of that Act and appointed as members of that Commission an officer of Defence Forces, a judge and a district Justice. 16. The Proclamation by which the Irish Government brought into force on 8th July 1957 the special powers of detention provided for in Part II of the 1940 Act (No. 2) read as follows: "The Government, in exercise of the powers conferred on them by sub-section (2) of section 3 of the Offences against the State (Amendment) Act, 1940, (No. 2 of 1940), hereby declare that the powers conferred by Part II of the said Act are necessary to secure the preservation of public peace and order and that it is expedient that the said part of the said Act should come into force immediately." 17. By letter of 20th July 1957 the Irish Minister for External Affairs informed the Secretary-General of the Council of Europe that Part II of the Offences against the State Act, 1940 (No. 2) had come into force on 8th July 1957. Paragraph 2 of that letter read as follows: "... Insofar as the bringing into operation of Part II of the Act, which confers special powers of arrest and detention, may involve any derogation from the obligations imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, I have the honour to request you to be good enough to regard this letter as informing you accordingly, in compliance with Article 15 (3) (art. 15-3) of the Convention." The letter pointed out that the detention of persons under the Act was considered necessary "to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution." The Secretary-General's attention was called to section 8 of the Act which provides for the establishment of a Commission to which any detained person can appeal. This Commission was set up on 16th July 1957. 18. Soon after the publication of the Proclamation of 5th July 1957 bringing into force the powers of detention provided for under the 1940 Act, the Prime Minister of the Government of the Republic of Ireland announced that the Government would release any person held under that Act who undertook "to respect the Constitution and the laws of Ireland" and "to refrain from being a member of or assisting any organisation declared unlawful under the Offences against the State Act, 1939". 19. G.R. Lawless was first arrested with three other men on 21st September 1956 in a disused barn at Keshcarrigan, County Leitrim. The police discovered in the barn a Thompson machine-gun, six army rifles, six sporting guns, a revolver, an automatic pistol and 400 magazines. Lawless admitted that he was a member of the IRA and that he had taken part in an armed raid when guns and revolvers had been stolen. He was subsequently charged on 18th October with unlawful possession of firearms under the Firearms Act, 1935 and under Section 21 of the Offences against the State Act, 1939. G.R. Lawless, together with the other accused, was sent forward for trial to the Dublin Circuit Criminal Court. On 23rd November 1956, they were acquitted of the charge of unlawful possession of arms. The trial judge had directed the jury that the requirements for proving the accussed's guilt had not been satisfied in that it not been conclusively shown that no competent authority had issued a firearm certificate authorising him to be in possession of the arms concerned. At the hearing before this Court on 26th October, the District Justice asked one of the accused, Sean Geraghty, whether he wished to put any questions to any of the policemen present. Sean Geraghty replied as follows: "As a soldier of the Irish Republican Army and as leader of these men, I do not wish to have any part in proceedings in this Court." When asked by the Justice whether he pleaded guilty or not guilty to the charge, he again said: "On behalf of my comrades and myself I wish to state that any arms and ammunition found on us were to be used against the British Forces of occupation to bring about the re-unification of our country and no Irishman or woman of any political persuasion had anything to fear from us. We hold that it is legal to possess arms and also believe it is the duty of every Irishman to bear arms in defence of his country." Subsequently, G.R. Lawless in reply to a question by the Justice said: "Sean Geraghty spoke for me." Lawless was again arrested in Dublin on 14th May 1957 under section 30 of the 1939 Act, on suspicion of engaging in unlawful activities. A sketch map for an attack of certain frontier posts between the Irish Republic and Northern Ireland was found on him bearing the inscription "Infiltrate, annihilate and destroy." On the same day his house was searched by the police who found a manuscript document on guerrilla warfare containing, inter alia, the following statements: "The resistance movement is the armed vanguard of the Irish people fighting for the freedom of Ireland. The strength of the movement consists in the popular patriotic character of the movement. The basic mission of local resistance units are the destruction of enemy installations and establishments that is TA halls, special huts, BA recruiting offices, border huts, depots, etc. Attacks against enemy aerodromes and the destruction of aircraft hangars, depots of bombs and fuel, the killing of key flying personnel and mechanics, the killing or capture of high-ranking enemy officers and high officials of the enemy's colonial Government and traitors to our country in their pay, that is, British officers, police agents, touts, judges, high members of the Quisling party, etc." After being arrested, G.R. Lawless was charged: (a) with possession of incriminating documents contrary to section 12 of the 1939 Act; (b) with membership of an unlawful organisation, the IRA, contrary to section 21 of the 1939 Act. On 16th May 1957, G.R. Lawless was brought before the Dublin District Court together with three other men who were also charged with similar offences under the 1939 Act. The Court convicted Lawless on the first charge and sentenced him to one month's imprisonment; it acquitted him on the second charge. The Court record showed that the second charge was dismissed "on the merits" of the case but no official report of the proceedings appears to be available. The reasons for this acquittal were not clearly established. G.R. Lawless was released on about 16th June 1957, after having served his sentence in Mountjoy Prison, Dublin. 20. G.R. Lawless was re-arrested on 11th July 1957 at Dun Laoghaire by Security Officer Connor when about to embark on a ship for England. He was detained for 24 hours at Bridewell Police Station in Dublin under section 30 of the 1939 Act, as being a suspected member of an unlawful organisation, namely the IRA. Detective-Inspector McMahon told the Applicant on the same day that he would be released provided that he signed an undertaking in regard to his future conduct. No written form of the undertaking proposed was put to G.R. Lawless and its exact terms are in dispute. On 12th July 1957, the Chief Superintendent of Police, acting under section 30, sub-section 3 of the 1939 Act, made an order that G.R. Lawless be detained for a further period of 24 hours expiring at 7.45 p.m. on 13th July 1957. At 6 a.m. on 13th July 1957, however, before Lawless' detention under section 30 of the 1939 Act had expired, he was removed from the Bridewell Police Station and transferred to the military prison in the Curragh, Co. Kildare (known as the "Glass House"). He arrived there at 8 a.m. on the same day and was detained from that time under an order made on 12th July 1957 by the Minister for Justice under section 4 of the 1940 Act. Upon his arrival at the "Glass House", he was handed a copy of the above-mentioned detention order in which the Minister for Justice declared that G.R. Lawless was, in his opinion, engaged in activities prejudicial to the security of the State and he ordered his arrest and detention under section 40 of the 1940 Act. From the "Glass House", G.R. Lawless was transferred on 17th July 1957 to a camp known as the "Curragh Internment Camp", which forms part of the Curragh Military Camp and Barracks in County Kildare, and together with some 120 other persons, was detained there without charge or trial until 11th December 1957 when he was released. 21. On 16th August 1957 G.R. Lawless was informed that he would be released provided he gave an undertaking in writing "to respect the Constitution and laws of Ireland" and not to "be a member of or assist any organisation which is an unlawful organisation under the Offences against the State Act, 1939." G.R. Lawless declined to give this undertaking. 22. On 8th September 1957 G.R. Lawless exercised the right, conferred upon him by section 8 of the 1940 Act, to apply to have the continuation of his detention considered by the Detention Commission set up under the same section of that Act. He appeared before that Commission on 17th September 1957 and was represented by counsel and solicitors. The Detention Commission, sitting for the first time, adopted certain rules of procedure and adjourned until 20th September. 23. On 18th September 1957, however, G.R. Lawless' counsel also made an application to the Irish High Court, under Article 40 of the Irish Constitution, for a Conditional Order of habeas corpus ad subjiciendum. The object of the application was that the Court should order the Commandant of the detention camp to bring G.R. Lawless before the Court in order that it might examine and decide upon the validity of detention. A Conditional Order of habeas corpus would have the effect of requiring the Commandant to "show cause" to the High Court why he should not comply with that Order. The Conditional Order was granted on the same date and was served on the Commandant giving him a period of four days to "show cause". It was also served upon the Detention Commission. The Detention Commission sat on 20th September 1957, and decided to adjourn the hearing sine die pending the outcome of the habeas corpus application. 24. G.R. Lawless then applied, by a motion to the High Court, to have the Conditional Order made "absolute", notwithstanding the fact that the Commandant of the Detention Camp had in the meantime "shown cause" opposing this application. The Commandant had, in this connection, relied upon the order for the Applicant's detention which had been made by the Minister for Justice. The High Court sat from 8th to 11th October 1957 and heard full legal submissions by counsel for both parties. On 11th October it gave judgment allowing the "cause shown" by the camp Commandant to justify detention. The habeas corpus application was therefore dismissed. 25. On 14th October 1957 G.R. Lawless appealed to the Supreme Court, invoking not only the Constitution and laws of Ireland but also the European Convention of Human Rights. On 6th November the Supreme Court dismissed G.R. Lawless' appeal. It gave its reasoned judgment on 3rd December 1957. The main grounds of the Supreme Court's judgment were as follows: (a) The 1940 Act, when in draft form as a Bill, had been referred to the Supreme Court for decision as to whether it was repugnant to the Irish Constitution. The Supreme Court had decided that it was not repugnant and Article 34 (3) 3 of the Constitution declared that no court had competence to question the constitutional validity of a law which had been approved as a Bill by the Supreme Court. (b) The Oireachtas (i.e. the Parliament) which was the sole legislative authority had not introduced legislation to make the Convention of Human Rights part of the municipal law of Ireland. The Supreme Court could not, therefore, give effect to the Convention if it should appear to grant rights other than, or supplementary to, those provided under Irish municipal law. (c) The appellant's period of detention under section 30 of the 1939 Act was due to expire at 7.45 p.m. on 13th July 1957. At that time he was already being detained under another warrant issued by the Minister for Justice and his detention without release was quite properly continued under the second warrant. (d) The appellant had not established a prima facie case in regard to his allegation that he had not been told the reason for his arrest under the Minister's warrant. An invalidity in the arrest, even if established, would not, however, have rendered his subsequent detention unlawful whatever rights it might otherwise have given the appellant under Irish law. (e) The Court had already decided, when considering the 1940 Act as a Bill, that it had no power to question the opinion of a Minister who issued a warrant for detention under section 4 of that Act. (f) The appellant in the habeas corpus proceedings before the High Court had challenged the legality of the constitution of the Detention Commission. Even if it was shown that the Commission's rulings on various procedural matters were wrong, that would not make the appellant's detention unlawful nor would it provide a basis for an application for habeas corpus. Section 8 of the 1940 Act showed that the Commission was not a court and an application before it was not a form of proceedings but no more than an enquiry of an administrative character. 26. Meanwhile, on 8th November 1957 - that is two days after the announcement of the Supreme Court's rejection of his appeal - G.R. Lawless had introduced his Application before the European Commission of Human Rights, alleging that his arrest and detention under the 1940 Act, without charge or trial, violated the Convention and he claimed: (a) immediate release from detention; (b) payment of compensation and damages for his detention; and (c) payment of all the costs and expenses of, and incidental to the proceedings instituted by him in the Irish courts and before the Commission to secure his release. 27. Shortly afterwards the Detention Commission resumed its consideration of the case of G.R. Lawless under section 8 of the 1940 Act and held hearings for that purpose on 6th and 10th December 1957. On the latter date, at the invitation of the Attorney-General, G.R. Lawless in person before the Detention Commission gave a verbal undertaking that he would not "engage in any illegal activities under the Offences against the State Acts, 1939 and 1940", and on the following day an order was made by the Minister for Justice, under section 6 of the 1940 Act, releasing the Applicant from detention. 28. The release of G.R. Lawless from detention was notified to the European Commission of Human Rights by his solicitor in a letter dated 16th December 1957. The letter at the same time stated that G.R. Lawless intended to continue the proceedings before the Commission with regard to (a) the claim for compensation and damages for his detention and (b) the claim for reimbursement of all costs and expenses in connection with the proceedings undertaken to obtain his release. 29. At the written and oral proceedings before the Court, the European Commission of Human Rights and the Irish Government made the following submissions: The Commission, in its Memorial of 27th June 1960: "May it please the Court to take into consideration the findings of the Commission in its Report on the case of Gerard Richard Lawless and (1) to decide: (a) whether or not the detention of the Applicant without trial from 13th July to 11th December 1957 under section 4 of the Offences against the State (Amendment) Act, 1940, was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention; (b) whether or not such detention was in conflict with the obligations of the Respondent Government under Article 7 (art. 7) of the Convention; (2) if such detention was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention, to decide: (a) whether or not the Government's letter to the Secretary-General of 20th July 1957 was a sufficient communication for the purposes of Article 15, paragraph (3) (art. 15-3) of the Convention; (b) whether or not, from 13th July to 11th December 1957, there existed a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1) of the Convention; (c) if such an emergency did exist during that period, whether or not the measure of detaining persons without trial under section 4 of the 1940 Act, as it was applied by the Government, was a measure strictly required by the exigencies of the situation; (3) to decide whether or not the Applicant is, in any event, precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7); (4) in the light of its decisions on the questions in paragraphs 1-3 of these submissions, to adjudge and declare: (a) whether or not the facts disclose any breach by the Respondent Government of its obligations under the Convention; (b) if so, what compensation, if any, is due to the Applicant in respect of the breach." 30. The Agent of the Irish Government, at the public hearing on 10th April 1961: "May it please the Court to decide and declare that the answers to the questions contained in paragraph 58 of the Commission's Memorial of 27th June 1960 are as follows: 1. (a) That the detention of the Applicant was not in conflict with the obligations of the Government under Articles 5 and 6 (art. 5, art. 6) of the Convention. (b) That such detention was not in conflict with the obligations of the Government under Article 7 (art. 7) of the Convention. 2. (a) That the Government's letter of 20th July 1957 was a sufficient communication for the purposes of paragraph (3) of Article 15 (art. 15-3) of the Convention or, alternatively, that in the present case, the Government are not by any of the provisions of the said paragraph (3) (art. 15-3) deprived from relying on paragraph (1) of Article 15 (art. 15-1). (b) That from 13th July 1957 to 11th December 1957 there did exist a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1), of the Convention. (c) That the measure of detaining persons without trial, as it was applied by the Government, was a measure strictly required by the exigencies of the situation. 3. That the Applicant is in any event precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7) of the Convention. 4. (a) That the facts do not disclose any breach by the Government of their obligations under the Convention. (b) That, by reason of the foregoing, no question of compensation arises." | 0 |
train | 001-91788 | ENG | RUS | CHAMBER | 2,009 | CASE OF POLONSKIY v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1968 and lives in Volgograd. 6. On 28 January 2003 the applicant was arrested on suspicion of unlawful possession of arms and forgery of identity documents. He was taken to police department no. 2 in Volgograd and interrogated in the office of its deputy head, Mr T. 7. The applicant stated that Mr T. and the subordinate police officers had handcuffed and beaten him, seeking a confession. While he was sitting on a chair with his arms handcuffed behind the chair, the policemen administered electric shocks to his fingers through wires connected to a dynamo. The applicant fell onto the floor and one of the policemen stepped on his back. As the applicant was screaming, the policeman took off the applicant’s sock and gagged his mouth. 8. At about 5 a.m. on 29 January 2003 the applicant was put in a temporary detention cell. In the cell he pulled out a nail from the window frame and tried to open his veins. His arms swelled up and he asked for a doctor. The warders gave him an antiseptic and allegedly handcuffed him to a bar in the corridor. An hour later he was again taken to the police station and beaten. The policemen threatened to torture his wife and sister and insisted that he confess. 9. On 30 January 2003 the applicant was questioned by the investigator and he complained to the latter about ill-treatment. The investigator ordered a medical examination. The applicant was immediately escorted to the Volgograd Regional Department of Forensic Medicine where he was examined by two medical experts. It can be seen from the medical report of the same date that he had numerous bruises on his forehead, left shoulder, left shoulder-blade and right leg, which had been caused by the impact of blunt objects. The injuries to his back and leg could have been the result of bumping against protruding objects. The applicant also had abrasions on his forearms, which had been caused by a sharp object, possibly a nail. Lastly the doctors recorded thermoelectrical burns on the applicant’s fingers. They found that all injures had been inflicted one or two days before. 10. On 28 March 2003 the police arrested and allegedly beat the applicant’s wife and sister. They were released on 31 March 2003. On the same day the applicant’s sister was examined by a doctor who reported many bruises on her chest and waist and brain concussion. The applicant’s wife was diagnosed with post-traumatic perforated otitis. 11. On 29 March 2003 the applicant’s mother-in-law was also arrested and questioned by police officer Mr T. According to her testimony, he was drunk. He hit her several times in the face and verbally abused her. She was released on the same day. It transpires from a medical certificate issued on 30 March 2003 that she had a bruise on her face. 12. The applicant stated that he had complained to the prosecutor’s office about his ill-treatment, but had received no reply. He then signed a power of attorney for his mother who, on 26 August 2004, filed a complaint about the applicant’s ill-treatment with the prosecutor’s office. The applicant’s wife, sister and mother-in-law also complained that they had been beaten by Mr T., a deputy head of police department no. 2, and the subordinate police officers. 13. The Tsentralniy District prosecutor questioned one of the police officers of police department no. 2 and he denied beating the applicant. No other investigative measures were taken. On 3 September 2004 the Tsentralniy District prosecutor refused to initiate criminal proceedings against the policemen, finding that there was no evidence of ill-treatment. He observed that the applicant had never complained about ill-treatment to the investigator in charge of his criminal case. He also noted that it had been impossible to question Mr T. as he had been on mission in Chechnya. 14. The applicant challenged the decision of 3 September 2004 before the Tsentralniy District Court of Volgograd. 15. On 22 March 2005 the Volgograd Regional prosecutor set aside the decision of 3 September 2004 and ordered an additional inquiry. On 14 December 2005 the Tsentralniy District Court of Volgograd discontinued the proceedings as the decision of 3 September 2004 had been annulled. 16. On 3 April 2005 the Tsentralniy District prosecutor for a second time refused to open criminal proceedings. 17. On 5 December 2005 the Volgograd Regional prosecutor set the decision aside and ordered that the Tsentralniy District prosecutor conduct an additional inquiry, and in particular question the applicant, his wife, mother and sister, his co-defendants, co-detainees, Mr T. and other police officers of police department no. 2, and obtain a medical examination of the applicant. 18. In December 2005 and January 2006 the Tsentralniy District prosecutor questioned the applicant’s mother, sister, wife and mother-in-law, who described the circumstances of the applicant’s arrest and complained that they had been intimidated and hit by Mr T. He also questioned Mr T. and another police officer, who denied beating the applicant or any of his relatives. On 24 January 2006 the Tsentralniy District prosecutor for a third time refused to open criminal proceedings, finding that there was no evidence of ill-treatment. He noted that the applicant had never complained about ill-treatment. All complaints had been lodged by his mother after the criminal case against the applicant had been referred for trial. The mother “had been motivated by the desire to help her son avoid criminal responsibility for the serious criminal offences committed by him”. 19. On the same day the decision was set aside by the prosecutor’s immediate superior, who ordered an additional inquiry. 20. On 27 February 2006 the Tsentralniy District prosecutor for a fourth time refused to open criminal proceedings. He established on the basis of medical documents that the applicant and his relatives had received injuries. However, given that the policemen denied beating them, it was not possible to establish with certainty that the injuries had been inflicted by the police. 21. On 16 March 2006 the decision was set aside by the senior prosecutor, who found that the district prosecutor had not carried out the investigative measures specified in the decision of 5 December 2005 and ordered additional enquiries. 22. On 25 March 2006 the Tsentralniy District prosecutor again refused to open criminal proceedings, repeating verbatim the decision of 27 February 2006. 23. The applicant’s mother challenged the decision before a court. On 22 June 2006 the Tsentralniy District Court of Volgograd quashed the decision, finding that the prosecutor had never questioned the applicant about the alleged ill-treatment and had failed to identify the police officers who could have been responsible for it. 24. On 8 August 2006 the Tsentralniy District prosecutor questioned the applicant, who provided a detailed account of his ill-treatment and again refused to open criminal proceedings for the same reasons as before. 25. On 9 October 2006 the decision was set aside by the superior prosecutor, who found that the inquiry had been incomplete. He ordered that the district prosecutor question the applicant’s co-defendants and the police officer who had arrested the applicant. 26. On 19 October 2006 the Tsentralniy District prosecutor questioned the arresting officer who denied beating the applicant. He also questioned the applicant’s co-defendants, who testified that they had seen the policemen beating the applicant or had seen his injuries. On the same day he issued a decision refusing to open criminal proceedings against the policemen for the same reasons as before. 27. The applicant’s mother challenged the decision before a court. On 18 December 2006 the Tsentralniy District Court found that she had no standing to complain about her son’s ill-treatment. On 27 February 2007 the Volgograd Regional Court quashed the decision of 18 December 2006 on appeal, finding that the applicant’s mother had a power of attorney signed by the applicant and had been officially recognised as his representative. It remitted the case to the District Court. 28. On 12 April 2007 the Tsentralniy District Court annulled the prosecutor’s decision of 19 October 2006. It found that the applicant’s allegations of ill-treatment were corroborated by medical evidence and by witnesses. The prosecutor had given insufficient reasons for the refusal to open criminal proceedings. 29. On 28 May 2007 the Tsentralniy District prosecutor again refused to open criminal proceedings. He found it was not possible to establish with certainty that the applicant’s and his relatives’ injuries had been inflicted by the police. 30. The applicant’s mother challenged the decision before the Tsentralniy District Court. On 22 October 2007 the Tsentralniy District Court set aside the prosecutor’s decision, finding that the prosecutor had failed to correct the defects pointed out in the judicial decision of 12 April 2007. In particular, he had not conducted a further inquiry or given sufficient and convincing reasons for the refusal to open criminal proceedings. 31. On 31 March 2008 a deputy Prosecutor of the Volgograd Region referred the case to the Volgograd Regional Investigations Committee with a recommendation to carry out an additional inquiry. It was necessary to question the policemen, the applicant’s co-defendants and his neighbours and conduct other investigative measures. 32. On 9 June 2008 the Investigations Committee of the Tsentralniy District of Volgograd refused to open criminal proceedings against the policemen, repeating verbatim the decision of 28 May 2007. It appears that no additional enquiries were made. 33. On 4 September 2008 the Investigations Committee of the Tsentralniy District of Volgograd reconsidered its previous decision and decided to open criminal proceedings into the fact of the applicant’s ill-treatment by unidentified police officers. 34. On 3 October 2008 the applicant was granted victim status. 35. On 30 January 2003 the Voroshilovskiy District Court of Volgograd formally remanded the applicant in custody on charges of unlawful possession of weapons and forgery of identity documents. It found that the applicant did not deny that he unlawfully possessed weapons and that official seals had been found in his apartment. The court referred to the gravity of the charges, the applicant’s previous criminal record and the fact that he had no dependants, which gave reason to believe that he might abscond or interfere with the investigation. 36. The trial started on 25 November 2003. 37. On 6 April 2004 the Dzerzhinskiy District Court of Volgograd convicted the applicant as charged and sentenced him to three years’ imprisonment starting from 28 January 2003. 38. On 27 July 2004 the Volgograd Regional Court upheld the judgment on appeal. 39. On 28 January 2006 the applicant completed his sentence. 40. On 18 April 2003 the applicant was charged with inflicting serious injuries. 41. On an unspecified date the applicant’s case was joined with the cases of five other persons who had allegedly acted in conspiracy with the applicant. 42. On 20 October 2003 the applicant and his co-defendants were charged with organising an armed criminal gang, several counts of aggravated robbery, inflicting serious injuries and two counts of murder. 43. On 12 April 2004 the investigation was completed and six defendants, including the applicant, were committed for trial before the Volgograd Regional Court. 44. The defendants asked for a trial by jury. 45. On 20 April 2004 the Volgograd Regional Court fixed a preliminary hearing for 27 April 2004 to examine the request. 46. On 27 April 2004 the Volgograd Regional Court ordered that the defendants be tried by jury and fixed the opening date of the trial at 24 May 2004. 47. The hearings of 24 May, 28 June and 12 July 2004 were adjourned as a jury could not been formed. 48. On 14 September 2004 the jury was formed and the trial started on 29 September 2004. 49. Until the end of 2004 the court scheduled twenty hearings. Eight hearings were held as planned while five more hearings started but were interrupted in the middle and adjourned, as prosecution witnesses did not appear. Two hearings were rescheduled due to a power cut in the court building or to the absence of available courtrooms. Five hearings were postponed at the request of the defence. 50. In 2005 the court scheduled forty hearings. Sixteen hearings were held as scheduled. Eight hearings were postponed as a juror failed to appear and five hearings did not go ahead due to the absence of prosecution witnesses. Eleven hearings were adjourned at the request of the defence or because counsel for one of the defendants did not appear. 51. In 2006 the court scheduled thirty-six hearings. Sixteen hearings were held as scheduled. Eight hearings did no go ahead as a juror or prosecution witnesses did not appear. Twelve hearings were adjourned due to counsel’s absence or following a motion for adjournment by the defence team. 52. In 2007 the court scheduled thirty-one hearings. Thirteen hearings were held as planned. Eleven hearings were adjourned as the judge was ill, was on leave or was drafting judgments in unrelated cases, or because a juror did not appear. Seven hearings were postponed at the request of the defence team. 53. At the end of March 2008 the court scheduled thirteen hearings. Only three hearings were held as scheduled. Four hearings were adjourned at the request of the prosecutor. Three hearings did not go ahead as counsel for the victim was ill. Three hearings were adjourned because counsel for one of the defendants did not appear. 54. The proceedings are still pending before the trial court. 55. On 18 April 2003 the applicant gave an undertaking not to leave the town. 56. On 29 April 2003 the Tsentralniy District Court of Volgograd remanded the applicant in custody. The court referred to the gravity of the charge and the risk of the applicant’s interfering with the investigation. 57. On 23 June 2003 the Tsentralniy District Court extended the applicant’s detention until 10 September 2003, referring to the gravity of the charge and necessity of further investigation. 58. On 8 September 2003 the Tsentralniy District Court extended the applicant’s detention until 10 December 2003, referring to the gravity of the charge and the complexity of the case. It noted that the applicant had initially been bound by an undertaking not to leave his place of residence, but that that preventive measure had been considered insufficient in view of the gravity of the charges and the risk of his absconding. 59. On 4 December 2003 the Tsentralniy District Court extended the applicant’s and a co-defendant’s detention until 10 April 2004, referring to the need for an additional investigation, the gravity of the charges and the applicant’s unemployment. The court found that there was a risk of the defendants’ absconding or re-offending. 60. On 20 April 2004 the Volgograd Regional Court accepted the case for trial and held that all six defendants should remain in custody. 61. On 27 April 2004 the Volgograd Regional Court ordered that the defendants remain in custody pending trial. 62. On 13 October 2004 the Volgograd Regional Court extended the defendants’ detention until 12 January 2005, referring to the gravity of the charges. 63. The applicant appealed, claiming that he resided permanently in Volgograd and that there was no reason to believe that he would abscond or interfere with the proceedings. On 14 December 2004 the Supreme Court upheld the extension order on appeal. It found that the applicant had been charged with serious and particularly serious criminal offences and that his arguments were not sufficient to warrant the quashing of the extension order. 64. On 12 January 2005 the Volgograd Regional Court extended the defendants’ detention, referring to the gravity of the charges and the risk of pressure on witnesses and jurors. 65. In his grounds of appeal the applicant submitted that he had never put pressure on witnesses and that there was no danger of his hampering the court proceedings. On 1 March 2005 the Supreme Court upheld the extension order on appeal. It repeated verbatim its reasoning set out in the decision of 14 December 2004. 66. On 7 April 2005 the Volgograd Regional Court extended the defendants’ detention until 12 July 2005. The Regional Court found that, in view of the gravity of the charges, it was “opportune” to keep the defendants in custody. It rejected their requests to release them under an undertaking not to leave the town, as it could not exclude the risk of pressure on witnesses or jurors. The court found irrelevant the applicant’s argument that it was not necessary to extend his detention as he was currently serving his sentence under the judgment of 6 April 2004 and, for that reason, could not tamper with witnesses or threaten jurors. It noted that the purpose of the applicant’s detention was to ensure that the criminal proceedings were completed in good time. On 8 July 2005 the Supreme Court upheld the extension order on appeal. 67. On 29 June 2005 the Volgograd Regional Court extended the defendants’ detention until 12 October 2005. It found that the defendants might interfere with the proceedings, as they were charged with serious criminal offences, including being members of an armed criminal gang, supposedly organised by the applicant. On 31 August 2005 the Supreme Court upheld the extension order on appeal. 68. On 4 October 2005 the Volgograd Regional Court extended the defendants’ detention until 12 January 2006 for the same reasons as before. 69. On 5 July 2006 the Volgograd Regional Court extended the defendants’ detention until 12 October 2006 for the same reasons as before. 70. In his grounds of appeal the applicant complained that the extension order had been poorly reasoned and the court’s conclusions that he could abscond or put pressure on witnesses had been hypothetical and had not been supported by relevant facts. On 26 September 2006 the Supreme Court upheld the extension order on appeal. It held that the gravity of the charges was a sufficient reason for the defendant’s continued detention. 71. On 2 October 2006 the Volgograd Regional Court extended the defendants’ detention until 12 January 2007, referring to the gravity of the charges and the defendants’ “characters”. The court also indicated that the purpose of the detention was to eliminate any risk of the defendants’ absconding, re-offending or hampering the court proceedings. 72. The applicant appealed, claiming that the Regional Court had used a stereotyped formula to justify his detention and that its conclusions had been hypothetical. He also complained that he had not been given access to the materials submitted by the prosecution in support of their request for extension. 73. On 28 December 2006 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. The defendants were charged with serious criminal offences, therefore they might abscond, re-offend or obstruct the proceedings. The allegedly excessive length of their detention, their poor health and permanent place of residence were not sufficient reasons to warrant release. 74. On 27 December 2006 the Volgograd Regional Court extended the defendants’ detention until 12 April 2007 for the same reasons as before. 75. On 10 April 2007 the Volgograd Regional Court extended the defendants’ detention until 12 July 2007 for the same reasons as before. 76. On 9 July 2007 the Volgograd Regional Court extended the defendants’ detention until 12 October 2007, finding that there was no reason to vary the preventive measure. 77. In his grounds of appeal the applicant submitted that the length of his detention had exceeded a reasonable time and asked the court to place him under home arrest. On 27 September 2007 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. 78. On 11 October 2007 the Volgograd Regional Court extended the defendants’ detention until 12 January 2008, referring to the gravity of the charges and the risk of his absconding or intimidating the witnesses or jurors. 79. On 9 January 2008 the Volgograd Regional Court extended the defendants’ detention until 12 April 2008 for the same reasons as before. 80. On 8 April 2008 the Volgograd Regional Court rejected the applicant’s request to be released under an undertaking not to leave his place of residence and extended the defendants’ detention until 12 July 2008. The decision reads as follows: “As the trial has not yet been completed, it is necessary to extend the defendants’ detention. The court considers that the gravity of the charges justifies applying to the defendants a preventive measure in the form of detention. However, in addition to the gravity of the charges – namely organisation of an armed gang under [the applicant’s] leadership and commission of assaults on citizens and murders – carrying a sentence of up to twenty years’ imprisonment for each of the defendants, the court also takes into account other factors. Thus, the court is entitled to believe that ... application to the defendants of an undertaking not to leave the town or other preventive measures will not exclude the possibility of their absconding or exercising pressure on participants to the proceedings and jurors. The defendants’ argument that their detention has been excessively long is not in itself sufficient to warrant release. The defendants have not produced any material showing the existence of factors making impossible [sic] their stay in detention facility conditions. The court is not convinced by the defendants’ argument that they have not been granted access to the materials submitted by the prosecution in support of their requests for extension. The court has at its disposal only the materials from the criminal case file which had been studied by the defendants. The court considers that the grounds for the detention of the defendants charged with serious and particularly serious criminal offences are relevant and sufficient. Their detention serves the interest of the society, as it prevents commission of similar criminal offences and ensures high-quality and effective examination of the present criminal case. The criminal case file contains sufficient evidence against each defendant to justify an extension of their detention ...” 81. On 7 July 2008 the Volgograd Regional Court extended the defendants’ detention until 12 October 2008, repeating verbatim the decision of 8 April 2008. 82. The applicant appealed, complaining that the decision had been taken in his absence and that the court had relied only on the gravity of the charges against him. On 10 September 2008 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. 83. On 10 October 2008 the Volgograd Regional Court extended the defendant’s detention until 12 January 2009, repeating verbatim the decision of 8 April 2008. 84. On 4 April 2003 the investigator impounded the applicant’s two cars as physical evidence in the criminal proceedings against him. 85. On 30 January 2006 the Dzerzhinskiy District Court of Volgograd ordered that the police return the cars to the applicant. The decision was not appealed against and became enforceable. 86. On 27 February 2006 the bailiffs opened enforcement proceedings. 87. On 26 April 2006 one of the cars was returned to the applicant’s mother. 88. On 29 August 2006 the other car, a Mercedes 230, was also returned to the applicant’s mother. However, it was immediately impounded again as physical evidence in connection with unrelated criminal proceedings opened at the request of its former owner, who had complained that the car had been stolen from him. It appears that the criminal proceedings are still pending. 89. On 6 September 2006 the bailiffs found that the judgment of 30 January 2006 had been enforced in full and terminated the enforcement proceedings. 90. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code). 91. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the CCrP), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual (Articles 140 and 146). Within three days, upon receipt of such complaint, the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The refusal to open criminal proceedings is amenable to an appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148). 92. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of CCrP). 93. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 94. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 95. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 109 § 9). 96. From the date on which the prosecutor refers the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated up to the date of the judgment. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). | 1 |
train | 001-77246 | ENG | ITA | CHAMBER | 2,006 | CASE OF MARCELLO VIOLA v. ITALY [Extracts] | 1 | No violation of Art. 6;No violation of P7-4 | Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;John Hedigan;Vladimiro Zagrebelsky | 4. The applicant was born in 1959 and is currently detained in L'Aquila Prison. 5. On 16 March 1992 the applicant was arrested and remanded in custody on charges of murder and belonging to a mafia-type organisation. He was also charged with a number of counts of illegally carrying weapons. In particular, he had allegedly aided and abetted the carrying in a public place of a weapon used to commit a number of murders, including that of one M.L. 6. In a judgment of 16 October 1995, the Palmi Assize Court sentenced the applicant to fifteen years' imprisonment for membership of a mafia-type criminal organisation. He was acquitted of the other charges. 7. The applicant appealed. 8. In a judgment of 10 February 1999, the Reggio di Calabria Assize Court of Appeal reduced the applicant's prison sentence to twelve years. 9. The applicant appealed on points of law. In a judgment of 8 February 2000, the text of which was deposited at the registry on 25 February 2000, the Court of Cassation dismissed the applicant's appeal. 10. In the meantime, on 19 June 1996, the Reggio di Calabria investigating judge had made a fresh order for the applicant's detention pending trial. On 15 October 1996 he had committed the applicant to stand trial in the Palmi Assize Court. The applicant was charged with several counts of murder and attempted murder, membership of a mafia-type criminal organisation and illegally carrying a weapon. The applicant was accused, in particular, of having given orders to murder M.L. He was also accused of being an accomplice to carrying the weapon used to commit the crime. The applicant had alleged that this weapon had been one of the ones that he had been accused of carrying in the first set of criminal proceedings. 11. During the proceedings a number of witnesses, including pentiti (former mafiosi who have decided to cooperate with the authorities), were examined. 12. In a judgment of 22 September 1999, the Palmi Assize Court imposed five life sentences on the applicant and ordered him to serve three years of his sentence in solitary confinement. It imposed an additional sentence of a total of seventy years' imprisonment on him. The decision was based on statements by the pentiti, which were considered to be accurate and credible and were corroborated by other evidence. 13. The applicant appealed. 14. From 2000 the applicant was subject to a restricted prison regime, provided for by section 41 bis of Law no. 354 of 26 July 1975 (known as “the Prison Organisation Act”), which, among other things, limited his contact with the outside world. Accordingly, the applicant was no longer brought to the hearing room from prison. He was, however, able to participate in the hearings of 21 February and 15 June 2001 and 5 March 2002 by means of an audiovisual link with the hearing room. 15. By a judgment of 5 March 2002, the Reggio di Calabria Assize Court of Appeal acquitted the applicant of one of the charges of murder. It found that the offences committed by the applicant were part of a single criminal design (unico disegno criminoso) and reduced his sentence to one life sentence and solitary confinement for two years. 16. The applicant appealed on points of law. He complained, inter alia, of a failure on the part of the Assize Court of Appeal to give reasons for its finding that, despite a number of gaps in their evidence, the prosecution witnesses were credible. With regard to the murder of M.L., the applicant observed that part of the evidence adduced by the prosecution was that the police had found a P38 Walther pistol inside a car parked near land belonging to him. In the first set of criminal proceedings, however, the applicant had been acquitted of the charge of carrying that pistol. Moreover, that circumstantial evidence did not in any way establish that he had given orders to murder M.L. 17. The applicant did not allege that there had been a violation of the right to a fair trial on account of the nature of his participation in the appeal hearings. 18. In a judgment of 26 February 2004, the text of which was deposited at the registry on 3 June 2004, the Court of Cassation dismissed the applicant's appeal. It held that the Assize Court of Appeal had given logical and proper reasons for its decision on all the disputed issues. 19. Law no. 11 of 7 January 1998 introduced, among the implementing provisions of the Code of Criminal Procedure (CCP), a new Article 146 bis which, in its relevant parts and after the amendments introduced by Law no. 4 of 19 January 2001, is now worded as follows: “1. In proceedings concerning one of the offences provided for in Article 51, paragraph 3 bis, and Article 407, paragraph 2, sub-paragraph (a), no. 4 of the Code [that is, mainly Mafia-related and other serious offences], a person who, in any capacity, is detained in a prison shall participate in the hearings at a distance [a distanza] in the following cases: (a) where there are serious requirements of public safety or order; (b) where the proceedings are particularly complex and participation at a distance is deemed necessary in order to avoid delays. In considering the requirement of avoiding delays in the proceedings, regard shall also be had to the fact, where applicable, that other proceedings are pending at the same time against the same defendant before different courts. 1 bis. Besides the cases provided for in paragraph 1, participation at a distance shall also be arranged in proceedings brought against a detainee who has been the subject of the measures provided for in section 41 bis, paragraph 2, of Law no. 354 of 26 July 1975 ... 2. The decision to order participation at a distance shall be taken, if necessary of their own motion, by the president of the trial court or of the Assize Court ... during the preliminary measures stage, or by the judge ... during the proceedings. The order shall be communicated to the parties and defence counsel at least ten days prior to the hearing. 3. Where an order is made for participation at a distance, an audiovisual link shall be activated between the hearing room and the place of detention so that the persons present in both places can see each other clearly and simultaneously and hear what is being said. If the measure is ordered in respect of several defendants who are being detained, in any capacity, in different places, each [of them] shall, by means of the same arrangement, be able to see and hear the others. 4. Defence counsel or his or her replacement must always be able to be present where the accused is situated. Defence counsel, or his or her replacement present in the hearing room, and the accused shall be able to confer confidentially, by means of appropriate technical equipment. 5. The place from which the accused is connected by audiovisual link to the hearing room shall be regarded as an extension of the hearing room [è equiparato all'aula d'udienza]. 6. An officer of the court qualified to assist the judge ... shall be present at the place where the accused is situated and shall certify the latter's identity and officially note that there is no impediment to or restriction on the exercise of his or her rights and entitlements. He or she shall also certify that the provisions of paragraph 3 and the second sentence of paragraph 4 have been complied with, and, if the examination takes place, that the precautions have been taken to ensure the lawfulness thereof ... To that end he shall consult, if necessary, the accused and his counsel. ... 7. If it becomes necessary during the proceedings to arrange a confrontation between witnesses or identification of the accused or another measure requiring him to be observed in person, the judge shall, if he considers it necessary, after hearing the parties, order that the accused be present in the hearing room for the time necessary to comply with that measure.” 20. According to the Constitutional Court (order no. 483 of 26 November 2002), participation at a distance seeks to achieve the following aims: (a) protect public order in the event of possible acts of intimidation by the accused against other parties in the trial; (b) prevent the transfer of the accused from prison to the hearing room from becoming an opportunity to renew contact with the criminal organisations to which they belong; and (c) expedite the conduct of particularly complex and long trials, which often take place in different courts. The Constitutional Court has also stated that the system introduced by Law no. 11 of 7 January 1998 guarantees the right of persons accused of exceptionally serious offences to participate in their trial, while weighing that right against the duty to protect the public and ensure the proper conduct of the trial (ordinato svolgimento dei processi). 21. In its judgment no. 342 of 22 July 1999, the Constitutional Court held that participation at a distance was compatible with the “right to a defence”, as guaranteed by Article 24 § 2 of the Constitution. It stated that it could not accept the idea that only the physical presence of the accused in the hearing room would ensure the effectiveness of this right, since the Constitution required only the personal and conscious (consapevole) participation of the defendant in the proceedings. Article 146 bis of the implementing provisions of the CCP was not limited to indicating the technical means necessary to installing a link between the hearing room and the place of detention, but required that certain “results” be attained and, in particular, the “effective” participation of the accused in the proceedings with a view to ensuring the proper exercise of his right to a defence. There were also legislative provisions guaranteeing contact between the accused, the right of defence counsel to be present where the defendant was situated and the ability of the accused and his counsel to communicate with each other. The judge had the power and the duty to ensure that the technical means installed were appropriate to the aims sought to be achieved and could, if necessary, order the accused to be present in the hearing room. In the opinion of the Constitutional Court, the fact that the new provisions departed from “tradition” did not upset the balance and dynamics of a trial that, on the contrary, remained substantively unchanged. 22. For the same reasons, the Constitutional Court found that the system introduced by Law no. 11 of 7 January 1998 could not be deemed to be contrary to Article 6 of the Convention, a provision which required, among other things, compliance with the “reasonable time” requirement, in particular for accused persons in detention. 23. Articles 9 and 10 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters provide: “1. If a person is in one Party's territory and has to be heard as a witness or expert by the judicial authorities of another Party, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference, as provided for in paragraphs 2 to 7. [...]” “1. If a person is in one Party's territory and has to be heard as a witness or expert by judicial authorities of another Party, the latter may, where its national law so provides, request the assistance of the former Party to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 6. [...]” 24. Articles 10 and 11 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed in Brussels on 29 May 2000, provide: “1. If a person is in one Member State's territory and has to be heard as a witness or expert by the judicial authorities of another Member State, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference, as provided for in paragraphs 2 to 8. [...]” “1. If a person is in one Member State's territory and has to be heard as a witness or expert by the judicial authorities of another Member State, the latter may, where its national law so provides, request assistance of the former Member State to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 5. [...]” 25. In its Resolution of 23 November 1995 on the protection of witnesses in the fight against international organised crime, the European Council called on Member States to guarantee proper protection of witnesses. To that end it indicated, among other things, that “one of the forms of protection to be envisaged is the possibility of giving evidence in a place other than that in which the person being prosecuted is situated through the use, if necessary, of audiovisual methods, subject to observance of the adversary principle as interpreted in the case-law of the European Court of Human Rights”. The European Council went on to state that: “... In order to facilitate the use of audiovisual methods, the following points, in particular, should be taken into consideration: 1. In principle, it should be envisaged that the hearing may be conducted under the legal and practical conditions of the requesting State only. 2. If the legislation of either State allows for the witness to be assisted by an adviser during the hearing, it should be possible for such assistance to be arranged in the territory of the State in which the witness is situated; 3. Translation costs and the cost of using audiovisual methods should be borne by the requesting State, unless otherwise arranged with the State to which the request is addressed.” | 0 |
train | 001-100903 | ENG | BGR | CHAMBER | 2,010 | CASE OF PANKOV v. BULGARIA | 3 | No violation of Art. 2 (procedural aspect);No violation of Art. 2 (substantive aspect);No violation of Art. 13 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1980 and lives in Pleven. 6. In April 1999 the applicant was conscripted into the Bulgarian Army to perform his mandatory military service. He was serving in a regiment in the town of Gorna Banya. In mid-July 1999 the regiment doctor relieved him from physical exercise and daily duty because of illness. Nevertheless, on the night of 21 July 1999 he was assigned to night duty. 7. After finishing his duty, in the morning of 22 July 1999 the applicant was sent, together with other soldiers from his regiment, to shooting practice at a military shooting range near the town of Slivnitsa. During the practice soldiers from the applicant's regiment and another regiment were present on the range. The applicant performed his task, which consisted of firing twelve rounds. After that he handed back all spent cartridge cases and was sent to a watchtower to guard against outsiders penetrating into the range. The tower was a square concrete construction 9.3 metres long and 7 metres wide. In the middle it had a threemetrehigh chimney. 8. At about 11.10 a.m., minutes after climbing up the tower, the applicant was shot in the abdomen. According to the findings of the ensuing investigation, the shot was fired at close range from his own automatic rifle, whose breechblock he was trying to fix without following the applicable safety procedures. The applicant disputes those findings and asserts that the shot was in all probability fired by another soldier from afar. 9. After the shot the applicant fell down on the roof of the tower, screaming and moaning. Chief Lieutenant P.P., who was sitting with a few soldiers from his regiment at the foot of the tower, rushed up the stairs. He brought the applicant down with the help of soldier T. and medical officer N.G., who were also at the foot of the tower and climbed up after the shot. 10. After that the applicant was put into an ambulance and transported, accompanied by medical officer N.G., to the Military Medical Academy in Sofia, where he underwent lifesaving surgical operations on 23, 26 and 27 July 1999. On 28 July 1999 his condition was found to be serious but stable. He was discharged from hospital on 9 September 1999, and later received a medical discharge from the army. 11. On the day of the incident a military investigator, notified by the military police, opened a preliminary investigation whose aim was to “determine the causes and the circumstances in which [the applicant] shot himself”. 12. At 2.30 p.m. the investigator inspected the scene of the incident. He found that it had not been preserved intact. He described in detail everything he found. He also identified, on the basis of the statement of Chief Lieutenant P.P., the likely positions of the applicant's body and of his rifle “after the shot”. He impounded the rifle, a halfscrubbed and oxygenated cartridge case, some pieces of dark reddish matter, dactyloscopic traces from the rifle, and traces from the surface of the tower. 13. Later that day the hospital where the applicant had been operated upon sent the investigator the piece of skin surrounding his entry wound and acetone smears from his palms. The applicant's commander handed over to the investigator the shirt he had been wearing during the shooting and some of his personal items. 14. The next day, 23 July 1999, the investigator interviewed Chief Lieutenant P.P., a sergeant responsible for counting the targets at the shooting range, the applicant's mother, and Captain Y.P., the officer in charge of the shooting practice. He also ordered a complex ballistic, microbiological and physicochemical report and a medical expert report. 15. Chief Lieutenant P.P. said that while he was sitting at the foot of the watchtower he heard a single shot from above, much louder than those coming from the firing range, and then heard screaming from the top of the tower. He climbed up the stairs and saw the applicant lying on the ground, moaning and tossing his upper body up and down. He noticed that the applicant's shirt was unbuttoned and that he had a wound on the left side of his abdomen. The wound did not have a clear shape and looked more like a star than a hole. It was surrounded by a round black patch with a diameter of five to seven centimetres and consisting of many black spots close together. The lieutenant saw another wound on the applicant's back, with a clear round shape, one centimetre in diameter, with a little blood on it. He also saw the applicant's rifle, which did not have a round in its chamber, had its safety lever down and was in semiautomatic mode. 16. Captain Y.P. handed over to the investigator the order and the plan for the shooting practice, and described the safety briefing given to all soldiers before the start of the shooting practice. He said that after the briefing a chief lieutenant checked the weapons of all soldiers taking part in the practice, and ordered two soldiers to step aside and clean their weapons. Then the captain announced to the soldiers the manner in which the practice would be conducted and the safety measures. They were to fire solely upon his command, and stop firing immediately if he so ordered, or if they received a visual signal from the watchtower, or if they noticed people, animals or machines near the targets. The firing range was delimited by markers at both ends. It was strictly forbidden, under any circumstances, to point a firearm outside the firing range. If a firearm jammed, the soldier had to report it immediately, remain still, put the safety catch down and not touch the firearm. The soldiers fired in groups of four, with those waiting their turn having unloaded weapons. The soldiers first went to the starting point, received magazines containing twelve rounds, and put them in their bags, while keeping their rifles on their backs. When they received the order to fire, they had to run to the firing position with their rifles pointing towards the firing range. Then, on a further order, they had to take the magazines out of the bags, put them onto the rifles, load a round, lift the safety catch and report that they were ready to fire. When ordered to fire, after the captain had made sure that each of them had loaded his weapon and was ready to fire, they put the safety catch in automatic firing mode and started firing. After finishing firing, they had to report, remove the magazine, and, when ordered, fire a control shot towards the firing range and put the safety catch on. After that they had to stand up, have their rifles checked by the captain with the magazine removed, fire a second control shot, and hand back the spent cartridges. At the time of the incident a group of soldiers was firing, with the captain standing about two metres behind them. Immediately after hearing the applicant's screams the captain ordered the soldiers to stop firing and empty their weapons, and then checked the weapons. 17. The order for the shooting practice, issued by the head of the regiment, designed a commanding officer, an officer, a sergeant and a soldier ensuring the sealing off of the area, a technician, an emergency medical officer, a standby ambulance, two guards, one of whom was the applicant, and a head of the ammunition supply point. It directed the commanding officer to ensure compliance with the safety measures in line with the applicable instructions. An annex to that order shows that all the soldiers confirmed that they had been briefed about the safety measures. 18. On 27 July 1999 the investigator interviewed medical officer N.G., SergeantMajor G.I., the person in charge of ammunition safety during the shooting practice, and soldier R.V. of the applicant's regiment. 19. N.G. said that, while sitting at the foot of the watchtower, she heard a loud whizzing sound and then screaming. She climbed up the tower and saw a wound on the applicant's abdomen. It was a small hole with a round darkbrown patch around it. Later, the officer was with the applicant in the ambulance, she noticed another wound, with a diameter of one centimetre, on the left side of his lower back. In the ambulance, she repeatedly asked the applicant how he had sustained the injury, but he kept silent. At one point, he said “I wanted to fix it”. She pressed him for more, but he said “Oh, leave me, leave me” and asked whether they had already reached the hospital. 20. G.I. said that following the incident, when he had been counting the cartridge cases spent during the shooting practice, somebody, probably Lieutenant M., threw a cartridge case on to the pile, and it got mixed up with the others. When G.I. enquired about the case's origin, lieutenant M. had replied that it had come from the scene of the incident. Later, with a view to identifying the case, the officer in charge of the practice ordered G.I. to divide the cases up into lots. He found only one with a diverging serial number, and handed it over to the investigator. G.I. also said that he was certain that the applicant had earlier returned to him all twelve cases of the cartridges allotted to him for the shooting practice. 21. R.V. said that the applicant had been in a good mood on the day of the incident, that both of them had had their rifles checked and returned their spent cartridge cases after the shooting practice, and that, prior to climbing up the watchtower, the applicant did not have a magazine on his rifle. 22. On 29 July 1999 the investigator interviewed the applicant, who was still in the intensive care unit of the emergency surgical department of the Military Medical Academy in Sofia (see paragraph 10 above). According to the record of this interview, the applicant said that while he was on the watchtower he tried to fix his rifle's sling. He knelt down on his right knee and laid the rifle on the ground with the muzzle pointing towards him. He noticed that the safety catch was in automatic firing position and the breechblock was not in position. With his right hand he pushed the breechblock forward. It jammed and he used force to push it, with the rifle's barrel lying on his left hand and the magazine holder pointing upwards. When the breechblock moved into position, he heard a shot. He became short of breath and started crying for help. 23. The applicant strongly disputes the accuracy of this record and maintains that, being in a very serious medical condition, he could not remember how this interview unfolded or the statements he made during it. He submits that the only reliable statements were those which he made during a subsequent interview on 13 September 1999, four days after his discharge from hospital. At that interview he said that before going to the tower he fired all twelve cartridges at the shooting range and then returned the spent cases to SergeantMajor G.I. When going up the tower, he noticed two sergeants there, talked to them for a while and then remained alone. When standing with his left side toward the shooting range and his rifle slung over his shoulder, he suddenly felt powerless, weak in the knees and short of breath, but did not hear a shot close by. He started shouting for help and ten seconds later someone came up to him. 24. On 11 and 17 November 1999 the investigator interviewed Captain V.P., a staff doctor from the applicant's regiment, and two soldiers serving with the applicant. All of them said that they had not seen any signs of depression in the applicant prior to the incident. 25. The medical expert report ordered by the investigator was drawn up on 28 July 1999 by Dr G.D., deputy chief of the Forensic Medicine Centre of the Bulgarian Army. He had not examined the applicant but based his report on the existing medical documentation. The report read as follows: “... The entry wound is situated on the front left side of the abdomen, slightly above the navel and on the midclavicular line, with burns on the surrounding skin. The exit wound is on the left side of the back, under the corner of the scapula. If the body was in an upright position the channel of the wound would go slightly upward from the front to the back. The entry wound's description in the medical documents shows that it was the result of a shot from a very close range. To determine precisely the distance of the shot it is necessary to carry out a ballistic testing of the clothes worn by [the applicant] at the time when the shot was fired. When passing through the body the projectile (the bullet), in addition to damaging the soft tissues, broke the twelfth rib on the left, ruptured the front and the back walls of the stomach, the transverse colon, the splenic flexure (in two places), and the spleen. As a result, there was a flow of faeces and a massive haemorrhage in the abdominal cavity, causing a temporarily lifethreatening medical condition. The above necessitated an emergency lifesaving surgery, consisting of a full midline laparotomy, with a drainage of the blood and the faeces from the abdominal cavity and a resection of the omentum, a wedge-shaped resection and stitching of the stomach, partial resection of the transversal colon and of the splenic flexure, with a removal of a bitruncular colostoma, surgical removal of the spleen, treatment of the fractured rib, lavage and drainage of the abdominal cavity, and laparostoma. After that surgical intervention the bleeding was stopped and the risk to [the applicant's] life was averted, i.e. the case concerns loss of the spleen. It should be borne in mind that without a timely and highlyqualified medical intervention death would have occurred very rapidly. After the surgical intervention [the applicant] was placed in an intensive care unit. Following Xray data about a haemorrhage in the left pleural cavity on 23 July 1999, a left-side thoracentesis (drainage of the pleural fluid) was carried out. On 26 July 1999 a surgical bandage was made, and on 27 July 1999 – a second laparotomy with a revision of the laparostoma and of the abdominal cavity was carried out, a local aesthetic was applied on the mesentery, ileostomy and debrissage of the small intestine through it were performed, and a new laparostoma was placed. After the surgical intervention the [applicant] was again placed in an intensive care unit. On 28 July 1999 his condition was assessed as being stable but serious.” 26. On 10 September 1999 a biology expert drew up a report saying that the blood-red dry matter taken from the scene of the incident was indeed human blood. However, as a result of the depletion of the sample, it was impossible to determine its type or to tell whether it was identical with the applicant's blood. The applicant's shirt had blood on it. 27. In a report of 14 September 1999 three experts stated that the applicant's rifle was in good working order and able to produce a shot. The force needed to be applied to the trigger in order to fire was within the acceptable limits. They further found that the rifle had been fired since it had last been cleaned, and that the cartridge case handed over by SergeantMajor G.I. to the investigator did not come from that rifle. 28. In a physicochemical report of 4 October 1999 two experts said that they had been unable to conclude whether the gunpowder from the rifle's barrel was identical to that taken from the applicant's shirt. They also said that the smears from the applicant's palms and wrist-bands did not contain traces of a shot. 29. On 22 November 1999 the investigator proposed discontinuing the investigation. He found that the applicant had shot himself at close range. There was no evidence pointing to breaches of the regulations on conducting shooting exercises or the applicable safety rules. Nor was there any indication that the applicant had had psychological problems or depression which could push him to commit suicide, or that he had tried to damage his health with a view to evading military service. The evidence thus led to the conclusion that his injury was the result of an accidental shot fired because of his improper handling of his firearm. 30. On 30 November 1999 the Sofia Military Regional Prosecutor's Office decided to discontinue the investigation, repeating the reasons given by the investigator verbatim. 31. On 9 April 2001 the applicant appealed to the Military Appellate Prosecutor's Office. He argued, among other things, that the authorities had explored solely the version that he had shot himself. No expert report had been drawn up on the identity of the firearm which had produced the shot. It was absurd to think that this was the rifle he had been carrying while on the watchtower, because it had not been loaded and had its safety catch down. His clothes had not been examined by an expert and it was therefore impossible to conclude whether or nor the shot had been fired at close range. The medical expert report was not based on primary medical documents and had thus come to the erroneous conclusion that the bullet had left his body, producing a second wound on his back. There were indications, such as the noise of the shot, noted by the witnesses, that he had been wounded by a ricochet and that the bullet had shattered. 32. On 18 June 2002 the Military Appellate Prosecutor's Office dismissed the appeal. It noted that during his interview on 29 July 1999 the applicant had stated that he had shot himself. Moreover, the medical expert had found that he had both an entry and an exit wound. The medical documents showed that the wound was from a shot fired at close range. Noone else was around the applicant at the time of the shot. The lower prosecutor's findings were thus correct. 33. On 9 July 2002 the applicant appealed to the Chief Prosecutor. He asserted that his statement of 29 July 1999 was far from reliable. At that time he had been in hospital, in a very bad condition following several lifesaving operations. It was therefore surprising to see that the official record of this statement seemed so detailed and logical. No expert report had been drawn up on the identity of the firearm which had produced the shot, whereas the evidence showing that it had been fired by his rifle was unreliable and was called into doubt by other evidence. There was no evidence showing that the shot had been fired at close range. Lastly, no consideration had been given to the fact that he had been ordered to take part in the shooting exercises after night duty and while he was ill. 34. On 11 October 2002 the Supreme Cassation Prosecutor's Office dismissed the appeal. It observed that the testing of the piece of skin surrounding the applicant's entry wound showed that the shot had been fired at close range. This was consistent with the applicant's statement of 29 July 1999 and the statement of medical officer N.G. It was impossible to examine the bullet, because it had not been found. It was established that the spent cartridge case handed over to the investigator by SergeantMajor G.I. did not come from the applicant's rifle. However, it could not be ruled out that G.I. had mistakenly identified it as the one thrown on to the pile by lieutenant M., given that the pile contained in total more than nine hundred spent cartridge cases. Even if all of them were to be tested, which was impossible in view of the time elapsed since the events, that would not have led to a definite conclusion about the firearm's identity. The lower prosecutors had thus correctly found that the applicant had injured himself by handling his rifle improperly. There was no indication that other soldiers had shot him or that he had injured himself deliberately. 35. On 11 June 2003 the applicant's representative before the Court wrote to Dr P.L., the head of the forensic department of the Pleven Medical University. He sent him the relevant medical documents and asked for his opinion on (a) whether the description of the applicant's wound was comprehensive; (b) whether it was possible to determine, on the basis of that description, the distance from which the shot had been fired; (c) what could be the exact basis for such determination; (d) what could be the possibility for error; and (e) what type of data would allow a more precise determination of the distance from which the shot had been fired. 36. Dr P.L.'s opinion, drawn up on 13 June 2003, read as follows: “The questions you pose in your letter ... may be answered like this: 1. The description, which says 'visible entry wound in the abdominal area, at the midclavicular line, slightly above the navel, with burns', is not detailed – the shape of the wound, the condition of the edges, the size of the wound (diameter or diameters), the size of the 'burn' and its position relative to the edges of the wound – concentric or eccentric – are lacking. 2. On the basis of that description, one could make the very general conclusion that the wound was the result of a shot from a close distance. Indeed, the shot could have been even a contact one, if it was fired through several layers of clothing, or thicker, or damp clothing. In forensic medicine, shot distances are categorised in three ways: contact shots (complete or incomplete), closedistance shots (within the range of action of the shot's additional effects), and longdistance shots (outside the range of action of the shot's additional effects), without this being linked with a concrete distance in centimetres or meters. 3. The basis for the conclusion in point 2 is the fact that the wound was surrounded by a ring, described as a 'burn'. 4. In the case of closedistance shots (and sometimes in the case of contact shots), one can see traces of unburned powder, metal particles, grease, etc. around the wound (the socalled 'stain ring' or 'blackened ring'). The range at which those can make an impact (in the case of a shot with a Kalashnikov rifle) is twentyfive to thirty centimetres. With the increase in the distance, the intensity of those additional effects of the shot diminishes. There is no burning around an entry firearm wound because the action of the flame and the hot gases is short-term. Sometimes one can find traces of the high temperature – slight burning of thin or more tender hairs or of artificial tissues. The 'stain ring' around the wound is a result of the mechanical action of the blacks and of the other particles and their ramming into the skin, as well as of the chemical action of the powder gases and the other residues from the shot. It is also possible that the so-called 'burn' was in fact a 'muzzle mark' – a bruise around the entry wound resulting from the impact of the muzzle in the case of a full contact shot. Such marks are characteristic for shots in the head or in areas having a solid surface (bone) underneath, but can sometimes occur in cases of shots in the abdominal area. The available description does not allow a more specific conclusion to be drawn. The possibility for error when concluding that a shot has been fired from a close distance on the basis of a 'stain ring' is minimal. The medical literature refers to the so-called 'phenomenon of Vinogradov', in which such a ring appears after a shot from a distance of even several hundred meters. However, such occurrences are rare and do not correspond to the description of the wound in the present case. The description of the wound allows one to conclude that the shot was fired either from a close distance or that it was a contact shot. A long-distance shot is to be excluded. 5. It would be possible to make a more specific assessment of the distance from which the shot has been fired on the basis of: – a more detailed medical description (as mentioned in point 1); – more information about the conditions in which the shot was fired (clothes, type of bullet, etc.); – a special analysis determining the composition of the stain around the wound or on the clothes; – experimental shots with the same weapon and in the same conditions as the shot under consideration.” 37. Article 192 of the 1974 Code of Criminal Procedure, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could be initiated only by a prosecutor or an investigator. When military courts had jurisdiction to hear a case, as for example when it concerned soldiers or army officers (Article 388 § 1(1) of the Code), the responsibility for conducting the preliminary investigation lay with military investigators and prosecutors. 38. Under Article 237 § 1 (1) of the Code, as in force at the relevant time, prosecutors were to discontinue an investigation if they found that the matters alleged did not amount to a criminal offence. Until 31 December 1999 their decisions to do so could be appealed against before the superior prosecutor (paragraph 6 of that Article, as in force until 31 December 1999). 39. Paragraphs 3 and 4 of Article 237 of the Code, as in force between 1 January 2000 and 30 April 2001, provided that after the discontinuance the prosecutor had to send the case file and his decision to the superior prosecutor's office, which could confirm, modify or quash it. If it confirmed the decision, it had to send the case file to the appropriate court, which had to rule in private as to whether the discontinuation was or was not warranted (Article 237 §§ 5, 6 and 7 of the Code, as in force at that time). Paragraph 9 of that Article provided that no appeal lay against the court's decision. No provision was made for the victim of the offence to be notified of the discontinuance. 40. Article 237 of the Code was completely changed with effect from 1 May 2001 and from that point on provided that the prosecutor's decision to discontinue the proceedings was to be served on the accused and on the victim of the offence. Either of them could then seek judicial review. 41. Under the 2005 Code of Criminal Procedure, which superseded the 1974 Code on 29 April 2006, a prosecutor's decision to discontinue an investigation is served on the accused and the victim of the offence and is subject to judicial review by the relevant firstinstance court. An appeal lies against the court's decision to the higher court, whose decision is final (Article 243 §§ 37 of that Code). | 0 |
train | 001-113499 | ENG | AZE | ADMISSIBILITY | 2,012 | YOLTAGIL v. AZERBAIJAN | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 1. The applicant, Mr Hasan Yoltagil, is a Turkish national, who was born in 1955 and lives in Malatya, Turkey. He was represented before the Court by Mr N. Sert, a lawyer practising in Turkey. 2. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. According to the applicant, he came to Azerbaijan in 1992 with the intention of settling permanently in Ganja. He worked in the leather business and established two private companies in 1992 and 1996. 5. The applicant was recognised as a victim in two different sets of criminal proceedings which ended in June 2000 and May 2003, respectively. According to the relevant judgments, the convicted defendants had to pay the applicant 118,434 United States dollars (USD) and USD 25,150 as compensation for damage. The defendants failed to pay and the applicant applied to the domestic authorities asking for the execution of the court judgments and payment of the debts. According to the applicant’s submission, he was also owed large amounts of money by two other private individuals. 6. During a standard passport check on 25 April 2006, officers of the Ganja City Police Office discovered that the applicant had been living in Azerbaijan without a valid residence permit or passport. 7. On 26 April 2006 the Ganja City Police Office drew up a record for an administrative offence (inzibati xəta haqqında protocol), by which the applicant was found to be in breach of Article 330 of the Code of Administrative Offences (“the CAO”). It decided to fine him in the amount of 110,000 old Azerbaijani manats (equivalent to 22 new Azerbaijani manats) and to deport him from Azerbaijan. 8. The applicant gave a handwritten explanation, in the section of the report designed for this purpose, that his passport was at the Turkish Embassy at the time. He made no reference to the residence permit. He then confirmed that he had read the report, by signing it in three different places. 9. It appears that at a later date the applicant received his passport back from the Embassy and presented it to the Ganja City Police Office. 10. By a letter dated 26 July 2006 the Ganja City Police Office forwarded the applicant’s passport and other documents to the Department of International Cooperation of the Ministry of Foreign Affairs, informing them that it had been decided to deport the applicant and requesting the Department’s assistance with the deportation. 11. According to the applicant, he was deported from Azerbaijan on 10 September 2006 without any explanation. 12. According to the Government, the applicant was deported on 13 September 2006 pursuant to the decision of 26 April 2006. 13. According to the applicant, after his deportation, he applied for a visa to the General Consulate of the Republic of Azerbaijan in Istanbul. On 22 September 2006 he was granted a month-long Azerbaijani visa by the consulate. However, he was refused entry to Azerbaijan on 25 September 2006 at the Turkish-Azerbaijani border and again on 4 October 2010 at the Georgian-Azerbaijani border. 14. In October 2006 the applicant applied to the Turkish Ministry of Foreign Affairs, complaining that he had been deported from Azerbaijan because he had asked the domestic authorities to ensure the payment of unpaid debts. On 5 December 2006 the Turkish Ministry of Foreign Affairs informed the applicant that his complaint had been sent to the Azerbaijani authorities in the form of a diplomatic note. By a letter dated 16 February 2007, the Turkish Ministry of Foreign Affairs informed the applicant that, according to the information provided by the Azerbaijani authorities, he had been deported on 13 September 2006 under Article 330 of the CAO for residing on the territory of Azerbaijan without the relevant residence permit. 15. The relevant provisions of the Code of Administrative Offences (“the CAO”), in force at the material time, read as follows: Article 330. Residence without registration or unlawful stay in the Republic of Azerbaijan of foreign nationals or stateless persons “Foreign nationals or stateless persons who reside on the territory of the Republic of Azerbaijan without registration or ... stay without an official permit or visa shall be fined ... and deported outside the borders of the Republic of Azerbaijan under the administrative procedure.” Article 430. The right to lodge a complaint or appeal against a decision on administrative offences “430.1. A person against whom an administrative decision has been taken, ... as well as his or her counsel or representative, may lodge a complaint against the decision. 430.2. A complaint ... against a decision on an administrative offence is lodged according to the following procedure: ... 430.2.3. against a decision taken by the competent authority or official – to the superior authority or official, or to court.” 16. According to Article 12 of the Law on the Entry into and Departure from the Country and on Passports, as in force at the material time, a foreign national could be refused entry into the country if he or she had breached the requirements of Azerbaijani law during his or her previous stays in the country. | 0 |
train | 001-110422 | ENG | SWE | ADMISSIBILITY | 2,012 | HILLEFORS v. SWEDEN | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The applicant, Mr Carl-Gunnar Hillefors, is a Swedish national who was born in 1954 and lives in Hisings Backa. He was represented before the Court by Mr C. Jansson, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was employed as a mechanic and in May 1991 he had a nervous breakdown (psykisk kollaps). On 24 June 1993 he submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan, “the Office”) of the County of Västra Götaland in which he requested that his psychological problems be considered workrelated and thereby make him eligible for life annuity (livränta). He claimed that his psychological problems had been caused by degrading treatment to which he had been subjected by his co-workers and his supervisor. In a decision on 13 June 2001, the Board of the Social Insurance Office (Socialförsäkringsnämnden, “the Board”) decided not to accept the applicant’s mental illness as a work injury and found that the applicant’s personality was the primary cause of his problems. The applicant and his representative at the time had been present at a meeting with the Board, before the Board made its decision. The applicant appealed against the decision to the County Administrative Court (länsrätten) in Gothenburg, claiming that he had been subjected to degrading treatment at work. Through his legal representative he requested compensation under the 1976 Work Injury Insurance Act (lagen om arbetsskadeförsäkring, SFS 1976:380). In support of his claims he submitted written statements by six former co-workers and several medical certificates. The County Administrative Court, in its assessment of the case, had access to the Office’s case-file and to extensive medical documentation, including copies of medical records and opinions given by several physicians and several of the Office’s own appointed doctors (försäkringsläkare). On 28 March 2003 the County Administrative Court rejected the applicant’s appeal. It found that he had not sufficiently proved that, from an objective point of view, he had been subjected to treatment that was considered injurious in the eyes of the law. The court did not question the applicant’s subjective perception of the alleged circumstances, but there was not sufficient objective evidence to hold that the applicant’s supervisor and colleagues had acted in an incorrect manner. During the proceedings before the County Administrative Court no oral hearing was requested by the applicant, nor did the court hold one on its own initiative. The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Gothenburg. He requested leave to appeal and maintained his claim. He further requested that an oral hearing be held in his case so that he could explain, under oath, the treatment to which he had been subjected and so that two of the witnesses, who had previously given written statements, could be heard before the court under oath. On 2 February 2004, the judge rapporteur at the Administrative Court of Appeal drew up a memorandum stating that the applicant’s legal representative had been informed over the phone that the court did not intend to hold an oral hearing before taking its decision regarding leave to appeal. The memorandum further stated that the applicant had been given a prolonged respite until 5 March 2004 to submit additional documents. In a final submission to the court, received on 8 March 2004, the representative supplemented the applicant’s appeal. On 26 March 2004 the Administrative Court of Appeal, which had access to the Office’s and the County Administrative Court’s case-files, refused leave to appeal. The applicant appealed to the Supreme Administrative Court (Regerings-rätten). He stated that he had requested an oral hearing before the Administrative Court of Appeal and that the purpose of the oral hearing had been presented. He also objected to the fact that the Administrative Court of Appeal had failed to reject his request for an oral hearing in a separate decision. No request was made for an oral hearing before the Supreme Administrative Court. On 27 November 2006 the Supreme Administrative Court refused leave to appeal. Domestic provisions of relevance in the present case are found in the 1976 Work Injury Insurance Act (lagen om arbetsskadeförsäkring, SFS 1976:380) and the Administrative Court Procedure Act (förvaltningsprocesslagen, SFS 1971:291, “the 1971 Act”). The 1976 Work Injury Insurance Act has been incorporated into Chapters 39 and 41 of the Social insurance Code as of 1 January 2011. According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s workplace. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries. For an injury to qualify as a work injury, a causal link must be established between the accident or harmful factor in the workplace and the insured person’s health problems. At the relevant time, if it was clear that the insured person had been subjected to harmful factors at work, his or her medical problems were presumed to have been caused by the harmful factors unless there were substantially stronger grounds for a conclusion to the contrary (Chapter 2, section 2, of the 1976 Act in its wording before 1 January 1993, which applied to the present case). Regarding mental and psychosomatic illnesses, the travaux préparatoires (govt. Bill 1975/76:197 pp. 71 and 90-91) emphasise that some factors that are connected to work or work conditions, and that may give rise to a disturbance to mental health, are not such that the harmful effect that may occur should fall under the 1976 Act. Thus, it is in the nature of things that mental health disturbance as a result of, inter alia, shutting down work places, lack of appreciation of work efforts and discomfort with work tasks or colleagues should not give rise to compensation. Section 9 of the Administrative Court Procedure Act, as in force at the relevant time was worded as follows: “The procedure shall be in writing. Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” In a case concerning social insurance, leave to appeal is required for the Administrative Court of Appeal to consider an appeal against a decision issued by a County Administrative Court. Leave to appeal shall be granted if it is of importance for the guidance of the application of law that a superior court considers the appeal, if reason exists for amendment of the County Administrative Court’s conclusion, or if there are otherwise extraordinary reasons to entertain the appeal. A decision of the Administrative Court of Appeal not to grant leave to appeal may be appealed against to the Supreme Administrative Court. | 0 |
train | 001-79008 | ENG | TUR | CHAMBER | 2,007 | CASE OF AKGÜL v. TURKEY | 4 | Violation of Art. 6-1 | null | 4. The applicant was born in 1980 and lives in Izmir. 5. 6. On 23 February 1999 the applicant was taken into custody by police officers from the Anti-Terror branch of the Izmir Security Directorate (Terörle Mücadele Şubesi) on suspicion of aiding and abetting an illegal organisation, namely the PKK (the Kurdistan Workers’ Party), contrary to Article 169 of the Criminal Code. 7. On 26 February 1999 the applicant was brought before a single judge of the Izmir State Security Court. The applicant denied the veracity of his signed statements taken in detention, alleging that they had been obtained under duress. On the same day, the judge ordered his detention on remand. 8. On 3 March 1999 the public prosecutor at the Izmir State Security Court filed a bill of indictment, charging the applicant under Article 169 of the Criminal Code with aiding and abetting the PKK by engaging in propaganda for it. 9. On 7 April 1999 the State Security Court held its first hearing in the absence of the applicant. The court ordered that the applicant’s detention on remand be continued as he could not be heard. 10. On 11 May 1999 the State Security Court held its second hearing in the presence of a military judge. The applicant was heard by the court. He denied having engaged in propaganda and stated that he had been merely watching the crowd shouting slogans. He further denied the statements taken in police custody and before the public prosecutor. He alleged that he had been forced to sign the impugned statements under duress. He asked the court to dismiss the charges and release him. Assessing the evidence against the applicant, the court dismissed his request and ordered his continued detention on remand. 11. On 18 June 1999 the Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge hearing the applicant’s case was replaced by a civilian judge. 12. On 19 August 1999 the State Security Court held a hearing. The applicant’s representative requested his release. He further asked the court to hear evidence from four witnesses. The court dismissed his requests. Considering the state of the proceedings, the court reasoned that the evidence to be given by the four witnesses would not help to elucidate the facts. 13. On 22 September 1999 the State Security Court held another hearing. The applicant’s representative submitted the applicant’s written defence submissions and read them at the hearing. The court ordered that the applicant’s detention on remand be continued. 14. On 13 October 1999 the State Security Court composed of three civilian judges convicted the applicant as charged and sentenced him to three years’ imprisonment under Article 169 of the Criminal Code. 15. On 9 October 2000 the Court of Cassation upheld the judgment. Two days later, this decision was pronounced in the absence of the applicant’s representative. 16. As required by law, the decision was deposited with the registry of the Izmir State Security Court for the applicant’s review. | 1 |
train | 001-78522 | ENG | UKR | CHAMBER | 2,006 | CASE OF TIKHONCHUK v. UKRAINE | 4 | Preliminary objection dismissed (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Peer Lorenzen | 4. The applicant was born in 1977 and lives in Nova Kakhovka, the Kherson region. He is a former employee of the State-controlled OJSC “Pivdenelektromash” (“the Company,” ВАТ “Південелектромаш”). 5. The background facts for the case are described in the case of Anatskiy v. Ukraine (no. 10558/03, §§ 5-8, 13 December 2005). 6. On 7 February 2001 the Nova Kakhovka Court (Новокаховський міський суд Херсонської області) ordered the Company to pay the applicant UAH 3,009 in salary arrears. This judgment became final. 7. According to the Government, the applicant never submitted the enforcement writ in respect of this judgment for enforcement. 8. The applicant presented a copy of the letter of the Nova Kakhovka Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Новокаховського міського управління юстиції) of 6 May 2005 advising him that the enforcement proceedings in respect of the judgment of 7 February 2001 had been instituted on 26 February 2002. 9. Additionally, the applicant presented a copy of the Bailiffs' decision of 1 July 2002, by which they returned him the enforcement writ in respect of the above judgment unenforced. In particular, the Bailiffs referred to the impossibility of the enforcement in view of the debtor's lack of funds, the pending bankruptcy proceedings against it and the holding of its assets in a tax lien. 10. The judgment of 7 February 2001 remains unenforced to the present day. 11. On 29 December 2002 the Nova Kakhovka Court ordered the Company to pay the applicant UAH 3,359 in salary arrears. This judgment became final and on 13 February 2003 the Bailiffs instituted enforcement proceedings in its respect. 12. The judgment of 29 December 2002 remains unenforced to the present day. | 1 |
train | 001-57523 | ENG | AUT | CHAMBER | 1,986 | CASE OF LINGENS v. AUSTRIA | 2 | Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo | 8. Mr. Lingens, an Austrian journalist born in 1931, resides in Vienna and is editor of the magazine Profil. 9. On 9 October 1975, four days after the Austrian general elections, in the course of a television interview, Mr. Simon Wiesenthal, President of the Jewish Documentation Centre, accused Mr. Friedrich Peter, the President of the Austrian Liberal Party (Freiheitliche Partei Österreichs) of having served in the first SS infantry brigade during the Second World War. This unit had on several occasions massacred civilians behind the German lines in Russia. Mr. Peter did not deny that he was a member of the unit, but stated that he was never involved in the atrocities it committed. Mr. Wiesenthal then said that he had not alleged anything of the sort. 10. The following day, Mr. Bruno Kreisky, the retiring Chancellor and President of the Austrian Socialist Party (Sozialistische Partei Österreichs), was questioned on television about these accusations. Immediately before the television interview, he had met Mr. Peter at the Federal Chancellery. Their meeting was one of the normal consultations between heads of parties with a view to forming a new government; it had aroused great public interest because before the elections on 5 October the possibility of a Kreisky-Peter coalition government had been canvassed. At the interview, Mr. Kreisky excluded the possibility of such a coalition because his party had won an absolute majority. However, he vigorously supported Mr. Peter and referred to Mr. Wiesenthal’s organisation and activities as a "political mafia" and "mafia methods". Similar remarks were reported the next day in a Vienna daily newspaper to which he had given an interview. 11. At this juncture, the applicant published two articles in the Vienna magazine Profil. 12. The first was published on 14 October 1975 under the heading "The Peter Case" ("Der Fall Peter"). It related the above events and in particular the activities of the first SS infantry brigade; it also drew attention to Mr. Peter’s role in criminal proceedings instituted in Graz (and later abandoned) against persons who had fought in that brigade. It drew the conclusion that although Mr. Peter was admittedly entitled to the benefit of the presumption of innocence, his past nevertheless rendered him unacceptable as a politician in Austria. The applicant went on to criticise the attitude of Mr. Kreisky whom he accused of protecting Mr. Peter and other former members of the SS for political reasons. With regard to Mr. Kreisky’s criticisms of Mr. Wiesenthal, he wrote "had they been made by someone else this would probably have been described as the basest opportunism" ("Bei einem anderen würde man es wahrscheinlich übelsten Opportunismus nennen"), but added that in the circumstances the position was more complex because Mr. Kreisky believed what he was saying. 13. The second article, published on 21 October 1975, was entitled "Reconciliation with the Nazis, but how?" ("Versöhnung mit den Nazis - aber wie?"). It covered several pages and was divided into an introduction and six sections: "‘Still’ or ‘Already’", "We are all innocent", "Was it necessary to shoot defenceless people?", "Why is it still a question for discussion?", "Helbich and Peter" and "Politically ignorant". 14. In the introduction Mr. Lingens recalled the facts and stressed the influence of Mr. Kreisky’s remarks on public opinion. He criticised him not only for supporting Mr. Peter, but also for his accommodating attitude towards former Nazis who had recently taken part in Austrian politics. 15. Under the heading "‘Still’ or ‘Already’" the applicant conceded that one could not object to such attitudes on grounds of "Realpolitik". According to him "the time has passed when for electoral reasons one had to take account not only of Nazis but also of their victims ... the former have outlived the latter ...". Nevertheless Austria, which had produced Hitler and Eichmann and so many other war criminals, had not succeeded in coming to terms with its past; it had simply ignored it. This policy risked delivering the country into the hands of a future fascist movement. With regard to the then Chancellor, he added: "In truth Mr. Kreisky’s behaviour cannot be criticised on rational grounds but only on irrational grounds: it is immoral, undignified" ("In Wahrheit kann man das, was Kreisky tut, auf rationale Weise nicht widerlegen. Nur irrational: es ist unmoralisch. Würdelos"). It was, moreover, unnecessary because Austrians could reconcile themselves with the past without seeking the favours of the former Nazis, minimising the problem of concentration camps or maligning Mr. Wiesenthal by exploiting anti-Semitism. What was surprising was not that one "still" spoke about these things thirty years later but, on the contrary, that so many people were "already" able to close their eyes to the existence of this mountain of corpses. Finally, Mr. Lingens criticised the lack of tact with which Mr. Kreisky treated the victims of the Nazis. 16. The second section commented on the attitude of Austrian society in general with regard to Nazi crimes and former Nazis. In the author’s opinion, by sheltering behind the philosophic alternative between collective guilt and collective innocence the Austrians had avoided facing up to a real, discernible and assessable guilt. After a long disquisition on various types of responsibility, he stressed that at the time it had in fact been possible to choose between good and evil and gave examples of persons who had refused to collaborate. He concluded that "if Bruno Kreisky had used his personal reputation, in the way he used it to protect Mr. Peter, to reveal this other and better Austria, he would have given this country - thirty years afterwards - what it most needed to come to terms with its past: a greater confidence in itself". 17. The third and fourth sections (which together amounted to a third of the article) also dealt with the need to overcome the consciousness of collective guilt and envisage the determination of real guilt. Under the title "Was it necessary to shoot defenceless people?", Mr. Lingens drew a distinction between the special units and the regular forces in the armies of the Third Reich; he pointed out that no one was forcibly enlisted in the former: one had to volunteer. In the following section he stressed the difference between individuals guilty of criminal offences and persons who, morally speaking, had to be regarded as accomplices; he maintained that if Austria had tried its Nazis earlier, more quickly and more thoroughly, it would have been able to view its past more calmly without complexes and with more confidence. He then set out the reasons why that had not been possible and defended Mr. Wiesenthal from the charge of belonging to a "mafia". Finally, he considered the possibility of showing clemency after so many years and concluded: "It belongs to every society to show mercy but not to maintain an unhealthy relationship with the law by acquitting obvious murderers and concealing, dissembling or denying manifest guilt." 18. The fifth section of Mr. Lingens’ article compared the Peter case with another affair of a more economic nature relating to Mr. Helbich, one of the leaders of the Austrian People’s Party (Österreichische Volkspartei), and compared Mr. Kreisky’s different reaction in each case. The author argued that the circumstances of the first case made Mr. Peter unfit to be a member of parliament, a politician and a member of the government, and added: "This is a minimum requirement of political ethics" ("ein Mindesterfordernis des politischen Anstandes"). The "monstrosity" ("Ungeheuerlichkeit") was not, in his opinion, the fact that Mr. Wiesenthal had raised the matter, but that Mr. Kreisky wished to hush it up. 19. The article ended with a section criticising the political parties in general owing to the presence of former Nazis among their leaders. The applicant considered that Mr. Peter ought to resign, not to admit his guilt but to prove that he possessed a quality unknown to Mr. Kreisky, namely tact. 20. On 29 October and 12 November 1975, the then Chancellor brought two private prosecutions against Mr. Lingens. He considered that certain passages in the articles summarised above were defamatory and relied on Article 111 of the Austrian Criminal Code, which reads: "1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine. 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine. 3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true." Under Article 112, "evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ...". 21. On 26 March 1979, the Vienna Regional Court found Mr. Lingens guilty of defamation (üble Nachrede - Article 111 para. 2) for having used the expressions "the basest opportunism", "immoral" and "undignified". However, it held that certain other expressions were not defamatory in their context ("minimum requirement of political ethics", "monstrosity"). It fined him 20,000 Schillings, considering as mitigating circumstances the fact that the accused intended to voice political criticism of politicians on political questions and that the latter were expected to show greater tolerance of defamation than other individuals. In view of the defendant’s good faith it awarded Mr. Kreisky no damages but, on his application, ordered the confiscation of the articles complained of and the publication of the judgment. 22. In its decision, which contained a lengthy statement of reasons, the Regional Court first examined the objectively defamatory character of each of the passages complained of. It held that the expressions "basest opportunism", "immoral" and "undignified" were defamatory and were directly or indirectly aimed at Mr. Kreisky personally, whereas the words "minimum requirement of political ethics" and "monstrosity" did not go beyond the accepted limits of political criticism. According to Mr. Lingens, the first three expressions were value-judgments and therefore as such not contrary to Article 111 of the Criminal Code. However, the Regional Court considered that the unfavourable conclusions drawn with regard to the then Chancellor’s behaviour fell within the scope of that provision. Nor could the defendant rely on his right to freedom of expression, since the relevant provisions of the Constitution and Article 10 (art. 10) of the Convention authorised limitations of this right: a balance had to be struck between this right and the right to respect for private life and reputation. In the instant case the applicant had gone beyond the permissible limits. 23. As regards Mr. Kreisky’s use of a private prosecution, the Regional Court pointed out that he had been criticised not in his capacity as Federal Chancellor but as a leading member of his party and a politician. Article 117 para. 2 of the Criminal Code therefore did not apply in the instant case : it made defamation of an office-holder punishable, but solely by means of a public prosecution commenced with the consent of the person concerned, who could not bring a private prosecution unless the prosecuting authorities refused to act. 24. The Regional Court then considered the question of proving truth (preuve de la vérité) (see paragraph 20 above). It held that as the applicant had not provided evidence to justify the expression "basest opportunism", that was sufficient to lead to his conviction. With regard to the words "immoral" and "undignified", the accused had used them in relation to Mr. Kreisky’s attitude consisting in minimising Nazi atrocities, referring to Mr. Wiesenthal’s activities as being of a mafia-type and insinuating that the latter had collaborated with the Gestapo. On this last point the Regional Court admitted evidence produced by Mr. Lingens in the form of a court decision finding a journalist guilty of defamation for having made a similar allegation. In so far as Mr. Kreisky had spoken of "mafia methods" and "mafia", the Regional Court pointed out that these expressions normally referred to an organised form of criminal behaviour but were sometimes used in a different sense. Even if one did not accept the argument put forward by the private prosecutor, his conception of the "mafia" was a possible one and deserved to be examined. It was not for the prosecutor to prove the truth of his allegations but for Mr. Lingens to prove the truth of his. Mr. Wiesenthal himself had conceded that in order to attain his various aims he relied on an organisation with numerous ramifications. Moreover, the then Chancellor’s statements (see paragraph 10 above) must be seen in the context of a political struggle between political opponents, each of them using such weapons as were at his disposal. Seen from this angle they did not reflect an absence of morality or dignity but constituted a possible defence and were in no way unusual in the bitter tussles of politics. In truth, Mr. Kreisky’s attitude towards Nazi victims and Nazi collaborators was far from clear and unambiguous; it appeared in a form which allowed different conclusions. It was therefore logically impossible for the defendant to establish that the only possible interpretation of this attitude was the one he put on it. 25. Mr. Kreisky and Mr. Lingens both appealed against the judgment to the Vienna Court of Appeal. On 30 November 1979, the Court of Appeal set the judgment aside without examining the merits, on the ground that the Regional Court had failed to go sufficiently into the question whether the then Chancellor was entitled to bring a private prosecution in spite of the provisions of Article 117 of the Criminal Code (see paragraph 23 above). 26. The Vienna Regional Court, to which the Court of Appeal had returned the case, gave judgment on 1 April 1981. After examining the circumstances surrounding the statements by the then Chancellor, it came to the conclusion that he had been criticised not in his official capacity but as head of a party and as a private individual who felt himself under an obligation to protect a third person. It followed therefore that he was entitled to bring a private prosecution. As regards the legal definition of the acts imputed to Mr. Lingens, the Regional Court confirmed its judgment of 26 March 1979. With regard to the defence of justification, it again noted that the accused had not produced any evidence to prove the truth of the expression "the basest opportunism". As regards the expressions "immoral" and "undignified", the evidence he had produced related solely to the allegations of collaboration with the Nazis made against Mr. Wiesenthal. These, however, were not relevant because Mr. Kreisky had made them after the publication of the articles in question. In so far as these expressions were directed at other behaviour and attitudes of the Chancellor, the Regional Court maintained its previous findings unchanged. It considered that Mr. Lingens’ criticisms went far beyond the question of Mr. Kreisky’s attacks on Mr. Wiesenthal. The fact that the former had been able to prosecute the applicant but could not himself be prosecuted for defamation by Mr. Wiesenthal was due to the existing legislation on parliamentary immunity. The obligation to prove the truth of his statements was also based on the law and it was not for the courts but for the legislature to make this proof less difficult. Nor was the Regional Court responsible for the lack of tolerance and the litigious tendencies of certain politicians. It therefore passed the same sentence as in the original judgment (see paragraph 21 above). 27. Both sides again appealed to the Vienna Court of Appeal, which gave judgment on 29 October 1981; it reduced the fine imposed on the applicant to 15,000 Schillings but confirmed the Regional Court’s judgment in all other respects. 28. Mr. Kreisky disputed the statement that different criteria applied to private life and to political life. He argued that politicians and private individuals should receive the same treatment as regards the protection of their reputation. The Court of Appeal, however, pointed out that Article 111 of the Criminal Code applied solely to the esteem enjoyed by a person in his social setting. In the case of politicians, this was public opinion. Yet experience showed that frequent use of insults in political discussion (often under cover of parliamentary immunity) had given the impression that statements in this field could not be judged by the same criteria as those relating to private life. Politicians should therefore show greater tolerance. As a general rule, criticisms uttered in political controversy did not affect a person’s reputation unless they touched on his private life. That did not apply in the instant case to the expressions "minimum requirement of political ethics" and "monstrosity". Mr. Kreisky’s appeal was therefore dismissed. 29. The Court of Appeal then turned to Mr. Lingens’ grounds of appeal and first of all examined the evidence taken at first instance, in order to decide in what capacity Mr. Kreisky had been subjected to his criticism. It too found that he was criticised in his capacity both as a party leader and as a private individual. The expression "the basest opportunism" meant that the person referred to was acting for a specific purpose with complete disregard of moral considerations and this in itself constituted an attack on Mr. Kreisky’s reputation. The use of the words "had they been made by someone else" (see paragraph 12 above) could not be understood as a withdrawal of the criticism. As the defendant had not succeeded in proving the truth of it, the court of first instance had been right to find him guilty of an offence. According to the applicant, the expressions "immoral" and "undignified" were his personal judgment of conduct which was not disputed, a judgment made in exercise of his freedom of expression, guaranteed by Article 10 (art. 10) of the Convention. The Court of Appeal did not accept this argument; it pointed out that Austrian law did not confer upon the individual an unlimited right to formulate value-judgments and that Article 10 (art. 10) authorised limitations laid down by law for the protection, inter alia, of the reputation of others. Furthermore, the task of the press was to impart information, the interpretation of which had to be left primarily to the reader. If a journalist himself expressed an opinion, it should remain within the limits set by the criminal law to ensure the protection of reputations. This, however, was not the position in the instant case. The burden was on Mr. Lingens to establish the truth of his statements; he could not separate his unfavourable value-judgment from the facts on which it was based. Since Mr. Kreisky was personally convinced that Mr. Wiesenthal used "mafia methods", he could not be accused of having acted immorally or in an undignified manner. 30. The appeal judgment was published in Profil on 22 February 1982, as required by the accessory penalty imposed on Mr. Lingens and his publisher. | 1 |
train | 001-105436 | ENG | ROU | ADMISSIBILITY | 2,011 | PURICEL v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 1. The applicant, Ms Maria Elisabeth Puricel, is a Romanian national who was born in 1919 and lives in Anglikon, Switzerland. She was represented before the Court by Mr V. Puricel, a lawyer practising in Anglikon. The Romanian Government (“the Government”) were represented by their Agent, Mr. Răzvan Horaţiu Radu, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Ms Puricel practised as a lawyer in Romania until 7 March 1974, when she retired on the ground of having reached pensionable age. She received her pension from the Lawyers’ Insurance Fund (LIF) on a monthly basis until 1989, when she decided to leave the country and go to Germany. Pursuant to the national legislation in force at that time (Law no. 3/1977 and Decree no. 251/1978), those who left the country were compelled to give up the social and political rights conferred on them by the Romanian State. The applicant had thus renounced her pension rights while she also gave up her Romanian nationality. Consequently, by a decision of 27 July 1989, the LIF suspended the payment of the applicant’s pension rights on the grounds that she was about to move abroad and had given up her Romanian nationality. 4. On an unspecified date the applicant moved to Switzerland, where she resides at present. Upon her request, on 7 December 2001 the Romanian Consulate in Bonn granted the applicant Romanian citizenship. 5. The Romanian legislation applicable to the assessment of pension entitlements, Law no. 3/1977 regulating the national pension system and Decree-Law no. 251/1978 regarding the lawyers’ pension system, were repealed on 1 April 2001 and on 28 May 2001 respectively, when the amending Law no. 19/2000 and the Statute of the Lawyers’ Insurance Fund were respectively adopted. The new regulations removed the Romanian nationality and residence criteria from the conditions decisive for the payment of a pension. 6. On 1 December 2001 the applicant lodged her application for the resumption of pension payments, which was registered in due form by the LIF on 14 January 2002. On 26 June 2002 the LIF allowed the above-mentioned application and granted the applicant the payment of her pension, starting from 1 December 2001, as requested. 7. On 16 August 2002 the applicant contested this decision, claiming that she had retroactive entitlement to a pension, which should be calculated and updated for the previous three years (starting from 1999, three years being the general cut-off period for pecuniary claims). The LIF gave a decision on 18 September 2002 allowing the claims in part. The pension was calculated as of 1 June 2001, the reference date when the new legislation became applicable to the applicant’s case. The reasoning put forward by the LIF in rejecting the claims from 1999 to 1 June 2001 was that the legislation in force until 28 May 2001 had not provided for payment of pensions to persons who did not have Romanian citizenship and/or did not reside in Romania. Once the new legislation had come into force, on 28 May 2001, the nationality and/or residence criteria for a person’s entitlement to payment of a pension had been removed. Furthermore, Article 76 of the Statute of the LIF prescribed that pension payments were to resume, on request, the month following the month when the ground for their suspension ceased. Taking into account the entry into force of the Statute, the payment of the applicant’s pension would become operative as of 1 June 2001. The applicant’s pension was calculated and updated in accordance with the lex specialis, Law no. 19/2000. 8. The applicant contested this decision before the Bucharest County Court on 15 October 2002. On 10 December 2002, she amended her request to claim that she had become entitled to her pension rights on 1 January 1990. She argued that her renunciation of Romanian nationality and residence, and implicitly the payment of her pension, had been determined exclusively by the unfair legislation in force during the communist regime. From 1 January 1990, that legislation had lapsed, hence the suspension of her rights should be considered to have terminated and the payments resumed as of right. In support of this claim, she also invoked Article 8 of the Statute, asserting that lawyers’ pension rights were not subject to negative prescription. Consequently, her pecuniary claims were not timebarred, the general cut-off period of three years being inapplicable. The applicant also contested the LIF’s method of recalculating her pension in that she considered that the readjustment should have been made on the basis of the inflation rate and not in accordance with the specific methods stipulated in the pension lex specialis no. 19/2000. Furthermore, the applicant also complained that from June until December 2001 she had had to pay taxes on her newly set income, even though, as she did not reside in Romania, she was not a taxpayer within the meaning of the relevant law, OG no. 73/1999 and under Law no. 29/2002 and Law 60/1994 for avoiding double taxation. Consequently, she requested reimbursement of the money deducted as tax from her pension revenue. 9. On 24 June 2003, the Bucharest County Court dismissed her claims, upholding the LIF’s decision and reasoning. The applicant’s submission regarding the lapse of the applicable legislation after the fall of the communist regime, that is, Law no. 3/1977 and Decree no. 251/1978, was rejected by the court, which held that the above-mentioned legislation had been officially repealed once the new pension Law no. 19/2000 and the Statute of the LIF had come into force, namely, on 1 April 2001 and 28 May 2001 respectively. Therefore, applying the tempus regit actum principle and in so far as the applicant had not complied with the statutory conditions (Romanian citizenship and/or residence), the first-instance court considered that the applicant had not proved that she had a substantive right to receive a pension for the period of time in question. With regard to her claims concerning the pension readjustment, the court held that as long as there was a lex specialis establishing a specific method of adjusting the amounts of all pensions (recorelare), the general principles of adjusting pecuniary claims in line with the inflation rate could not be taken into consideration. The courts further held that the applicant was subject to Romanian taxation as long as she had obtained the income in question in Romania and had not proved that she was actually paying taxes in another country. 10. The applicant filed an appeal on points of law with the Bucharest Court of Appeal. She challenged the lower court’s reasoning, asserting that her pension rights had first been acknowledged in 1974 and had never ceased to exist, despite the changes in her nationality and residence and despite the fact that her enjoyment of those rights had been interfered with from 1989 onwards. Consequently, the suspension of the payment of her pension had to be considered as a wrongful act that should have terminated once the communist regime had fallen. 11. By a decision rendered on 10 February 2004, the court dismissed the appeal. It held that since the LIF’s Statute removing the citizenship and/or residence requirement had come into force on 28 May 2001, it was only from the next month, in accordance with Article 76, that the applicant was entitled to have the payment of her pension resumed. In so far as the applicable legislation before 28 May 2001 had provided that Romanian nationality and/or residence was a mandatory and decisive condition for pension payments, the applicant had not proved that she was eligible for payment of a pension in respect of the earlier period. 12. a) Law no. 3/1977 regarding the pension system and other social security rights and assistance came into force on 1 July 1977; it was repealed on 1 April 2001, once the new “pension law” no. 19/2000 came into force. Section 1 stated that every Romanian citizen who had worked for the system was entitled to pension rights. b) Decree no. 251/1978 regarding the lawyers’ pension system and other relevant social-security rights came into force on 14 July 1978, and was repealed on 28 May 2001. Article 49 provided that payment of the pension and all other relevant rights would be suspended as long as the retired person had his/her residence established in a foreign country. c) The Lawyers’ Insurance Fund Statute came into force on 28 May 2001; Article 78 stipulates that payment of suspended pensions will be resumed on request, starting on the first day of the month following the month in which the ground for the suspension ceased to exist. Article 8 of the Statute provides that lawyers’ social-security rights are not subject to negative prescription. 13. Article 69 of the 1952 International Labour Organisation’s Social Security (Minimum Standards) Convention 1952 (“the 1952 ILO Convention”) provides that benefits to which a protected person would otherwise be entitled in compliance with the 1952 ILO Convention (including old age benefits) may be suspended, in whole or in part, by national law as long as the person concerned is absent from the territory of the State concerned. The above provision is echoed in Article 68 of the 1964 European Code of Social Security and Article 74(1)(f) of the 1990 European Code of Social Security (Revised). | 0 |
train | 001-59565 | ENG | GBR | CHAMBER | 2,001 | CASE OF PRICE v. THE UNITED KINGDOM | 1 | Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Nicolas Bratza | 7. The applicant is four-limb deficient as a result of phocomelia due to thalidomide. She also suffers from problems with her kidneys. On 20 January 1995, in the course of civil proceedings in Lincoln County Court for recovery of a judgment debt, she refused to answer questions put to her concerning her financial position and was committed to prison for seven days for contempt of court. In the applicant's recollection, the judge ordered that she should be taken directly to Wakefield Prison. Before leaving the court the applicant asked a court officer if she could take the battery charger for her wheelchair with her. She alleges that the officer told her that this would be considered a luxury item and that she would not, therefore, be able to bring it. 8. Because the applicant's case had been heard during the afternoon of 20 January 1995, it was not possible to take her to prison until the next day and she spent that night in a cell in Lincoln Police Station. This cell, which contained a wooden bed and a mattress, was not specially adapted for a disabled person. The applicant alleges that she was forced to sleep in her wheelchair since the bed was hard and would have caused pain in her hips, that the emergency buttons and light switches were out of her reach, and that she was unable to use the toilet since it was higher than her wheelchair and therefore inaccessible. 9. The custody record states that on arrival, at 7.20 p.m., the applicant informed the custody officer that she suffered from kidney trouble and a recurring ear infection but that she did not require any medication or to see a doctor at that time. At 7.50 p.m. she declined a meal and a hot drink. At 8.50 p.m. the applicant said she was cold so the officer wrapped her in two blankets. When she was checked on again at 9.15 p.m. the applicant was still complaining of being cold. At 9.35 p.m., since she was still cold and had a headache caused by the cold, another blanket was wrapped around her. She was offered a hot drink which she refused. The applicant was asleep at 10 p.m., but by 10.50 p.m. she was awake again, complaining about the cold, and again refused a hot drink. At 11.15 p.m. she asked to see a doctor, who arrived at 11.50 p.m. The doctor's note of his examination of the applicant at 12.35 a.m. states: “Patient complained of feeling cold, headache and queasy (no food since admission – offered but refused). Talking quite sensibly, not obviously hypothermia, seated in wheelchair. Tells me unable to lie flat and sleeps on sofa, sitting up, at home. On Erythromycin for ear infection. On examination ears NAD Nystigmus J36. Unfortunately the facilities available in the cells for this type of disabled person (sic). Really requires a room temp in the high 70's as not moving/not able to move around. Insulated with 'space blanket' and extra blankets. Offered/given Paracetamol and [bn] stemetil as no co-proxamol available.” 10. According to the custody record, the applicant slept until 7 a.m., when she was moved to another cell and offered food and drink, which she refused. At 8.30 a.m. she was taken to New Hall Women's Prison, Wakefield, where she was detained until the afternoon of 23 January 1995. 11. The applicant was not placed in a normal cell in New Hall, but was instead detained in the prison's health care centre. Her cell had a wider door for wheelchair access, handles for the disabled in the toilet recess and a hydraulic hospital bed. On arrival at the prison the applicant completed a medical questionnaire. She stated that she had health worries but that they were “under control – takes it as it comes”. Staff Nurse Broadhead, who countersigned the questionnaire, wrote: “Admitted into hospital mainly for mobility problems. Inmate has thalidomide and uses an electric wheelchair which would be difficult to use in the main prison due to steps e.g. to dining room. Has not brought chair charger with her as she says police wouldn't let her. She suffers from urological problems and has intermittent renal failure ... Is able to feed herself if food is cut up, is able to use cup. Manages on and off the toilet to P.U. [pass urine] but will need assistance with B.O. [opening bowels] in order to clean herself. Usually sleeps on a couch at home and her dog helps her up during the night. Will need assistance here during the night to get off bed to use the toilet. Will try to use the hospital bed with backrest out. Contacted Dr Rhodes re help for night nurse. Memo done to Night Orderly Officer and Security re assistance at night and need to unlock ... She is allergic to many antibiotics ... Needs frequent changes of clothes due to urinary problems. Has settled into unit and eaten dinner. PS: Cannot be lifted in normal fashion as she has a persistently dislocated shoulder due to an old injury.” 12. The applicant was examined by Dr Kidd, whose notes stated: “New reception. Thalidomide victim with numerous deformities including absent arms upper/lower with dislocating L shoulder and no use in R upper limb. Both lower limbs are absent with small feet. Bladder – is unable to empty completely and gets frequent retentions (when she needs catheterisation) and infection ... Bowels – ... unable to manually clean herself. At home she is relatively independent tho' has numerous services including electric wheelchair – which may need recharging over W/E [weekend]. In hospital has difficulty with bed – too high sink – unable to reach mobility – battery running down fluid intake – likes to take juice and there is none diet – vegetarian general hygiene – needs help ... Needs: fluid intake batteries recharged adequate temperature ...” 13. A “continuous medical record” on the applicant was kept during her detention. The first entry, dated 21 January 1995, stated: “I asked duty Governor, Mr Ellis, to give permission for a battery charger for Adele's wheelchair to be brought in if we could arrange it. He agreed to this and whilst here we pointed out the numerous problems staff may encounter with this inmate i.e. (1) Needs lifting in and out of bed and she says this is usually done by one person standing behind her with arms around her midriff then lifting her either onto the bed or onto her wheelchair. (2) She has, at home, a device worked by compression that gets her in and out of the bath. If she doesn't have a daily bath she risks developing sores, especially where her foot lies across her 'leg'. (3) Because of recurrent urinary infections she should take two litres of fluid daily but usually has juice and doesn't like water, therefore will probably reduce her fluid intake. After some consideration Mr Ellis decided that if we could find Adele a suitable place in outside hospital he would licence her to go, but we do not have any medical condition to admit her to hospital with. Dr Kidd will review Adele tomorrow, as he thinks there is a likelihood she will develop a UTI [urinary tract infection].” 14. The nurses who cared for the applicant during her detention kept a contemporaneous record, which stated for the night of 21 January 1995: “Impossible to toilet during the night. Have been into Adele's cell twice. Took over 1/2 hour to toilet her then could not get her back on the bed. Given analgesia and she is getting a great deal of pain through lying on a solid mattress. Very difficult to care for her with one nurse.” 15. The applicant alleged that on the evening of 21 January 1995 she was lifted onto the toilet by a female prison officer, but was then left sitting on the toilet for over three hours until she agreed to allow a male nursing officer to clean her and help her off the toilet. The Government submitted that on 21 January 1995 there was only one female nurse on duty, Nurse Lister, and that she enlisted the help of two male members of staff, Senior Officer Tingle and Officer Bowman, and that the two male members of staff assisted Nurse Lister in sitting the applicant up and then left the room while the applicant moved her bowels. Nurse Lister then cleaned the applicant and laid her back down. It is unclear from the Government's submissions whether Senior Officer Tingle and Officer Bowman were nursing staff or whether they were prison officers without nursing qualifications. The applicant further claimed that later that evening, a female nurse who was assisting her onto the toilet removed her bedclothes in the presence of two male prison nursing officers, thereby exposing her, naked from the chest down, to the male officers. The Government denied that these incidents occurred. They pointed out that prior to her release the applicant made a complaint to the prison governor concerning the lack of adequate facilities, but containing no mention of the above events. 16. An agency nurse was employed to care for the applicant during the night of 22 to 23 January 1995. The entries in the nursing record for 22 January stated: “Says she finds bed uncomfortable and there is a risk of her developing bed sores, but she is not completely immobile and is able to shift her weight about the bed. No problems with diet but fluid intake diminished due to her not liking water. There is a need for us to separate Adele's little whims from her genuine problems. Bowels opened, says she's in retention and has not PU'd [passed urine] since 01.00 hours, refusing to drink water, refuses to get ready for bed until 8 p.m. Night – 21.50 asked to be put to bed. When asked why she was not in bed says day staff said agency nurse was going to wash her and put her to bed. 23.10 asked to be moved as she was having pains in 'legs'. Coproximol given and sat up. Settled and slept later. Has not PU. Has been drinking.” 17. The remission provisions in sections 45 and 33 of the Criminal Justice Act 1991 meant that the applicant had only to serve half the sentence imposed, namely, three and a half days. Prior to her release, on 23 January 1995, the applicant was examined by Dr Kidd who found she needed catheterising due to urine retention. The medical record stated: “For release this afternoon as soon as transport arrangements can be made. ... To have bath and bladder emptied via catheter before leaving. When asked if she had any specific medical complaints – she only asked for a bath and to be catheterised. She had some complaints about her sleeping arrangements. Said that Gv. Mr Ellis had said that she could sleep on a chair and have her cell door open all night. Given that she is due for release today she said her Governor's application was immaterial. ...” 18. The applicant was collected from prison by a friend. She claimed to have suffered health problems for ten weeks as a result of her treatment in detention, but has not provided direct medical evidence in support of this claim. 19. On 30 January 1995 the applicant consulted solicitors with a view to bringing an action in negligence against the Home Office. She was granted legal aid, limited to obtaining evidence and seeking counsel's opinion as to merits and quantum. In his opinion dated 6 March 1996, her counsel referred to the difficulties which the applicant was likely to face in proving that she had suffered the ill-treatment which she alleged, and referred to a judgment of the High Court (Knight and Others v. Home Office and Another [1990] 3 All England Law Reports 237) which held that, given the lack of resources, the standard of care required of a prison hospital was lower than that which would be required in an equivalent outside institution. Counsel advised that, in the light of this case-law and the difficulties of proof which she faced, the applicant had a limited prospect of success in her claim and that, even if successful, damages were not likely to exceed 3,000 pounds sterling. In the light of this advice, the applicant's legal aid certificate was discharged on 13 May 1996. 20. It is not normal practice for the County Court to give any direction as to where a particular defendant should be detained. Section 12(1)-(2) of the Prison Act 1952 provides that it is for the Secretary of State to allocate a prisoner to any prison: “12 (1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison. (2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct, and may by the direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.” | 1 |
train | 001-81877 | ENG | NLD | ADMISSIBILITY | 2,007 | KANZI v. THE NETHERLANDS | 4 | Inadmissible | Corneliu Bîrsan;David Thór Björgvinsson | The applicant, Mr Antonio Kialauda Kanzi, is a Dutch national who was born in 1980 and lives in Meerssen. He was represented before the Court by Mr J.W. Heemskerk, a lawyer practising in Maastricht. On 11 February 2004, the applicant was arrested and taken into police custody (inverzekeringstelling) on suspicion of trafficking drugs. On 13 February 2004, after having heard the applicant, the investigating judge (rechter-commissaris) ordered the applicant’s detention on remand (inbewaringstelling) for a period of ten days. The reasons stated by the investigating judge were: “It appears from the case-file that there are serious indications against the suspect (there is more than a mere suspicion). There are weighty reasons of public safety that warrant detention on remand, namely: detention on remand is necessary because there exists a justified fear for recidivism: there is namely a substantial possibility that the suspect will commit an offence which, according to the legal definition, attracts a prison sentence of six years or more; (there is fear for recidivism), which appears from the circumstance: - that there are reasons to believe that the suspect is involved in drug trafficking, which trade is so lucrative that the suspect will be unable or unwilling to do without this source of income.” On 19 February 2004, after having heard the applicant, the Maastricht Regional Court (arrondissementsrechtbank) ordered the applicant’s further detention on remand (gevangenhouding) for a period of thirty days, holding: “The Regional Court considers that, after examination, it has appeared that the suspicion, indications and ground, which have led to the order for detention on remand (bevel tot bewaring), currently still exist.” On 18 March 2004, after having heard the applicant, the Maastricht Regional Court prolonged the applicant’s detention on remand by a further thirty days. It held: “The Regional Court considers that, after examination, it has appeared that the suspicion, indications and grounds, which have led to the order for the suspect’s further detention on remand (bevel gevangenhouding), currently still exist.” The applicant’s appeal against the decision of 18 March 2004 – in which he relied inter alia on the Court’s considerations in the case of Guzzardi v. Italy, (judgment of 6 November 1980, Series A no. 39, p. 38, § 102) – was rejected on 8 April 2004 by the ‘s-Hertogenbosch Court of Appeal (gerechtshof). It upheld the impugned decision, holding: “considering that the Court of Appeal concurs with the above-cited ruling and the grounds on which it is based, on the understanding that the [applicant’s] pre-trial detention is also based on the following weighty reason of public safety, namely: it concerns suspicion of a fact which, according to the legal definition, attracts a prison sentence of twelve years or more and this fact has seriously rocked the legal order, consequently the appeal must be dismissed.” By judgment of 19 May 2004, following a hearing held on 6 May 2004, the Maastricht Regional Court convicted the applicant of two counts of drug offences and, in accordance with the provisions of inter alia Articles 10 and 11 of the Opium Act (Opiumwet), sentenced him to eight months’ imprisonment of which four were suspended pending a two years’ probationary period, and with deduction of the time spent in pre-trial detention. In addition, it imposed a fine of 800 euros. In the determination of its sentence, the Regional Court took into account that the applicant had never been convicted previously of a drug offence. Although the applicant could have filed an appeal against this judgment, he did not do so. Article 133 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) defines pre-trial detention (voorlopige hechtenis) as deprivation of liberty pursuant to an order for detention on remand (inbewaringstelling), a warrant for the taking into pre-trial detention (gevangenneming) or an order for further detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP. Article 67 of the CCP reads as follows: “1. An order for pre-trial detention can be issued in case of suspicion of: (a) an offence which, according to the law, carries a punishment of imprisonment of four years or more; (b) one of the offences defined in Articles 132, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 318, 321, 323a, 326, 326a, 326c, 395 and 417bis and 420quater of the Criminal Code; (c) one of the offences defined in: - Article 175 § 2, part b, of the 1994 Road Traffic Act (Wegenverkeerswet); - Article 30 § 2 of the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag); - Articles 52, 53 § 1 and 54 of the Military Service (Conscientious Objectors) Act (Wet gewetensbezwaren militaire dienst); - Article 31 of the Betting and Gaming Act (Wet op de kansspelen); - Article 11 § 2 of the Opium Act; - Article 55 § 2 of the Weapons and Ammunition Act (Wet wapens en munitie); - Article 46 of the 1995 Securities Transactions (Supervision) Act (Wet toezicht effectenverkeer). 2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the regional courts and which, according to the law, is punishable by imprisonment. 3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.” Article 67a of the CCP reads: “1. An order based on Article 67 can only be issued: a. if it is apparent from particular behaviour displayed by the suspect, or from particular circumstances concerning him personally, that there is a serious danger of absconding; b. if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty. 2. For the application of the preceding paragraph, only the following can be considered as a serious reason of public safety: - 1o. if it concerns suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act; - 2o. if there is a serious risk the suspect will commit an offence which, according to the law, carries a prison sentence of six years or more or whereby the security of the State or the health or safety of persons may be endangered, or give rise to a general danger to goods; - 3o. if it concerns suspicion of one of the offences defined in Articles 310, 311, 321, 322, 323a, 326, 326a, 416, 417bis, 420bis or 420quater of the Criminal Code, whereas less than five years have passed since the day on which, on account of one of these offences, the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty, a measure entailing restriction of liberty or community service, and there is further a serious risk that the suspect will again commit one of those offences; - 4o. if pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect. 3. An order for pre-trial detention shall not be issued if there are serious prospects that, in case of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that he, by the enforcement of the order, would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure.” Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP). Pre-trial detention in the form of an order for detention on remand of a suspect may be issued by the investigating judge for a maximum duration of ten days (Articles 63 and 64 of the CCP). Under Article 65 of the CCP, a subsequent prolongation of pre-trial detention may be ordered by the Regional Court in the form of an order for further detention on remand for a maximum duration of thirty days. In case the trial proceedings have not started within the thirty days’ validity of an order for further detention on remand, the Regional Court can prolong it twice, each time for a maximum of thirty days (Article 66 § of the CCP). Article 69 § 1 of the CCP reads: “An order for pre-trial detention may be lifted by the Regional Court. It may do so of its own motion or upon the request of the suspect, or – in so far as it concerns an order for ... further detention on remand – upon a proposal from the investigating judge or a request by the public prosecutor.” Article 71 of the Code of Criminal Procedure, in so far as relevant, states: “1. Within a maximum of three days after its execution, the suspect may file an appeal with the Court of Appeal against a decision of the Regional Court ordering further detention on remand ... 2. Within the same time-limit, the suspect may file an appeal against an extension of an order for further detention on remand, but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order ...” Article 87 §§ 2 and 3 of the CCP, in so far as relevant, provides: “2. The suspect, who has requested for the first time to suspend (schorsing) or to lift (opheffing) an order for pre-trial detention, may file an appeal with the Court of Appeal against a negative decision on that request. The suspect, who has filed an appeal against a negative decision on a request for suspension, cannot subsequently file an appeal against a negative decision on a request to lift a pre-trial detention order. The suspect, who has filed an appeal against a negative decision on a request to lift a pre-trial detention order, cannot subsequently file an appeal against a negative decision on a request for suspension of pre-trial detention.” | 0 |
train | 001-102173 | ENG | HRV | CHAMBER | 2,010 | CASE OF SAVEZ CRKAVA "RIJEC ZIVOTA" AND OTHERS v. CROATIA | 2 | Remainder inadmissible;Violation of Art. 14+9;Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicants are churches of a Reformist denomination which are registered as religious communities under Croatian law and which have their seats in Zagreb (the first and second applicant churches) and Tenja (the third applicant church). 6. The first applicant church has been present in Croatia since 1993, the second since 1989 and the third since the sixteenth century as part of the Reformed Church and since 2001 as an independent church. The applicant churches were entered in the register of religious communities in Croatia on 18 December 2003 (the first applicant church), 3 December 2003 (the second applicant church) and 14 October 2003 (the third applicant church), in accordance with the Religious Communities Act. 7. On 21 June 2004 the applicant churches submitted a request to the Government’s Commission for Relations with Religious Communities (Komisija za odnose s vjerskim zajednicama – “the Religious Communities Commission”) in order to conclude an agreement with the Government of Croatia, as envisaged in section 9(1) of the Religious Communities Act (see paragraph 18 below), which would regulate their relations with the State. They explained that without such an agreement they were unable to provide religious education in public schools and nurseries, to provide pastoral care to their members in medical and social-welfare institutions, as well to those in prisons and penitentiaries, or to perform religious marriages with the effects of a civil marriage. 8. On 23 December 2004 the Government of Croatia adopted an instruction (zaključak – “the Instruction”) setting out the criteria which religious communities had to satisfy in order to conclude such an agreement with it (see paragraph 19 below). 9. In a letter of 12 January 2005 the Religious Communities Commission informed the applicant churches that they did not satisfy, either individually or jointly, the historical and numerical criteria set out in the above Instruction, that is to say, that they had not been present in the territory of Croatia since 6 April 1941 and that the number of their adherents did not exceed 6,000 (see paragraph 19 above). Referring to section 21 of the 2003 Health Care Act (see paragraph 21 below) and sections 14, 78(1) and 95 of the Enforcement of Prison Sentences Act (see paragraphs 23-26 below), it also remarked that members of religious communities which had not concluded the relevant agreement with the Government of Croatia had a right to receive pastoral care in medical and social-welfare institutions as well as in prisons and penitentiaries. 10. On 10 February 2005 the applicant churches submitted another request to conclude an appropriate agreement with the Government of Croatia, this time addressing it to the Prime Minister directly. 11. In a letter of 15 June 2005 the Religious Communities Commission replied to the applicant churches’ request of 10 February 2005, informing them again that they did not satisfy, either individually or jointly, the criteria set forth in the Instruction of 23 December 2004, this time without specifying which particular criteria had not been met. It again referred to section 21 of the 2003 Health Care Act and sections 14, 78(1) and 95 of the Enforcement of Prison Sentences Act, reiterating its opinion that the members of religious communities which had not concluded appropriate agreements with the Government of Croatia had a right to receive pastoral care in medical and social-welfare institutions and in prisons and penitentiaries. 12. The applicant churches then lodged a request for the protection of a constitutionally guaranteed right (zahtjev za zaštitu ustavom zajamčenog prava) with the Administrative Court (Upravni sud Republike Hrvatske) against the Religious Communities Commission’s refusal of 15 June 2005, in accordance with section 66 of the Administrative Disputes Act (see paragraph 28 below). They argued that the refusal, even though it had been given in the form of a letter, constituted “an individual legal act” (that is, a decision), within the meaning of section 66 of the Administrative Disputes Act, that had violated their constitutional right to equality of all religious communities before the law, as guaranteed by Article 41 of the Constitution (see paragraph 16 below). 13. On 12 October 2006 the Administrative Court declared their action inadmissible, holding that the Religious Communities Commission’s refusal did not constitute “an individual act” for the purposes of section 66 of the Administrative Disputes Act, and thus was not susceptible to that court’s review. 14. The applicant churches then lodged a constitutional complaint, relying again, inter alia, on Article 41 of the Constitution and alleging a violation of their constitutional right to equality of all religious communities before the law. On 1 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant churches’ constitutional complaint, finding, inter alia, that Article 41 of the Constitution was not applicable in the particular case. 15. Meanwhile, on 30 September 2005 the applicant churches filed a petition with the Constitutional Court for an abstract review of constitutionality and legality, asking it to examine the conformity of the Instruction of 23 December 2004 with the Religious Communities Act and Article 41 of the Constitution. On 5 June 2007 the Constitutional Court declared the applicant churches’ petition inadmissible, finding that the contested Instruction was not subordinate legislation susceptible to a review of constitutionality and legality. 16. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows: “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” “Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health. Every restriction of the rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.” “Freedom of conscience and religion and freedom to profess faith or other belief publicly shall be guaranteed.” “All religious communities shall be equal before the law and shall be separated from the State. Religious communities shall be free to, in accordance with the law, perform religious services publicly, open schools, educational and other institutions, social-welfare and charitable institutions and to administer them, and in their activities enjoy the protection and assistance of the State.” “International agreements in force, which were concluded and ratified in accordance with the Constitution and made public, shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes. ...” 17. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of the Constitution. 18. The relevant provisions of the Act on the Legal Status of Religious Communities (Zakon o pravnom položaju vjerskih zajednica, Official Gazette no. 83/2002 – “the Religious Communities Act”), which entered into force on 24 July 2002, read as follows: “A church or a religious community of a different name (hereafter ‘religious community’) within the meaning of this Act is a group of natural persons who exercise freedom of religion by the equal public performance of religious ceremonies and by other manifestations of their faith (hereafter ‘adherents’) and is entered in the register of religious communities in the Republic of Croatia.” “(1) Religious communities operating as legal persons on the day of the entry into force of this Act (hereafter ‘existing religious communities’) shall be entered in the register [of religious communities] upon their submission of an application for registration. (2) Congregations which on the day of the entry into force of this Act do not operate as religious communities or which are established after the entry into force of this Act (hereafter ‘newly established religious communities’) shall be entered in the register [of religious communities] upon their submission of an application for registration. An application for registration in the register [of religious communities] may be submitted by those congregations which, before submission of such an application, have operated for at least five years as associations with legal personality.” “(1) Issues of common interest for the Republic of Croatia and one or more religious communities may also be regulated by an agreement made between the Government of the Republic of Croatia and the religious community. (2) With a view to implementing [legal] instruments regulating relations between the State and religious communities, as well as other issues of interest for the status and operation of religious communities, the Government of the Republic of Croatia shall establish a Commission for Relations with Religious Communities.” (d) Religious education and teaching of religion in educational institutions “(1) In nurseries, at the request of parents or guardians, the curriculum of nursery education shall include teaching of religion. Teaching of religion shall be organised in accordance with the law and with an agreement between the religious community and the Government of the Republic of Croatia. (2) In elementary schools and high schools, at the request of parents or guardians of pupils younger than 15 years and on the basis of a joint declaration by students of 15 years of age or above and their parents or guardians, a religious education course shall be organised as an optional course in accordance with the prescribed curriculum and an agreement between the religious community and the Government of the Republic of Croatia.” (e) Pastoral care in medical and social-welfare institutions “The right of a religious community to provide pastoral care to its members in medical and social-welfare institutions shall be guaranteed. The manner of exercising this right shall be regulated by an agreement between the religious community and the founder of those institutions.” (f) Pastoral care in prisons and penitentiaries “The right of a religious community to provide pastoral care to its members in prisons and penitentiaries shall be guaranteed. The manner of exercising this right shall be regulated by an agreement between the religious community and the Government of the Republic of Croatia.” (g) Pastoral care in the armed forces and the police “A religious community shall have the right to provide pastoral care to its members serving in the armed forces and the police, as well as to other persons permanently employed in the armed forces and the police, and to members of their families under the conditions and in the manner regulated by an agreement with the Government of the Republic of Croatia.” 19. The Government of Croatia’s Instruction (zaključak) of 23 December 2004 setting out the criteria which religious communities have to satisfy in order to conclude an agreement with it (“the Instruction” – not published in the Official Gazette) reads as follows: “1. For the conclusion of an agreement on issues of common interest for the Republic of Croatia and one or more religious communities, made between the Government of the Republic of Croatia and a religious community, it is necessary for one or more religious communities wishing to conclude the agreement to satisfy one of the following two conditions: - they were active in the territory of the Republic of Croatia on 6 April 1941 and have continued to operate in continuity and legal succession, and the number of [their] adherents exceeds six thousand, according to the last census, - they are a historical religious community of the European cultural circle (Catholic Church, Orthodox Church, Evangelical Church in the Republic of Croatia, Reformed Christian Church in Croatia, Islamic Community in Croatia, Jewish Community in the Republic of Croatia). 2. A church or a religious community that secedes or has seceded from a church or a religious community shall be regarded as a new church or religious community, and its secession or establishment shall be taken as the beginning of its activities. 3. The Commission for Relations with Religious Communities shall be responsible for the implementation of this instruction.” 20. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007), which entered into force on 22 July 2003, read as follows: “Marriage shall be celebrated ... in a civil or a religious form.” “Marriage in religious form with the effects of civil marriage shall be performed by the minister of a religious community with which the Republic of Croatia has regulated legal issues in this respect.” “A marriage celebrated in religious form in accordance with the provisions of section 8 ... of this Act shall from the date of [its] celebration have all the effects of a civil marriage as prescribed by this Act.” 21. Section 21 of the former 2003 Health Care Act (Zakon o zdravstvenoj zaštiti, nos. 121/03, 48/05 (corrigendum), 85/06 and 117/08), which was in force between 6 August 2003 and 1 January 2009, provided that in the exercise of his or her right to health care, during a stay in a medical institution, every person had the right – in accordance with that Act and other subordinate legislation on compulsory health insurance – to a diet in accordance with his or her belief and the right to perform acts of worship in the areas provided for that purpose. In the case of death, everyone had the right to be treated in accordance with religious and other customs expressing piety to the deceased. 22. Section 22 of the new 2008 Health Care Act (Zakon o zdravstvenoj zaštiti, nos. 150/2008, 155/2009 and 71/2010), which entered into force on 1 January 2009, contains provisions identical to those of section 21 of the former 2003 Health Care Act (see the preceding paragraph). 23. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, nos. 128/99, 55/00, 59/00 (corrigendum), 129/00, 59/01, 67/01 (corrigendum), 11/02 (corrigendum), 190/03 (consolidated text), 76/07, 27/08 and 83/2009) provide as follows. 24. Section 14 provides that every prisoner has, under the conditions set forth in the Act, inter alia, the right to profess his or her faith and to consult an authorised cleric. 25. Section 78(1) provides that prisoners have the right to a diet in accordance with their religious demands, providing that such diet is feasible in the particular prison or penitentiary. 26. Section 95 provides that a prison or penitentiary where a large number of prisoners of the same faith are serving their sentences must provide their cleric, at least once a week, with an adequate place and time for worship. 27. The relevant provisions of the Act on the Government of the Republic of Croatia (Zakon o Vladi Republike Hrvatske, Official Gazette nos. 101/1998, 15/2000, 117/2001, 199/2003 and 77/2009 – “the Government of Croatia Act”), which entered into force on 5 August 1998, read as follows: “The Government shall issue decisions (odluke), rulings (rješenja) and instructions (zaključci) on matters that cannot be regulated by decrees. A decision shall be adopted to regulate particular issues within the competence of the Government or to order measures, give consent to or confirm acts of other authorities or legal entities, and to decide on other matters which cannot be regulated by subordinate legislation. An instruction shall be adopted to define the Government’s position on issues concerning the implementation of an established policy, and to determine the tasks of State administrative bodies. A ruling shall be adopted to decide on appointments or dismissals or other individual matters within the Government’s purview.” “Decrees and rules of procedure shall be published in the Official Gazette. They shall enter into force on the eighth day from the date of their publication, unless the instruments in question provide for some other date [as the date] of their entry into force. Decisions, rulings and instructions may be published in the Official Gazette if the Government so decides when adopting these instruments.” 28. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part provides 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, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.” 29. Sections 67-76 provide for special proceedings for the protection of constitutionally guaranteed rights and freedoms from unlawful factual (physical) acts of public authorities, if no other judicial remedy is available. Under the case-law of the domestic courts, the protection against unlawful “acts” also includes omissions (for example, the Administrative Court in its decision no. Us-2099/89 of 21 September 1989 and the Supreme Court in its decision no. Gž-9/1993 of 6 April 1993 held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful act” within the meaning of section 67 of the Administrative Disputes Act). 30. Section 67 provides that such proceedings are to be instituted by bringing an “action against an unlawful act” (tužba za zaštitu od nezakonite radnje) in the competent municipal court. The action must be brought against the public authority to which the factual act (or omission) is imputable (the defendant). 31. Section 73 provides that the court decides on the merits of the case by a judgment. If it finds in favour of the plaintiff, the court orders the defendant to desist from the unlawful activity and, if necessary, orders restitutio in integrum. 32. Section 74 provides that in proceedings following an “action against an unlawful act” the court is to apply, mutatis mutandis, the provisions of the Civil Procedure Act. 33. The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 35/2005 and 41/2008 – “the 2006 Obligations Act”), which entered into force on 1 January 2006 and abrogated the former 1978 Obligations Act (see the next paragraph), reads as follows: “(1) Every natural person or legal entity is entitled to the protection of its rights of personality (prava osobnosti) under the conditions provided by law. (2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc. (3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.” “If a party is bound by law to enter into a contract, the other interested party may request that the contract be entered into without delay.” “Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.” 34. The text of section 157(1) of the former 1978 Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments – “the 1978 Obligations Act”) was nearly identical to the text of section 1048 of the current 2006 Obligations Act, and read as follows: “Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality.” 35. Among Croatian legal scholars there is no consensus as to which rights, apart from those enumerated in section 19 of the Obligations Act, are to be considered rights of personality. It is, however, common ground that the following rights of natural persons fall into that category: the right to life, the right to physical and mental integrity (health), the right to liberty, the right to reputation and honour, the right to privacy of personal and family life, the right to secrecy of letters and personal manuscripts, the right to personal identity (in particular the rights to one’s image, voice and name) and the moral rights of the author. It would appear that only these rights have so far been interpreted as rights of personality by the Croatian courts in the application of section 157 of the former 1978 Obligations Act and section 19 of the current 2006 Obligations Act. The issue whether other rights guaranteed by the Constitution may, at this point, be qualified as rights of personality remains largely disputed. 36. The relevant part of the Anti-Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette, no. 85/2008), which entered into force on 1 January 2009, reads as follows: “Anyone who considers that his or her right has been violated because of discrimination may seek the protection of that right in the proceedings in which that right is being decided as the main issue, or may also seek protection in special proceedings referred to in section 17 of this Act.” “(1) A person claiming to be a victim of discrimination under the provisions of this Act shall be authorised to bring an action and seek: 1. a declaration that the defendant has violated the plaintiff’s right to equal treatment or that the activities the defendant has undertaken or failed to undertake may directly result in the violation of the right to equal treatment (action for declaration of discrimination); 2. the cessation of activities which violate or may violate the plaintiff’s right to equal treatment, or to undertake activities which eliminate discrimination or its consequences (action to desist from or eliminate discrimination); 3. compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (action for damages); 4. publication in the media of the judgment declaring the violation of the right to equal treatment, at the defendant’s expense. (2) Unless this Act provides otherwise, the court shall decide on claims referred to in paragraph 1 of this section by applying the provisions of the Civil Procedure Act. (3) Claims referred to in paragraph 1 of this section may be brought together with claims for the protection of other rights to be determined in civil proceedings if all those claims are interrelated and if the same court has jurisdiction based on subject matter in respect of them, regardless of whether such claims fall to be examined in regular or special civil proceedings, except in cases of disturbance of possessions. In that case, regulations relevant to the type of dispute in question shall apply, unless otherwise provided by this Act. (4) ...” 37. The relevant part of the Report on the Implementation of the Constitutional Act on the Rights of National Minorities and the Expenditure of Means Allocated in the State Budget of the Republic of Croatia for 2009 for the Needs of National Minorities (Izvješće o provođenju Ustavnog zakona o pravima nacionalnih manjina i o utrošku sredstava osiguranih u državnom proračunu Republike Hrvatske za 2009. godinu za potrebe nacionalnih manjina), which the Government of the Republic of Croatia submitted to the Croatian Parliament on 1 July 2010, reads as follows: “To date, the Republic of Croatia has concluded four international agreements [concordats] with the Holy See ... ... The Government of the Republic of Croatia also concluded six agreements on issues of common interest with churches and religious communities, and in this way has regulated relations with another 15 churches and religious communities. ... Churches which have regulated relations with the State of Croatia: 1. receive regular annual financial support, 2. can teach religion courses in schools, and teach religion in nurseries, 3. can celebrate marriage in religious form with the effects of a civil marriage. ... All other religious communities have the right to provide pastoral care in medical and social-welfare institutions, prisons and penitentiaries, as well as in the armed forces.” 38. The Government of Croatia has to date concluded agreements on issues of common interest, as envisaged in section 9(1) of the Religious Communities Act, with the following religious communities: - the Serbian Orthodox Church, on 20 December 2002 (Official Gazette, no. 196/2003); - the Islamic Community in Croatia, on 20 December 2002 (Official Gazette, no. 196/2003); - the Evangelical Church in the Republic of Croatia and the Reformed Christian Church in Croatia, on 4 July 2003 (Official Gazette, no. 196/2003); - the Evangelical (Pentecostal) Church in the Republic of Croatia (together with the associated Church of God in the Republic of Croatia and the Alliance of Pentecostal Churches of Christ in the Republic of Croatia), the Christian Adventist Church in the Republic of Croatia (together with the associated Seventh-day Adventists Reform Movement) and the Alliance of Baptist Churches in the Republic of Croatia (together with the associated Church of Christ), on 4 July 2003 (Official Gazette, no. 196/2003); - the Bulgarian Orthodox Church, the Croatian Old Catholic Church and the Macedonian Orthodox Church, on 29 October 2003 (Official Gazette, no. 196/2003), amended on 23 September 2004 (Official Gazette, no. 141/2004); and - the Jewish (Religious) Community Beth Israel in Croatia, on 24 October 2008. 39. Relations with the Catholic Church are regulated by four concordats concluded with the Holy See: - the Agreement between the Holy See and the Republic of Croatia on Legal Issues (Official Gazette – International Agreements, no. 3/1997); - the Agreement between the Holy See and the Republic of Croatia on Pastoral Care of Catholic Believers [who are] Members of the Armed Forces and the Police (Official Gazette – International Agreements, no. 2/1997), - the Agreement between the Holy See and the Republic of Croatia on Cooperation in the Field of Education and Culture (Official Gazette – International Agreements, no. 2/1997), - the Agreement between the Holy See and the Republic of Croatia on Economic Issues (Official Gazette – International Agreements, no. 18/1998). 40. According to the last census of 2001 the Bulgarian Orthodox Church has eight members, the Croatian Old Catholic Church 303 and the Macedonian Orthodox Church 211. | 1 |
train | 001-80953 | ENG | RUS | CHAMBER | 2,007 | CASE OF SMIRNOV v. RUSSIA | 3 | Violation of Art. 8;Violation of P1-1;Violation of Art. 13 | Christos Rozakis | 5. The applicant was born in 1956 and lives in St Petersburg. The applicant is a lawyer; at the material time he was a member of the St Petersburg United Bar Association (Санкт-Петербургская объединенная коллегия адвокатов). 6. On 20 January 1999 the St Petersburg City Prosecutor opened criminal case no. 7806 against Mr Sh., Mr G. and fifteen other persons who were suspected of forming and participating in an organised criminal enterprise and of other serious offences. 7. On 7 March 2000 Mr D., an investigator with the Serious Crimes Department in the prosecutor's office, issued a search warrant which read in its entirety as follows: “Taking into account that at the [applicant's] place of residence at the address [the applicant's home address] there might be objects and documents that are of interest for the investigation of criminal case [no. 7806], I order a search of the premises at the address [the applicant's home address] where [the applicant] permanently resides and the seizure of objects and documents found during the search.” 8. On the same day a St Petersburg deputy prosecutor approved the search and countersigned the warrant. 9. The Government claimed that the applicant had not been a party to criminal case no. 7806 and had not represented anyone involved. The applicant maintained that he had been a representative of: (a) Mr S., who had been first a suspect and later a witness in criminal case no. 7806. On 21 February 2000 the applicant had represented Mr S. before the Oktyabrskiy Court of St Petersburg in proceedings concerning a complaint about a decision by the investigator D. The applicant had also been S.'s representative in unrelated civil proceedings on the basis of an authority form of 25 May 1999; (b) Mr Yu., who had been a defendant in criminal case no. 7806 and whom the applicant had represented from 10 July to 25 December 1998; (c) Mr B., who had been the victim in a criminal case concerning the murder of his son. Subsequently that case had been joined to criminal case no. 7806. The applicant had represented Mr B. from 11 February to 23 March 2000; (d) Mr Sh., who had been a defendant in criminal case no. 7806 and whom the applicant had represented before the Court (application no. 29392/02). 10. On 9 March 2000 the investigator D., in the presence of the applicant, assisted by police officers from the Organised Crime District Directorate (РУБОП) and two attesting witnesses (понятые), searched the applicant's flat. According to the record of the search, the applicant was invited to “voluntarily hand over... documents relating to the public company T. and the federal industrial group R.”. The applicant responded that he had no such documents and countersigned under that statement. 11. The investigator found and seized over twenty documents which the applicant declared to be his own and the central unit of the applicant's computer. According to the record of the search, the applicant had no complaints about the way the search was carried out, yet he objected to the seizure of the central unit because it contained two hard disks and was worth 1,000 United States dollars. The seized documents included, in particular, Mr S.'s power of attorney of 25 May 1999 and extracts of a memorandum in Mr B.'s case. 12. On the same date the investigator D. held a formal interview with the applicant in connection with criminal case no. 7806. 13. On 17 March 2000 the investigator L. issued an order for the attachment of the documents seized at the applicant's flat and the central unit of his computer as “physical evidence” in criminal case no. 7806. 14. The applicant complained to a court. He sought to have the search and seizure of the documents declared unlawful. He claimed, in particular, that the central unit of the computer, his personal notebook and his clients' files and records were not related to the criminal case and could not be attached as evidence because the seizure had impaired his clients' defence rights. 15. On 19 April 2000 the Oktyabrskiy Court of the Admiralteyskiy District of St Petersburg heard the applicant's complaint. The court found that the search had been approved and carried out in accordance with the applicable provisions of the domestic law and had therefore been lawful. As to the attachment of the computer, the court ruled as follows: “...the purpose of the search was to find objects and documents in connection with a criminal case. During the search a number of documents and a computer central unit were seized; they were thoroughly examined by the investigator, as is evident from the record of the examination of the seized items and printouts of the files contained in the central unit. Accordingly, the above shows that the aim of the search has been achieved; however, the order to attach the seized objects and documents as evidence in the criminal case amounts to the forfeiture of the [applicant's] property which was taken from him and never returned, whereas [the applicant] was neither a suspect nor a defendant in the criminal case and was interviewed as a witness. Under such circumstances, the constitutional rights of the applicant, who was deprived of his property, were violated. Having achieved the purpose of the search and recorded the results received, the investigator, without any valid and lawful grounds, declared [the applicant's property] to be physical evidence...” 16. The District Court ordered that the applicant's documents, his notebook and the central unit be returned to him. 17. On 25 May 2000 the St Petersburg City Court quashed the judgment of 19 April 2000 and remitted the case for a fresh examination by a differently composed court. The City Court pointed out that the first-instance court had erroneously considered that the order for the attachment of objects as evidence amounted to the forfeiture of the applicant's property. 18. On 6 June 2000 the investigator returned the notebook and certain documents, but not the computer, to the applicant. 19. On 2 August 2000 the applicant brought a civil action against the St Petersburg City Prosecutor's Office and the Ministry of Finance, seeking compensation for the non-pecuniary damage incurred as a result of the seizure of his belongings. 20. On 17 August 2000 the Oktyabrskiy Court of St Petersburg held a new hearing on the applicant's complaint. The court ruled that the search of the applicant's flat had been justified and lawful and that the remainder of the applicant's complaints were not amenable to judicial review. 21. On 12 September 2000 the St Petersburg City Court quashed the judgment of 17 August 2000 and remitted the case for a fresh examination by a differently composed court. The City Court found that the first-instance court had failed to examine, in a sufficiently thorough manner, whether the investigator had had sufficient grounds to search the flat of a person who had not been charged with any criminal offence. 22. On 17 November 2000 the Oktyabrskiy Court of St Petersburg delivered the final judgment on the applicant's complaint. As regards the lawfulness of the search, the court found as follows: “The search warrant was issued because there were sufficient reasons [to believe] that [at the applicant's home address] where [the applicant] lived there could be objects and documents that could be used as evidence in connection with one of the counts in criminal case no. 7806. This fact was established by the court and confirmed by the materials in the case file, in particular, a statement by the investigator D[.] of 16 November 2000, the decision to bring charges of 22 February 1999, the decision to lodge an application for an extension of detention on remand of 10 July [? - unclear] 2000, letter no. 200409 of 22 September 1998 and other materials; therefore, the court comes to the conclusion that the search in [the applicant's] flat was justified under Article 168 of the RSFSR Code of Criminal Procedure...” 23. The court further established that the search had been carried out in strict compliance with the laws on criminal procedure. As regards the remainder of the applicant's claims, the court decided that it was not competent to examine them, but that it was open to the applicant to complain about the investigator's decisions to a supervising prosecutor. 24. On 19 December 2000 the St Petersburg City Court dismissed an appeal by the applicant. It upheld the District Court's finding that the search at the applicant's flat had been justified and procedurally correct and that the order to attach objects as evidence was not amenable to judicial review because such an avenue of appeal was not provided for in domestic law. 25. The applicant's civil claim for damages has not been examined to date. 26. Article 25 of the Constitution establishes that the home is inviolable. No one may penetrate into the home against the wishes of those who live there unless otherwise provided for in a federal law or a judicial decision. 27. The RSFSR Code of Criminal Procedure, in force at the material time, provided in Article 168 (“Grounds for carrying out a search”) that an investigator could carry out a search to find objects and documents that were of relevance to the case, provided that he had sufficient grounds to believe that such objects and documents could be found in a specific place or on a specific person. The search could be carried out on the basis of a reasoned warrant issued by an investigator and approved by a prosecutor. 28. Searches and seizures were to be carried out in the presence of the person whose premises were being searched or adult members of his family. Two attesting witnesses were to be present as well (Article 169). Any person having no interest in the case could be an attesting witness. Attesting witnesses were required to certify the scope and results of the search, and could make comments which were to be entered into the search record (Article 135). 29. A complaint against the actions of an investigator could be submitted either directly to a prosecutor or through the person against whom the complaint was lodged. In the latter case the person concerned was to forward the complaint to the prosecutor within twenty-four hours, together with his explanations (Article 218). The prosecutor was to examine the complaint within three days and give a reasoned decision to the complainant (Article 219). 30. On 23 March 1999, the Constitutional Court determined that decisions and actions of investigators and prosecutors relating to searches, seizure of property, suspension of proceedings and extension of time-limits for preliminary investigations should be amenable to judicial review on an application by the person whose rights had been violated. 31. Article 83 of the Code of Criminal Procedure defined physical evidence as “any objects that... carried traces of a criminal offence... and any other objects that could be instrumental for detecting a crime, establishing the factual circumstances of a case, identifying perpetrators or rebutting the charges or extenuating punishment”. 32. Physical evidence was to be retained until the conviction had entered into force or the time-limit for appeal had expired. However, it could be returned to the owner before that if such return would not harm ongoing criminal proceedings (Article 85). The court was to order the return of physical evidence to its legal owner in the final decision closing the criminal proceedings (Article 86). 33. Recommendation (2000) 21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows: “Principle I - General principles on the freedom of exercise of the profession of lawyer ... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ” | 1 |
train | 001-79105 | ENG | RUS | CHAMBER | 2,007 | CASE OF BULGAKOVA v. RUSSIA | 3 | Violation of Art. 6-1;Violation of P1-1;Just satisfaction reserved | David Thór Björgvinsson | 6. The applicant was born in 1933 and lives in Novosibirsk. 7. Since 1988, the applicant had been receiving an old-age pension. From February 1998, her pension was to be calculated under the Law on Calculating and Upgrading State Pensions. The law introduced a new method for calculating pensions. This method, “a pensioner's individual multiplier” was meant to link the pensioner's pension to his or her previous earnings. 8. The authority in charge of the applicant's pension, the Pension Fund Agency of the Zayeltsovskiy District of Novosibirsk, fixed the applicant's multiplier at 0.525. The applicant considered that the agency had misread the law, and that her multiplier should be higher. On an unspecified date in 1999 she challenged the agency's decision in a court. Thus, in her view the net underpayments from February 1998 until December 1999 amounted to 1,627.5 Russian Roubles, without taking into account the raise of the local cost of living index. 9. The case came before the Zayeltsovskiy District Court of Novosibirsk. On 21 October 1999 the court held for the applicant. It found that the agency had misread the law: as from 1 February 1998 the multiplier should have been 0.7. Consequently, the agency was ordered to recalculate the applicant's pension accordingly and pay it. 10. The agency appealed against the judgment, but on 14 December 1999 the Novosibirsk Regional Court dismissed the appeal, and the judgment came into force. On the same day the court issued a writ of execution where it invited the local branch of the Pension Fund to recalculate the applicant's old age pension, applying the multiplier 0.7, and pay it to the applicant. The enforcement proceedings against the Agency were initiated. The agency recalculated the pension in accordance with the judgment of 14 December 1999 and requested the federal Pension Fund to allocate respective amounts. 11. On 29 December 1999 the Ministry of Labour and Social Development had passed an Instruction on the Application of Limitations Established by the Law on Calculating and Upgrading State Pensions (hereinafter – “Instruction”). The Instruction clarified how to apply the law. 12. Some time thereafter a group of individuals challenged the Instruction before the Supreme Court. On 10 April 2000 the enforcement of the judgment in the applicant's favour was suspended in connection with the proceedings before the Supreme Court. On 24 April 2000 the Supreme Court dismissed the complaint. It found that contrary to what the plaintiffs suggested the Ministry of Labour had not trespassed its authority when it issued the Instruction, and that the Ministry's interpretation of the Pensions Law had been correct. On 25 May 2000 the Cassation Section of the Supreme Court upheld this judgment on appeal. 13. On 21 August 2000, the agency asked the District Court to re-open the case due to discovery of new circumstances. They argued that the interpretation of the law on pensions given by the Instruction was different from that of the Zayeltsovskiy District Court. Further, they referred to the decision of the Supreme Court of the Russian Federation which confirmed the lawfulness of the Instruction. The agency argued that it had not known about those facts until after the litigation, and that the case should therefore be reconsidered. 14. On 16 January 2001, the district court granted the agency's request and reopened the judgment under Article 333 of the Code of Civil Procedure. Under this Article, a court might reopen a judgment, if a party discovered significant circumstances that were not and could not have been known to this party during the litigation. 15. Having reconsidered the case, on 12 February 2001 the district court dismissed the applicant's claims in full. On 22 March 2001, the regional court upheld the judgment on appeal. 16. The Code of Civil Procedure of 1964 (“CCivP”), as in force at the material time, provided as follows: Article 333. Grounds for re-consideration “[Judgments] which have come into force may be re-considered on the basis of newly-discovered circumstances. The grounds for re-consideration ... shall be: 1. significant circumstances which were not and could not have been known to the party who applies for re-consideration;... 4. cancellation of a court [judgment] or of another authority's decision which served as legal basis for the [judgment] in question.” Article 334. Making of application “... [An application for re-consideration of a [judgment] due to newly-discovered circumstances] is to be made within three months after the discovery of the circumstances.” Article 337. Ruling on the re-reconsideration of the case “... The ruling ordering the re-consideration of the judgment ... due to newly-discovered circumstances is not subject to any appeal”. 17. On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (CCrP). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for re-consideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respect similar to Article 333 of the Code of Civil Procedure) was unconstitutional in that it limited the grounds for the re-opening of a criminal case by the situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice. | 1 |
train | 001-4513 | ENG | DNK | ADMISSIBILITY | 1,999 | KELLING v. DENMARK | 4 | Inadmissible | Christos Rozakis | The applicant is a German citizen, born in 1965. He resides at Malente, Germany. Before the Court he is represented by Anders Boelskifte, a lawyer practising in Copenhagen, Denmark. On 7 August 1994 the applicant was arrested in Copenhagen and charged with smuggling a large quantity of drugs, including approximately 1 kg of cocaine and 29 kg of hashish, which was found in the car used for the purpose when he was arrested by the police. On 8 August 1994 the applicant and three other presumed accomplices were heard by the City Court of Copenhagen (Københavns Byret). The applicant admitted having participated in two incidents of smuggling hashish and was detained pursuant to Section 762, subsection 1, of the Administration of Justice Act (retsplejeloven) on the basis of a fear that he would otherwise impede the investigation or evade prosecution. On 28 October 1994 during a remand hearing the applicant confessed to having participated in the smuggling of hashish into Denmark on four occasions. He denied all knowledge of the cocaine found in the car on 7 August 1994. On 6 July 1995 yet another accomplice to the applicant was heard by a court in Berlin in order to obtain evidence to be used in the case before the Danish courts involving the applicant. Despite the applicant’s protests on 21 July and 18 August 1995 before the City Court and on 20 November and 6 and 18 December 1995 before the High Court of Eastern Denmark (Østre Landsret) the courts decided to prolong his detention on remand. Whereas the first three of these decisions were based on the fear that the applicant would impede the investigation as well as on the fear that he would evade prosecution, the two last decisions were based solely on the latter. The applicant appealed against the High Court decisions of 6 and 18 December 1995 to the Supreme Court (Højesteret), invoking inter alia Articles 5 and 6 of the Convention. On 12 January 1996, however, the Supreme Court upheld the High Court’s decisions. In the meantime, on 3 October 1995, an indictment was served on the applicant. Following an amendment on 21 May 1996 he was charged with drug trafficking, having participated on five occasions from the end of June until 7 August 1994 in the smuggling of a total of approximately 120 kg of hashish into Denmark, and having participated, on the latter date, in the smuggling of approximately 1 kg of cocaine into Denmark. From 20 to 23 May 1996 the applicant and two accomplices were heard by the High Court, sitting with a jury. The applicant pleaded guilty as regards the smuggling of what he had believed amounted to a total of approximately 30 kg of hashish. He denied, however, all knowledge of the cocaine found in the car. On 23 May 1996 the jury found the applicant guilty only to the extent to which he had pleaded guilty. He was convicted in accordance with the jury’s verdict and sentenced to one year’s imprisonment. The following day, 24 May 1996, the applicant was expelled to Germany as he was considered as having served his sentence in detention on remand. The applicant did not appeal against the High Court judgment but subsequently, he brought a claim for compensation before the City Court of Copenhagen against the prosecution authorities, pursuant to Section 1018a of the Administration of Justice Act, for the time spent in detention on remand in excess of the sentence ultimately imposed on him. He claimed primarily 272,006.98 Danish Crowns (DKK) based on an assumption that he would have been released on parole after a certain period in accordance with usual practice. Alternatively, he claimed 211,817.42 DKK for the time spent in detention on remand in excess of his one year prison sentence without deduction. He invoked inter alia Articles 5 and 6 of the Convention. On 5 September 1997 the City Court, sitting with a professional judge and two lay judges, decided as follows: (Translation) “The Court finds, as argued by the prosecution, that the plaintiff has shown a considerable degree of contributory negligence by having smuggled several times without assuring himself of which drugs and quantities [of drugs] he smuggled. The plaintiff ought to have assured himself thereof in the light of his kingpin’s remark that he risked being charged for more than [the smuggling of] hashish and in the light of the fact that the car used the last time could contain more drugs than the car used the first times... The Court finds, furthermore, that in calculating a possible amount of compensation a fictitious date for release on parole cannot be taken into consideration. Two judges find that the proceedings before the prosecution authorities and the courts have been of such length that it would be unreasonable to refuse totally the plaintiff’s claim for compensation by reason of the contributory negligence which he has shown. These judges vote in favour of awarding [the applicant] 70,000 DKK in compensation plus interest, which is equivalent to approximately one third of his alternative claim. One judge finds that [the applicant’s] claim for compensation be refused by reason of his contributory negligence. Judgment will be pronounced in accordance with the opinion of the majority. It is held: Within 14 days the State must pay 70,000 DKK to [the applicant]. ...” The applicant did not appeal against this judgment. | 0 |
train | 001-106623 | ENG | ROU | CHAMBER | 2,011 | CASE OF AGACHE v. ROMANIA | 4 | Violation of Art. 6-1 | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 4. The applicant was born in 1970 and lives in Codlea. 5. During events on 22 December 1998 the applicant’s father was murdered. By a decision of 15 February 1999 the Bucharest County Court convicted of murder five individuals, namely, F.O.D.K, P.O., H.D., R.A. and K.I., all of whom had dual Hungarian/Romanian citizenship, and ordered the joint payment of damages of 50,000.000 Romanian Lei (ROL) to the applicant and other civil parties. The decision became final on 26 March 2001 by a decision of the Supreme Court. 6. On 26 July 2001 the applicant started enforcement proceedings through a local bailiff. 7. In 2002, during the enforcement proceedings, the authorities found that three of the debtors (P.O., F.O.D.K. and K.I.) had left Romania and established their residence in Hungary. 8. On 28 March 2002 the International Relations Office within the Romanian Ministry of Justice advised the applicant to lodge, pursuant to Article 46 (b) of the Agreement of 1958 between the Popular Republic of Romania and the Popular Republic of Hungary regarding judicial assistance in civil, family and criminal trials (hereinafter “the Treaty”), a request for international judicial assistance with the firstinstance court that had ruled on the matter, to be forwarded through the Ministry of Justice, which would also provide a translation of the request and the accompanying documents. 9. On 2 December 2002 the applicant made an exequatur request and, pursuant to Article 46 (b) of the Treaty, lodged it with the Bucharest County Court. He also requested an update of the amount of damages and its equivalent in Euros. 10. On 16 June 2003 the Bucharest County Court provided the update requested. Consequently, the applicant filed another exequatur request. 11. On 17 November 2003 the Bucharest County Court issued the exequatur requested in relation to the final decision of 2001 with respect to P.O., F.O.D.K. and K.I. and sent it to the Ministry of Justice. However, since authorised translations of all the accompanying documents were not enclosed with the request, in accordance with Article 48 of the Treaty, the Ministry of Justice sent it back to the Bucharest County Court requesting it to provide the translations at the plaintiff’s expense. 12. On 12 February 2004 the Bucharest County Court sent the certified translations into the Hungarian language of the required documents to the Minister of Justice. 13. On 5 March 2004 the Minister of Justice sent to its Hungarian counterpart the exequatur request relating to the final court decision of 2001. 14. In reply to requests by the applicant for information with respect to the state of the proceedings, the Ministry of Justice informed him on April 2005 that there had been no official answer from the Hungarian Authorities but that they would pursue their contact with the Hungarian authorities and keep him informed accordingly. 15. In 2006 and 2007 the applicant renewed his request for information regarding the state of the proceedings. 16. On 14 February 2007 the Ministry of Justice informed the applicant that they had requested information from their Hungarian counterpart. 17. On 12 April 2007 the Hungarian Ministry of Justice informed the Romanian Ministry of Justice that no exequatur request relating to a court decision from Romania had been registered in their data base. 18. Following a new request from the applicant regarding the state of the proceedings, the Ministry of Justice communicated that information to the applicant by a letter of 1 June 2007. 19. On 27 June 2007 the Ministry of Justice informed the applicant that he should lodge a new application. 20. On 24 July 2007 the applicant again requested an exequatur for the judgment of 2001 from the Bucharest County Court. 21. On 11 September 2007 the Bucharest County Court issued a new exequatur request based on the Hague Convention of 28 May 1970 on the International Validity of Criminal Judgments, ratified by Romania in 2000, and sent it to the Ministry of Justice. 22. On 16 October 2007 the Ministry of Justice informed the Bucharest County Court that Hungary had not ratified the said Convention. 23. The applicant renewed his request to the Romanian Ministry of Justice for information. 24. On 7 November 2007 the Bucharest County Court issued the exequatur request and sent it to the Romanian Ministry of Justice, which on 19 November 2007 sent it back to the County Court as incomplete. The Romanian Ministry of Justice forwarded the completed file to the Hungarian authorities on 10 December 2007. 25. Throughout the months of February and May 2008 the applicant submitted to the Romanian Ministry of Justice repeated requests for information as to the state of the proceedings. 26. On 12 June 2008 the Hungarian authorities informed the Romanian party that they had received the request and the accompanying documents; however the documents did not mention the addresses of the debtors in Hungary and for this reason they were not able to establish which authority was competent to deal with the request. 27. The Romanian Ministry of Justice provided this information on 16 June 2008 and 4 July 2008 respectively. 28. On 6 August 2008 the applicant requested the Bucharest County Court to attach the decision of 16 June 2003 (stating the updated amount of the debt) to the file in the exequatur proceedings. 29. On 9 September 2008 the Bucharest County Court asked the applicant to itemise his additional expenses. 30. On 29 September 2008 the Hungarian Ministry of Justice confirmed that the request for enforcement against F.O.D.K. had been forwarded to the competent court. However, they were not able to examine the enforcement request against K.J. as the file was not complete. 31. On 29 October 2008 the Romanian Ministry of Justice communicated to the Hungarian party the court decision of 16 June 2003 regarding the updated amount for damages, as well as the note on the additional expenses. 32. On 14 July 2009 the Hungarian party informed them that the Romanian court decision of 2001 had been declared enforceable against F.O.D.K. and a bailiff had been assigned. 33. On 31 July 2009 the Romanian Ministry of Justice was informed by its counterpart that with respect to the debtor P.O. the court dealing with the application required additional information from the Bucharest County Court. This information was forwarded by the Romanian Ministry of Justice on 27 January 2010. However, meanwhile, on 28 September 2009 the debtor P.O. died. 34. On 26 November 2009 the Hungarian Ministry of Justice informed the Romanian party that with respect to J.K. the firstinstance court had declared the decision enforceable on 4 June 2009. The appellate court had set aside the order on enforceability pending submission by the Romanian firstinstance court of a certificate required by Article 54 of European Union Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It appears that meanwhile the said document had been forwarded by the applicant on 13 November 2009. 35. The provisions of the relevant legislation read as follows: “1. In providing the legal assistance, the judicial institutions of the two Contracting Parties notify each other through their central bodies, to the extent that this Treaty has not established otherwise. 2. Other institutions of the two Contracting Parties which have competence in matters of civil or family law communicate with each other or with the judicial institutions through the Ministry of Justice, to the extent that this Treaty has not established otherwise.” “Contracting Parties shall provide mutual legal assistance in the performance of procedural tasks such as preparing, sending and delivery of documents, sending or delivery of material evidence, conducting local surveys and research, and questioning the parties, defendants, witnesses, experts and other persons performing searches and seizures.” Article 6 – Content of the request for legal assistance “An application for legal assistance shall contain the following data: a) the name of the originating application; b) the name of the institution addressed; c) the case in which legal assistance is requested; d) the full name, address and citizenship status of the parties, accused, indicted or convicted in criminal cases and, as far as possible, the place and date of birth of the accused or defendants, and the names of their parents; d) the name and address of their representatives; e) necessary data as requested, subject to criminal cases, and a description of the facts.” “Both Contracting Parties shall recognise and approve the enforcement, within their territory: (...) b) final judgments given in the other Contracting Party after entry into force of this Treaty, in criminal cases, regarding the obligation to compensate the victim for damage caused.” “1. The granting of enforcement falls within the jurisdiction of the Contracting Party in whose territory the enforcement is to be executed. 2. An enforcement request is filed with the court of first instance which ruled in the case. This request will be forwarded to the court competent to grant enforcement. The request may be submitted directly to the latter court. 3. The application shall be accompanied by a certified translation into the language of the Contracting Party on whose territory the enforcement occurs. 4. The conditions of the enforcement request are determined by the law of the Contracting Party in whose territory the enforcement occurs.“ “1. To a declaration of enforcement must be attached: a) the full text of the decision and proof that the decision has become final and enforceable, unless that is clear from the above; b) the original documents, or certified copies of such documents, showing that any person concerned by a decision not to take part in the proceedings has been served with the summons at least once, on time and in due form; c) certified translations of documents specified in paragraphs (a) and (b).” “1. The enforcement approval procedure and the procedure for the enforcement are determined by the law of the Contracting Party in whose territory the enforcement occurs.” “(...) 2) The provisions of this Law shall not affect bilateral or multilateral conventions to which Romania is or will become a party, but shall cover situations not covered by them.” “(1) The Ministry of Justice and Civil Liberties is the central authority through which the Romanian judicial authorities communicate documents abroad. (2) Upon receipt of documents from the Romanian judicial authority, after international regularity control, the Ministry of Justice and Civil Liberties will be able to send them, as appropriate, depending on the existence and according to the provisions of international conventions a) by post to the named addressee; b) to the competent central authority of the recipient State, or c) to the Romanian diplomatic mission or consular authorities of the recipient State, through the Ministry of Foreign Affairs.” “(...) 3) The application form shall be accompanied by the proof of communication, which will include the following: a) the name of the requesting judicial authority; b) the documents to be communicated; c) the name and address of the recipient; d) the name of the recipient judicial authority; e) the name and status of the person who receives the documents (the relationship of the consignee to the addressee, for individuals,, or function, for legal entities); f) the signature of the addressee (a stamp in the case of legal persons); g) the documents being communicated; h) reasons for non-communication (recipient’s refusal, address change etc.); i) the agent’s signature and stamp relating to the requisite judicial procedure.” “Unless the international Convention provides otherwise, the application and supporting documents will be translated into the language of the recipient State as follows: a) the application for international legal assistance – by the Ministry of Justice and Civil Liberties; b) Appendices – by the Romanian judicial authorities at the expense of the interested parties, except for cases in which parties are exempted from paying court fees;” (...) “a) when communicated by post, directly to the recipient – the confirmation of receipt; b) communication by the central competent authority of the recipient State or of the Romanian diplomatic mission or consulate in that State – the form stipulated in Article 6 (3).” “Article 2 (1) In the case of judgments rendered in Romania and for which is sought recognition or enforceability in another EU member State, the power to issue, according to Article 54 of Regulation no. 44/2001, the certificate provided for in Annex V of the regulation lies with the first court.” THE LAW 36. The applicant complained that lack of diligence on the part of the competent Romanian authorities in assisting him in the enforcement procedure of a judgment in his favour had infringed his rights guaranteed by Article 6 of the Convention and also his right to property as provided by Article 1 of Protocol No. 1 to the Convention. Insofar as relevant, these provisions read as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 37. The Romanian Government considered the application incompatible ratione personae since the alleged violations were not imputable to the Romanian authorities because the responsibility for enforcing the court decision lay with the Hungarian authorities. 38. According to the Government, the Romanian minister had complied with all the obligations arising from the bilateral agreement by forwarding the exequatur request to the Hungarian authorities. They further argued that the applicant had not been obliged to file his request via the Romanian authorities, such a possibility being optional. The Government referred to the admissibility decision of 9 June 2005 in the case of Dumitrascu v. Romania and Turkey, where the Court had dismissed a similar complaint as incompatible ratione personae since the applicant had failed to file his request directly with the Turkish authorities in accordance with the applicable law. 39. The applicant contested any similarity to the case of Dumitrascu v. Romania and Turkey; in that case, at the request of the Turkish authorities, the applicant should have filed the exequatur request directly with the competent Turkish court, whereas in his own case the Romanian Minister of Justice had suggested he contact the competent Romanian court in order to file an exequatur request and had not considered the alternative of a direct application to the competent Hungarian court, which, according to the applicant, was in any event not feasible since the debtors’ addresses were unknown. 40. The Court observes that according to the provisions of Articles 3 and 4 of the bilateral agreement the role of the Romanian Minister of Justice is that of an intermediate authority whose role is to facilitate the enforcement process (see paragraph 35 (A) above). The Romanian Government cannot reasonably claim that the Hungarian authorities alone were responsible for the enforcement of the domestic court decision and that the role of the Romanian ministry was merely to forward the exequatur request to their counterparts. Further, the Court observes that Article 47 of the Treaty provides for the possibility of filing an exequatur request directly with the competent court. However, in the present case the Court notes that the addresses of the debtors, which determine the competent court, were not known; it was only in 2008 the Romanian authorities acknowledged the addresses (see paragraph 27 above). In addition, the Court observes that the Romanian Ministry of Justice informed the applicant that the procedure to be followed was through the Minister of Justice as an intermediate authority (see paragraph 8 above). 41. Therefore, in the light of the above, the Court concludes that the application is not incompatible ratione personae and that the Government’s objection should be dismissed. 42. The Court also notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 43. The Government argued that the authorities had fulfilled their obligations arising from the bilateral Treaty by forwarding the exequatur request to the Hungarian authorities. They argued that the provisions of the Treaty did not impose any other obligations on the Romanian authorities and it there was no obligation under the Treaty to monitor the outcome of the applicant’s request. The fact that the applicant’s exequatur request had not been registered in the data base of the Hungarian authorities was not imputable to the Romanian authorities. All the documents of the Minister of Justice had been forwarded through the Post Office and there was no obligation for the central body receiving the documents to confirm that fact. With respect to the content of the exequatur request forwarded to the Hungarian authorities, the Government noted that the large number of requests by the applicant regarding the enclosures and the debtors’ addresses were not were not imputable to the fault of the Romanian authorities, the sole responsibility of the Minister of Justice being to forward the documents, notwithstanding the fact that had been extensive correspondence between them and their Hungarian counterparts concerning the state of the proceedings. Moreover, the Government considered that Law No. 189/2003 regarding international judiciary assistance in civil and commercial matters was not applicable in the present case since it did not specifically refer to the exequatur procedure; hence the provision which provided for confirmation of the transmission of documents did not apply to the exequatur procedure. 44. The applicant contested these arguments. He argued that the Romanian authorities had failed to fulfil their obligation under the bilateral Treaty and the above-mentioned Law No. 189/2003 to assist him in the execution of a domestic court decision. He considered that the Romanian authorities had not informed him very clearly about the procedure to follow in order to obtain the enforcement of the court decision in his favour and had not acted with diligence and celerity in order to ensure the effective exchange of information and correspondence between the intermediary institution and themselves. 45. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II). However, the right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of the case (Sanglier v. France, no. 50342/99, § 39, 27 May 2003). 46. The State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their inactivity can engage the State’s responsibility on the ground of Article 6 § 1 of the Convention (Scollo v. Italy, 28 September 1995, § 44, Series A no. 315C). It is for each State to equip itself with legal instruments which are adequate and sufficient to ensure the fulfilment of positive obligations imposed upon the State (Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003). The Court’s task is to examine whether the measures applied by the Romanian authorities in the present case were adequate and sufficient. In cases such as the present one, which necessitate action by a debtor who is a private person, the State, as the agent of public authority, has to act diligently in order to assist a creditor in the execution of a judgment (Fociac v. Romania, no. 2577/02, § 70, 3 February 2005). 47. The Court notes that in the present case the applicant obtained a final court decision on 26 March 2001 ordering private individuals to pay him damages for the murder of his father. On 26 July 2001 the applicant started the enforcement procedure before the Romanian authorities. However, it was only in the course of 2009 that the Romanian authorities completed the file submitted to the Hungarian authorities in the exequatur procedure (see paragraphs 32 -34 above). 48. The Court further notes that the enforcement proceedings against three of the debtors are still pending before the Hungarian authorities. Having regard to the fact that, in accordance with the provisions of Article 49 of the bilateral Treaty (see paragraph 35 (A)), it is the law of the State of the debtor which governs the enforcement procedure, the Court will only examine whether the Romanian authorities acted diligently in order to assist the applicant in the execution of the judgment of 2001 as regards the obligations under the aforesaid Treaty and the pertinent laws in force. 49. The Court notes repeated delays in the transmission of correspondence imputable to the Romanian authorities, as a result of which the proceedings lasted at least seven and half years. It was only after repeated requests from the applicant that the Romanian Government inquired about the fate of the exequatur request and were thus informed that it had never reached the Hungarian authorities (see paragraphs 1417 above). 50. The Court further notes that, notwithstanding the detailed provisions of the Treaty and Law no. 189/2003 as to the procedure, form and content of such a request (see relevant domestic and international law, paragraph 35 above) there were repeated shortcomings which led to delays in the transmission of documents between the domestic authorities and to the Hungarian authorities (see paragraphs 11, 21, 22, 24, 26, 28, 30, 33 and 34 above). 51. The Court has dealt with cases raising issues similar to the ones in the present case and found violations of Article 6 § 1 of the Convention (see, among others, Dinu v. Romania and France, no. 6152/02, 4 November 2008; Orha v. Romania, no. 1486/02, 12 October 2006; and Tacea v. Romania, no. 746/02, 29 September 2005). 52. In the light of the above, the Court considers that the respondent Government has not submitted any fact or argument leading to a different conclusion in the present case. 53. The foregoing considerations are sufficient to enable the Court to conclude that in the present case the Romanian State, through its specialised bodies, did not engage all the necessary efforts to assist the applicant in the expeditious enforcement of a court decision in his favour. There has accordingly been a violation of Article 6 § 1 of the Convention. 54. The applicant complained that the non-enforcement of the impugned judgment breached his right to property as provided by Article 1 of Protocol No. 1. However, in view of its previous findings (see paragraphs 4353 above), the Court considers that it is not necessary to examine this complaint separately. 55. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 56. The applicant claimed 2,098.80 Euros (EUR) in respect of pecuniary damage, representing the value of the debt, and EUR 162.50 representing trial fees, taking account of the update of the damage amount up to 2003. He also claimed EUR 8,000 in respect of nonpecuniary damage. 57. The Court reiterates that, where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI). 58. As regards pecuniary damage, the Court notes that the judgment in favour of the applicant has not been enforced. However, considering the particular circumstances of the case notably that the enforcement proceedings are still pending before the Hungarian authorities and the fact that the present application is directed only against Romania, the Court will not make an award under this head. 59. The Court further considers that the applicant has suffered nonpecuniary damage on account of the frustration caused by the length of the enforcement proceedings and the fact that the Romanian authorities have not diligently assisted him in his efforts to enforce the decision of 26 March 2001, and that this damage is not sufficiently compensated by the finding of a violation. 60. Under these circumstances, having regard to all the information at its disposal and making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 4,800 in respect of non-pecuniary damage. 61. The applicant also claimed EUR 650 for the costs and expenses incurred in the proceedings in the domestic courts and before this Court, representing postal expenses, translations, experts’ taxes, stamp duties and travel expenses. He submitted invoices. 62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 650 covering the costs under all heads. 63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | 1 |
train | 001-61745 | ENG | GBR | CHAMBER | 2,004 | CASE OF KANSAL v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed | Matti Pellonpää;Nicolas Bratza | 7. The applicant was born in 1947 and lives in Oldham. 8. From 1977, the applicant ran a company which operated 20 chemist shops. Following financial problems, the company went into liquidation in February 1987. On 20 May 1987, a bankruptcy petition was presented against the applicant and on 11 March 1988, a bankruptcy order was made. 9. On 29 July 1988, the applicant was publicly examined by the official receiver. Under section 291 of the Insolvency Act 1986, the applicant was obliged to answer the questions put to him by the official receiver and if he failed to comply without reasonable excuse, he would have been guilty of contempt of court and liable to punishment by a fine or imprisonment. 10. On 16 March and 23 March 1988, a building society advanced 150,000 pounds sterling (GBP) and GBP 116,250 respectively to the applicant. On 23 March 1988, the applicant's wife collected part of the advance, GBP 104,000, and took it to India in a bin liner. 11. The applicant was subsequently charged with two offences of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 on the grounds that he had misled the building society into advancing money by false representations regarding his income, his debts and the bankruptcy proceedings against him. He was also charged with two offences of removing property required to be delivered to the official receiver and failing to account for the loss of property while bankrupt contrary to section 354(2) and (3) of the Insolvency Act 1986. 12. At the applicant's trial in February 1992, the prosecution introduced as evidence the transcript of the examination of the applicant by the official receiver in the bankruptcy proceedings. The applicant submitted that the transcript was inadmissible under section 31 of the Theft Act 1968 which provides that a statement or admission made by a person answering questions in proceedings for the administration of any property or for an account of any property or dealings with property is not admissible in evidence against that person. However, the trial judge ruled the evidence admissible under section 433 of the Insolvency Act 1986 which provided that statements made in pursuance of a requirement imposed by the Act could be used in evidence against the maker of the statement. The full transcript was placed before the jury and in his summing up, the judge stated that the transcript “could be very important”. 13. On 18 February 1992, the applicant was convicted of the four offences charged and was sentenced to 15 months' imprisonment. The applicant appealed against conviction and on 12 May 1992, the Court of Appeal dismissed his appeal deciding, inter alia, that the transcript of the bankruptcy examination was admissible under section 433 of the Insolvency Act 1986 which abrogated the privilege against self-incrimination. Leave to appeal was refused by the Court of Appeal and by the House of Lords. 14. On 27 June 1995, the Royal Pharmaceutical Society of Great Britain decided to remove the applicant's licence to practise as a pharmacist on the grounds of unfitness due to his involvement in the deception connected with his bankruptcy proceedings and a previous reprimand relating to the cleanliness of his premises. 15. On 27 April 1998, the Criminal Cases Review Commission (“CCRC”) referred the applicant's case back to the Court of Appeal due to changes in the domestic law on obtaining mortgage advances by false statements. On 20 June 2000, the Commission added the ground that, following the decision of the European Court of Human Rights in Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI) and the introduction of the Human Rights Act 1998, the admission of answers given under compulsion during the bankruptcy examination may have been in breach of Article 6 of the Convention and rendered the applicant's conviction unsafe. 16. On 24 May 2001, the Court of Appeal overturned the applicant's conviction on the grounds that the answers given by the applicant in his examination by the official receiver had been wrongly admitted at trial and in breach of Article 6 of the Convention. The court found that the Human Rights Act 1998 could apply retrospectively. It certified a point of law to the House of Lords as to whether the Human Rights Act 1998 could apply retrospectively in appeals arising from a reference by the CCRC. 17. The Crown appealed to the House of Lords against the decision of the Court of Appeal. On 29 November 2001, the House of Lords allowed the appeal, holding that they were bound to follow the earlier decision of the House in R v. Lambert [2001] 3 WLR 206, which had decided that the Human Rights Act 1998 could not apply retrospectively to allow a defendant whose trial took place before the Act came into force to rely on a breach of the Convention in a later appeal. 18. Section 291(4) of the Insolvency Act 1986 (“the 1986 Act”) provided as follows: “The bankrupt shall give the official receiver such inventory of his estate and such other information, and shall attend on the official receiver at such times, as the official receiver may for any of the purposes of this Chapter require; ...” 19. Section 291(6) went on to stipulate that: “If a bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).” 20. The Divisional Court would deal with such a contempt of court and the sentence could be a fine or imprisonment for a maximum of two years (section 14 of the Supreme Court Act 1981). 21. Section 290(1) of the 1986 Act provided that the official receiver could apply to the court for the public examination of the bankrupt. Cases such as Re Paget (1927) 2 Ch. 85 and R v. Harris (1970) 1 WLR1252 established that the bankrupt was not entitled to refuse to answer questions during the public examination on the grounds of self-incrimination. 22. At the relevant time, section 433 of the 1986 Act provided that: “In any proceedings (whether or not under this Act) – (a) a statement of affairs prepared for the purposes of any provision of this Act which is derived from the Insolvency Act 1985 and (b) any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under this Act, may be used in evidence against any person making or concurring in making the statement.” 23. In contrast, section 31(1) of the Theft Act 1968 stipulated that a statement or admission made by a person answering questions in proceedings for the administration of any property was not admissible in evidence in criminal proceedings relating to an offence under the Act. 24. In R v. Kansal (1993) 95 Cr.App.R. 348 (the decision on the first appeal of this applicant), the Court of Appeal held that the Insolvency Rules 1986 (S.I. 1986 No. 1925) made it clear that the privilege against self-incrimination was abrogated in any public examination of the bankrupt and that, thereafter, section 433 of the 1986 Act rendered the evidence admissible in a criminal trial notwithstanding section 31 of the Theft Act. 25. Following the decision of this Court in Saunders v. United Kingdom (cited above) and the planned introduction of the Human Rights Act 1998, section 59 and Schedule 3 of the Youth Justice and Criminal Evidence Act 1999 amended section 433 of the 1986 Act, inserting section 433(2)): “(2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies– (a) no evidence relating to the statement may be adduced, and (b) no question relating to it may be asked, by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.” This provision was not in force at the time of the applicant's trial. | 1 |
train | 001-58156 | ENG | FRA | CHAMBER | 1,998 | CASE OF PAILOT v. FRANCE | 3 | Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | R. Pekkanen | 7. Mr Jean-Marc Pailot, a French national born in 1952, is a clerical worker employed by an insurance firm. He is a haemophiliac and has received numerous blood transfusions. 8. A test carried out on 27 August 1985 showed that the applicant had been infected by the human immunodeficiency virus (HIV). Since November 1994, he has been classified as having reached stage III of the four stages on the scale of the Atlanta Center for Disease Control. 9. On 23 December 1989 the applicant submitted a preliminary application for compensation to the Minister for Solidarity, Health and Social Protection. He sought 2,500,000 French francs (FRF) in compensation for the medical disorders of all kinds he had suffered on account of his infection with HIV. His application was rejected on 30 March 1990. 10. On 30 May 1990 Mr Pailot brought an action in the Châlons-sur-Marne Administrative Court seeking FRF 2,500,000 in compensation for the damage sustained as a result of the State’s failure to take appropriate measures to prevent his becoming infected with HIV. On 14 December 1990 the Châlons-sur-Marne Administrative Court referred the case to the Conseil d’Etat, which, on 27 February 1991, designated the Paris Administrative Court to deal with it. The application was registered with that court on 18 March 1991. 11. On 1 June 1991 the Aube Health Insurance Office filed a pleading. The case was then set down for a hearing on 3 April 1992. 12. On 17 April 1992 the Administrative Court gave an interlocutory judgment, holding that “the State is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non-heat-treated blood products during the period of liability defined above, that is between 12 March and 1 October 1985” and “... that there are grounds for the Administrative Court to order the State to pay compensation for the whole of the damage suffered”. At Mr Pailot’s request, the court ordered an expert medical opinion in order to establish whether he had been infected during that period. An expert was appointed by the President of the Administrative Court the same day. 13. The expert’s report, filed on 23 December 1992, stated: “... In 1985 [Mr Pailot] was given two prescriptions for 6 P.P.S.B. and Factor IX concentrates, the first on 2 March 1985 and the second on 27 August 1985 ... in other words, within the period of liability defined above (12 March to 1 October), at least as regards the prescription of 27 August 1985. However, it has not been possible to ascertain the exact date on which the products delivered on 2 March 1985 were administered. On 27 August 1985 it was confirmed that he had been infected with HIV... Given that the appearance of antibodies detectable by biological tests (seroconversion) cannot be observed until 6 to 12 weeks (or, exceptionally, several months in rare cases) after infection, it can be concluded that Mr Jean-Marc Pailot might have been infected in May or June 1985 (1st serological test performed on 27 August 1985). ... As regards the ‘period of the State’s liability’ (12 March 1985 to 1 October 1985), it is not impossible, but neither is it certain, that the products delivered at the beginning of March 1985 were administered after 12 March 1985, resulting in an infection with seroconversion confirmed on 27 August 1985, assuming that infection had not taken place earlier, which is unlikely in view of the blood derivatives he had received previously. ... the date on which he became infected cannot be determined with certainty.” 14. After holding a hearing on 26 February 1993, the Administrative Court gave the following judgment on 26 March 1993: “Regarding the claim for the award of damages against the State: The expert’s report has shown that a causal link between the applicant’s infection with HIV and the administration of blood derivatives during the period of the State’s liability (12 March 1985 to 1 October 1985) cannot be deemed to have been established; consequently, the claim contained in Mr Jean-Marc Pailot’s application for compensation from the State for the damage sustained as a result of this infection can only be rejected.” 15. On 9 April 1993 the Judicial Assembly of the Conseil d’Etat gave three landmark judgments, fixing 22 November 1984 as the start of the period of the State’s liability and awarding the victims compensation at a flat rate of FRF 2,000,000 (see paragraph 39 below). 16. Relying on this case-law, the applicant appealed to the Paris Administrative Court of Appeal on 4 June 1993. 17. On 28 August 1993 the Deputy Minister for Health filed his defence pleadings in which he submitted that only the judgment of 26 March 1993 was being appealed and that the judgment of 17 April 1992, which established the period of the State’s liability as 12 March to 1 October 1985, had therefore become final. 18. On 3 November 1993 the Compensation Fund for Transfusion Patients and Haemophiliacs infected with HIV informed the Administrative Court of Appeal that Mr Pailot had accepted the Fund’s offer of compensation. 19. After holding a hearing on 20 January 1994, the Administrative Court of Appeal gave judgment on 3 February 1994 in which it upheld the Minister’s arguments and dismissed the applicant’s appeal, holding that it had not been established by the contents of the file that the applicant had received after 12 March 1985 blood products which could have infected him. 20. On 1 April 1994 the applicant appealed on points of law to the Conseil d’Etat. 21. On 1 June 1994 the applicant filed supplementary pleadings claiming that his appeal, in which he had requested that the start of the period of the State’s liability be fixed at 22 November 1984 implicitly but necessarily criticised the interlocutory judgment of 17 April 1992 which had fixed the start at 12 March 1985. He therefore requested the Conseil d’Etat to quash the Administrative Court’s judgment and, under section 11 of Law no. 87-1127 of 31 December 1987, to determine the merits of the case without remitting it to the Administrative Court of Appeal and to order the State to pay him FRF 2,000,000, less the amount paid out by the Compensation Fund. 22. On 27 March 1995 the Admissibility Committee declared his appeal admissible. 23. In the meantime, on 28 December 1994, Mr Pailot had lodged an application (no. 26116/95) with the European Commission of Human Rights. On 28 June 1995 the Commission adopted a report pursuant to Article 28 § 2 of the Convention noting that the parties had reached agreement on a friendly settlement of the case (see paragraph 42 below). 24. On 13 and 19 October 1995 respectively, the Aube Health Insurance Office and the Compensation Fund for Transfusion Patients submitted their observations. 25. On 30 October 1995 the Conseil d’Etat asked the Minister of Employment and Social Affairs to submit his observations on the applicant’s appeal. On 15 December 1995 the Minister replied that the application did not call for any observations on his part. 26. On 26 December 1995 the applicant submitted his observations. 27. On 3 January 1996 a reporting judge at the Conseil d’Etat was appointed. 28. On 19 January 1996 the applicant filed a number of documents. On 17 January and 17 April 1996 Mr Pailot wrote to the Secretary to the Fifth Section of the Judicial Division of the Conseil d’Etat, which was dealing with the case, and to the reporting judge who had been appointed, drawing their attention to the length and protractedness of the proceedings and the urgency of the case given his state of health. He received no reply. 29. On 2 July 1996 the applicant lodged a further application (no. 32217/96) with the Commission, which was registered on 10 July 1996, complaining that the proceedings were still pending before the Conseil d’Etat. 30. On 29 August 1996 the reporting judge at the Conseil d’Etat filed his report. 31. On 2 September 1996 the case was allocated to a judge-reviser. 32. On 26 February 1997 a government commissioner was appointed. The case was then listed for a hearing on 19 March 1997. 33. On 23 April 1997 the Conseil d’Etat quashed the judgments of the Administrative Court and the Administrative Court of Appeal. Applying section 11 of the Law of 31 December 1987 (see paragraph 21 above), the Conseil d’Etat found the State liable for Mr Pailot’s infection and gave the following judgment: “The State is liable in respect of persons who were infected with the human immunodeficiency virus following the transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985; Mr Pailot was found to be HIV-positive on 27 August 1985; the State is therefore liable for the damage sustained by Mr Pailot as a result of the blood transfusions he received during the period defined above; he is therefore justified in requesting this Court to quash the judgments of the Paris Administrative Court of 17 April 1992 and 26 March 1993 rejecting his claim for compensation...” The State was ordered to pay the applicant FRF 2,000,000, less FRF 1,037,750 paid out by the Compensation Fund for Transfusion Patients and Haemophiliacs and FRF 100,000 paid out by the Haemophiliacs’ Solidarity Fund, that is FRF 862,250 in all, plus interest at the statutory rate from 26 December 1989 with capitalisation of the accrued interest from 1 June 1994. 34. The State paid the applicant the principal of FRF 862,250 in July 1997 but, to date, has not paid the interest. 35. In separate proceedings the applicant had submitted a claim to the Compensation Fund for Transfusion Patients and Haemophiliacs that had been set up by the Act of 31 December 1991 (see paragraph 38 below). 36. In a decision of 8 September 1992, the Fund awarded him compensation of FRF 1,517,000, of which FRF 1,137,750 was payable in three equal annual instalments and FRF 379,250 if and when Aids was diagnosed. The Compensation Fund deducted from this offer the FRF 100,000 paid out by the Haemophiliacs’ Solidarity Fund. 37. On 28 January 1993 the Compensation Fund paid Mr Pailot FRF 1,037,750. 38. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. Section 47 provides: “I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below. II. ... III. Full compensation for the damage defined in subsection I shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board. ... IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives. ... Victims or their heirs shall communicate to the Fund all the information in their possession. Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy. ... V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage... ... VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund. VII. ... VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection V, or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal. IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence. The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court. X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat. XI. ... XII. The Compensation Fund’s sources of revenue shall be specified in a subsequent Act. XIII. ... XIV. ...” 39. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat decided that “the State was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985” (see paragraph 15 above). 40. At the material time the Administrative Courts and Administrative Courts of Appeal Code contained, inter alia, the following provisions: “Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision. Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint. ...” “The President of the Administrative Court or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. He may, even of his own motion, make the payment of the advance subject to the lodging of a security.” “Immediately after the application instituting the proceedings has been registered by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur. “Where one of the parties or the administrative department has been asked to submit observations and has not complied with the time-limit laid down pursuant to Articles R.142 and R.147 of this code, the president of the court or division shall issue a formal notice to comply. In the event of force majeure, a final extension of time may be granted. If the formal notice to comply has no effect or if the final time-limit given is not complied with, the court shall give judgment.” “Where a final notice to comply relates to an administrative department of the State, it shall be sent to the authority with competence to represent the State; in other cases it shall be sent to the party or his representative if he has appointed one.” “A member of the Administrative Court or the Administrative Court of Appeal may be assigned by the competent court or by the latter’s president to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter.” 41. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 38 above): “Part II Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991 In order to bring the action by subrogation provided for in subsection IX of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991. Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings. Where the victim has accepted an offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court. The registry shall notify the parties of the information communicated by the Fund. The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened. ... The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...” 42. On 28 December 1994 Mr Pailot lodged an application with the Commission, registered on 4 January 1995 under file no. 26116/95, in which he complained of the length of the compensation proceedings and relied on Article 6 § 1 of the Convention. On 28 June 1995 the Commission adopted a report in which it noted, pursuant to Article 28 of the Convention: “… On 8 March 1995 the applicant’s representative informed the Commission that the applicant was prepared to accept the sum of 200,000 (two hundred thousand) French francs for non-pecuniary damage, to which were to be added the costs and expenses he had incurred before the Commission, the whole to be paid within one month of the adoption of the Commission’s report. On 3 May 1995 he informed the Commission that the costs came to FRF 23,270 and also requested the payment of interest in the event of delayed settlement. In a letter of 24 May 1995 the Agent of the Government informed the Commission that the Government were prepared to agree to a settlement based on these proposals. On 28 June 1995 the Commission noted that the parties had reached agreement on the terms of a settlement. It also stated the opinion, having regard to Article 28 § 1 (b) of the Convention, that the parties had reached a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention. …” The text of the applicant’s declaration that he accepted the friendly settlement, which bears his signature, reads as follows: “I acknowledge that the payment of these sums will constitute full and final compensation in respect of all the damage alleged in my application and will likewise cover all the lawyers’ fees and other costs I have incurred in this case. I therefore agree to withdraw from these proceedings and to waive the right to bring any further proceedings on this account against the French State in the French and international courts.” | 1 |
train | 001-100300 | ENG | BGR | CHAMBER | 2,010 | CASE OF MADZHAROV v. BULGARIA | 4 | Violation of P1-1 | Ganna Yudkivska;Karel Jungwiert;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger | 6. The applicant was born in 1966 and lives in Sofia. 7. In 1966 his grandparents bought from the Sofia municipality an apartment of 73 square metres in the centre of the city, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria after 1946. 8. After the death of the applicant's grandparents his father inherited from them. In 1995 he conveyed the property to the applicant. 9. On 19 February 1993 the heirs of the former pre-nationalisation owner of the apartment brought an action against the applicant's father under section 7 of the Restitution Law, arguing that his title to the property was null and void and seeking the restoration of their own title. They also brought a rei vindicatio action. 10. In 2003 the applicant's father died and the applicant succeeded him in the proceedings. 11. The proceedings ended with a final judgment of the Supreme Court of Cassation of 27 May 2005. The courts allowed the plaintiffs' claims, finding that the contract whereby the applicant's grandparents had acquired the apartment had been null and void since the sale had not been approved by the Minister of Finance, as required by the relevant provisions applicable at the time, but by his deputy. 12. In July or August 2005 the applicant and his family vacated the apartment. In November 2005 they were granted the tenancy of a municipally-owned apartment at a regulated price, where they moved in. 13. The applicant could apply to receive compensation bonds within two months of the judgment of 27 May 2005. However, he only applied for bonds on 7 October 2005. On 26 March 2008 the regional governor dismissed the request as time-barred. On an appeal by the applicant, this decision was upheld by the courts. 14. The relevant background facts, domestic law and practice have been summarised in the Court's judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007. | 0 |
train | 001-23457 | ENG | AUT | ADMISSIBILITY | 2,003 | EGGER v. AUSTRIA | 4 | Inadmissible | Georg Ress;Mark Villiger | The applicants, Mr Walter Egger and Mrs Adelheid Egger, are Austrian nationals living in Salzburg (Austria). They are represented before the Court by Mr F. Unterasinger, a lawyer practising in Graz (Austria). On 4 March 1985 the applicants filed an application for a building permit for a weekend cottage. On 2 May 1988 the Mayor of Predlitz-Turrach dismissed the applicants’ application for a building permit. The applicants appealed against this decision. On 3 June 1989 the Mayor granted the building permit. On 30 August 1989 the Steiermark Regional Government declared the decision null and void as the building permit was contrary to the area zoning plan (Flächenwidmungsplan). On 28 February 1993 the Mayor issued a demolition order. He found that the applicants had to stop the construction works and to demolish these parts of their cottage already built and to recultivate their plot of land within seven months. On 27 July 1993 the applicants appealed against this decision and stressed that the construction works had already been terminated in August 1989 and that the revocation of the building permit granted on 4 June 1989 had occurred only after the construction of their cottage. On 18 March 1999 the Municipal Council (Gemeinderat) modified the demolition order and found that the applicants had to demolish their cottage within five months. On 23 April 1999 the Steiermark Regional Government dismissed the applicants further appeal (Vorstellung) and found that the applicants’ cottage had been constructed contrary to the applicable law, and that the order to declare the building permit null and void had been issued only three months after the building permit was wrongly granted. On 10 June 1999 the applicants lodged a complaint with the Constitutional Court. On 11 October 1999 the Constitutional Court declined to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. On 30 November 1999 the Administrative Court ordered the applicants to amend their complaint. On 4 January 2000 they complied with this order. On 15 March 2000 the Predlitz-Turrach Municipality submitted its observations. On 5 December 2000 the Administrative Court dismissed the applicants’ complaint and found that no building permit existed for their cottage and that, therefore, the demolition order was lawful. This decision was served on the applicants’ counsel on 2 January 2001. Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. Its relevant part reads as follows: “(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay, and at the latest six months after the application or appeal has been lodged. (2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request (Devolutionsantrag). ...This request has to be refused by the competent superior authority if the delay was not caused by preponderant fault of the authority. (3) The period for giving a decision by the superior authority runs from the date the request for transfer of jurisdiction was lodged with it.” | 0 |
train | 001-76979 | ENG | DNK | ADMISSIBILITY | 2,006 | POULSEN v. DENMARK | 4 | Inadmissible | Snejana Botoucharova | The applicant was born in 1956 and lives in Hørsholm. He is represented before the Court by Claus Hanghøj, a lawyer practising in Kalundborg. The Danish Government (“the Government”) are represented by their Agent, Mrs Nina Holst-Christensen, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked as a printer from 1976 until January 1993, when he had to report sick, having suffered from headaches, nose bleedings, dizziness and fatigue for some time. On 15 January 1993 his doctor reported to the National Board of Industrial Injuries (Arbejdsskadestyrelsen, formerly called Sikringsstyrelsen) that the applicant’s illness could be a work related injury resulting from organic-solvents poisoning, and thus giving rise to compensation. On 12 October 1993, the Board informed the applicant that it was unable to make its assessment within the nine-month’s time-limit set out in the Act on Protection against the consequences of Industrial Injuries (lov om forsikring mod følger af arbejdskade), the reason being that the disease did not meet the conditions for recognition according to the list of occupational diseases pursuant to the said Act. Therefore the case had to be submitted to the Occupational Diseases Committee (Erhvervsudvalgsstyrelsen) before a decision could be taken. On 10 May 1994 the Occupational Diseases Committee recommended dismissal of the case as the disease was not exclusively or predominantly due to the applicant’s work. By decision of 3 June 1994 the Board refused to acknowledge that the applicant’s illness was an occupational disease within the meaning of the Act on Protection against the consequences of Industrial Injuries. On 6 July 1994, the applicant appealed against the decision to the Social Appeal Board (Den Sociale Ankestyrelse), which on 2 February 1995 upheld the decision. Twice, enclosing new medical assessments, the applicant requested in vain that the case be reopened. His requests were refused by the National Board of Industrial Injuries on 4 May 1995 and 31 October 1996 and, on appeal, by the Social Appeal Board on respectively 12 September 1995 and 5 February 1997, with the reasoning that the result of the new medical examinations confirmed the previous ones. On 22 August 1997, anew the applicant requested a reopening of his case, which resulted in the National Board of Industrial Injuries initiating a neurological examination of the applicant. On 18 May 1998 the National Board of Industrial Injuries, on the basis of the neurological medical certificate, re-opened the case and, by decision of 29 June 1998, it recognised that the applicant’s injury was work related. Thereafter, on 10 July 1998 the National Board of Industrial Injuries found that the applicant’s degree of disablement amounted to 20 %. On 13 November 1998 it found that the degree of his loss of working capacity amounted to 50 %. On appeal, on 27 November 1998 the Social Appeal Board upheld the calculation as to the degree of disablement and on 23 June 1999 as to the degree of the loss of working capacity. On 20 August 2001, the applicant applied for free legal aid with the County of Copenhagen (Københavns Statsamt) with a view to initiating civil proceedings before the courts against the Social Appeal Board claiming that his loss of working capacity amounted to 100 %, In this connection the latter heard the Social Appeal Board, which on 4 February 2002 decided to re-open the case and re-calculate the applicant’s degree of loss of working capacity to 85 %. 1. On 8 March 2002, having been granted free legal aid, the applicant instituted civil proceedings before the High Court of Eastern Denmark (Østre Landsret) claiming that the degree of his loss of working capacity be set to 100 %. By judgment of 7 February 2003 the High Court found for the Social Appeal Board. On appeal, on 20 January 2004, the Supreme Court (Højesteret) upheld the judgment. 2. In the meantime, on 7 March 2003 the Social Appeal Board refused to re-open the case concerning its assessment of the applicant’s degree of disablement. Consequently, on 5 September 2003 the applicant instituted another set of proceedings before the High Court claiming that the Social Appeal Board should acknowledge that his degree of disablement be set to 50 %, or in the alternative between 20 % and 50 %. The Social Appeal Board stated that in accordance with the new scale (méntabel) to be used as from 1 January 2004, it could accept that the degree be set to 25 %. By judgment of 25 June 2004 the High Court found that the degree of disablement should be set to 25 %. The applicant appealed against the judgment to the Supreme Court. Having obtained another medical expert statement on 5 August 2005, by judgment of 6 April 2006, the Supreme Court upheld the High Court judgment of 25 June 2004. According to Danish law it is not a requirement for instituting civil court proceedings that administrative appeal proceedings have been exhausted beforehand, unless specifically provided. The relevant provisions of the then applicable Act on Protection against the Consequences of Industrial Injuries (Lov om forsikring mod følger af arbejdskade, nu afløst af Lov om arbejdsskadesikring), were worded as follows: Where nothing to the contrary has been provided, the National Board of Industrial Injuries shall make decisions on all matters under this Act. 1. Decisions made by the National Board of Industrial Injuries under section 54 may be brought before the Social Appeal Board by a) the injured person or the injured person’s surviving relatives; [and] ... A Supreme Court judgment printed in the Weekly Law Review (Ugeskrift for Retsvæsen), 2003, page 47, concerned a nurse who injured her back during work. Having acknowledged that her injury was work related, the National Board of Industrial Injuries fixed her degree of disablement at 20 % and her loss of working capacity at 25 %. Without pursuing any further administrative appeals, the nurse brought the decision concerning the degree of loss of working capacity directly before the High Court, which passed judgment remitting the case to the National Board of Industrial Injuries on the ground that the latter had not taken the nurse’s income into account when making its decision. The nurse appealed against the High Court’s judgment to the Supreme Court, which by judgment of 9 October 2002 fixed her loss of working capacity at 50 %. Pursuant to section 224 of the Administration of Justice Act (Retsplejeloven), as the main rule, civil proceedings are instituted before the City Court being the first judicial instance. Certain lawsuits, however, are brought before the High Court (sections 225 and 226 of the said Act) as the court of first instance, for example if a dispute between an individual and the public concerns a review of a decision taken by the administrative body, which has the highest authority, like the Social Appeal Board. | 0 |
train | 001-107128 | ENG | ROU | ADMISSIBILITY | 2,011 | SOLOMON v. ROMANIA | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Ms Ana Solomon, is a Romanian national who was born in 1965 and lives in Empoli, Italy. She was represented before the Court by Ms Sofia Covaci, a lawyer practising in Băicoi. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 16 January 1999 the applicant married B.A. and on 7 December the same year they had a son, B.C. 4. On 15 August 2000 the applicant left for Italy to try to find work in order to raise money to help her husband pay off the debt he had allegedly accumulated as a result of several unsuccessful business ventures. 5. The applicant did not go back to Romania again until July 2004, after she had obtained an Italian residence permit. 6. On 24 April 2001, when the applicant was already living in Italy, her husband brought divorce and custody proceedings against her. 7. By a judgment of 25 July 2001, the Ploieşti District Court allowed the applicant’s husband’s action for divorce and awarded sole custody of the child to him. Relying, inter alia, on the testimony of the witnesses in support of the applicant’s husband, the social investigation carried out at the minor’s domicile by the Social Services attached to the Ploieşti Local Council, and the applicant’s apparent lack of interest in the proceedings, the court established that as a result of the disagreements between the parties the applicant had left the family home and made no attempt to return or to reconcile with her husband. The parties’ relationship had been seriously damaged and the marriage could not continue as a result of the applicant’s guilt. From the moment of her departure the minor had been left in the sole care of the father and the applicant had inquired about the child’s well-being only over the phone. The father was able to offer the minor appropriate material and living conditions for his development and the child had developed a strong emotional bond with his father. 8. On an unspecified date in 2004, following her visit to Romania, the applicant lodged an appeal against the judgment of 25 July 2001. She argued that she had been unaware of the divorce proceedings brought by her husband against her and that the judgment of 25 July 2001 of the Ploieşti District Court had never been communicated to her. 9. By a judgment of 18 November 2004, the Ploieşti Court of Appeal allowed the applicant’s appeal, quashed the judgment of 25 July 2001 and decided to re-examine the merits of the case. It held that the applicant had been summoned for the divorce proceedings at her home address in Romania, which the husband had provided as the correspondence address for her, even though he had been aware at the time that the applicant was living in Italy and he had known her exact address. 10. On 21 December 2004, as a result of domestic legislation amending the rules on civil procedure, the Ploieşti Court of Appeal declined jurisdiction in respect of re-examining the merits of the applicant’s case, in favour of the Prahova County Court. 11. On 26 January 2005 the divorce and custody proceedings were resumed before the Prahova County Court. 12. On 9 February 2005 the applicant brought a separate set of divorce and custody proceedings against B.A. before the Ploieşti District Court. She asked the court to name her husband as the guilty party in their divorce and to grant the said divorce to her, to allow her to reclaim her maiden name, to grant her custody of the child, and to order B.A. to pay her maintenance. Alternatively, if she was not granted custody of the child, she requested to be granted visiting rights for the first and third weekend of every month, for a week during each of the child’s school holidays and for a month during her own leave from work. Finally, she asked the court to allow the child to travel abroad. The applicant argued that her husband had accumulated a debt of 6,000 euros (EUR) and that, as he had been banned from entering the Schengen area, she had been the only family member able to travel to Italy to seek employment to raise the necessary money to pay the debt. She submitted that the money she had saved in Italy had enabled her to cover her husband’s debt, as well as to save an additional amount of EUR 2,500 owed in connection with an alleged accident that her husband had caused. Lastly, the applicant declared that before leaving Romania she had hired two women to take care of their son. 13. At a hearing on 17 February 2005 before the Prahova County Court the applicant requested leave from the court to be allowed to submit documentary and testimonial evidence. She also asked the court to order both that her husband be heard and that a social investigation be carried out by the Italian authorities at her home in Italy to prove her ability to provide the material and living conditions required for her son’s future development. 14. By an interim judgment (încheiere) delivered on the same day, the Prahova County Court allowed the applicant’s request in part. It adjourned the question of the social investigation to be carried out at the applicant’s home in Italy and ordered her to submit proof, in particular an identity card, that her domicile was in Italy. 15. On 21 April 2005 the two sets of divorce and custody proceedings brought by the applicants against each other were joined before the Prahova County Court. 16. At the hearing of 26 May 2005, the applicant reiterated her request that a social investigation be carried out at her home in Italy via international legal assistance instruments. The court heard the testimony of the two witnesses allowed for the applicant, S.G and S.T., and those of the two witnesses allowed for her husband, I.A. and B.N. The applicant submitted evidence that her own requests to the Italian authorities to carry out a social investigation at her home had been refused in the absence of a court order. 17. By an interim judgment delivered on the same day, the Prahova County Court rejected the applicant’s request for a social investigation as irrelevant to the proceedings at issue and allowed the applicant to submit proof of income, employment and information on her living conditions. 18. The Government informed the Court that at the hearing of 23 June 2005 the County Court had granted the applicant’s request for additional questions to be addressed to her husband. At the same time, the applicant had expressly stated that she did not wish to request that any additional evidence be attached to the file. 19. In her turn, the applicant alleged that at the last hearing before the court her husband had attached to the file, inter alia, a written statement by G.E., the child’s kindergarten teacher (educatoare), describing the child’s development and his desire to live with his father. However, the applicant had not had the opportunity to ask G.E. direct questions before the court. 20. Neither of the parties provided the Court with a copy of the interim judgment delivered by the County Court on 23 June 2005. 21. The Prahova County Court adjourned the delivery of its judgment to 30 June 2005 in order to allow the parties to submit written comments. 22. By the judgment of 30 June 2005 the Prahova County Court granted the parties’ divorce, and held that both spouses were equally responsible for the divorce. The court found that regardless of the reasons which had prompted the applicant to leave Romania, it was clear that the applicant had extended her stay in Italy until she was finally awarded a residence permit. Consequently, the court concluded that the applicant no longer wanted to return to Romania because she had prospects of better living conditions in Italy and the lengthy separation from her family, and in particular her son, did not appear to affect her. Moreover, according to the witness statement of I.A., in 2002 the applicant had prevented her husband and her son from travelling to visit her in Italy on the ground that she had a new family. The court considered that the applicant’s husband was equally responsible for the divorce because he had allowed his wife to leave and had not tried to persuade her to return home even though their son was of a very young age and he needed his mother’s care. 23. The Prahova County Court also awarded full custody of the child to the father. The court held that: “it was in the minor’s best interest, an interest influenced by a series of factors, such as the child’s young age, his sex, the opportunities offered by the father for his growth and education, the moral standing (conduita morală) of each of the parents, the emotional attachment shown by the father towards the child and by the child towards his father, and other similar factors.” 24. The Prahova County Court further cited I.A.’s testimony that the child had been looked after by his father since 2000 and that during a phone conversation I.A. had overheard between the applicant and her son, the child had refused to talk to her on the ground that he did not know her. Moreover, according to B.N.’s testimony the applicant had asked her husband over the phone to travel to Italy alone without their son because she did not want to jeopardise her job by having them both there at the same time. Further, according to the statement of B.N. the child had been waking up at night frightened at the prospect of leaving his father. In this context the court held that the applicant was a stranger to the child and she could not be considered as his mother on account of the fact that she had left him when he was eight months old. Since then she had had contact with him only over the phone and had not seen him again until 2004. The child had had an emotional shock when the applicant had been introduced to him as his mother. Furthermore, the court took into account G.E.’s written statement attached to the file, according to which the child was well developed for his age. According to that statement, the child had publicly expressed in his class at the kindergarten his unwillingness to leave his father and his desire to live with him and his stepmother. The Prahova County Court also held, according to the social investigation carried out at the father’s home, that the father had been taking care of the child since the latter was eight months old and the child was well cared for. The social investigation also showed that the child was well developed for his age, that he was attached to his father and stepmother and that the applicant inquired about him only twice a year. 25. The court rejected the statements made by the two witnesses on behalf of the applicant as being indirect and subjective, given that they were members of the applicant’s family. 26. The court, however, allowed in part the applicant’s request for visiting rights and held that she could visit her son the first and third weekend of each month, on Saturday and Sunday from 10 a.m. to 2 p.m., at her former husband’s home. It dismissed the remainder of the applicant’s request concerning visiting rights on the ground that the child considered her a stranger and that to force the child to spend more time with a person he was afraid of might cause him to suffer psychological trauma which would affect his future development. Moreover, the child was about to start school and it would be stressful for him and against his best interests to be forced to follow the busy schedule proposed by the applicant. 27. Finally, the court dismissed the applicant’s request to allow the child to travel to Italy with her on account of his young age, the applicant’s lack of interest in her son and the risk of her not allowing him to return home. 28. On 11 August 2005 the applicant lodged an appeal (recurs) against the judgment of 30 June 2005. She requested the Court of Appeal to quash the judgment of the Prahova County Court and to refer the case back to that court for the obtaining of additional evidence (administrată), in particular: a) a social investigation at her home in Italy that would allow the domestic courts to assess her economic and social suitability for bringing up her son. The applicant alleged that by taking into account only the social investigation carried out at her husband’s home when awarding custody of her son, the national courts had not compared the conditions offered by both the mother and the father of the child and could therefore not establish correctly what was in the best interests of the child. She also argued that the social investigation that had been performed at her former husband’s home had been subjective and based solely on his own statements. Moreover, she argued that according to domestic law the absence from the file of a social investigation by the Social Services carried out at her home rendered the court’s judgment unlawful in so far as the award of the child’s custody was concerned; b) a psychological report or a report by a qualified social worker that would assess the possibility of building a normal parent-child relationship between the applicant and her son; c) the hearing in person of the witness G. E., the child’s kindergarten teacher. The applicant argued that the Prahova County Court had attributed great importance to G. E.’s undated written statement attached to the file at the final hearing. She argued that she had not had the opportunity to ask G.E. direct questions before the court, which had prevented her from defending herself against the allegations made against her. Furthermore, the Prahova County Court had not referred to the statements of all the witnesses proposed by her husband but had only taken into account those that were favourable to him; d) a list of her son’s phone call conversations in order to verify the truthfulness of B.N.’s statement that she had been present at her former husband’s home and had overheard a phone conversation between the applicant and her son where he seemed frightened of her and did not recognise her. 29. The applicant also emphasised that it could be seen from the letters she had exchanged with her husband during the time she lived in Italy, letters to which the domestic court did not attach any evidentiary value, that her husband had agreed to her seeking employment in Italy and that he had insisted on her continuing to work there. She further emphasised that her husband had been hiding from the child the fact that she, and not his father’s present wife, was his mother while at the same time continuing to take advantage of the money which she sent him. In addition, her husband had been detained for more than a year for an offence of fraud, and during that time the child had been looked after by strangers. 30. On 29 September 2005 the applicant presented orally the appeal points submitted in writing before the domestic court. She mainly argued that a social investigation at her home in Italy was important for the court to be able to assess the situation objectively. Moreover, she considered that the court should also take into account the testimony of the applicant’s witnesses and that her husband should be held to be the only guilty party for the divorce, on account of his behaviour towards the applicant and his family. Furthermore, she addressed the issue of the child’s custody and of the personal ties between the child and herself. The latter could not improve, in her opinion, if the meetings between mother and son were held at her former husband’s home. Finally, she asked the court to allow the appeal as submitted before the court. 31. By a final judgment delivered on the same day, 29 September 2005, the Ploiesti Court of Appeal partly allowed the applicant’s appeal and declared that both parties were equally guilty for the divorce on the ground that the parties had jointly taken the decision for the applicant to travel to Italy when the child was very young. Moreover, the applicant’s husband had been unfaithful to the applicant and misinformed her about their family’s situation. 32. In relation to the applicant’s complaint concerning the need for a social investigation at her home in Italy, the Ploieşti Court of Appeal dismissed her appeal and held that: “This part of the complaint is manifestly ill-founded. A social investigation must be performed at the domicile of the parties concerned. In the case at issue it appears from the documents that the petitioner’s domicile in Romania is that of her lawyer (thus the petitioner does not have her own domicile and a social inquiry could not be performed), nor does she have a domicile in Italy, which renders a social inquiry impossible. It appears from the documents that the address in Italy provided by the petitioner is that of M.G., by whom the petitioner is employed and for whom she performs household duties. The applicant also lives there, but this cannot be considered a domicile within the meaning of the law. It follows that the county court correctly refused to order a social investigation at the petitioner’s domicile in Italy on the ground that, as has been shown, the petitioner does not have her own domicile.” 33. The Ploieşti Court of Appeal also dismissed her appeal concerning the custody proceedings, holding that: “the custody of the child was correctly awarded to the father, because the child has been brought up by his father and it is clear that they have developed an emotional bond, a factor taken into account by the lower courts when examining the custody issue. Since he has been looked after by his father up to the age of five, it is in the minor’s best interest to continue living with him.” 34. In respect of all the other points formulated by the applicant in her appeal, the Court of Appeal held that: “It is clear that it has been proved in the present case that the applicant’s husband can ensure the appropriate material and moral conditions required for the child’s normal development. The applicant’s affection for her son is unquestionable, but owing to the factual situation mentioned above (that is, that the child has grown up only with his father) the applicant cannot be awarded custody of the child because the main factor to be taken into account in this case, which is the child’s attachment to his mother, is lacking as a result of her departure to Italy when the child was eight months old and her failure to return.” 35. Lastly, the Ploieşti Court of Appeal dismissed the applicant’s appeal in respect of her visiting rights decided by the County Court on the grounds that she did not have a domicile in Romania and that the child could not be taken away from his father because the child did not know his mother and at his young age meeting her in a strange place without his father being present could prove traumatic for him. 36. In a letter to the Court received on 7 July 2008 the applicant informed the Court that in 2007 she had travelled to Romania three times, in February, August and December. Each time she had seen her son once for about two hours in the presence of her former husband and his second wife. During the entire time they had spent together, the child had been nervous and shy. She had allegedly informed the Child Protection Services about the situation; however, the investigation carried out by the authorities showed that there was no cause for concern. Lastly, the applicant stated that she had not opened a new set of proceedings seeking to be awarded the custody of the child or to have her access rights extended. 37. The relevant legal provisions, in particular the provisions of the Romanian Family Code in force at the time, are set forth in the judgments of Nistor v. Romania (no. 14565/05, § 50, 2 November 2010), and R.R. v. Romania (no. 1), (no. 1188/05, § 109, 10 November 2009). | 0 |
train | 001-93660 | ENG | SVN | CHAMBER | 2,009 | CASE OF ROBERT LESJAK v. SLOVENIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 8 April 1995 the applicant was injured in a car accident. The perpetrator of the accident, I.R., had taken out insurance with the insurance company A. 7. On 18 October 1999 the applicant instituted civil proceedings against I.R. and the insurance company A. in the Celje District Court, seeking damages in the amount of 3,688,433 Slovenian tolars (SIT) (approximately 15,370 euros) (EUR) for the injuries sustained. 8. Between 29 November 2001 and 12 May 2006 the applicant lodged several written submissions and adduced evidence. 9. Between 15 December 2003 and 4 September 2006 the court held eight hearings, one of which was conducted at the site of the accident. It does not appear that any of the hearings were adjourned due to the applicant’s fault. 10. During the proceedings, the court also appointed two experts and requested an additional opinion from one of them. 11. After the last hearing in the case, the court delivered an interim judgment (vmesna sodba) determining the responsibility for the damage, which was served on the applicant on 25 September 2006. 12. On 9 October 2006 the applicant appealed to the Celje Higher Court. I.R. and the insurance company A also appealed. 13. On 9 May 2007 the Celje Higher Court allowed the applicant’s appeal in part and changed the first-instance court’s interim judgment. It found I.R. and the insurance company A responsible for 70% of the damage suffered due to the accident. 14. The judgment was served on the applicant on 18 May 2007. 15. On 13 June 2007 the insurance company A lodged an appeal on points of law with the Supreme Court. These proceedings are still pending. 16. On 2 March 2007 the applicant lodged a supervisory appeal with the Celje District Court. In this supervisory appeal the applicant explained that the proceedings had started on 18 October 1999 and were still pending. As a consequence, his right to a hearing within a reasonable time had been violated. He requested that the proceedings be expedited and the decision be delivered immediately. 17. On 23 March 2007, referring to sections 5(1) and 6(4) of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), the President of the Celje District Court replied to the supervisory appeal by explaining that the case file had been transferred to the Celje Higher Court on 20 March 2007. 18. The Act on the Protection of the Right to a Hearing without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006- “the 2006 Act”) was passed by the Slovenian Parliament on 26 April 2006 and became operational on 1 January 2007. 19. The 2006 Act provides for remedies to expedite pending proceedings (a supervisory appeal and a motion for a deadline). In addition to these acceleratory remedies, the 2006 Act also provides the possibility to obtain redress through a compensatory remedy, namely by bringing a claim for just satisfaction. 20. As regards the acceleratory remedies, a claimant may, during the first- and second-instance proceedings, that is the proceedings before the regular courts, use a supervisory appeal if he or she considers that the court is unduly protracting the decision-making. If the president of the court dismisses the supervisory appeal or, inter alia, fails to respond to the claimant within two months, he or she can lodge a motion for a deadline with the court hearing the case. The motion for a deadline is dealt with by the president of the higher court. He or she shall decide on the motion for a deadline within fifteen days of receiving it. 21. As regards the present case, the following provisions of the 2006 Act are relevant: “(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling. (2) If the supervisory appeal does not contain all the requisite elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling. (3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, as part of his judicial management powers under the Judicature Act, immediately request the .... judge or president of a court panel (‘the judge’) to whom the case has been assigned for resolution to submit a report indicating the reasons for the duration of the proceedings not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include a declaration in respect of the criteria referred to in section 4 of this Act and an opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he considers that, in the light of the allegations of the party indicated in the supervisory appeal, its examination is necessary. (4) If the judge notifies the president of the court in writing that all relevant procedural measures will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal. (5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling. frame for their performance, which shall be no less than fifteen days and no longer than six months, and the appropriate deadline for the judge to report on the measures performed. (7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the Judicial Service Act. ... “(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline on the grounds stated in section 5(1) of this Act with the court hearing the case. ... (3) The party may lodge an motion for a deadline within fifteen days of receiving the ruling or after expiry of the time-limits provided for in paragraph 1 of this section.” 22. As to the claim for just satisfaction, sections 15, 19 and 20 of the 2006 Act provide that for the party to be able to lodge a claim for just satisfaction two cumulative conditions must be satisfied. Firstly, during the first- and/or second-instance proceedings the applicant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline, regardless of its outcome. In this connection section 15 provides, in so far as relevant: “(1) If the supervisory appeal lodged by the party has been upheld or a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act. ...” 23. Secondly, the proceedings must have been “finally resolved” (pravnomočno končan postopek). The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies. This would normally be the first, or if an appeal has been lodged, the second-instance court’s decision. 24. As regards proceedings before the Supreme Court, a claimant can use a supervisory appeal and a motion for a deadline with an aim to accelerate the proceedings. It would appear from the text of the 2006 Act that both are dealt with by the president of the Supreme Court. A claim for just satisfaction is not available in respect of the length of Supreme Court proceedings. The relevant part of the 2006 Act reads as follows: “(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (‘the president of the court’). ... ... (3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia. (4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline.” 25. For a more detailed presentation of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, 18 October 2007. 26. As regards possible outcome of Supreme Court proceedings, the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999) provides that, depending on the circumstances, the Supreme Court when upholding an appeal on points of law may remit the case for re-examination or vary the lower court’s judgment. | 1 |
train | 001-127816 | ENG | RUS | CHAMBER | 2,013 | CASE OF ERMAKOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition;Positive obligations) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Extradition) (Procedural aspect);No violation of Article 5 - Right to liberty and security (Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 7. The applicant was born in 1972. Until 2 November 2012 he was detained in Nizhniy Novgorod. He is currently held in detention in Andijan, Uzbekistan. 8. Until 2009 the applicant and his family were living in the Zhalokuduk District of the Andijan Region, located in the Fergana Valley of Uzbekistan. He transported goods to the nearby villages in a cart pulled by a donkey. The applicant is a practising Muslim. In 1995 he started performing Salah and attending a mosque. 9. In 2007 the applicant’s passport (“the old passport”) expired, and, to apply for its renewal, he completed a “form no. 1”, a questionnaire containing his personal details and the old passport number. On 29 March 2007 he was issued with a new passport (“the current passport”). The original form no. 1 was filed at the local branch of the Department of the Interior of the Andijan Region, Uzbekistan. 10. According to the applicant, in March 2009 he learned of the arrest of a neighbour with whom he had regularly performed Salah. Being aware of the widespread practice of torture in detention in Uzbekistan, he decided to leave the country for fear of arrest on fabricated charges and torture in custody. 11. On 11 March 2009 the applicant arrived in Russia via the Moscow Domodedovo International Airport (“Domodedovo Airport”). On 23 July 2009 he was issued with a temporary residence permit valid until August 2012. He lived in Dzerzhinsk in the Nizhniy Novgorod Region, until his arrest. His wife and a minor daughter live in Andijan. 12. On 26 August 2009 the Investigative Unit of the Andijan Regional Department of the Interior brought criminal proceedings against a group of persons, apparently including the applicant, on suspicion of setting up a criminal group attempting to overthrow the constitutional order of the Uzbek State. 13. On 16 September 2009 the above-mentioned department issued two separate formal statements of charges against the applicant. Both decisions specified that he had been charged in absentia with involving minors in criminal activity (Article 127 § 3 (b) of the Criminal Code of the Republic of Uzbekistan (“the UCC”)), terrorism (Article 155 § 1 of the UCC), incitement to hatred and hostility giving rise to discrimination on grounds of race and religion by an organised group and by means dangerous to the public (Article 156 § 3), conspiracy to overthrow the Uzbek State’s constitutional order (Article 159 § 4), unlawful crossing of the State border (Article 223 § 3 (b)), repeated forgery of official documents and use of the fabricated documents (Article 228 § 2 (a), (b)), setting up a criminal group (Article 242 § 1), producing and disseminating documents containing ideas of religious extremism, separatism and fundamentalism, and threats to national security and public order (Article 244(1) § 3 (a) of the UCC), setting up, managing and participating in extremist, separatist, fundamentalist and other banned organisations (Article 244(2) § 1 of the UCC), and smuggling material disseminating extremist, separatist and radical fundamentalist ideas (Article 246 of the UCC). 14. The first statement of charges, issued in respect of the applicant only, began with an outline of Uzbek State policy in the sphere of the fight against religious extremism and, in particular, referred to the events of 2005 in the Fergana Valley as an armed attempt to seize State power conducted by members of the extremist movement “Akromiya” with the assistance of international terrorist forces and “under the influence of certain States acting on the basis of double standards and seeking to achieve their own geopolitical aims”. It further described actions allegedly committed by various individuals identified as members of the criminal group the applicant belonged to. The actions imputed directly to the applicant were described as follows: “Ermakov, with a view to studying the works of the leader of the criminal association ‘the Islamic Movement of Uzbekistan’ ... and having chosen the path of jihad, met in January 2000 with residents of the Dzhalakuduk District of the Andijan Region [six names quoted] and others ... studied the ideas of the religious extremist movement and became member of the extremist movement ‘Wahhabi’.” 15. In the second statement of charges the investigator listed various actions the applicant had participated in “as a member of a criminal group” or “on the basis of a criminal conspiracy”. In particular, he was suspected of membership of the banned religious movement “Wahhabism”, studying materials by the Islamic Movement of Uzbekistan, spreading ideas of religious extremism, disseminating and storing video-materials by the abovementioned banned religious movements, and providing financial support to members of the criminal group. 16. On 16 September 2009 the Andijan Town Court ordered the applicant’s arrest. On the same date his name was put on the crossborder list of wanted persons by the decision of an investigator of the Andijan Regional Department of the Interior. It appears that at some point the applicant was placed on the Interpol Wanted Fugitives List (in the absence of further information, see paragraph 96 below). 17. On 14 November 2009 the police arrested the applicant in the Nizhniy Novgorod Region of Russia as a person on the cross-border wanted list. On the same date the Anti-Terrorism Criminal Investigation Unit of the Uzbekistan Department of the Interior confirmed to the Russian authorities the applicant’s placement on the cross-border wanted list and its intention to request his extradition, enclosing a petition for the applicant’s arrest and placement in custody, the first statement of charges, his passport details, and a copy of the form no. 1. 18. On 1 December 2009 the applicant wrote a letter to the prosecutor’s office of the Nizhniy Novgorod Region stating that he had left Uzbekistan after the arrest of his neighbour, out of fear that he would also be arrested, tortured and convicted on fabricated charges. He stated that he had gone to Russia in order to earn money, firmly denied all charges against him as fabricated and asked the Russian authorities not to send him to Uzbekistan, referring to the risk of torture in detention. 19. On 10 December 2009 the Deputy Prosecutor General of Uzbekistan sent a request for the applicant’s extradition to Uzbekistan to the Russian Prosecutor General’s Office. The request contained assurances that the applicant would be prosecuted only for the offences for which he was being extradited, that he would be able to freely leave Uzbekistan when he had stood trial and served any sentence, and that he would not be expelled or extradited to a third State without the consent of the Russian authorities. The second statement of charges was enclosed with the request. 20. On 18 March 2010 the Deputy Prosecutor General of Uzbekistan reiterated the earlier assurances provided in respect of the case and further assured his Russian counterpart that the applicant would not be prosecuted on political, racial or religious grounds, that he would not be subjected to torture or other inhuman or degrading treatment, and that the guarantees of a fair trial would be observed in the criminal proceedings against him. 21. On 12 April 2010 the Russian Prosecutor General’s Office ordered the extradition of the applicant to Uzbekistan on account of the charges under Articles 159 § 3 (b) and 242 § 1 of the Criminal Code of the Republic of Uzbekistan (attempt to overthrow the Uzbek State’s constitutional order, participation in and direction of religious, extremist, separatist and other prohibited organisations), Article 127 § 3 (b) (involvement of minors in criminal activity), Article 155 § 1 (terrorism), Article 156 § 3 (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion by an organised group and by means dangerous to the public), Article 159 § 4 (conspiracy to overthrow the Uzbek State’s constitutional order), Article 223 § 3 (b) (unlawful crossing of the State border), Article 242 § 1 (setting up a criminal group), and Article 244 (1) § 3 (a) of the UCC (producing and disseminating documents containing ideas of religious extremism, separatism and fundamentalism, and threats to national security and public order). By the same decision the Prosecutor General’s Office refused the extradition request in so far as it concerned the charges under Article 246 of the UCC (forgery), stating that the alleged offence had been committed by a different person, Article 228 § 2 (a) and (b) (smuggling material disseminating extremist, separatist and radical fundamentalist ideas), since the offence was not punishable under Russian law, and Article 244(2) § 1 of the UCC (participating in extremist, separatist, fundamentalist and other banned organisations), since the charge was subsumed by another one in accordance with Russian law. 22. On 26 April 2010 the applicant and his lawyer sought judicial review of the extradition order. They submitted, in particular, that it was unlawful since it had been issued before the applicant’s request for refugee status had been determined by the domestic authorities. They argued that the “Wahhabism” movement was not an organisation banned in Russia and the documents submitted by the Uzbek authorities lacked information on the applicant’s membership of a religious organisation after 2009. They pointed out that, according to the decision of 16 September 2009, the applicant was charged with several offences as the perpetrator. However, the facts outlined in the statement of charges concerned acts allegedly committed by several other persons, but not by the applicant. They stated that the applicant had been charged with an attempt to overthrow the State order of his home country and therefore his criminal prosecution was politically motivated. Finally, referring to the Court’s extensive case-law on the matter and various reports by international observers, the defence stressed that the use of torture and ill-treatment against detainees in Uzbekistan was systematic and went unpunished by the law-enforcement and security authorities, and that the applicant ran an individualised risk of ill-treatment in the event of extradition. 23. On 8 July 2010 the Nizhniy Novgorod Regional Court upheld the extradition order as lawful and well-founded. The applicant was present, represented, and assisted by an interpreter. During the hearing the applicant maintained that he had a limited command of Russian, and that he had decided to leave Uzbekistan after his neighbour’s arrest out of fear of arrest and torture. He had not applied for refugee status in Russia immediately after his arrival there, since he had at first been unaware of the charges against him and then he had thought that such information would lead to his expulsion from Russia. He had only made such an application after receiving his lawyer’s advice. The lawyer maintained his grounds for appeal and pointed out that the case-file did not contain the first statement of charges but only the second, which was different from the initial one. 24. The defence further requested the admission of Ms Ryabinina as the applicant’s defender («защитник»), since she could provide an expert opinion on the situation in Uzbekistan and law-enforcement practice in similar cases. The court rejected that request, finding that the applicant was represented by a professional lawyer, and that Ms Ryabinina was not a member of the applicant’s family, had only a technical education and did not practise “in the law-enforcement sphere on extradition matters”. 25. The Regional Court observed that the applicant did not have refugee status in Russia; he had failed to either apply for it in a timely manner or to advance a plausible explanation for that omission. The court observed that on 19 April 2010 the Nizhniy Novgorod Federal Migration Service (FMS) had refused to accept his request for an examination on the merits (see paragraph 33 below), noting that the decision “was, in substance, correct” and that it had not been appealed against within the time-limits set out in the domestic law. The court noted, without giving further details, that there was no evidence that the applicant had been, or would be, prosecuted in Uzbekistan on political or religious grounds. Turning specifically to the allegation of persecution on political grounds, the court rejected it as having no legal basis. The court noted that, in accordance with the reservation of the Russian Federation on ratification of the European Convention on Extradition, Russian law did not contain a definition of a “political offence” and the list of offences the Russian Federation would not consider as “political” or “connected with political offences” was not exhaustive. Finally, the court found no formal obstacles to the applicant’s extradition and noted that the Uzbek authorities had provided assurances in the applicant’s case. 26. On 14 July 2010 the defence appealed against the Regional Court’s decision, arguing that the first-instance court had omitted to make a legal assessment of the evidence submitted in support of the argument concerning the risk of ill-treatment in custody. The defence pointed to various discrepancies between the two statements of charges constituting the basis for the arrest request and the formal extradition request, respectively, and concluded that the charges had been fabricated. They further argued, on the basis of the first statement of charges, that it did not contain information about offences committed by the applicant but referred to suspicions in respect of other persons. They maintained that the decision to extradite the applicant had been taken unlawfully in the absence of a final ruling in the refugee status proceedings, and also challenged the refusal to admit Ms Ryabinina as the applicant’s defender. 27. On 19 July 2010 the applicant’s lawyer lodged objections regarding the court hearing transcript, stating, in particular, that the following information had not been included therein: the applicant’s request for a letter from the United Nations High Commissioner for Refugees to be admitted to the case file (see paragraph 35 below), submissions regarding the applicant’s limited command of Russian, and a request for a legal assessment of the charges against the applicant. At some point the Regional Court rejected these objections. 28. At some point the applicant’ lawyer lodged a request with the office of the Prosecutor General of the Russian Federation for clarifications as regards the significant discrepancies in the two statements of charges against the applicant. On 27 July and 16 August 2010 the Prosecutor General’s Office informed the applicant that, inter alia, it had requested clarifications on the matter from the office of the of the Privolzhskiy Department of Transport prosecutor. In the meantime, on 3 August 2010 the Office of the Prosecutor General office of the Russian Federation received a letter dated 26 July 2010 from their Uzbek counterpart specifying that the applicant’s extradition was sought only in connection with the offences listed in the formal request for extradition (apparently, those listed in the second statement of charges) and asking for the first statement of charges forwarded by the Uzbek authorities on the date of the applicant’s arrest in Russia to be disregarded. 29. On 22 September 2010 the Supreme Court of the Russian Federation rejected the applicant’s appeal against the judgment of 8 July 2010 and upheld the extradition order and the Regional Court’s decision as lawful and wellfounded. In reaching that conclusion, the Supreme Court referred to the assurances by the Uzbek authorities and noted that the Ministry of Foreign Affairs of the Russian Federation had not pointed out any obstacles to the applicant’s extradition to Uzbekistan. The court found no evidence that the applicant had been, or would be, prosecuted on political or religious grounds and observed that the applicant neither had refugee status nor could be regarded as a person seeking such status in the Russian Federation. As regards the alleged discrepancies in the statements of charges provided by the Uzbek authorities to their Russian counterparts, the Supreme Court rejected that argument as irrelevant, since it was not the task of the domestic courts, or the prosecutor’s office, to decide on the applicant’s guilt in the extradition proceedings. The Supreme Court rejected the request for Ms Ryabinina to be admitted as a defender and questioned as a specialist, upheld the Regional Court’s refusal to do so and endorsed its reasoning in that respect. The extradition order became final. 30. On 10 December 2009 the applicant lodged a request for refugee status in Russia with the Nizhniy Novgorod FMS on the ground of fear of persecution because of his religious beliefs. He submitted that the accusations against him were unfounded and that he faced torture and other forms of ill-treatment if extradited to Uzbekistan. He had left Uzbeksitan after the arrest of a neighbour with whom he had regularly attended the mosque. He referred to reports by the UN agencies issued in 2006-2007 and reports by respected international NGOs demonstrating that torture was widespread in Uzbekistan and confessions were often extracted from defendants under duress. He also referred to the Court’s case-law, in particular the case of Ismoilov and Others v. Russia (no. 2947/06, 24 April 2008), concerning extradition to Uzbekistan. He specified that he had not applied for refugee status immediately after his arrival in Russia because of his poor command of Russian and also because he had “not been aware of such a possibility”. 31. By a letter of 25 December 2009 the Nizhniy Novgorod FMS advised the applicant that it could not examine his application since he did not meet the “refugee” criteria set out in the domestic law. On 15 January 2010 the applicant challenged that refusal before the Federal Migration Service of the Russian Federation (“the Russian FMS”), submitting that the Nizhniy Novgorod FMS had failed to establish the facts of the case and, furthermore, that he had left Uzbekistan before the opening of the criminal case against him in his home country. 32. On 8 April 2010 the Russian FMS notified the applicant that it had instructed the Nizhniy Novgorod FMS to examine his request. 33. By a letter of 21 April 2010 the Nizhniy Novgorod FMS informed the applicant that on 19 April 2010 it had refused to examine the complaint, since the applicant did not meet the “refugee” definition. 34. On 14 May 2010 the applicant appealed against that decision to the Russian FMS, referring to the regional migration authority’s failure to assess the risk of ill-treatment. In addition to his earlier submissions he provided references to articles from the local press published in JanuaryMay 2010 concerning the continuing practice of ill-treatment of detainees in Uzbekistan. The appeal was received by the Russian FMS on 15 June 2010. On 12 July 2010 the Russian FMS accepted the applicant’s complaint and remitted it to the regional migration authority for examination on the merits. 35. In the meantime, on 6 July 2010 the Moscow Office of the United Nations High Commissioner for Refugees (UNHCR) informed the defence that the applicant met the criteria established by its statute and was eligible for international protection under its mandate. 36. On 12 August 2010 the Nizhniy Novgorod FMS rejected the applicant’s request for refugee status by a letter received by the applicant on 16 August 2010, citing two grounds for the refusal: (1) failure to meet the “refugee” definition; and (2) the inapplicability of the Refugee Act to individuals who had “committed a serious criminal offence of a nonpolitical nature outside the Russian Federation before being admitted to the Russian Federation as a person requesting refugee status”. 37. On 23 September 2010 the applicant appealed against that refusal, maintaining that the charges had been fabricated and pointing to the risk of illtreatment, with extensive references to reports by the UN Committee against Torture, Human Rights Watch and Amnesty International, and information from the Russian Ministry of the Foreign Affairs. He also requested an extension of the one month time-limit for lodging his appeal, since he had allegedly not been able to understand the contents of the letter of 12 August 2010 because of his poor command in Russian, and his lawyer had explained the grounds for the refusal to him only on 21 September 2010. 38. On 20 October 2010 the Russian FMS rejected the appeal. It noted that, according to information from the Russian Ministry of Foreign Affairs, the human rights situation in Uzbekistan was “ambiguous”. The dissemination of ideas of religious extremism and separatism constituted a criminal offence in that country. After the defeat of the Andijan uprising the importing of Islamic literature had been proscribed. The Uzbekistan leadership had an expressed intention to fine and put in jail individuals who worshipped outside the areas designated for that purpose. The Uzbek authorities considered that members of the Islamic Movement of Uzbekistan and Akromiya, a branch of Hizb-ut-Tahrir, had actively participated in the Andijan events of 2005, and criminal proceedings against 121 persons, including ten members of Akromiya, were underway. Turning to the applicant’s case, the FMS noted that the applicant had failed to apply for asylum in due time after his arrival in Russia and had referred to his poor command in Russian to justify that failure. However, the migration authority noted that, first, the applicant had performed military service in Sakhalin, Russia, in 1990-1992, which would have been impossible without an adequate knowledge of Russian, and second, he had received a temporary resident permit for Russia in July 2009. Thus, the Russian FMS concluded that the applicant had provided false information about his language proficiency and that fact “undermined confidence in the applicant and in the remainder of his submissions”. The FMS concluded as follows: “Having analysed the applicant’s submissions and the information provided by the Ministry of Foreign Affairs and the Federal Migration Service of the Russian Federation on the situation in Uzbekistan and the activities of banned religious organisations, [the Russian FMS] finds no grounds to consider that the applicant would be persecuted on racial, religious, nationality, social or political grounds in the event of his return [to the requesting country].” 39. On 7 December 2010 the applicant challenged that decision in court. In written submissions and an oral statement made during the court hearing the defence reiterated the applicant’s fear that, in the event of extradition to Uzbekistan, he would be subjected to torture with a view to extracting a confession from him in respect of offences he had not committed. He further stated that the FMS had failed to duly assess that risk. As to his limited command of Russian, he stated that he had performed his military service 18-20 years prior to his arrest, that fluent Russian had not been necessary for obtaining the temporary residence permit and, furthermore, that his difficulty in understanding Russian had been confirmed in several hearings concerning his extradition and the extensions of his pretrial detention, where the courts had heard him in person and had agreed that he needed an interpreter’s assistance. 40. On 5 March 2011 the Basmnnyy District Court of Moscow rejected that appeal. The court reiterated that the applicant had not complained of a risk of persecution in Uzbekistan and had not raised his wish to remain in Russia as a refugee until his arrest. His allegations of persecution for attending a mosque were ill-founded, given that the majority of the population of the destination country freely practised Islam. In addition, the court noted that the destination country had signed various international human rights treaties concerning, in particular, the protection of refugees. The court further endorsed the Russian FMS’s decision as lawful, noting the applicant’s failure to adduce “convincing arguments to support his allegations of fear of unlawful persecution on religious grounds”. 41. The applicant appealed, maintaining the claims summarised in paragraph 39 above and submitting in addition that the first-instance court had failed to assess the risk on the basis of all available information, as well as to address his counter-arguments to the FMS’s conclusion regarding his command of the Russian language. 42. On 24 June 2011 the Moscow City Court upheld the judgment of 5 March 2011. The appeal court found that the migration authority had taken its decision in compliance with the existing procedure and that the firstinstance court had The City Court endorsed the conclusion that no evidence of the applicant’s persecution on religious grounds had been adduced, and noted that the defence had not referred to any new facts capable of altering that conclusion. The court also referred to several international human rights treaties signed by Uzbekistan and noted that on 22 October 2009 the European Union had lifted various sanctions, including an arms embargo, against that country on account of progress achieved in the human rights sphere and the abolition of the death penalty there. 43. Following the applicant’s arrest on 14 November 2009 (see paragraph 17 above), on 15 November 2009 the Nizhniy Novgorod transport prosecutor ordered his placement in custody pending extradition. On 18 December 2009 the Nizhniy Novgorod Kanavinskiy District Court rejected the applicant’s appeal against the detention order. On 12 March 2010 the Nizhniy Novgorod Regional Court upheld decision on appeal. 44. On 17 December 2009, upon receipt of the formal request for the applicant’s extradition (see paragraph 19 above), the Nizhniy Novgorod deputy transport prosecutor, by a separate decision, again ordered the applicant’s detention pending extradition. It is unclear whether the decision was appealed against. 45. It appears that at some point the Nizhniy Novgorod transport prosecutor’s office asked the court to extend the applicant’s detention. 46. On 30 December 2009 the Kanavinskiy District Court examined that request, found that the latest extension of the applicant’s detention had been granted on 15 November 2009 [sic], and the applicant could be held in custody on the basis of a prosecutor’s order for a period not exceeding two months. The court noted the receipt of the formal extradition request from the Uzbek authorities (see paragraph 19 above), observed that the extradition proceedings had not been completed, and decided that the applicant should remain in custody until 14 March 2010. 47. The applicant’s lawyer appealed, arguing, inter alia, that the applicant had been held in custody unlawfully since 14 November 2009. 48. On 5 March 2010 the Nizhniy Novgorod Regional Court dismissed the appeal and endorsed the extension of 30 December 2009. 49. On 4 March 2010 the Kanavinskiy District Court of Nizhniy Novgorod Nizhniy Novgorod extended the applicant’s detention pending extradition until 14 May 2010. On 26 May 2010 the Nizhniy Novgorod Regional Court rejected the applicant’s appeal of 9 March 2010 and upheld the extension order. 50. On 7 May 2010 the Kanavinskiy District Court further extended the applicant’s detention until 14 July 2010. The decision was upheld on appeal by the Nizhniy Novgorod Regional Court on 15 June 2010. 51. On 8 July 2010 the Nizhniy Novgorod Regional Court, when examining the applicant’s appeal against the extradition order (see paragraphs 23-25 above), authorised the extension of the applicant’s detention until 14 November 2010. The court found no reason to apply a preventive measure other than detention, since it was necessary to ensure the applicant’s extradition. 52. On 3 September 2010, by an additional statement of appeal against the judgment of 8 July 2010, the defence challenged the Regional Court’s findings in so far as they concerned the extension of the detention. He complained, in particular, about the overlap of the extension with the ruling of the Kanavinskiy District Court of 8 July 2010 (see paragraph 54 below). 53. On 22 September 2010 the Supreme Court of Russia, deciding on the applicant’s appeal against the extradition order (see paragraph 29 above), upheld the entirety of the lower court’s findings without addressing the detention issue separately. 54. On 8 July 2010 the Kanavinskiy District Court, by a separate decision, extended the applicant’s detention until 14 September 2010. 55. On 10 August 2010 the Nizhniy Novgorod Regional Court upheld the extension on appeal. The Regional Court found there was no contradiction between the two decisions of 8 July 2010 issued by the District Court and the Regional Court since the first one concerned the applicant’s detention pending extradition, whilst the second one dealt with the lawfulness of the extradition order. 56. On 19 October 2010 the transport prosecutor’s office lodged an application for a further extension of the applicant’s detention with the Nizhniy Novgorod Regional Court. 57. On 2 November 2010 the Nizhniy Novgorod Regional Court examined the matter and granted an extension until 14 May 2011. According to the hearing transcript, the applicant requested the court to change the preventive measure in respect of him to one of house arrest, and gave the address of a relative in Nizhniy Novgorod where he could reside pursuant to the application of such a measure. He stated that before his arrest he had lived in Nizhniy Novgorod and not in Dzershinsk, the place of his formal residence registration. He did not remember the exact address in Nizhniy Novgorod he had resided at. The applicant’s lawyer stated at the hearing that the applicant had introduced an application with the Court and that an interim measure had been applied to his case under Rule 39 of the Rules of Court. The lawyer pointed to the similarly between the applicant’s case and several others previously examined by the Court (for instance, the case of Ismoilov and Others, cited above) and stated that the applicant had a good chance of winning his case in Strasbourg. The lawyer submitted that “there exist[ed] legal grounds for decreasing the amount of compensation, and even reducing it to zero” if the preventive measure in respect of the applicant was changed to a milder one. The lawyer provided a full address in Nizhniy Novgorod where the applicant could be placed under house arrest and specified that the applicant himself had by mistake cited the wrong street name. 58. When granting the extension, the Regional Court observed that the circumstances requiring the applicant’s detention remained unchanged. The court noted that the extradition order in respect of the applicant had indeed become final but the extradition had been suspended pursuant to the application of Rule 39 by the Court, and therefore the extradition order could not be enforced. However, there existed a risk of the applicant’s absconding if he was released. The court noted that the applicant was wanted for particularly serious offences, had been hiding from the Uzbek authorities, and measures were being taken to ensure his extradition which involved the application of international treaties; therefore his case should be considered exceptional. His detention was in accordance with the domestic law. Various case documents demonstrated the reasonableness of the suspicion against him as regarded the well-foundedness of the accusations brought by the Uzbek authorities, but the Regional Court was not competent to decide on that matter. It concluded that the extension of the applicant’s detention was in compliance with Article 5 § 1 (f) of the Convention. The court further rejected the possibility of changing the preventive measure to house arrest, since the applicant had been unable to indicate a specific address where he could reside if such a measure was applied, or to provide any further details in support of his petition. 59. On 8 November 2010 the applicant appealed against the decision. In particular, he challenged the Regional Court’s reference to the gravity of the charges against him and the exceptional nature of the case as immaterial. With reference to the Chahal case (see Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996V), he stated that no action had been taken with a view to his extradition since 2 September 2010, when the extradition order had become final, and the Regional Court had failed to indicate any specific measures to be taken to enforce the extradition order after that date. He drew the court’s attention to contradictory documents submitted by the Uzbek authorities and submitted that the charges were fabricated and unfounded. 60. On 14 January 2011 the Supreme Court of the Russian Federation dismissed the applicant’s appeal. The court endorsed the firstinstance court’s reasoning as lawful and well-founded. In particular, it upheld the Regional Court’s findings as to the gravity of the charges against the applicant, the possibility of his absconding or obstructing justice, and the exceptional nature of his case. The Supreme Court observed that the lower court had reached its conclusions on the basis of all available material, including the information on the application pending before the European Court. The court further upheld as reasonable the refusal to place the applicant under house arrest, since the address of his registration was no longer his place of residence, he had failed to give his latest place of residence in Nizhniy Novgorod, and he had been unable to provide either an address where he could he held under house arrest or any other details. 61. On 13 May 2011 the Kanavinskiy District Court changed the preventive measure in respect of the applicant to house arrest, on account of the expiry of the maximum term for his detention pending extradition and in order to ensure the applicant’s extradition, which was suspended at the time pursuant to the application of the interim measure by the Court. The applicant and his representative were present at the hearing. The court referred, in particular, to Articles 107 and 109 of the Code of Criminal Procedure of the Russian Federation (“the CCrP”). The house arrest order read as follows: “... to prohibit [the applicant] from leaving his permanent place of residence at the address [...], communicating, without an investigator’s prior consent, with suspects, accused, victims or other participants in the criminal case, and from sending and receiving correspondence, or using any means of communication.” 62. The court specified that the local transport prosecutor’s office and the Nizhniy Novgorod Department of the Federal Security Service was to ensure supervision of the applicant’s compliance with the restrictions imposed. The court further ordered the applicant’s immediate release from detention and specified that the decision could be appealed against in the Nizhniy Novgorod Regional Court within three days, and that the applicant could participate in the appeal hearing if he chose to appeal. 63. The applicant did not appeal against the house arrest order. 64. On 17 May 2011 the applicant’s lawyer lodged a petition (ходатайство) under Articles 119 and 120 of the CCrP with the Nizhniy Novgorod transport prosecutor asking him “to lodge a petition with a court” for the discontinuation of the applicant’s house arrest. Referring to Articles 107, 108 and 109 of the CCrP, the lawyer submitted that the period the applicant had spent in detention should be counted towards the term of the house arrest, pointed out that the maximum period for the applicant’s detention had expired on 14 May 2011, and claimed that further application of the preventive measure to him was therefore unlawful. 65. On 20 May 2011 the transport prosecutor’s office notified the applicant of an extension of the time-limit for the examination of his request until 26 May 2011. 66. On 26 May 2011 Ms L., the deputy transport prosecutor of the Privolzhskiy Region, rejected the applicant’s request – which she referred to as “a request to bring an extraordinary appeal” («ходатайство о принесении протеста») – against the judgment of 13 May 2011. She noted that the court had examined all available material on the extradition procedure and taken a reasonable and lawful decision to place the applicant under house arrest in order to ensure his extradition, that there was no reason to change the preventive measure, and that the domestic law did not specify a maximum time-limit for house arrest. A copy of the decision was submitted to the Court by the Government. It appears that the applicant and his lawyer did not receive it. 67. By a letter of 26 May 2011 Mr D., Head of the Supervision Department of the Privolzhskiy transport prosecutor’s office, informed the applicant that there were no grounds to bring an extraordinary appeal and cited the same reasons as in the above decision. 68. On 15 June 2011 the applicant challenged D.’s refusal to request his release in the Kanavinskiy District Court under Article 125 of the CCrP. 69. On 7 July 2011 the Kanavinskiy District Court rejected a complaint by the applicant about “the refusal to bring an application for a change of the preventive measure in respect of the applicant”, noting that the applicant had complained about the actions of D., who had not taken any decisions in the applicant’s case, the refusal having in fact been issued by L. The applicant did not appeal against that decision. 70. On 1 August 2011 the Nizhniy Novgorod deputy transport prosecutor discontinued the applicant’s house arrest on account of his placement in custody on 5 July 2011 in connection with a criminal case against him in Russia (see paragraphs 73-74 below). 71. On 6 September 2011 the applicant brought a civil action against the transport prosecutor’s office under Articles 254-256 of the Code of Civil Procedure, requesting the court to order the transport prosecutor’s office to quash the refusal of 26 May 2011. 72. On 13 September 2011 the Kanavinskiy District Court refused to examine the civil complaint against the impugned prosecutor’s decision, finding that the dispute at stake fell within the province of criminal rather than civil procedural law. It appears that the applicant did not appeal. 73. According to the official account of the events, on 1 July 2011 the applicant was stopped by police on the street in Nizhniy Novgorod while carrying a hand grenade in the pocket of his jeans. According to the applicant, the grenade had been planted on him by the police. Criminal proceedings were brought against him on suspicion of the illegal procurement, storage and possession of arms. On 1 and 4 July he was questioned in respect of the incident. 74. On 5 July 2011 the applicant was arrested and placed in pretrial detention in the Nizhniy Novgorod IZ 52/1 detention facility (“SIZO1”) pending the investigation of the above criminal case. His detention was extended several times by the domestic courts. 75. According to the applicant’s representatives’ submissions to the domestic authorities (see paragraph 104 below), the applicant’s personal belongings, including his money, were held in trust for him by Mr Sidorov, his representative in the domestic proceedings and before this Court. 76. On 7 September 2011 the Nizhniy Novgorod Kanavinskiy District Court convicted the applicant as charged and sentenced him to one year and four months’ imprisonment. 77. The applicant appealed against the conviction and the appeal hearing was scheduled for 23 November 2012. He remained in detention in SIZO1 pending the examination of his appeal. On 2 November 2012 the applicant was released from detention (see paragraphs 83-88 below). 78. On two occasions, that is, on 23 November and 25 December 2012, the Nizhniy Novgorod Regional Court adjourned the appeal hearings because of the applicant’s absence and because he had not been properly notified of the examination of his case (see paragraph 124 below for details). On 29 January 2013 the Regional Court upheld the conviction in the applicant’s absence. 79. In the wake of the application of the interim measure under Rule 39 in the applicant’s case on 22 September 2010 (see paragraph 4 above), the Government submitted on 4 October 2010 that the Russian authorities had taken steps to ensure that the applicant would not be extradited to Uzbekistan until further notice. On 30 November 2012 the Government submitted that at some point the Privolzhskiy regional transport prosecutor’s office and the prosecutor’s office of the Nizhniy Novgorod Region had received all necessary orders to take additional measures for nonadmission of the forced transfer of the applicant to Uzbekistan. 80. On 2 July 2011 the applicant produced a written statement to his lawyer to the effect that he wished to maintain his case before the Court and if ever he claimed otherwise, it would mean that he had changed his position under pressure. 81. On 25 January 2012 the Registrar of the Court sent a letter to the Russian Government on behalf of the President of the Court in connection with another case, expressing his profound concern at the repeated allegations concerning the secret transfer of applicants from Russia to Tajikistan in breach of interim measures applied under Rule 39 of the Rules of Court. Referring to this situation as worrying and unprecedented, the letter invited the Russian Government to provide the Court with exhaustive information about any follow-up given to the incidents in Russia. It also drew the authorities’ attention to the fact that interim measures continued to apply in twenty-five other cases concerning extradition and expulsion, including the present case. As an indication of the seriousness with which he viewed this turn of events, the President asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately (see the full text of the letter quoted in Savriddin Dzhurayev v. Russia, no. 71386/10, § 52, 25 April 2013). 82. According to the Government’s submissions in reply to that letter made in another case pending before this Court, on 3 February 2012 the Office of the Representative of the Russian Federation at the Court informed the Prosecutor’s General’s Office, the Ministry of the Interior, the FMS and the Federal Security Service of the interim measures issued by the Court. 83. On 26 October 2012 Mr Sidorov, the applicant’s lawyer, visited the applicant in SIZO-1, where he was serving his sentence of imprisonment (see paragraph 76 above). According to Mr Sidorov, the applicant expressed a fear of being apprehended and transferred to Uzbekistan immediately after release from custody. Allegedly, he had expressed similar concerns in his earlier conversations with the lawyer. The applicant promised to telephone Mr Sidorov immediately after his release. 84. The applicant’s term of imprisonment was due to end on 5 November 2012. In accordance with Article 173 of the Code of Execution of Sentences of the Russian Federation, in cases where a detainee’s term of imprisonment ends on a national holiday, the person is to be released on the day immediately before the holiday. Thus, the applicant’s release was due on 2 November 2012, the last day before a long week-end and national holiday. 85. At 6 a.m. on 2 November 2012, the applicant was released from SIZO1. According to the release certificate, the applicant’s current passport was returned to him upon release. 86. The office hours of the remand facility started at 8 a.m. At some point on 2 November 2012 Mr Sidorov went to SIZO-1 to meet his client. The remand prison authorities did not allow him to see the applicant, explaining that that day was a professional holiday for officers of the prison service. They did not inform the lawyer of the applicant’s release. 87. Having received no telephone call from the applicant on the date of his expected release or later, on 6 November 2012 (the next working day after the national holiday and long week-end in Russia) Mr Sidorov again went to SIZO-1 to enquire about his client. He was informed by the detention facility officers that the applicant had been released from custody on 2 November 2012. 88. The applicant never contacted his representatives after his release, and they have not seen him or been unable to contact him ever since. 89. In the evening of 2 November 2012, apparently at 11.45 p.m (Moscow time), the applicant departed Domodedovo Airport for Tashkent, Uzbekistan, on board regular flight no. HY-602 operated by Uzbek Airlines (O‛zbekiston havo yo‛llari). The distance between Nizhniy Novgorod and Domodedovo Airport is approximately 420 kilometres. Information provided by the parties about the events of that day may be summarised as follows. 90. According to a certificate issued on 15 November 2012 by the Border Control Department of the Federal Security Service of Russia, on 2 November 2012 the applicant left Russia by the above-mentioned flight, having “used his Uzbek passport, no. [the number of the current passport] to buy plane tickets”. 91. On 30 November 2012 the Government submitted that, according to the “Central Database of Aliens” of the Federal Migration Service, the applicant crossed the Russian State border at the checkpoint in Domodedovo Airport. They have not furnished any document in support of that submission. 92. On 4 December 2012 the Court asked the Government to specify the means of transport used by the applicant to get from Nizhniy Novgorod to Moscow on 2 November 2012, to provide the exact times of his transfers on that date, and to submit documents in support, such as, for instance, the relevant records from an airline company, or the train company, used by the applicant. No such information has been provided by the Government to date. On 11 February 2013 they submitted, without providing further details or documents, that the applicant’s name was not in the electronic database of persons on federal and local wanted lists – the “Search-Highway” («Розыск-Магистраль»). 93. On 3 May 2013 the Government submitted that the plane ticket had been issued in Tashkent on the basis of the “form no. 1”. The applicant had checked in for the flight and departed for Tashkent alone. There was no information that he had been escorted by any other person. 94. Referring to the release certificate of 2 November 2012 (see paragraph 85 above), the applicant’s representatives submitted that the only document in the applicant’s possession on the date of his release had been his Uzbek travel passport, and that he had had no money, credit cards or winter clothes with him. 95. According to the information provided by Uzbek Airlines, as summarised in the decision not to bring criminal proceedings of 11 March 2013 (see paragraph 122 below): “... the flight ticket for Mr Ermakov was issued in Tashkent on the basis of a “registration list form no. 1” for Uzbek nationals issued by the Zhalokudukskiy District Department of the Interior of the Andijan Region of Uzbekistan, [on the basis of] the Republic of Uzbekistan passport no. [the old passport number cited].” 96. According to an undated reply by the Russian National Central Interpol Bureau, summarised in the decision of 11 March 2013 (see paragraph 122 below), “... on 1 December 2012 the applicant’s name was deleted from the Interpol Wanted Fugitives list because of his arrest. On the basis of that information, the search for the applicant in Russia was also discontinued.” 97. The Government in their observations, including their latest submissions of 3 May 2013, have not provided any information about the applicant’s whereabouts. 98. The representatives have been unable to contact the applicant since his release and they have not had any information on his whereabouts. They attempted to contact the applicant’s relatives in Uzbekistan, but received no reply. They submitted that the relatives could have been intimidated or the applicant could be detained incommunicado. On 18 December 2012 they submitted, with reference to a “confidential source whose identity has not been disclosed because of fears for his security”, that the applicant was being held in detention in Andijan, Uzbekistan, but stressed that no official confirmation of that information was available. 99. On 13 March 2013 Amnesty International launched an “urgent action campaign” and issued a statement expressing concerns about the applicant’s alleged unlawful abduction, stating that the applicant faced a serious risk of torture. According to the statement, the applicant was “allegedly held in pre-trial detention in Andijan, eastern Uzbekistan”. 100. On 17 June 2013 the applicant’s representatives submitted a copy of a letter of 4 April 2013 from the Ministry of the Interior of the Republic of Uzbekistan confirming, in reply to a request by an unspecified person or authority, that the applicant was being held in pre-trial detention in remand facility no. UYa-64/14 (Следственный изолятор УЯ 64/14) in the Andijan Region of Uzbekistan. 101. On 30 November and 18 December 2012 the Government informed the Court that an inquiry into the applicant’s disappearance was pending and that the authorities did not have any information on the applicant’s forced transfer across the Russian border. They enclosed copies of the release certificate and the judgment of 7 September 2012. 102. On 11 February 2013 the Government stated that in December 2012 and on 9 January 2013 the Russian authorities had requested unspecified law-enforcement bodies and the Ministry of the Interior of Uzbekistan to provide them with information on the applicant’s whereabouts. Further, at some point in course of the internal inquiry the videorecords from Domodedovo Airport cameras had been requested by the investigators, but the footage was “not available yet”. They further stated, without enclosing any documents, that the material in the inquiry file did not contain any information on the applicant’s transfer to Uzbekistan against his will and that his name had not been found in the SearchHighway system (see paragraph 147 below). 103. In their latest observations, dated 3 May 2013, the Government stated that the domestic inquiry was still in progress. In particular, at some point the Airline and Water Service of the Moscow Transport InterDistrict Investigative Department of the Russian Federation Investigative Committee had been requested to obtain submissions from the crew members of the flight by which the applicant had left Moscow for Tashkent. The Court has received no update on the progress of that request. The Government enclosed copies of the refusals to bring criminal proceedings of 8 February and 11 March 2013 and the respective decisions ordering the quashing of those refusals (see paragraphs 116 and 122 below). 104. On 6 November 2012 Mr Sidorov applied to the local police and prosecutor’s office requesting the opening of an investigation into the applicant’s disappearance. On the same date the applicant’s other representatives before the Court informed the Prosecutor General’s office, the Federal Security Service and the Ministry of the Interior about the incident and asked the authorities to take urgent measures to establish the applicant’s whereabouts, to provide information on the applicant’s crossing of the Russian State border, and to open an investigation into the circumstances of his disappearance. 105. On 15 November 2012 the Federal Security Service of the Russian Federation advised Ms Ryabinina that domestic law did not provide for keeping a record of persons crossing State borders. However, the border control services were under an obligation to inform the migration authorities of the entry and departure of foreign nationals to and from the Russian Federation each day. That information constituted the basis for the federal migration record system. 106. Decision no. 94 of the Russian Government of 14 February 2007 on the State Information System of Migration Records did not list the legal representative of an individual among those entitled to request access to that information system (sections 18-27 of the Decision). 107. On 12 December 2012 Ms Yermolayeva sent an enquiry as to the applicant’s whereabouts to the office of the Prosecutor General of Uzbekistan, referring to the information on the applicant’s departure for Tashkent provided by the Government. It appears that she did not receive a reply. 108. On an unspecified date an investigator from police department no. 7 of the Ministry of Internal Affairs in Nizhniy Novgorod opened a preinvestigation inquiry into the circumstances of the applicant’s disappearance. 109. On 6 December 2012 the investigator decided not to bring criminal proceedings in respect of the incident. The applicant’s representatives have not received a copy of the refusal. 110. On 10 December 2012 the Department of the Interior of the Nizhniy Novgorod Region advised Ms Ryabinina that her complaint about the applicant’s disappearance had been examined and it had been decided “not to bring criminal proceedings and not to open a search file (розыскное дело) in respect of Mr Ermakov”. The Department further noted that measures for establishing the applicant’s whereabouts were “being taken in connection with the already existing search file”. 111. On 12 December 2012 Mr Sidorov requested the administration of SIZO1 to produce the footage of the surveillance cameras of the detention facility in order to confirm the exact time of the applicant’s release on 2 November 2012, to inform him of the progress of the inquiry, and to provide him with copies of any decisions taken during it. 112. On 14 December 2012 the prosecutor of the Sovetskiy District of Nizhniy Novgorod quashed the decision of 10 December 2012 on the ground that the inquiry had not been complete, and ordered an additional inquiry into the circumstances of the applicant’s disappearance. The parties did not provide a copy of that decision. 113. On 24 December 2012 the case was assigned to the Sovetskiy District Investigative Department of the Nizhniy Novgorod Regional Investigative Committee (“the Sovetskiy investigative department”). 114. On 29 December 2012 the Sovetskiy investigative department requested the “Domodedovo Airport Aviation Security” company to provide the video footage taken by the airport surveillance cameras on 2 November 2012. 115. On 23 January 2013 the above-mentioned company informed the investigators that their request needed to be directed to a different company, “Domodedovo IT Services” – and that, in any event, in accordance with the internal regulations, video records were only kept for thirty days. 116. On 8 February 2013 the Sovetskiy investigative department refused to open criminal proceedings in respect of the incident, for lack of a criminal event. The decision was taken on the basis of the following evidence: - submissions by D., an acquaintance of the applicant from Nizhniy Novgorod, who stated that he had not seen the applicant for more than a year; - submissions by Kh., living in Nizhniy Novgorod and referred to in the decision as the applicant’s sister; she stated in a telephone conversation with an investigator that neither she nor her relatives in Uzbekistan had any information about the applicant’s whereabouts; - information by the Federal Security Service on the applicant’s border crossing at Domodedovo Airport and his departure for Tashkent; - statements by the police officers in charge of the investigation of the criminal case against the applicant in Russia. The officers submitted that the applicant had not complained of a fear of abduction or any threats to his life before his release; - submissions by the SIZO-1 officer on duty at the checkpoint of the detention facility on 2 November 2012. She clearly remembered the applicant, since he had been released early in the morning on that date, which had not been the usual practice of the detention facility. She was unaware whether any person had come to meet the applicant on his release, since the window shutters at the checkpoint had been closed at that time of the day and she could not see anything outside her workstation. 117. The applicant’s representatives submit that they did not receive a copy of that decision. It was furnished to the Court by the Government on 3 May 2013. 118. On 11 February 2013 the deputy head of the Sovetskiy investigative department quashed the above decision, noting that it was necessary to obtain information from the Moscow office of Uzbek Airlines, as well as materials from the Moscow transport prosecutor’s office. An additional inquiry was ordered. 119. On 12 February 2012 the office of the prosecutor of the Nizhniy Novgorod Region, in response to the applicant’s representative’s request of 12 December 2012 (see paragraph 111 above), stated that the video surveillance records of the detention facility were kept for only thirty days, and therefore the video footage for the date in issue was no longer available, and that all copies of the decisions taken in the course of the inquiry had been sent to the representatives in due time. 120. On 17 February 2013 the Domodedovo Airport Customs Service inspector in charge of the spot checks of passengers going through the “Green Channel” on 2 November 2012 filed written submissions in reply to the Sovetskiy investigative department’s request. He stated that he did not remember the applicant and reported that there had not been any unusual situations on that date. Having analysed its records for the said date, the Customs Service further specified that the applicant had not declared any goods before his departure. 121. On 27 February 2013 the Border Control Department of the Federal Security Service submitted, in reply to the investigators’ inquiry, that the departmental officer in charge of border control on 2 November 2012 did not remember the applicant. The officer specified that as a rule any person crossing the State border at the airport approached the border control point unaccompanied. If, exceptionally, a person was escorted (for instance, for medical reasons or in the case of the expulsion of a foreign national by the lawenforcement agencies), the controller had to inform his superior at the control service thereof. However, no such report had been made on that date. 122. On 11 March 2013 the Sovetskiy District Investigative Department issued a new refusal to bring criminal proceedings, for the lack of the event of the crime. In addition to the evidence cited in the decision of 8 February 2013 (see paragraph 116 above), the investigator referred to a statement by the assistant to the Head of the remand prison, who stated that he had released the applicant but did not remember him. The decision further contained a reference to the reply of Uzbek Airlines (see paragraph 95 above), the information obtained from the Border Control Department of the Federal Security Service and the Customs Service of Domodedovo Airport (see paragraphs 120-121 above), and the information provided by the National Interpol Bureau (see paragraph 96 above). Having examined all the above material, the investigator concluded that there was no evidence that the applicant had been abducted. On 28 March 2013 Mr Sidorov was notified of the refusal. 123. On 15 March 2013 the Deputy Head of the Sovetskiy Investigative Department ordered that the inquiry be resumed, and stated that it was necessary to question the applicant. The inquiry is apparently still pending to date. 124. On two occasions, 23 November 2012 and 25 December 2012, the Nizhniy Novgorod Regional Court adjourned hearings concerning the applicant’s appeal against the conviction of 7 September 2012, on account of the applicant’s absence. The court found no evidence that the applicant had been properly notified of the examination of his case, and scheduled a new examination of the case for 25 December 2012, sending the summons to the address of the applicant’s house arrest in Nizhniy Novgorod, as well as to his permanent address in the village of Zhalolkuduk in the Andijan Region of Uzbekistan. On 25 December 2012 the applicant’s lawyer asked the Nizhniy Novgorod Regional Court to request the Office of the Prosecutor General of Uzbekistan to provide information on the applicant’s whereabouts, so that the summons concerning the appeal proceedings against his conviction in Russia could be sent to him, but the request was refused by the court. 125. Once the conviction was upheld on appeal (see paragraph 78 above), on 10 February 2013 the Nizhniy Novgorod Regional Court sent a copy of the appeal judgment to the military commission of the Zhalokudukskiy District in the Andijan Region of Uzbekistan, for information. 126. Article 3 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons. ... This article shall not affect any obligations which the Contracting Parties may have undertaken or may undertake under any other international convention of a multilateral character.” 127. When depositing the instrument of ratification on 10 December 1999, the Russian Federation made the following declaration: “The Russian Federation proceeds from the understanding that the provisions of Article 3 of the Convention should be so applied as to ensure inevitable responsibility for offences under the provisions of the Convention. The Russian Federation proceeds from the understanding that legislation of the Russian Federation does not provide for the notion « political offences ». In all cases when deciding on extradition the Russian Federation will not consider as «political offences» or «offences connected with political offences» along with offences, specified in Article 1 of the 1975 Additional Protocol to the 1957 European Convention on Extradition, in particular, the following acts: ... h. ... other comparable crimes specified in the multilateral international treaties which the Russian Federation is a party to.” 128. For a summary of other relevant provisions concerning extradition proceedings and refugee status proceedings, see Zokhidov v. Russia, no. 67286/10, §§ 77-83 and 102-06 respectively, 5 February 2013. 129. Article 107 § 1 of the CCrP, as in force at the material time, provided that house arrest consisted of restricting a suspect’s or an accused’s freedom of movement, as well as forbidding him or her to (1) communicate with certain persons, (2) receive and send correspondence, and (3) conduct conversations using any means of communication. A suspect or an accused could be put under house arrest on the grounds and in accordance with the procedure set out in Article 108 of the CCrP (placement in custody – see paragraphs 135 and 140 below), with due regard for the person’s age, health, family status and other circumstances (Article 107 § 2). A decision to place a suspect or an accused under house arrest was to specify the restrictions imposed and designate a supervisory authority to ensure that the restrictions were observed (Article 107 § 3). 130. In Decision (Определение) N 9-O-O of 27 January 2011 the Constitutional Court found that the applicable criminal procedure law, in so far as it provided that house arrest was an alternative to detention on remand, implied that a court decision on placement under house arrest should contain a specific and reasonable time-limit for the application of that preventive measure (§ 2.1 of the Decision) 131. By Ruling (Постановление) N 27-П of 6 December 2011, the Constitutional Court of the Russian Federation reiterated the Court’s caselaw to the effect that the difference between deprivation of and restriction upon liberty is one of degree or intensity, and not one of nature or substance (§ 2 of the Ruling). Having analysed the relevant provisions of the CCrP governing house arrest and detention, taken together, as well as the nature of the restrictions applied to an individual in the case of house arrest, the Constitutional Court found, in particular, that house arrest, like detention on remand, implied the compulsory isolation of an accused or a suspect from society, in a limited space, and the prevention of the person from working, moving freely and communicating with other persons. Thus, in view of the restrictions suffered, house arrest involved a direct restriction of a person’s right to physical liberty and security. Therefore, the procedural guarantees in the case of house arrest should be the same as those applicable to detention on remand (§ 3 of the Ruling). 132. The Constitutional Court observed that Article 107 of the CCrP, as in force at the material time, did not specify either the maximum period for house arrest, or instructions on how it should be applied or extended. The Constitutional Court held as follows (§ 4 of the Ruling): “Therefore, the provisions of Article 107 of the CCrP, taken alone or in conjunction with other provisions of the Code, create uncertainty as regards the duration of house arrest, its extension, and the maximum time limit precluding any further extension of [that preventive measure], and thus allow for the establishment of time-limits in respect of a restriction of the constitutional right to liberty and security of a person in an arbitrary manner and solely upon the decision [of a law-enforcement authority].” 133. The Constitutional Court declared Article 107 of the CCrP unconstitutional in so far as it did not specify the period for which house arrest could be applied, the grounds and procedure for the extension or the maximum period for placement under house arrest. 134. On 7 December 2011 and 11 March 2013 Article 107 of the CCrP was amended. Article 107 § 2 now stipulates that a period of house arrest may not exceed two months. Where it is impossible to complete a preliminary investigation, and in the absence of grounds for amendment or annulment of the preventive measure, a court may extend that period within the procedure provided for in Article 109 of the CCrP. Article 107 § 2.1 stipulates that a period of detention on remand should be counted toward the period of the house arrest and the total length of house arrest and detention on remand may not exceed the maximum time-limit set out in Article 109, irrespective of the order of application of these two preventive measures. 135. Custody may be ordered by a court on application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be used (Article 108 §§ 1 and 3). 136. A period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 137. A period spent under house arrest should be counted towards the total period of detention (Article 109 § 10 (2)). 138. If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110). 139. For a summary of other relevant CCrP provisions see Zokhidov, cited above, § 94. 140. Article 108 § 11 of the CCrP provides that a judge’s decision on detention is amenable to appeal before a higher court within three days of its delivery. Having received the file, the second-instance court must examine the appeal lodged against the judge’s detention decision within three days. A decision by the second-instance court to annul the detention is to be executed immediately. 141. Chapter 45 of the CCrP, as in force at the material time, set out the appeal procedure. Article 373 of the CCrP, as in force at the material time, established the scope for the examination of a case by an appeal court. It provided that the appeal court was to examine appeals with a view to verifying the lawfulness, validity and fairness of the judgment or other judicial decision of the first-instance court. An appeal court could also directly examine evidence, including additional material submitted by the parties (Article 377 §§ 4 and 5, as in force at the material time). 142. Article 378 § 1, as in force at the material time, provided that the appeal court could take the following decisions: (1) to dismiss the appeal and uphold the judgment or other judicial decision taken by the firstinstance court; (2) to quash the judgment or other judicial decision and discontinue the criminal proceedings; (3) to quash the judgment and remit the case for fresh examination to the first-instance court, or (4) to amend the judgment or other judicial decision taken by the first-instance court. 143. A violation of procedural law where a party to the proceedings had been deprived of or restricted in the exercise of his or her procedural rights, or where a procedure had not been complied with, or where there had been another defect which had influenced or could have influenced the fairness of the proceedings, constituted a ground for the quashing or amendment of a judicial decision (Article 381 of the CCrP, as in force at the material time). 144. Chapter 15 of the CCrP provides that suspects, defendants and their representatives may petition officials for taking procedural decisions that would secure rights and legitimate interests of the petitioner (Article 119 § 1). A petition may be lodged at any stage of the criminal proceedings (Article 120 § 1), in particular, with the court (Article 120 § 1). It may be also lodged by a prosecutor (Article 120 § 3). 145. Chapter 16 of the CCrP (“Complaints about the acts and decisions of courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings (Article 125 § 1). 146. Chapter 25 of the Code of Civil Procedure sets out the procedure for judicial review of complaints about decisions, acts or omissions of State authorities and officials. A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms either with a court of general jurisdiction or by sending it to the directly superior official or authority (Article 254). The complaint may concern, in particular, any decision, act or omission which has violated rights or freedoms, or has impeded the exercise of rights or freedoms, of the citizen (Article 255).The complaint must be lodged within three months of the date on which the citizen learnt of the breach of his rights. 147. For a summary of the legal provisions concerning the database code-named “Search-Highway” (“Розыск-Магистраль”) and establishing the procedure for its operation, see Shimovolos v. Russia, no. 30194/09, §§ 40-41, 21 June 2011. 148. Section 28 § 1 of Federal Law No. 114-FZ of 15 August 1996 on the Procedure for Entering and Leaving the Russian Federation (“the Entry Procedure Act”) provides that a foreign national’s leaving of the Russian Federation may be restricted where criminal proceedings are pending against him or her, until a final decision in those proceedings is adopted. 149. For a summary of the recent reports on Uzbekistan by the UN institutions and by NGOs, see Zokhidov, cited above, §§ 107-13. 150. For a summary of the Council of Europe texts on the duty to cooperate with the Court, the right to individual petition, and interim measures, see Savriddin Dzhurayev, cited above, §§ 108-20. 151. For a summary of the Committee of Ministers’ decisions under Article 46 on related cases concerning Russia adopted between 8 March 2012 and 7 March 2013, see Savriddin Dzhurayev, cited above, §§ 12126. 152. At the 1176th meeting of the Ministers’ Deputies held on 10 July 2013, the Committee of Ministers adopted the following decision in the wake of yet another incident involving allegations of disappearance of the applicant in respect of whom the interim measure was indicated by the Court (CM/Del/Dec(2013)1176/H46-2E ): “The Deputies, Recalling the decisions adopted at their 1164th meeting (5-7 March 2013) (DH) and 1172nd meeting (4-6 June 2013) (DH) in the Garabayev group of cases against the Russian Federation (see the list below), 1. noted with grave concern that a further incident involving allegations of kidnapping and illegal transfer of an applicant protected by an interim measure indicated by the Court under Rule 39 has been reported [...] 2. strongly insisted that light be shed on this incident and on the fate of the applicant as quickly as possible; 3. consequently insisted again on the pressing need to adopt as of now measures to ensure an immediate and effective protection of the applicants in a similar situation against kidnappings and irregular removals from the national territory; 4. recalled in this context the letter sent by the Chairman of the Committee of Ministers to the Minister of Foreign Affairs of the Russian Federation; 5. agreed that a draft interim resolution will be considered in the light of progress that would have been made, including the updated action plan submitted by the Russian authorities; this text will be circulated in the draft revised order of business of their 1179th meeting (24-26 September 2013) (DH).” | 1 |
train | 001-104098 | ENG | ITA | GRANDCHAMBER | 2,011 | CASE OF GIULIANI AND GAGGIO v. ITALY | 1 | No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Conditional);No violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities) | Alvina Gyulumyan;Christos Rozakis;David Thór Björgvinsson;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Guido Raimondi;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Nona Tsotsoria;Renate Jaeger;Stanislav Pavlovschi;Vladimiro Zagrebelsky;Zdravka Kalaydjieva | 11. The applicants were born in 1938, 1944 and 1972 respectively and live in Genoa and Milan. They are the father, mother and sister of Carlo Giuliani, who was shot and killed during the demonstrations on the fringes of the G8 summit in Genoa in July 2001. 12. On 19, 20 and 21 July 2001 the G8 summit was held in Genoa. Numerous “anti-globalisation” demonstrations were staged in the city and substantial security measures were put in place by the Italian authorities. Under section 4(1) of Law no. 149 of 8 June 2000, the prefect of Genoa was authorised to deploy military personnel to ensure public safety in connection with the summit. In addition, the part of the city where the G8 were meeting (the historic centre) was designated as a “red zone” and cordoned off by means of a metal fence. As a result, only residents and persons working in the area were allowed access. Access to the port was prohibited and the airport was closed to traffic. The red zone was contained within a yellow zone, which in turn was surrounded by a white (normal) zone. 13. The service instructions of 19 July 2001 were issued by the officer in command of the law-enforcement agencies the day before Carlo Giuliani's death. They sum up the priorities of the law-enforcement agencies as follows: establishing a line of defence within the red zone, with the task of repelling rapidly any attempt to break through; establishing a line of defence within the yellow zone to deal with any incidents, taking account of the position of the demonstrators in various locations and of actions perpetrated by more extremist elements; putting in place public-order measures on the streets concerned by the demonstrations, bearing in mind the risk of violence encouraged by the presence of crowds of people. 14. The parties agreed as to the fact that the service instructions of 19 July 2001 amended the plans hitherto established regarding the deployment of the available means and resources, in order to enable the law-enforcement agencies to counter effectively any attempt to enter the red zone by participants in the demonstration of the Tute Bianche (“White overalls”) which had been announced and authorised for the following day. 15. The applicants maintained that the service instructions of 19 July had given a detachment of carabinieri implicated in the death of Carlo Giuliani a dynamic role, whereas it had previously been supposed to remain in one location. The Government stated that the service instructions had been communicated orally to the officers on the ground. 16. A radio communications system had been put in place, with an operations control room located in the Genoa police headquarters (questura), which was in radio contact with the officers on the ground. The carabinieri and police officers could not communicate directly amongst themselves by radio; they could only contact the control room. 17. On the morning of 20 July some groups of particularly aggressive demonstrators, wearing balaclavas and masks (the “Black Bloc”) sparked numerous incidents and clashes with law-enforcement officers. The Tute Bianche march was due to set off from the Carlini stadium. This was a demonstration involving several organisations: representatives of the “No Global” movement and of community centres, and young communists from the Rifondazione comunista party. While they believed in non-violent protest (civil disobedience), they had announced a strategic objective, namely to try to penetrate the red zone. On 19 July 2001 the head of the Genoa police authority (questore) had prohibited the Tute Bianche march from entering the red zone or the zone adjacent to it, and had deployed lawenforcement officers to halt the march at Piazza Verdi. Consequently, the demonstrators were able to march from the Carlini stadium and all the way along Via Tolemaide to Piazza Verdi, that is to say, well beyond the junction of Via Tolemaide and Corso Torino where clashes occurred, as detailed below. 18. At around 1.30 p.m. the march set off and headed slowly westwards. Around Via Tolemaide there were signs of earlier disturbances. The march was headed by a contact group made up of politicians and a group of journalists carrying video recorders and cameras. The marchers slowed down and made a number of stops. In the vicinity of Via Tolemaide there were incidents involving persons wearing masks and balaclavas and lawenforcement officers. The march reached the railway tunnel at the junction with Corso Torino. Suddenly, tear gas was fired on the demonstrators by carabinieri under the command of Mr Mondelli. The carabinieri charged forward, making use of their batons. The march was pushed back eastwards as far as the junction with Via Invrea. 19. The demonstrators split up: some headed towards the seafront, while others sought refuge in Via Invrea and then in the area around Piazza Alimonda. Some demonstrators responded to the attack by throwing hard objects such as glass bottles or rubbish bins at the law-enforcement officers. Armoured vehicles belonging to the carabinieri drove up Via Casaregis and Via Invrea at high speed, knocking down the barriers erected by the demonstrators and forcing the demonstrators at the scene to leave. At 3.22 p.m. the control room ordered Mr Mondelli to move away and allow the marchers to pass. 20. Some of the demonstrators retaliated with violence and clashes took place with the law-enforcement agencies. At around 3.40 p.m. a group of demonstrators attacked an armoured carabinieri van and set it alight. 21. At approximately 5 p.m. the presence of a group of demonstrators who appeared very aggressive was observed by the Sicilia battalion, consisting of around fifty carabinieri stationed close to Piazza Alimonda. Two Defender jeeps were parked nearby. Police officer Lauro ordered the carabinieri to charge the demonstrators. The carabinieri charged on foot, followed by the two jeeps. The demonstrators succeeded in pushing back the charge, and the carabinieri were forced to withdraw in disorderly fashion near Piazza Alimonda. Pictures taken from a helicopter at 5.23 p.m. show the demonstrators running along Via Caffa in pursuit of the lawenforcement officers. 22. In view of the withdrawal of the carabinieri the jeeps attempted to reverse away from the scene. One succeeded in moving off while the other found its exit blocked by an overturned refuse container. Suddenly, several demonstrators wielding stones, sticks and iron bars surrounded it. The two side windows at the rear and the rear window of the jeep were smashed. The demonstrators shouted insults and threats at the jeep's occupants and threw stones and a fire extinguisher at the vehicle. 23. There were three carabinieri on board the jeep: Filippo Cavataio (“F.C.”), who was driving, Mario Placanica (“M.P.”) and Dario Raffone (“D.R.”). M.P., who was suffering from the effects of the tear-gas grenades he had thrown during the day, had been given permission by Captain Cappello, commander of a company of carabinieri, to get into the jeep in order to get away from the scene of the clashes. Crouched down in the back of the jeep, injured and panicking, he was protecting himself on one side with a riot shield (according to the statement of a demonstrator named Predonzani). Shouting at the demonstrators to leave “or he would kill them”, M.P. drew his Beretta 9 mm pistol, pointed it in the direction of the smashed rear window of the vehicle and, after some tens of seconds, fired two shots. 24. One of the shots struck Carlo Giuliani, a balaclava-clad demonstrator, in the face under the left eye. He had been close to the rear of the jeep and had just picked an empty fire extinguisher off the ground and raised it up. He fell to the ground near the left-side rear wheel of the vehicle. 25. Shortly afterwards, F.C. managed to restart the engine and in an attempt to move off, reversed, driving over Carlo Giuliani's body in the process. He then engaged first gear and drove over the body a second time as he left the scene. The jeep then drove towards Piazza Tommaseo. 26. After “a few metres”, carabinieri sergeant-major Amatori got into the jeep and took over at the wheel, “as the driver was in a state of shock”. Another carabiniere named Rando also got in. 27. Police forces stationed on the other side of Piazza Alimonda intervened and dispersed the demonstrators. They were joined by some carabinieri. At 5.27 p.m. a police officer present at the scene called the control room to request an ambulance. A doctor who arrived at the scene subsequently pronounced Carlo Giuliani dead. 28. According to the Ministry of the Interior (ministero dell'Interno), it was impossible to indicate the exact number of carabinieri and police officers at the scene at the moment of Carlo Giuliani's death; there had been approximately fifty carabinieri, some 150 metres from the jeep. In addition, 200 metres away, near Piazza Tommaseo, there had been a group of police officers. 29. Relying, inter alia, on witness evidence given by law-enforcement officers during a parallel set of proceedings (the “trial of the twenty-five”, see paragraphs 121-138 below), the applicants stated in particular that, while on Piazza Alimonda, the carabinieri had been able to take off their gas masks, eat and rest. With the situation “calm”, Captain Cappello had ordered M.P. and D.R. to board one of the two jeeps. He considered the two carabinieri to be mentally exhausted (“a terra”) and no longer physically fit for duty. Cappello also considered that M.P. should stop firing tear gas and took away his tear-gas gun and the pouch containing the tear-gas grenades. 30. Referring to the photographs taken shortly before the fatal shot, the applicants stressed that the weapon had been held at a downward angle from the horizontal. They also referred to the statements made by LieutenantColonel Truglio (see paragraph 43 below), who said that he had been ten metres or so from Piazza Alimonda and thirty to forty metres away from the jeep. The carabinieri (around a hundred of them) had been some tens of metres from the jeep. The police officers had been at the end of Via Caffa, towards Piazza Tommaseo. The applicants submitted that the photographs in the investigation file clearly showed some carabinieri not far from the jeep. 31. A spent cartridge was found a few metres from Carlo Giuliani's body. No bullet was found. A fire extinguisher and a bloodstained stone, among other objects, were found beside the body and were seized by the police. It emerges from the file that the public prosecutor's office entrusted thirty-six investigative measures to the police. The jeep in which M.P. had been travelling, and also the weapon and equipment belonging to him, remained in the hands of the carabinieri and were subsequently seized under a court order. A spent cartridge was found inside the jeep. 32. During the night of 20 July 2001 the Genoa mobile police unit heard evidence from two police officers, Mr Martino and Mr Fiorillo. On 21 July Captain Cappello, who was in charge of the ECHO company, recounted the events of the previous day and gave the names of the carabinieri who had been in the jeep. He said that he had heard no shots, probably because of his radio earpiece, his helmet and his gas mask, which reduced his hearing. 33. On the night of 20 July 2001 M.P. and F.C. were identified and examined by the Genoa public prosecutor's office on suspicion of intentional homicide. The interviews took place at the headquarters of the Genoa carabinieri. 34. M.P. was an auxiliary carabiniere assigned to Battalion no. 12 (Sicilia), and one of the members of the ECHO company constituted for the purpose of the G8 summit. Together with four other companies from different regions of Italy, the company formed part of the CCIR, under the orders of Lieutenant-Colonel Truglio. The ECHO company was under the orders of Captain Cappello and his deputies Mirante and Zappia, and was directed and coordinated by Mr Lauro, a senior officer (vice questore) of the Rome police. Each of the five companies was divided into four detachments of fifty men. The overall commander of the companies was Colonel Leso. 35. M.P., who was born on 13 August 1980 and began serving as a carabiniere on 16 September 2000, was twenty years and eleven months old at the material time. He was trained in the use of grenades and had been deployed to fire tear gas. He stated that during the public-order operations he had been supposed to move around on foot with his detachment. Having fired several tear-gas grenades, he had felt a burning in his eyes and face and had asked Captain Cappello for permission to board a jeep. Shortly afterwards another carabiniere (D.R.), who was injured, had joined him. 36. M.P. said that he had been very frightened because of everything he had seen being thrown that day, and was particularly afraid that the demonstrators would throw Molotov cocktails. He explained that he had grown more afraid after being injured in the leg by a metal object and in the head by a stone. He had become aware that the jeep was under attack because of the stones being thrown and had thought that “hundreds of demonstrators were surrounding the jeep”, although he added that “at the time [he] fired the shots, no one was in sight”. He said he had been “panicstricken”. At some point he realised that his hand was gripping his pistol; he thrust the hand carrying the weapon through the jeep's rear window and, after about a minute, fired two shots. He maintained that he had not noticed Carlo Giuliani behind the jeep either before or after firing. 37. F.C., the jeep's driver, was born on 3 September 1977 and had been serving as a carabiniere for twenty-two months. At the material time he was twenty-three years and ten months old. He stated that he had been in an alleyway near Piazza Alimonda and had attempted to reverse towards the square because the detachment was being pushed back by the demonstrators. However, he had found his path blocked by a refuse container and his engine had stalled. He had concentrated on trying to move the jeep out while his colleagues inside the vehicle were shouting. As a result, he had not heard the shots. Lastly, he stated: “I did not notice anyone on the ground because I was wearing a mask, which partly blocked my view ... and also because it is hard to see properly out the side of the vehicle. I reversed and felt no resistance; actually, I felt the left wheel jolt and thought it must be a pile of rubbish, since the refuse container had been overturned. The only thought in my head was how to get out of that mess.” 38. D.R., who was born on 25 January 1982, had been performing military service since 16 March 2001. At the material time he was nineteen years and six months old. He stated that he had been struck in the face and back by stones thrown by demonstrators and had started to bleed. He had tried to protect himself by covering his face, and M.P. for his part had tried to shield him with his body. At that point, he could no longer see anything, but he could hear the shouting and the sound of blows and objects entering the jeep. He heard M.P. shouting at their attackers to stop and leave, and then heard two shots. 39. On 11 September 2001 M.P., during questioning by the public prosecutor, confirmed his statement of 20 July 2001, adding that he had shouted to the demonstrators: “Leave or I'll kill you!”. 40. Sergeant-Major Amatori, who was in the other jeep on Piazza Alimonda, said that he had noticed that the jeep in which M.P. was travelling had its path blocked by a refuse container and was surrounded by a large number of demonstrators, “certainly more than twenty”. The latter were throwing objects at the jeep. In particular, he saw one demonstrator throw a fire extinguisher at the rear window. He heard shots and saw Carlo Giuliani fall down. The jeep then drove twice over Carlo Giuliani's body. Once the jeep had succeeded in leaving Piazza Alimonda, he went over to it and saw that the driver had got out and, visibly shaken, was asking for help. The sergeant-major took over the driving seat and, noticing that M.P. had a pistol in his hand, ordered him to replace the safety catch. He immediately thought that this was the weapon that had just fired the shots, but said nothing to M.P., who was injured and whose head was bleeding. The driver told him that he had heard shots while he was manoeuvring the jeep. The sergeant-major was not given any explanation as to the circumstances surrounding the decision to shoot and did not ask any questions on the subject. 41. Carabiniere Rando had gone over to the jeep on foot. He said that he had seen that the pistol was drawn and asked M.P. if he had fired. M.P. said that he had, without specifying whether he had fired into the air or in the direction of a particular demonstrator. M.P. kept saying: “They wanted to kill me, I don't want to die”. 42. On 11 September 2001 the public prosecutor heard evidence from Captain Cappello, commander of the ECHO company (see paragraph 34 above). Captain Cappello stated that he had given M.P. permission to board the jeep and had taken his tear-gas gun as M.P. was experiencing difficulties. He stated subsequently (at the “trial of the twenty five”, hearing of 20 September 2005) that M.P. had been physically unfit to continue on account of his mental state and nervous tension. Captain Cappello had then moved with his men – about fifty in number – towards the corner of Piazza Alimonda and Via Caffa. He was requested by police officer Lauro to proceed up Via Caffa in the direction of Via Tolemaide to assist the men engaged there in trying to push back the demonstrators. He said he had been puzzled by the request, given the number of men with him and their state of tiredness, but had nevertheless stationed them on Via Caffa. The carabinieri were forced back by the demonstrators coming from Via Tolemaide; they initially withdrew in an orderly manner, and then in disorderly fashion. Mr Cappello did not realise that, when the carabinieri withdrew, they were being followed by the two jeeps, as there was no “operational reason” for the vehicles to be there. The demonstrators dispersed only when the mobile police units stationed on the other side of Piazza Alimonda intervened. Only then did he observe a man wearing a balaclava lying on the ground, apparently seriously injured. Some of his men were wearing helmets equipped with video cameras which should make it possible to shed light on the sequence of events; the video recordings were handed over to Colonel Leso. 43. Lieutenant-Colonel Truglio, Captain Cappello's superior officer, stated that he had stopped around ten metres from Piazza Alimonda and thirty to forty metres from the jeep, and had seen the jeep drive over a body lying on the ground. 44. On 21 December 2001 Mr Lauro gave evidence to the public prosecutor. He stated that he had learnt of the change to the service instructions on the morning of 20 July 2001. At the hearing of 26 April 2005 during the “trial of the twenty-five”, he stated that he had been informed on 19 July 2001 that no march was authorised for the following day. On 20 July he had still been unaware that an authorised march was due to take place. During the day he went to Piazza Tommaseo, where clashes were taking place with demonstrators. At 3.30 p.m., while the situation was calm, Lieutenant-Colonel Truglio and the two jeeps joined the contingent. Between 4 p.m. and 4.45 p.m. the contingent was involved in clashes on Corso Torino. It then arrived in the vicinity of Piazza Tommaseo and Piazza Alimonda. Lieutenant-Colonel Truglio and the two jeeps came back and the contingent was reorganised. Mr Lauro observed a group of demonstrators at the end of Via Caffa who had formed a barrier using wheeled refuse containers and were advancing towards the law-enforcement officers. He asked Captain Cappello whether his men were in a position to deal with the situation and the latter replied in the affirmative. Mr Lauro and the contingent therefore took up positions close to Via Caffa. He heard an order to withdraw and took part in the disorderly withdrawal of the contingent. 45. Some demonstrators present at the time of the events also gave statements to the public prosecutor. Some of them said they had been very close to the jeep and had themselves thrown stones and had struck the jeep with sticks and other objects. According to one demonstrator, M.P. had cried: “Bastards, I'm going to kill the lot of you!”. Another noticed that the carabiniere inside the jeep had taken out his pistol; the demonstrator then shouted to his friends to watch out and moved away. Another demonstrator said that M.P. had been protecting himself on one side with a riot shield. 46. Some individuals who witnessed the events from the windows of their homes said they had seen a demonstrator pick up a fire extinguisher and raise it up. They had heard two shots and had seen the demonstrator fall to the ground. 47. The public prosecutor's office ordered the law-enforcement agencies to hand over any audiovisual material which might help in reconstructing the events on Piazza Alimonda. Photographs had been taken and video recordings made by film crews, helicopter cameras and miniature video cameras in the helmets of some of the officers. Pictures taken by private individuals were also available. 48. Within twenty-four hours the public prosecutor's office ordered an autopsy to establish the cause of Carlo Giuliani's death. On 21 July 2001 at 12.10 p.m. notice of the autopsy – specifying that the injured party could appoint an expert and a lawyer – was served on the first applicant, Carlo Giuliani's father. At 3.15 p.m. Mr Canale and Mr Salvi, the experts appointed by the prosecuting authorities, were given their official brief and work commenced on the autopsy. The applicants did not send any representative or expert of their own. 49. The experts requested the public prosecutor's office to give them sixty days to prepare their report. The request was granted. On 23 July 2001 the public prosecutor's office authorised the cremation of Carlo Giuliani's body in accordance with the family's wishes. 50. The expert report was submitted on 6 November 2001. It found that Carlo Giuliani had been struck below the left eye by a bullet which had passed through the skull and exited through the rear of the skull on the left. The bullet's trajectory had been as follows: it had been fired from a distance exceeding fifty centimetres and had travelled from front to back, from right to left and in a downward direction. Carlo Giuliani had been 1.65 metres tall. The person firing the shot had been facing the victim and slightly to his right. According to the experts, the bullet injury to the head had resulted in death within a few minutes; the jeep's being driven over the body had caused only insignificant minor injuries to the organs in the thorax and the abdomen. 51. After leaving Piazza Alimonda the three carabinieri who had been in the jeep went to the casualty department of Genoa Hospital. M.P. complained of diffuse bruising to his right leg and an injury to the skull with open wounds; against the advice of the doctors, who wished to admit him, M.P. signed a discharge and left the hospital at around 9.30 p.m. He had an injury to the skull which, he said, had been caused by a blow to the head with a blunt instrument while he had been in the jeep. 52. D.R. presented with bruising and abrasions to the nose and the right cheekbone and bruises on the left shoulder and left foot. F.C. was suffering from a posttraumatic psychological disorder and was expected to recover within fifteen days. 53. Medical examinations were carried out to establish the nature of the injuries and their connection with the attack on the jeep's occupants. The reports concluded that the injuries sustained by M.P. and D.R. had not been life-threatening. M.P.'s head injuries could have been caused by a stone thrown at him, but it was not possible to determine the origin of his other injuries. The injury to D.R.'s face could have been caused by a stone thrown at him and his shoulder injury by a blow from a wooden plank. 54. On 4 September 2001 the public prosecutor's office instructed Mr Cantarella to establish whether the two spent cartridges found at the scene (one in the jeep and the other a few metres from Carlo Giuliani's body – see paragraph 31 above) had come from the same weapon, and specifically from M.P.'s weapon. In his report of 5 December 2001 the expert concluded that there was a 90% probability that the cartridge found in the jeep had come from M.P.'s pistol, whereas there was only a 10% probability that the cartridge found close to Carlo Giuliani's body had issued from the same weapon. In accordance with Article 392 of the Code of Criminal Procedure (“the CCP”), these tests were carried out unilaterally, that is to say, without the injured party having an opportunity to participate. 55. The public prosecutor's office appointed a second expert, police inspector Manetto. The latter, in a report submitted on 15 January 2002, stated that there was a 60% probability that the spent cartridge found near the victim's body had come from M.P.'s weapon. He concluded that both the cartridges had come from M.P.'s pistol, and estimated the distance between M.P. and Carlo Giuliani at the moment of impact at between 110 and 140 centimetres. The tests were conducted unilaterally. 56. On 12 February 2002 the public prosecutor's office instructed a panel of experts (made up of Mr Balossino, Mr Benedetti, Mr Romanini and Mr Torre) “to reconstruct, even in virtual form, the actions of M.P. and Carlo Giuliani in the moments immediately before and after the bullet struck the victim's body”. In particular, the experts were asked to “establish the distance between M.P. and Carlo Giuliani, their respective angles of vision and M.P.'s field of vision inside the jeep at the moment the shots were fired”. It appears from the file that Mr Romanini had published an article in September 2001 in a specialist journal (TAC Armi), in which he expressed the view, among other things, that M.P.'s actions had constituted “a clear and wholly justified defensive reaction”. 57. The representatives and experts appointed by the applicants attended the examinations by the panel of experts. The applicants' lawyer, Mr Vinci, stated that he did not wish to make an application for the immediate production of evidence (incidente probatorio). Article 392 §§ 1 (f) and 2 of the CCP allows the public prosecutor and the accused, among other things, to request the investigating judge (giudice per le indagini preliminari) to order a forensic examination where the latter concerns a person, object or place which is subject to unavoidable alteration or where, if ordered during the trial, the examination in question could entail suspension of the proceedings for a period exceeding sixty days. Under Article 394 of the CCP the injured party may request the public prosecutor to apply for the immediate production of evidence. If the public prosecutor refuses the request, he or she must issue an order giving reasons and must serve it on the injured party. 58. An on-site inspection was conducted on 20 April 2002. Traces of the impact of a shot were found on the wall of a building on Piazza Alimonda, at a height of about five metres. 59. On 10 June 2002 the experts submitted their report. The experts stated at the outset that the fact that they had not had access to Carlo Giuliani's body (because it had been cremated) had been a major obstacle which had prevented them from producing an exhaustive report, as they had been unable to re-examine parts of the body and search for micro-traces. On the basis of the “little material available” the experts attempted to establish first of all what the impact of the bullet had been on Carlo Giuliani's body, setting out the following considerations. 60. The injuries to the skull had been very serious and had resulted in death “within a short space of time”. The bullet had not exited whole from Carlo Giuliani's head; the report (referto radiologico) of the full body scan performed before the autopsy referred to a “subcutaneous fragment, probably metal” above the bones in the occipital region. This piece of opaque metal looked like a fragment of bullet casing. The appearance of the entry wound on the face did not lend itself to an unequivocal interpretation; its irregular shape was explained chiefly by the type of tissue in the part of the body struck by the bullet. However, one possible explanation was that the bullet had not hit Carlo Giuliani directly, but had encountered an intermediate object which could have distorted it and slowed it down before it reached the victim's body. That hypothesis would explain the small dimensions of the exit wound and the fact that the bullet had fragmented inside Carlo Giuliani's head. 61. The experts reported finding a small fragment of lead, probably from the bullet, which had come off Carlo Giuliani's balaclava when the latter was being handled; it was impossible to ascertain whether the fragment had come from the front, side or back of the balaclava. It bore traces of a substance which was not part of the bullet as such, but came from material used in the building industry. In addition, micro-fragments of lead were found on the front and back of the balaclava, apparently confirming the hypothesis that the bullet had lost part of its casing at the moment of impact. According to the experts, it was not possible to establish the nature of the “intermediate object” apparently hit by the bullet; however, they ruled out the possibility that it was the fire extinguisher which Carlo Giuliani had been holding in his outstretched hand. The distance from which the shot had been fired had been in excess of 50-100 centimetres. 62. In order to reconstruct the events on the basis of the “intermediate object theory”, the experts then had some test shots fired and conducted video and computer simulations. They concluded that it was not possible to establish the bullet's trajectory as the latter had undoubtedly been altered as a result of the collision. On the basis of video footage showing a stone disintegrating in the air and of the shot that could be heard on the soundtrack, the experts concluded that the stone had shattered immediately after the shot had been fired. A computer simulation showed the bullet, fired upwards, hitting Carlo Giuliani after colliding with the stone in question, thrown at the jeep by another demonstrator. The experts estimated that the distance between Carlo Giuliani and the jeep had been approximately 1.75 metres and that M.P. had been able to see Carlo Giuliani at the moment the shot was fired. 63. The applicants submitted a statement made to their lawyer by J.M., one of the demonstrators, on 19 February 2002. J.M. stated in particular that Carlo Giuliani had still been alive after the jeep had driven over his body. The applicants also produced a statement made by a carabiniere (V.M.), who reported a widespread practice among law-enforcement officers consisting in altering bullets of the kind used by M.P. in order to increase their capacity to expand and hence fragment. 64. Lastly, the applicants submitted two reports drawn up by experts they themselves had chosen. According to one of the experts, Mr Gentile, the bullet had already been in fragments when it struck the victim. The fact that it had fragmented could be explained by a manufacturing defect or by its having been manipulated to make it more likely to break up. In the expert's view, however, these two scenarios occurred only rarely and were therefore less likely than the one advanced by the prosecuting authorities' experts (namely that the bullet had collided with an intermediate object). 65. The other experts appointed by the applicants to reconstruct the events concluded that the stone had shattered on impact with the jeep rather than with the bullet fired by M.P.. In order to reconstruct the events on the basis of the audiovisual material, and especially of the photographs, it was necessary to establish the exact position of the photographer, and in particular his or her angle of vision, taking into account also the type of equipment used. In addition, it was necessary to establish the timing of the images and how they fitted in with the sound. The applicants' experts criticised the method used by the prosecuting authorities' experts, who had based their analysis on “video and computer simulations” and had not analysed the available images rigorously and in detail. The method used to perform the test shots was also criticised. 66. The applicants' experts concluded that Carlo Giuliani had been about three metres away from the jeep when the shot was fired. While it was undeniable that the fatal bullet had been in fragments when it struck the victim, the possibility of its having collided with the stone which could be seen in the video should be ruled out. A stone would have distorted the bullet differently and left different marks on Carlo Giuliani's body. Moreover, M.P. had not fired upwards. 67. On completion of the domestic investigation the Genoa public prosecutor decided to request that the case against M.P. and F.C. be discontinued. The public prosecutor noted first of all that far-reaching changes had been made to the organisation of the public-order operations on the night of 19 July 2001, and took the view that this partly explained the problems that had arisen on 20 July. However, he did not detail the changes or the problems that had resulted. 68. The public prosecutor went on to observe that Mr Lauro's version of events and that of Captain Cappello differed on one specific point: whereas the former asserted that the decision to position law-enforcement personnel on Via Caffa in order to block the demonstrators had been taken by mutual agreement, the latter maintained that it had been a unilateral decision taken by Mr Lauro despite the risks entailed by the small size of the detachment and the fact that the men were tired. 69. The experts agreed on the following points: two shots had been fired from M.P.'s pistol, the first of which had killed Carlo Giuliani; the bullet in question had not fragmented solely as a result of striking the victim; and the photograph of Carlo Giuliani holding the fire extinguisher had been taken when he was approximately three metres away from the jeep. 70. However, they differed on the following points: (a) according to the prosecuting authorities' experts, Carlo Giuliani had been 1.75 metres from the jeep when the bullet struck him (approximately three metres away according to the Giuliani family's experts); (b) according to the Giuliani family's experts, the shot had been fired before the stone could be seen on the video, contrary to the view of the prosecuting authorities' experts. 71. As the parties agreed that the bullet had fragmented before striking the victim, the public prosecutor concluded that they were also in agreement as to the causes of the bullet's fragmentation, and that the applicants subscribed to the “intermediate object theory”. Other possible explanations for the fragmentation of the bullet advanced by the applicants – such as the manipulation of the bullet or a manufacturing defect – had been considered by the applicants themselves to be much less likely. They could not therefore be regarded as valid explanations in the public prosecutor's view. 72. The investigation had been lengthy, in particular owing to delays with some of the forensic reports, the “superficial nature” of the autopsy report and the errors committed by one of the experts, Mr Cantarella. However, it had addressed all the relevant issues in detail and led to the conclusion that the hypothesis of the bullet having been fired upwards and deflected by a stone was “the most convincing”. Nevertheless, there was insufficient evidence in the file to determine whether M.P. had fired with the sole intention of dispersing the demonstrators or had knowingly run the risk of injuring or killing one or more of them. There were three possibilities, and “the matter [would] never be resolved with certainty”. The possibilities were as follows: – the shots had been designed to intimidate the demonstrators and it was therefore a case of causing death by negligence; – M.P. had fired the shots in order to put a stop to the attack and had accepted the risk of killing someone; that would mean that it was a case of intentional homicide; – M.P. had aimed at Carlo Giuliani; this would also be intentional homicide. In the public prosecutor's view, the evidence in the file was such that the third possibility could be ruled out. 73. The public prosecutor further considered that the fact that the bullet had collided with the stone was not capable of severing the causal link between M.P.'s actions and Carlo Giuliani's death. Given that the link remained, the question was whether M.P. had acted in self-defence. 74. It had been proven that the physical integrity of the jeep's occupants had been under threat and that M.P. had been “responding” in the face of danger. That response had to be examined in terms of both its necessity and its proportionality, “the latter aspect being the more delicate”. 75. The public prosecutor took the view that M.P. had had no other option and could not have been expected to act differently, since “the jeep was surrounded by demonstrators [and] the physical aggression against the occupants was patent and virulent”. M.P. had been justified in perceiving his life to be in danger. The pistol had been a tool capable of putting a stop to the attack, and M.P. could not be criticised for the equipment issued to him. He could not be expected to refrain from using his weapon and submit to an attack liable to endanger his physical integrity. These considerations justified a decision to discontinue the case. 76. On 10 December 2002 the applicants lodged an objection against the public prosecutor's request to discontinue the proceedings. They alleged that, since the prosecuting authorities themselves had acknowledged that the investigation had been flawed and raised questions which had not been answered with certainty, adversarial proceedings were essential in order to arrive at the truth. In their view, it was impossible to argue simultaneously that M.P. had fired into the air and that he had acted in self-defence, particularly since he had said that he could not see Carlo Giuliani when he had fired the shots. 77. The applicants further remarked that the intermediate object theory, which they disputed, had been put forward one year after the events and was based on pure supposition not backed up by objective evidence. There were other possible explanations. 78. The applicants also observed that, according to the evidence in the file, Carlo Giuliani had still been alive after the jeep had driven over his body. They stressed that the autopsy report, which found that no appreciable injuries had been caused by the jeep driving over the body, had been described by the public prosecutor as superficial; they also criticised the decision to entrust a number of investigative measures to the carabinieri. 79. It followed that M.P. and F.C. should have been committed for trial. In the alternative, the applicants requested that further investigative measures be undertaken, in particular: (a) that a forensic report be prepared aimed at establishing the causes and the time of Carlo Giuliani's death, in order to ascertain in particular whether he had still been alive when the jeep drove over his body, and afterwards; (b) that evidence be heard from the chief of police, Mr De Gennaro, and from carabiniere Zappia, to establish what instructions had been given regarding the wearing of weapons on the thigh; (c) that the person who had thrown the stone which allegedly deflected the bullet be identified and traced; (d) that further evidence be heard from the demonstrators who had come forward; (e) that evidence be heard from the carabiniere V.M., who had reported the practice of cutting the tips of bullets (see paragraph 63 above); (f) that forensic tests be carried out on the spent cartridges and on the weapons of all the police and carabinieri on Piazza Alimonda at the time of the events. 80. The hearing before the investigating judge took place on 17 April 2003. The applicants maintained their argument that the fatal bullet had not been deflected but had struck the victim directly. However, they conceded that there was no evidence that M.P. had altered the bullet to increase its impact; that was simply one theory. 81. The representative of the public prosecutor's office said he had the impression that “certain points which [he had] believed to be the subject of agreement were in fact not; on the contrary, there were divergences of opinion”. He pointed out that the applicants' expert, Mr Gentile, had been in agreement as to the fact that the bullet had been damaged before striking Carlo Giuliani. Furthermore, Mr Gentile had acknowledged that one of the possible causes of the damage was a collision with some object or an intrinsic defect in the bullet, and that the second cause was less likely than the first. 82. By an order lodged with the registry on 5 May 2003, the Genoa investigating judge granted the public prosecutor's request to discontinue the case. 83. The investigating judge referred to an anonymous account of the events posted by a French person on an anarchist website (www.anarchy99.net), which she considered to be credible given that it concurred with the audiovisual material and with the witness statements. The account in question described the situation on Piazza Alimonda and a charge by demonstrators against the carabinieri. The charge had been led by demonstrators throwing anything that came to hand, followed by others carrying containers and rubbish bins for use as mobile barricades. The atmosphere on the square was described as “frenetic”, with the lawenforcement agencies coming under attack from a crowd which was advancing, throwing missiles and immediately picking up new ones. The carabinieri, for their part, were firing tear gas, but a contingent was eventually forced to retreat towards Piazza Alimonda, where one of the two jeeps accompanying them found itself hemmed in and surrounded by demonstrators. The latter, brandishing iron bars and other objects, began hitting the jeep, and the rear window was soon smashed. The author of the account heard two shots and could see the hand of one of the two carabinieri inside the jeep, holding a firearm. When the jeep drove off and the noise died down, he saw a young man with serious head injuries lying on the ground. The author also described the anger of certain demonstrators on learning that a demonstrator had died. 84. The investigating judge observed that the description by the anonymous demonstrator tallied with the findings of the investigation, according to which, at around 5 p.m., a group of demonstrators had gathered in Via Caffa at the junction with Via Tolemaide, erecting barricades using rubbish bins, supermarket trolleys and other objects. From behind this barricade the group began throwing large numbers of stones and hard objects at a contingent of carabinieri who, having been stationed originally on Piazza Alimonda at the corner of Via Caffa, had begun to move forward in a bid to stop the demonstrators, whose numbers had increased in the meantime. Two jeeps, one of them driven by F.C. and with M.P. and D.R. on board, joined the contingent of carabinieri; however, the demonstrators charged violently, forcing the contingent to retreat. The jeeps reversed towards Piazza Alimonda, where one of them collided with a refuse container. In a matter of moments, the demonstrators surrounded the vehicle, hitting it using all available means and throwing stones. As the audiovisual material in the file showed, the jeep's windows were smashed with stones, iron bars and sticks. The unrelenting nature of the demonstrators' attack on the jeep was described as “impressive”. Some stones struck members of the carabinieri in the face and the head and one demonstrator, Mr Monai, thrust a long wooden beam through one of the windows, with the result that D.R. sustained bruises and grazing to his right shoulder. 85. One of the photographs showed M.P. kicking a fire extinguisher away; this was very probably the metal object which had caused severe bruising to his leg. Successive photographs showed a hand holding a weapon above the jeep's spare wheel while a young man (Carlo Giuliani) reached down to the ground and picked up a fire extinguisher, in all likelihood with the intention of throwing it at the jeep's rear window. At that moment two shots were fired from inside the jeep and the young man fell to the ground. The jeep drove over his body twice before managing to leave the scene. 86. All the available evidence, including M.P.'s statement of 20 July 2001 (see paragraphs 34-36 above), indicated that Carlo Giuliani's death had been caused by one of the shots fired by M.P. The investigating judge cited virtually the whole of that statement, in which M.P. spoke of his state of panic, the injuries he and D.R. had sustained and the fact that at the moment he pointed his pistol he had not seen anyone but had been aware of the presence of attackers because of the continuous barrage of stones. That version matched the statements made by D.R. and F.C. and those of other armed forces personnel and witnesses. In addition, the case file showed that M.P. had bruising and injuries to his right leg, his arm and the top of his skull; D.R. had scratches on his face and bruising on his shoulder and foot, while F.C. had a post-traumatic disorder treatable within fifteen days (see paragraphs 51-53 above). 87. The investigating judge noted that the evidence in the file showed that the first bullet fired by M.P. had killed Carlo Giuliani. In exiting through the occipital bone in the skull the bullet had lost a fragment of its casing, as shown by the scan performed before the autopsy. This fact, combined with the characteristics of the entry and exit wounds, had led the prosecuting authorities' experts to formulate the theory that the bullet had collided with an object before hitting Carlo Giuliani. The entry wound had been very irregular in shape and the exit wound had been small, as was the case when a bullet had lost momentum and/or fragmented. 88. The bullet in question was an encased 9 mm parabellum, and therefore very powerful. This fact, together with the low resistance of the body tissue through which the bullet had travelled, served to confirm the theory advanced by the prosecuting authorities' experts. Moreover, a “tiny fragment of lead”, compatible with the bullets issued to M.P., had been found in the victim's balaclava with particles of bone attached to it. This suggested that the bullet had lost part of its casing before hitting the bone. 89. The simulated shots had revealed that the intermediate object which caused the bullet to fragment could not have been either the fire extinguisher carried by the victim or one of the bones through which the bullet had passed; on the other hand, it could have been one of the numerous stones thrown at the jeep by demonstrators. This appeared to be confirmed by the video footage showing a stone disintegrating in the air at the same time as a shot was heard. The fact that the sound and the disintegration of the object occurred simultaneously made the applicants' theory that the stone had smashed on impact with the roof of the jeep less convincing. Furthermore, the lead fragment in the victim's balaclava had borne traces of building materials. Lastly, the test shots had shown that, when they were hit by a bullet, objects made up of building materials “exploded” in a similar manner to that seen in the video footage and caused damage to the cartridge casing. The tests performed showed that disintegration occurred differently when such objects were thrown against a vehicle (the dust was produced after rather than simultaneously with fragmentation, and in smaller quantities). 90. The second shot fired by M.P. had left a mark on the wall of the church on Piazza Alimonda (at a height of 5.3 metres). The first shot had hit Carlo Giuliani. The ballistics tests had been unable to establish the original trajectory of that bullet. However, the experts appointed by the public prosecutor's office had taken into account the fact that the jeep was 1.96 metres high and that the stone seen on the video had been at a height of around 1.9 m when the image was recorded. They had therefore fired some test shots, positioning the weapon around 1.3 metres from a stone suspended 1.9 metres above the ground: the bullet had been deflected downwards and hit the “collecting tray” (located 1.75 metres from the weapon) at heights of between 1.1 and 1.8 metres. These data tallied with the statements of certain demonstrators who had been eyewitnesses to the events, according to whom Carlo Giuliani had been about two metres from the jeep when he was shot dead. The prosecuting authorities' experts had not had these statements available to them at the time they had carried out their work. 91. The foregoing considerations suggested that, as concluded by the prosecuting authorities' experts, the shot had been fired upwards, above Carlo Giuliani, who was 1.65 m tall. The stone had disintegrated 1.9 metres above the ground. 92. M.P.'s angle of vision had probably been restricted by the jeep's spare wheel. However, it was difficult to be certain on that point as M.P.'s face did not appear on any of the photographs in the file, whereas they clearly showed his hand holding the weapon. The pictures suggested, however, that he had been half-lying (in posizione semidistesa) or crouching on the floor, as confirmed by M.P.'s own statements and those of D.R. and the demonstrator Predonzani. That led to the conclusion that M.P. had been unable to see the persons close to the jeep's rear door below the spare wheel, and that he had fired the shots in an attempt to intimidate the demonstrators. 93. Having thus reconstructed the facts, the investigating judge addressed the legal characterisation of M.P.'s actions. The prosecuting authorities had advanced two hypotheses in that regard (see paragraph 72 above): (a) that M.P. had fired as high in the air as possible with the sole aim of intimidating the jeep's assailants, in which case the charge should be one of causing death by negligence (omicidio colposo); (b) that M.P. had fired without aiming at anyone or anything, with the aim of halting the attack, in which case the charge should be one of intentional homicide on account of “reckless conduct”, as he had accepted the risk that demonstrators might be hit. 94. The investigating judge took the view that the first hypothesis advanced by the public prosecutor was not correct. If M.P. had fired as high in the air as possible his actions would not have been punishable, by virtue of Article 53 of the Criminal Code (“the CC”), and the causal link would in any case have been severed by an unforeseeable factor beyond his control, namely the bullet's collision with an intermediate object. 95. If, on the other hand, the second hypothesis advanced by the prosecuting authorities was accepted, it had to be established whether any grounds of justification existed (the legitimate use of weapons and/or selfdefence, under Articles 53 and 52 of the CC – see paragraphs 142-144 below) which would exempt M.P. from criminal responsibility and make his actions not punishable. 96. The investigating judge first addressed the question whether the use of a weapon had been necessary. Under Article 53 of the CC (see paragraph 143 below), State agents had wider powers than ordinary individuals in the context of self-defence; this ground of justification was not subject to the condition that the reaction was proportionate to the threat, but to the condition of “necessity”. Even for State agents, the use of a weapon was a measure of last resort (extrema ratio); however, State agents could not be held responsible for the occurrence of a more serious event than that foreseen by them, as this risk was inherent in the use of firearms. In general terms, Article 53 of the CC permitted the use of force where it was necessary to repel violence or thwart an attempt to resist official authority. 97. M.P. had found himself in a situation of extreme violence designed to disturb public order and targeting the carabinieri, whose safety was directly threatened. In that connection the investigating judge cited extracts from the testimonies of two of the jeep's assailants (Mr Predonzani and Mr Monai), noting once again the violence of the assault, and referred to the photographs in the file. The victim's conduct had not been an isolated act of aggression, but one phase in a violent attack on the jeep by several persons, who had been tilting it sideways and probably trying to open the rear door. 98. The evidence in the file ruled out the possibility that M.P. had deliberately targeted Carlo Giuliani; however, even assuming that this had been the case,, as it was legitimate to fire in the direction of assailants in order to halt an attack while endeavouring to limit the damage, for instance by avoiding vital organs. In conclusion, the use of a firearm had been justified and had been likely not to cause serious harm, given that M.P. had “certainly fired upwards” and that the bullet had struck Carlo Giuliani only because it had been deflected in a manner that could not have been foreseen. 99. The investigating judge next considered it necessary to determine whether M.P. had acted in self-defence, which was a “more stringent” test for exemption from responsibility. She took the view that M.P. had rightly perceived a threat to his physical integrity and that of his colleagues, and that the threat had persisted on account of the violent attack on the jeep by a crowd of assailants and not just by Carlo Giuliani. In order to be assessed in its proper context, M.P.'s response had to be viewed in relation to that attack. The investigating judge rejected the hypothesis advanced by the victim's family that M.P.'s head injuries had been caused by the internal lever of the flashing light on the jeep's roof rather than by stones thrown by demonstrators. 100. M.P.'s response had been necessary in view of the number of assailants, the means used, the sustained nature of the violence, the injuries to the carabinieri in the jeep and the vehicle's difficulty in leaving the square because the engine had stalled. The response had been appropriate given the level of violence. 101. Had M.P. not taken out his weapon and fired two shots, the attack would have continued. If the fire extinguisher – which M.P. had already kicked away once – had landed in the jeep, it would have caused serious injury, or worse, to the occupants. As to the relationship of proportionality between the attack and the response, the Court of Cassation had held that the interests under threat had to be weighed against the means available to the accused, and that a plea of self-defence might be allowed even if the harm to the assailant was slightly greater than the threatened harm to the accused (see Court of Cassation, First Section, judgment no. 08204 of 13 April 1987, Catania). Furthermore, the response had to be the only one possible in the circumstances, in the sense that other responses less damaging to the assailant would not suffice to counter the danger (see Court of Cassation, First Section, judgment no. 02554 of 1 December 1995, P.M. and Vellino). Where a firearm was the only means of defence available to the person under attack, its use should be confined to displaying the person's resolve to make use of it, firing into the air or onto the ground or firing in the direction of the assailant but taking care not to hit vital organs, so as to inflict injury but not kill (see Court of Cassation judgment of 20 September 1982, Tosani). 102. In the instant case M.P. had had only one means of countering the attack: his firearm. He had made proportionate use of it, since before shooting he had called out to the demonstrators to leave, in an attempt to put a stop to their actions; he had then fired upwards and the bullet had hit the victim as the result of a tragic twist of fate (per una tragica fatalità). Had he wished to be sure of harming his assailants he would have fired through the side windows of the jeep, next to which numerous demonstrators had gathered. It followed that he had acted in self-defence. That being so, it was of little relevance whether M.P. had had a partial view of Carlo Giuliani (as the applicants' experts maintained and the prosecuting authorities' experts considered possible) or whether, as seemed more likely, he had not seen him and had fired as high in the air as his position would allow, accepting the risk that the shot might hit somebody. 103. The investigating judge also considered that the evidence in the file excluded any criminal responsibility on the part of F.C., given that, as indicated by the forensic experts, Carlo Giuliani's death had undoubtedly been caused within minutes by the pistol shot. The jeep's driving over the victim's body had caused only bruising. In any event, owing to the confused situation around the jeep, F.C. had not been able to see Carlo Giuliani or observe that he had fallen to the ground. 104. The investigating judge refused all the applicants' requests for further investigative measures to be taken (see paragraph 79 above). The reasons for the refusal can be summarised as follows: (a) with regard to the request for a forensic report to be prepared aimed at establishing whether Carlo Giuliani had still been alive when the jeep drove over his body (see paragraph 79(a) above), the checks already carried out had been thorough; furthermore, the injured parties had been offered the opportunity of appointing an expert of their choosing to attend the autopsy, but had not availed themselves of that possibility. In addition, the victim's body had been cremated scarcely three days after his death, thereby rendering any subsequent examination impossible; (b) as to the request for police chief De Gennaro and carabinieri second lieutenant Zappia to be examined on the subject of the lawfulness of the use of “thigh holsters” of the kind from which M.P. had drawn the weapon (see paragraph 79(b) above), it was clear that the directives issued with a view to the maintenance of public order could only be of a general nature and did not include instructions applying to unforeseeable situations involving direct attacks on officers. Furthermore, the manner in which M.P. had been wearing the pistol was of no relevance in the present case given that he could legitimately make use of his weapon irrespective of where he was wearing it or where he drew it from; (c) any attempt to identify the person who had thrown the stone which deflected the bullet (see paragraph 79(c) above) was bound to fail, as it was not realistic to imagine that a demonstrator would have followed the trajectory of a stone after throwing it. In any event, it would be impossible to identify the person concerned and his or her statements would have no bearing on the technical findings in the judge's possession; (d) no purpose whatsoever would be served by further examining the demonstrators Monai and Predonzani concerning the conduct of the carabinieri inside the jeep, the number of demonstrators in the vicinity of the vehicle, the person inside the jeep who had actually seized the weapon, Carlo Giuliani's position or the number of the jeep's windows that were broken (see paragraph 79(d) above). Those witnesses had made statements very shortly after the events, while the latter were still fresh in their minds; the statements contained extremely precise details which were confirmed by the video footage and photographs in the file. Lastly, it was not relevant to establish how many of the jeep's windows had been broken as it was beyond dispute that some of the right-side windows and the rear window were smashed; (e) it was unnecessary to take evidence from Mr D'Auria, supposedly to confirm that no Molotov cocktails had been thrown on Piazza Alimonda, contrary to M.P.'s assertion, or to determine how far away Mr D'Auria had been when he took the photograph which the prosecuting authorities' experts had used as a basis for the ballistics reconstruction. The photograph in question had been merely a starting point for determining Carlo Giuliani's position, which had been deduced from the position of the persons in relation to the fixed elements on the square. Furthermore, M.P. had never asserted that Molotov cocktails had been thrown on Piazza Alimonda; he had simply spoken of his fear that they might be; (f) with regard to the request to hear evidence from Sergeant-Major Primavera as to when the hatchback window of the jeep had been smashed, the photographs showed clearly that it had happened well before the shots were fired and that the latter had not been the cause of the smashed window; even if the witness whom the applicants wished to see called perceived the matter differently, this would not alter those findings; (g) the footage recorded on Piazza Alimonda by two carabinieri whose helmets were equipped with video cameras was already in the file; (h) there was nothing to be gained by hearing evidence from carabiniere V.M. concerning the practice of cutting the tips of bullets (see paragraph 79(e) above). It could only be assumed that this improper practice was not widespread; in any event, the findings of the ballistics reports, based on objective tests, were already available. There was nothing to indicate that M.P. had adopted the practice in question in this case, given that the other bullets found in the magazine of his pistol had been perfectly normal; (i) it was beyond dispute that the damage to the jeep had been caused by the stones and other hard objects thrown at it; it was therefore unnecessary to order a technical inspection of the vehicle; (j) forensic tests on the spent cartridges seized, in order to establish which weapons they had come from (see paragraph 79(f) above), would “serve no actual purpose”, as there was no doubt that the fatal bullet had been fired from M.P.'s weapon; this had been confirmed by M.P.'s statements and the findings of the forensic examinations. 105. The investigating judge dismissed the criticisms made by the applicants' lawyers to the effect that it had been inappropriate to entrust several aspects of the investigation to the carabinieri and to hear evidence from a large number of witnesses in the presence of members of the carabinieri. The judge observed that the events on Piazza Alimonda had been reconstructed with the aid of the large volume of video and photographic material in the file and the statements of the participants themselves, and that all plausible scenarios had been considered. 106. In the light of all the above considerations the Genoa investigating judge decided that the proceedings should be discontinued. 107. On 2 August 2001 the Speakers of the Senate and the Chamber of Deputies decided that an inquiry (indagine conoscitiva) into the events which occurred during the G8 in Genoa should be carried out by the constitutional affairs committees of both houses of Parliament. To that end, a commission representing the different parliamentary groups was established, made up of eighteen members of Parliament and the same number of senators (“the parliamentary commission”). 108. On 8 August 2001 the parliamentary commission heard evidence from the Commander-General of the carabinieri. The latter stated, in particular, that 4,673 additional troops and 375 specialised carabinieri had been drafted in to Genoa to assist the 1,200 members of the provincial command. Only 27% of the men present in Genoa had been auxiliary carabinieri performing military service (for public-order operations the figure was usually 70%). Most of the auxiliary carabinieri had performed nine or ten months' service and had already been deployed in similar settings. Beginning in April 2001 all the personnel to be deployed in Genoa had received training in public-order operations and use of the standard equipment. Team exercises and seminars had been organised, the latter relating to the identification of potential threats and the layout of the city. All those deployed had protective helmets, riot shields, batons, gas masks and fireresistant suits with protection for the most exposed parts of the body. Each carabiniere had a pistol (pistola d'ordinanza) and numerous tear-gas grenades had been issued to the detachments; there were also 100 armoured vehicles and 226 vehicles equipped with protective grilles, in addition to the special vehicles (for instance, vehicles fitted with mobile barriers to reinforce the fixed barriers protecting the red zone). 109. According to a memorandum from the senior command of the carabinieri, an elite force (aliquota scelta) of 928 men had undergone a programme of training in Velletri ahead of the G8 summit, covering both theory (the psychology of crowds and opposition groups, public-order techniques, handling emergencies) and practice (physical activity, use of resources, materials and equipment, final exercise with debriefing). The remaining troops had received three days' training in public-order techniques. Forty-eight officers had taken part in an information seminar covering topics such as the layout of the city of Genoa. 110. On 5 September 2001 the parliamentary commission heard evidence from Mr Lauro, an officer of the Rome police who had taken part in the public-order operations in Genoa (see paragraph 34 above). 111. Mr Lauro stated that the carabinieri had been equipped with throat microphones, enabling them to communicate very rapidly with one another. When asked to explain why the law-enforcement officers stationed quite near to the jeep (fifteen to twenty metres away) had not intervened, Mr Lauro replied that the men had been on duty since the morning and had been involved in several clashes during the day. He added that he had not noticed at the time of the events that there was a group of carabinieri and police officers who could have intervened. 112. As to the function of the two jeeps, Mr Lauro explained that they had brought fresh supplies at around 4 p.m. and had left and then returned about an hour later to see if anyone was injured. Mr Lauro also said that he had called an ambulance for Carlo Giuliani as no doctor was present at the scene. 113. On 20 September 2001 the parliamentary commission submitted a report setting out the conclusions of the majority of its members following the inquiry. The document dealt with the organisation of the G8 in Genoa, the political context and protest movements surrounding the summit and similar events worldwide, and the numerous contacts which had taken place between representatives of the institutions and associations making up the Genoa Social Forum, with the aim of preventing public-order disturbances and making arrangements to receive the demonstrators. Despite that dialogue, the protest movement had not succeeded in isolating the violent elements, numbering “around 10,000”; within the latter, a distinction had to be made between the Black Bloc and “opportunistic” individuals who had concealed themselves in the crowd. 114. Eighteen thousand law-enforcement officers had taken part in the operation. There had been about 2,000 delegates and 4,750 accredited journalists; the number of demonstrators ran into the tens of thousands (100,000 had taken part in the final demonstration). Seminars on the coordination and training of the law-enforcement agencies (with contributions by trainers from the Los Angeles police) had been held on 24 April and 18 and 19 June 2001. The agencies concerned had staged practical exercises, albeit after a deplorable delay. The administrative authorities had conducted research into non-lethal ammunition (including rubber bullets), in particular by means of study visits to foreign police forces. The authorities had been informed that Black Bloc demonstrators from anarchist circles in Italy and abroad were likely to travel to Genoa. After contacts with police forces in other countries, a decision had been taken to suspend application of the Schengen Agreements between 13 and 21 July 2001. From 14 July onwards checks had been carried out at the Italian borders to allow certain demonstrators to enter the country and prevent violent elements from gaining access. In the meantime, by an order dated 12 July 2001, the Genoa questore had indicated the areas of the city where the summit and the demonstrations would take place and had given an analytical breakdown of the security measures in place in each area. 115. The parliamentary commission next examined the various violent incidents and clashes which had taken place between the law-enforcement agencies and demonstrators on 19, 20 and 21 July 2001 (in particular during a search conducted in a school, described by the commission as “perhaps the most notable example of organisational and operational failings”). With specific reference to the death of Carlo Giuliani, the commission observed that a carabiniere had fired the fatal shot while the victim had been preparing to throw a fire extinguisher in his direction; the carabiniere in question had previously sustained a blow to the head from another demonstrator. In view of the fact that a criminal investigation was in progress, the commission decided to focus its analysis on the “overall situation giving rise to the tragedy”, examining in particular the communications system between the contingents of law-enforcement personnel, their commanding officers and the control centres, in order to study the coordination arrangements between the different areas. The commission also noted that the “fundamental cause” of the loss of a life had been “the mindless violence perpetrated by extremist groups which jeopardised the lives of the young people who became caught up in their criminal activities”. 116. In the commission's view, the overall outcome of the G8 had been positive. While certain shortcomings had been identified in the coordination of the operations, it had to be borne in mind that the law-enforcement agencies had been confronted with between 6,000 and 9,000 violent individuals who had not been isolated by the peaceful demonstrators (the commission referred in that regard to the “double game” being played by the Genoa Social Forum). The parliamentary commission's report concluded as follows: “The commission ... reiterates that violence is not and must not be a tool for political action and that the rule of law is a fundamental value of democratic societies. At the same time it emphasises strongly the inviolability of the constitutional principles of freedom to express one's thoughts and respect for the individual even – not to say especially – where he or she is detained following arrest, and also the need to ensure the safety of citizens and public order; if acts constituting a criminal or disciplinary offence are established, [the commission] would like to see the judicial authority and the administrative bodies concerned identify those responsible and punish their actions.” 117. The Government produced before the Court the verbatim records of the hearings at which the parliamentary commission had heard evidence from the Minister of the Interior, the Director-General of the Public Safety Department and the Commander-General of the Revenue Police. 118. On 20 September 2001 a group of parliamentarians called on the government to explain why law-enforcement officers being deployed on public-order operations were equipped with live ammunition rather than rubber bullets. The parliamentarians advocated the use of the latter, arguing that they had been used successfully on several occasions in other countries. 119. The government spokesman replied that the legislation made no provision for that option and that, moreover, it had not been proven that rubber bullets did not also cause very serious harm to the victim. Finally, he said that the possibility of introducing non-lethal weapons was currently being examined. 120. On 22 June 2006 the applicants applied to the Prime Minister's Office and to the Ministry of Defence for compensation in respect of the damage they had suffered as a result of the death of Carlo Giuliani. The Government explained that the application had been refused on the ground that it had been established in criminal proceedings that M.P. had acted in self-defence. For the same reason, no disciplinary proceedings were instituted against M.P. 121. On 13 March 2008 the Genoa District Court published its reasoning in the judgment adopted on 14 December 2007 following the trial of twenty-five demonstrators charged with a number of offences committed on 20 July 2001 (including criminal damage, theft, destroying property, looting and acts of violence against law-enforcement officers). During the trial, in which 144 hearings were held, the District Court, among other things, heard evidence from numerous witnesses and examined a wealth of audiovisual material. 122. The District Court held, inter alia, that the attack by carabinieri on the Tute Bianche marchers had been unlawful and arbitrary. The march had been authorised and the demonstrators had not committed any significant acts of violence against the carabinieri. The attack by the latter had been launched against hundreds of persons who were doing no harm, and no order to disperse had been given. The subsequent charge had also been unlawful and arbitrary. It had not been preceded by a warning to disperse, had not been ordered by the officer authorised to do so and had been unnecessary. 123. The methods deployed had also been unlawful. The carabinieri had fired tear-gas grenades at chest height, a large number of demonstrators had sustained injuries caused by non-regulation batons, and the armoured vehicles had knocked down the barricades and pursued members of the crowd along the pavement with the clear intention of causing harm. 124. The unlawful and arbitrary nature of the carabinieri's actions had justified the resistance shown by the demonstrators while tear gas was being used and during the attack on the march. Their resistance had also been warranted during the clashes which occurred in the side streets prior to 3.30 p.m., that is, up to the point at which the carabinieri had acted on the order to stop and allow the march to proceed. According to the court, the accused's actions had been a “necessary response” to the arbitrary actions of the law-enforcement officers for the purposes of Article 4 of Legislative Decree no. 288 of 1944. Article 4 reads as follows: “Articles 336, 337, 338, 339, 341, 342 and 343 of the Criminal Code [making punishable various acts of resistance against law-enforcement officers] shall not apply where the State agent or person authorised to exercise public authority caused the offence contemplated in those Articles by overstepping the limits of his or her authority through arbitrary acts.” 125. The District Court decided to forward the file to the public prosecutor's office on the ground that the statements made by Mr Mondelli and two other law-enforcement officers (to the effect that the attack had been necessary to counter the aggression shown by the demonstrators) did not match the facts. 126. After 3.30 p.m., although the demonstrators may still have felt a sense of abuse and injustice, their conduct had no longer been defensive but had been driven by a desire for revenge; it was therefore unjustified and punishable. 127. The charge ordered by police officer Lauro, which had triggered the events on Piazza Alimonda, had been neither unlawful nor arbitrary. As a result, the violent reaction by the demonstrators, which had led to the carabinieri being pursued and the jeep being attacked, could not be regarded as a defensive response. 128. The carabinieri in the jeep might well have feared that they would be subjected to an attempted lynching. The fact that the demonstrators surrounding them did not have Molotov cocktails and were therefore not in a position to set the vehicle on fire was a factor that could be appreciated with hindsight. The occupants of the jeep could not be blamed for having panicked. 129. Carlo Giuliani had probably been four metres from the jeep when he was shot down. M.P. had stated that he could only see what was happening inside the vehicle. When the shot was fired, he had been lying down with his feet pointing towards the rear door of the vehicle. He had pulled D.R. down on top of him and could not see his own hand; he was unable to say whether it had been inside or outside the jeep. In any event, he had fired upwards. 130. The District Court judgment mentions the statements made by the expert Marco Salvi, who performed the autopsy on Carlo Giuliani's body. Mr Salvi stated in particular that the trajectory of the fatal bullet indicated a direct shot and that the metal fragment lodged in the victim's body had been very difficult to find. The fragment, which had shown up on the scan (see paragraph 60 above), “must have been very small”; the experts had tried to locate it by going through the brain tissue section by section (per piani), although the latter had been damaged and engorged with blood. The more the experts worked, the more damaged the tissue had become. Given that the fragment was not a bullet and was of no use for ballistics purposes, the experts had considered it to be a minor detail (un particolare irrilevante) and had not pursued their search. 131. Twenty-four of the accused appealed against the first-instance judgment. In a judgment of 9 October 2009, deposited with the registry on 23 December 2009, the Genoa Court of Appeal partly upheld the convictions handed down by the District Court, increased some of the sentences and declared the prosecution of some of the offences time-barred. 132. Regarding the carabinieri attack on the Tute Bianche march, the Court of Appeal largely endorsed the view of the District Court. It observed that the carabinieri had encountered the march, which numbered around 10,000 persons, as a result of the route indicated to them by the control room. The front of the march, or “contact group”, had been made up of around twenty individuals, mostly members of Parliament, mayors, cultural figures and journalists. Behind them had been a series of Plexiglas protective devices, joined together; these were followed by the “head of the procession” made up of demonstrators equipped with helmets and shoulder and arm protectors. The march had not encountered the scenes of any clashes but had simply proceeded for about two kilometres without meeting any obstacle. The protective equipment showed that, although they were not carrying blunt instruments, the demonstrators had been prepared for possible clashes. 133. In these circumstances it was difficult to understand why officers Bruno and Mondelli had decided to launch an attack on the march. They had not received any orders to that effect; on the contrary, they had been requested to avoid crossing the marchers' path. The news that an attack was in progress had been greeted with cries of disapproval in the control room. 134. The carabinieri had been summoned to intervene urgently in Marassi Prison, where law-enforcement officers were struggling to cope with an attack by the Black Bloc. Accordingly, when they encountered the march they had attempted to clear the junction and the tunnel through which they wished to pass. According to the witness testimony of one journalist, judged to be “neutral” and therefore credible, youths belonging to the Black Bloc arriving from the opposite direction to the marchers had thrown stones at the carabinieri; this had led to the order to fire tear gas, given by Mr Bruno. The Court of Appeal concluded that, although the charge by the carabinieri had been illegitimate, they had been called upon to intervene in a situation characterised by violence from the Black Bloc demonstrators, who had earlier ransacked other parts of the city, and by the fact that the junction they needed to cross was occupied by the crowd and the tunnel was blocked by barricades. 135. In the Court of Appeal's view, the District Court had correctly found the following actions by the carabinieri to be illegitimate: (a) the firing of tear gas at chest height; (b) the failure to order the dispersal of the marchers, who were not causing a disturbance and who could only have entered the red zone much further on, at Piazza Verdi; (c) the attack on an authorised, peaceful march made up of unarmed demonstrators. While the Black Bloc had created serious disturbances elsewhere in the city, there was no proof that they were being “covered” by the marchers, that is, that they had hidden amongst them before or after committing acts of vandalism. 136. Furthermore, there had been arbitrary acts in the form of: the use of non-regulation batons (manganelli) (pieces of wood or iron wrapped in adhesive tape and a source of serious cuts and bleeding); the use of armoured vehicles to make “forays” amidst the demonstrators, pursuing some of them at high speed along the pavement (the Court of Appeal observed that the vehicles did not have sufficiently safe brakes and that one of them had pursued a demonstrator in zigzag fashion, as if attempting to run him over); the infliction of excessive injury and the beating of demonstrators, journalists and an ambulance driver. 137. The illegitimate and arbitrary attack had produced a reaction from the demonstrators which was not punishable in view of the grounds of justification provided for in Article 4 of Legislative Decree no. 288 of 1944. However, once the carabinieri had withdrawn and an armoured vehicle had broken down, the demonstrators had no longer been in danger. Hence, the attack on the vehicle and its occupants had not constituted a defensive act, but an act of retaliation. From that point onwards the Tute Bianche had “reclaimed” their right of assembly and protest, and any further acts of violence and vandalism on their part, including the damage to the armoured vehicle, amounted to a criminal offence. 138. The Court of Appeal endorsed the District Court's view that, despite their violent response, the marchers had not been guilty of the offence of criminal damage. The damage caused had been minor and had resulted from the use of objects (cars and refuse containers) as protection against the carabinieri. Unlike the Black Bloc, the Tute Bianche had not taken to the streets with the intention of damaging public or private property symbolising the system they opposed. The damage had been confined to the fairly small area in which the response had occurred and, by and large, had ceased with the withdrawal of the carabinieri. Although “disquieting”, the fact that the demonstrators in the front lines had worn protectors could not give rise to the assumption that they had intended to engage in acts of violence. 139. During the proceedings before the Court the parties submitted a large volume of audiovisual material. The CD-ROMs produced by the Government and the applicants on 28 June and 9 July 2010 respectively were viewed by the judges of the Grand Chamber on 27 September 2010 (see paragraph 9 above). These show several phases in the demonstrations that took place in Genoa on 20 July 2001 and contain images of the moments before and after the shot which killed Carlo Giuliani. They also show the violence perpetrated by the demonstrators (throwing of stones, charges on the law-enforcement agencies, acts of vandalism in the street and against police and carabinieri vehicles) and violence imputable to the authorities. Some of the footage shows police armoured vehicles pursuing demonstrators at high speed along the pavement and police officers beating a demonstrator lying on the ground. The applicants' CDROM also contains extracts from Mr Lauro's statement and from an interview with M.P. shown on television. 140. The Government produced numerous administrative documents from the police authorities, the Ministry of the Interior and the Chamber of Deputies. The documents relevant to the present case noted the following: – on 6 February 2001 the Public Safety Department of the Interior Ministry had sent out a circular to all questori reminding them, in particular, that the firing of tear gas should be considered a “measure of last resort for dealing with particularly serious situations which cannot be managed otherwise”; – the Public Safety Department of the Interior Ministry had prepared “an information handbook for State police personnel” which contained guidelines on conduct at the Genoa G8; – on 17 July 2001 – hence, before the G8 – the Minister of the Interior had addressed the Chamber of Deputies “on the public-order situation in Genoa”; – on 23 July 2001 the same Minister had addressed Parliament on the subject of the “serious incidents occurring in Genoa during the G8 summit”; – on 30 and 31 July 2001 the Interior Ministry's Public Safety Department had submitted reports on the conduct of the law-enforcement agencies during the search carried out on the night of 21 July 2001 in a school occupied by demonstrators, and in a police station where persons had been taken into custody. Disciplinary action had been proposed against several police officers and the Genoa questore; – on 6 August 2001 the inter-regional police directorate had forwarded to the chief of police the findings of an administrative inspection carried out in the Genoa questura, which pointed to certain organisational problems during the G8 and analysed thirteen “potentially punishable incidents” imputable to the law-enforcement agencies emerging from the available audiovisual material; none of the incidents related to the use of force by M.P. 141. The Government also produced a memorandum from the Public Safety Department of the Interior Ministry dated 4 October 2010, according to which some 18,000 law-enforcement officers had been deployed at the G8 in Genoa. In particular, the State had drafted in 14,102 “reinforcements” including 11,352 “police operators” (police officers, carabinieri, officers of the revenue and forestry police and prison officers) and 2,750 members of the armed forces. Of the 11,352 “police operators”, 128 belonged to the elite units, while 2,510 police officers and 1,980 carabinieri belonged to “mobile units” (reparti mobile) made up of personnel specially trained and equipped for public-order operations. The Public Safety Department indicated that, beginning in March 2001, it had put in place a training programme aimed specifically at personnel taking part in the G8, with a view to ensuring public-order management based on the principles of democracy and respect for fundamental rights (hence, participants in the training courses were reminded that the use of force was a measure of last resort). Advanced training seminars had also been organised which explored the dynamics of events such as the G8 summit. 142. The Criminal Code (“the CC”) provides for situations (cause di giustificazione or scriminanti) which may exempt individuals from criminal responsibility and render not punishable conduct which amounts to an offence under the law. Possible grounds of justification include the legitimate use of weapons and selfdefence. 143. Article 53 of the CC provides that no sanctions may be imposed on “a State agent who uses or orders the use of weapons or any other means of physical force in the exercise of his or her official duties, where he or she is obliged to do so in order to repel an act of violence or thwart an attempt to resist official authority. In any case, he or she shall not be liable where such action is taken to prevent criminal acts entailing massacre, shipwreck, flooding, aviation or railway disasters, intentional homicide, armed robbery or abduction ... The law provides for other cases in which the use of weapons or any other means of physical force is authorised.” 144. Article 52 of the CC provides that no sanctions may be imposed on “persons who commit an offence when forced to do so by the need to defend their rights or the rights of others against a real danger of unjust attack, provided that the defensive response is proportionate to the attack.” 145. Under Article 55 of the CC, in cases, inter alia, of selfdefence or legitimate use of weapons, where the person concerned has negligently (colposamente) overstepped the limits laid down by law or by the competent authority, or dictated by necessity, his or her actions are punishable as negligent conduct to the extent provided for by law. 146. Articles 18-24 of the Public Safety Code (Testo Unico) of 18 June 1931 (No. 773) govern public gatherings and assemblies in public places or open to the public. Where such a gathering is liable to endanger public order or safety, or where offences are committed, the gathering may be dissolved. Before it is dissolved, the participants must be requested by the lawenforcement agencies to disperse. If the request is not complied with, the crowd must be given three formal warnings to disperse. If these are not complied with or cannot be issued because of revolt or opposition, the police officers or carabinieri order the gathering or assembly to be broken up by force. The order is carried out by the police and the armed forces under the command of their respective senior officers. Refusal to comply with the order to disperse is punishable by a term of imprisonment of between one month and one year and by a fine of between 30 and 413 euros (EUR). 147. In February 2001 the Ministry of the Interior issued a directive to questori containing general provisions on the use of tear gas and batons (sfollagente). The use of such equipment must be ordered clearly and expressly by the head of the service after consultation with the questore. The personnel must be informed. 148. In addition, Presidential Decree No. 359 of 5 October 1991 lays down the “criteria for determining the weapons to be issued to the public safety authorities and the State police”. The decree contains a description of the various weapons issued as standard (Articles 10 to 32), making a distinction between “personal weapons” and “collective weapons”. The personal weapons consist of a pistol which is allocated to the individual for the duration of his or her service (Article 3 § 2). He or she must keep the weapon, ensure its upkeep, apply the safety measures provided for at all times and in all situations and participate in the firing exercises organised by the authorities (Article 6 § 1). 149. Article 32 states that the authorities “may issue weapons with tranquilising agents (proiettili narcotizzanti)” and that in cases of necessity and urgency the Minister of the Interior may authorise police officers who have received ad hoc training to use weapons other than those issued as standard, provided that the weapons have been checked and do not exceed the offensive capacity of the standard-issue weapons (Article 37). The above-mentioned decree further provides that the standard-issue weapons must be appropriate and proportionate to the requirements of protecting public order and public safety, preventing and dealing with crime and other institutional aims (Article 1). 150. Under Article 79 of the Code of Criminal Procedure (“the CCP”), the injured party may apply to join the proceedings as a civil party from the preliminary hearing onwards; the latter is the hearing at which the judge is called upon to decide whether the accused should be committed for trial. Before the preliminary hearing, or where no such hearing is held because the case is discontinued at an earlier stage, injured parties may exercise certain powers. The relevant provisions of the CCP provide: “Injured parties shall exercise the rights and powers expressly afforded to them by law and may furthermore, at any stage of the proceedings, submit pleadings and, except in cassation proceedings, request the inclusion of evidence.” “Injured parties may appoint a legal representative for the exercise of the rights and powers afforded to them ...” “Where the public prosecutor orders examinations ... or any other technical operation calling for a specific competence, he or she may appoint ... experts. The latter may not refuse to cooperate.” “1. Where the examinations referred to in Article 359 ... concern persons, objects or places in a state subject to alteration, the public prosecutor shall inform the accused, the injured party and the lawyers without delay of the date, time and place designated for the briefing of the experts and of the possibility of appointing experts. ... 3. Any lawyers or experts appointed shall have the right to attend the briefing of the experts, participate in the examinations, make observations and express reservations.” “1. In the course of the preliminary investigation, the public prosecutor and the accused may apply to the judge for the immediate production of evidence... 2. The public prosecutor and the accused may also request a forensic examination where such examination, if ordered during the trial, could entail the suspension of the latter for more than 60 days ... .” “1. Injured parties may request the public prosecutor to apply for the immediate production of evidence. 2. Should the public prosecutor refuse that request, he or she shall give reasons for the decision and serve it on the injured party.” 151. The public prosecutor does not have the power to discontinue the proceedings; he or she may simply request the investigating judge to do so. The injured party may object to that request. The relevant provisions of the CCP read as follows: “1. Except in cases where the objection referred to in Article 410 has been lodged, if the judge grants the request for the proceedings to be discontinued he or she shall make an order to that effect, giving reasons, and return the file to the public prosecutor's office. ... 2. If the judge rejects the request [to discontinue the proceedings], he or she shall fix the date of the private hearing and shall inform the public prosecutor, the accused and the injured party accordingly. The procedure shall be conducted in accordance with Article 127. The documents shall be deposited with the registry up to the day of the hearing, and copies may be obtained by counsel. ... 4. After the hearing, if the judge considers additional investigative measures to be necessary, he or she shall issue an order to the public prosecutor detailing the measures and laying down a binding time-limit for their completion. 5. Where the circumstances described in paragraph 4 do not apply and the judge rejects the request to discontinue the proceedings, he or she shall issue an order instructing the public prosecutor to draw up the indictment within ten days. ... 6. An appeal against the decision to discontinue the proceedings shall lie to the Court of Cassation solely on the grounds of nullity provided for by Article 127 § 5 [in particular failure to comply with the procedural provisions concerning the holding of hearings in private].” “1. When objecting to the request to discontinue the proceedings, the injured party shall request that the investigation be continued, indicating the purpose of further investigation and requesting the inclusion of the relevant evidence, failing which the objection shall be declared inadmissible. 2. Where the objection is declared inadmissible and the accusations are unfounded, the judge shall issue an order discontinuing the proceedings and shall return the file to the public prosecutor's office. ...” 152. Article 116 of the implementing provisions of the CCP concerns investigations into deaths where there are grounds for suspecting that a crime has been committed. This Article provides: “Where it is suspected that a person died as the result of a crime, the public prosecutor shall verify the cause of death and, should he or she consider it necessary, shall order an autopsy in accordance with the procedure laid down in Article 369 of the Code or apply for the immediate production of evidence ... ... The burial may not take place without an order from the public prosecutor.” 153. Article 79 of Presidential Decree no. 285 of 10 September 1990 stipulates that cremation must be authorised by the judicial authority where death occurred suddenly or in suspicious circumstances. A. United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 154. The relevant parts of these principles (“the UN Principles”), which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana (Cuba) from 27 August to 7 September 1990, provide as follows: “1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review. 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. ... 9. Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. 10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident. 11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: (a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted; (b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm; (c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk; (d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them; (e) Provide for warnings to be given, if appropriate, when firearms are to be discharged; (f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty. ... 18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review. 19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use. 20. In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents. ...” 155. The CPT visited Italy in 2004. The relevant parts of its report, published on 17 April 2006, read as follows: “14. As far back as 2001 the CPT began a dialogue with the Italian authorities concerning the events that took place in Naples (on 17 March 2001) and in Genoa (from 20 to 22 July 2001). The Italian authorities have continued to inform the Committee of the action taken in response to the allegations of ill-treatment made against the law-enforcement agencies. In that context the authorities furnished a list during the visit of the judicial and disciplinary proceedings in progress. The CPT wishes to be kept regularly informed of the progress of the abovementioned proceedings. In addition, it wishes to receive detailed information on the measures taken by the Italian authorities to prevent the recurrence of similar episodes in the future (relating, for instance, to the management of large-scale publicorder operations, training of supervisory and operational personnel and monitoring and inspection systems). 15. In the report on its visit in 2000, the CPT recommended that measures be taken as regards the training of law-enforcement officers, with more particular reference to incorporating human rights principles in practical training – both initial and ongoing – concerning the management of high-risk situations such as the arrest and questioning of suspects. In their response, the Italian authorities simply gave general replies concerning the 'human rights' component of the training provided to lawenforcement officers. The CPT wishes to receive more detailed – and updated – information on this subject ...” 156. The Government produced documents summarising the consideration by the CAT of reports submitted by States Parties under Article 19 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Part of the fourth periodic report submitted by Italy (dated 4 May 2004) deals with the “events of Genoa” (paragraphs 365-395). It is based mainly on certain passages from the report of the parliamentary commission (see paragraphs 113-116 above). The CAT considered Italy's fourth periodic report at its 762nd and 765th meetings, held on 4 and 7 May 2007, and adopted, at its 777th and 778th meetings, a document containing conclusions and recommendations. The relevant parts of the CAT report read as follows: “Training 15. The Committee takes note with appreciation of the detailed information provided by the State party on training for its law enforcement officials, penitentiary staff, border guards and armed forces. However, the Committee regrets the lack of information on training on the employment of non-violent means, crowd control and the use of force and firearms. In addition, the Committee regrets that there is no available information on the impact of the training conducted for law enforcement officials and border guards, and how effective the training programmes have been in reducing incidents of torture and ill-treatment. (art. 10) The State party should further develop and implement educational programmes to ensure that: a) All law enforcement officials, border guards and personnel working in the CPTs and CPTAs are fully aware of the provisions of the Convention, that breaches will not be tolerated and will be investigated, and that offenders will be prosecuted; and b) All law enforcement officers are adequately equipped and trained to employ nonviolent means and only resort to the use of force and firearms when strictly necessary and proportionate. In this respect, the Italian authorities should conduct a thorough review of current policing practices, including the training and deployment of law enforcement officials in crowd control and the regulations on the use of force and firearms by law enforcement officials. Furthermore, the Committee recommends that all relevant personnel receive specific training on how to identify signs of torture and ill-treatment and that the Istanbul Protocol of 1999 (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) become an integral part of the training provided to physicians. In addition, the State party should develop and implement a methodology to assess the effectiveness and impact of its training/educational programmes on the reduction of cases of torture and ill-treatment. ... Ill-treatment and excessive use of force 17. The Committee notes with concern continued allegations of excessive use of force and ill-treatment by law enforcement officials. In this respect, the Committee is particularly concerned at reports emerging of alleged excessive use of force and illtreatment by law enforcement officials during the demonstrations in Naples (March 2001) in the context of the Third Global Forum, the G8 Summit in Genoa (July 2001) and in Val di Susa (December 2005). The Committee is also concerned that such incidents have reportedly occurred during football matches but it notes the recent adoption of Act no. 41/2007, entitled 'Urgent measures on the prevention and the repression of violence cases occurring during football matches'. (arts. 12, 13 and 16) The Committee recommends that the State party should take effective measures to: (a) Send a clear and unambiguous message to all levels of the police force hierarchy and to prison staff that torture, violence and ill-treatment are unacceptable, including through the introduction of a code of conduct for all officials; (b) Certify that those who report assaults by law enforcement officials are protected from intimidation and possible reprisals for making such reports; and (c) Ensure that law enforcement officials only use force when strictly necessary and to the extent required for the performance of their duty. Furthermore, the State party should report to the Committee on the progress of the judicial and disciplinary proceedings related to the above-mentioned incidents. 18. The Committee is concerned at reports that law enforcement officers did not carry identification badges during the demonstrations in connection with the 2001 G8 summit in Genoa which made it impossible to identify them in case of a complaint of torture or ill-treatment (arts. 12 and 13). The State party should make sure that all law enforcement officials on duty be equipped with visible identification badges to ensure individual accountability and the protection against torture, inhuman or degrading treatment or punishment. Prompt and impartial investigations 19. The Committee is concerned at the number of reports of ill-treatment by law enforcement agencies, the limited number of investigations carried out by the State party in such cases, and the very limited number of convictions in those cases which are investigated. The Committee notes with concern that the offence of torture, which as such does not exist in the Italian Criminal Code but rather is punishable under other provisions of the Criminal Code, might in some cases be subject to the statute of limitations. The Committee is of the view that acts of torture cannot be subject to any statute of limitations and it welcomes the statement made by the State party's delegation that it is considering a modification of the time limitations (arts. 1, 4, 12 and 16). The Committee recommends that the State party should: (a) Strengthen its measures to ensure prompt, impartial and effective investigations into all allegations of torture and ill-treatment committed by law enforcement officials. In particular, such investigations should not be undertaken by or under the authority of the police, but by an independent body. In connection with prima facie cases of torture and ill-treatment, the suspect should as a rule be subject to suspension or reassignment during the process of investigation, especially if there is a risk that he or she might impede the investigation; (b) Try the perpetrators and impose appropriate sentences on those convicted in order to eliminate impunity for law enforcement personnel who are responsible for violations prohibited by the Convention; and (c) Review its rules and provisions on the statute of limitations and bring them fully in line with its obligations under the Convention so that acts of torture as well as attempts to commit torture and acts by any person which constitute complicity or participation in torture, can be investigated, prosecuted and punished without time limitations.” | 0 |
train | 001-104981 | ENG | GRC | COMMITTEE | 2,011 | CASE OF NAKA v. GREECE | 4 | Violation of Art. 6-1 | Anatoly Kovler;George Nicolaou;Mirjana Lazarova Trajkovska | 4. The applicant was born in 1938 and lives in Athens. 5. She is employed as a cleaning lady at the General Hospital of Athens “Laiko”. 6. On 17 June 1996 she lodged a civil action with the Athens First Instance Civil Court asking for a sum of 29,151,114 drachmas (GRD) (i.e. 85,739 euros) in respect of unpaid salaries. 7. On 2 October 1997 her action was accepted. This decision was certified (θεώρηση) on 8 July 1998 (judgment no. 2927/1997). 8. On 29 March 1999 the hospital lodged an appeal. 9. On 21 September 1999 the Athens Civil Court of Appeal accepted the appeal and rejected the applicant’s action as unfounded (judgment no. 7938/1999). 10. On 31 October 2000 the applicant lodged an appeal on points of law with the Court of Cassation. 11. On 4 December 2001 the Court of Cassation accepted the appeal and remitted the case to a different division of the Court of Appeal (judgment no. 1684/2001). 12. On 20 December 2001 the applicant filed an application before the Court of Appeal asking for a hearing date to be set. The hearing was held on 5 March 2002. 13. By judgment dated 28 November 2002 the Court of Appeal quashed judgment no. 2927/1997 of the Athens First Instance Civil Court and partially allowed the applicant’s appeal (judgment no. 9275/2002). 14. On 13 July 2004 the applicant lodged an appeal on points of law. 15. On 24 June 2008 the Court of Cassation partially accepted the appeal and remitted the case to a different division of the Court of Appeal (judgment no. 1394/2008). This judgment was finalised on 5 November 2008. It does not transpire from the case file that these proceedings have been concluded. | 1 |
train | 001-5103 | ENG | DEU | ADMISSIBILITY | 2,000 | HOGEFELD v. GERMANY | 3 | Inadmissible | Matti Pellonpää | The applicant is a German national, born in 1956 and presently detained in a prison in Frankfurt. She is represented before the Court by Mr Thomas Kieseritzky, a lawyer practising in Frankfurt. A. The applicant is a former member of the Red Army Fraction (RAF), a left-wing extremist terrorist movement that was responsible for numerous attacks on high rank personalities in Germany since the early seventies. In April 1992 the RAF announced in a written declaration that they would suspend the attacks on representatives of the State and the economy. In a further declaration of August 1992, the RAF made several critical statements on its strategy in the past. On 27 June 1993 the applicant was arrested and taken in detention on remand. On 21 January 1994 a warrant of arrest (Haftbefehl) was issued against her. The warrant of arrest was based, among other grounds, on the fear that the applicant might continue terrorist activities. On 1 December 1995 the Frankfurt Court of Appeal (Oberlandesgericht) dismissed the request of a radio journalist to allow an interview with the applicant because such an interview would conflict with the purpose of the detention on remand as provided for in Section 119 § 3 of the Code of Criminal Procedure (Strafprozeordnung – see relevant domestic law below). The Court considered that in respect of a declaration made by the applicant during the trial, it had to be expected that the applicant would explain and advocate ideological positions of the RAF, which would amount to a new act of participation in a terrorist organisation pursuant to Section 129a of the Criminal Code (Strafgesetzbuch - see relevant domestic law below). According to the warrant of arrest, the purpose of the detention on remand was inter alia to prevent the applicant from committing further terrorist acts as defined in Section 129a of the Criminal Code. On 21 December 1995 the Frankfurt Court of Appeal dismissed the request of a filmmaker to permit the filming of a visit of the applicant's mother to her daughter in prison. The Court, relying again on Section 119 § 3 of the Code of Criminal Procedure, considered that the film could enable the applicant to influence supporters of the RAF in order to strengthen their support for the latter. This would be the case if the applicant commented on the conditions of detention of terrorists. Such behaviour would constitute a renewed act of participation in a terrorist organisation within the meaning of Section 129a of the Criminal Code. On 4 January 1996 the Frankfurt Court of Appeal dismissed the request of the applicant and a journalist to permit an interview with the applicant. It did, however, grant the journalist a permit for a single visit to the applicant on the condition that there would be no talk about the RAF and the trial. The decision was based on the same grounds as that of 1 December 1995. On 11 January 1996 the Court dismissed yet another request of a journalist for a radio interview with the applicant. On 17 April 1996 it dismissed the applicant's objections (Gegenvorstellungen) against that decision. On 31 August 1996 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint. The Court held that neither the freedom of expression under Article 5 § 1 of the Fundamental Law (Grundgesetz) nor any other of the applicant's fundamental rights had been violated. It found that the assessment of the facts by the Court of Appeal as well as its findings in law did not disclose any violation of the Constitution. During the trial against the applicant at the Frankfurt Court of Appeal from 15 November 1994 until 5 November 1996 the applicant made several declarations in which she commented on the history of the RAF, her role in the organisation and the crimes she was accused of. With her first declaration of 15 November 1994 the applicant commented on the events in connection with her arrest during which her companion, RAF member Wolfgang Grams, had been shot dead. She then explained the developments within the RAF which had lead to its declaration of April 1992 in which the group abandoned its strategy of attacks against representatives of the State and the economy. She explained this break with the former strategy of the RAF with the “experiences and the realisation that we [the RAF] ourselves do not have answers to many questions and that we, alone, cannot and do not want to answer them, as the draft of a global political vision cannot be the matter of one group [...] like the RAF”. She concluded the declaration with the following statement: “The fight for a humane future, for a world without government, in which people can live in liberty and self-determination, is still on the agenda. The reversal of the social developments is still a matter for which one must fight. Those who think that they have driven us into a dead-end street, should not rejoice too soon. They should know that we will fight for ourselves. There will be no return to the old strategy as a political concept, but we have our right to self-defence. I do not think that we will watch our destruction without resistance and I wish that everyone would think about our future.” In a further declaration of 2 March 1995 she commented on the murder of the U.S. soldier Pimental by the RAF: “The shooting of the GI Edward Pimental was one of the worst mistakes of the RAF.” On 21 July 1995 the applicant read out a statement on the history of the RAF in which she critically commented on the strategy of violent attacks which the RAF had followed in the past. In this context she clearly admitted her commitment to the RAF and to its original aims as she stated: “Although I believe today that we made many mistakes – our beginnings and our fight for a different world were at any time well-founded and justified, and that fight has to be conducted as a confrontation. Now the time has come for drawing conclusions from these experiences, because they are important for the determination of future fights and because others should not repeat our mistakes simply because we do not talk about them. [...] Where the RAF is concerned, I have written my whole text in the first person of the plural – my personal history has been closely linked to this group for 20 years now and thus I believe that I carry the responsibility for its whole history.” She subsequently condemned again the shooting of the U.S. soldier and asked the question of “how people who had stood up to fight for a more just and more humane world, could have moved away so far from their original ideals ...”. In this connection she tried to explain the reasons which had finally driven her to join the RAF. At the end of her statement, she had this to say about the development of the RAF: “Our limitation of vision and our dogmatism continuously prevented critical questions and a self-critical reflection. As far as we were concerned, it lasted through the early nineties until we finally broke with it.” She concluded her declaration with the following words: “There will be no relevant anti-power here, as long as we – and I do not refer to the RAF only – continue to refuse to understand our own history. To determine future fights, we need an accurate analysis of the current situation and development. We also need the experiences and realisations of the last 25 years.” On 5 November 1996 the Frankfurt Court of Appeal sentenced the applicant to life-time imprisonment for murder in several cases, robbery, causing an explosion and illegal possession of firearms. It found that the applicant had joined the underground operating group of the RAF in 1984 and had participated in several attacks by the RAF, namely (1) the deadly shooting of the U.S.-soldier Edward Pimental on 7 August 1985, (2) the bomb outrage on the U.S. Airbase in Frankfurt on 8 August 1985, (3) the attack on former Under-Secretary of State Dr. Heinz Tietmeyer on 21 September 1988 and (4) the bombing at Weiterstadt prison on 27 March 1993. On the applicant's appeal, the Federal Court of Justice (Bundesgerichtshof) by decision of 13 February 1998 quashed the applicant's conviction for the bombing of the Weiterstadt prison but confirmed the Court of Appeal's judgment with respect to the other crimes. B. Relevant domestic law The admissibility of any contacts of the detainee on remand is regulated by Section 119 § 3 of the Code of Criminal Procedure (Strafprozessordnung), which reads as follows: “The person arrested may only be subjected to those limitations which are required by the purpose of the detention on remand or by the maintenance of order in the prison.” The applicant was, among other crimes, accused of membership in a terrorist organisation pursuant to Section 129a of the Criminal Code. The relevant paragraphs of Section 129a read as follows: “Foundation of terrorist associations (1) Everyone who founds an association, the purpose or activities of which are directed to commit 1. murder, homicide or genocide (Sections 211, 212, 220a), 2. crimes against the freedom of the person in the cases of Sections 239a or 239b or 3. crimes pursuant to Section 305a [destruction of important working materials] or crimes against public safety according to Sections 306 to 306c [arson] or Section 307 §§ 1 to 3 [causing explosions through nuclear energy], Section 308 §§ 1 to 4 [causing an explosion], Section 309 § 1 to 5 [abuse of ionising radiation], Sections 313 [causing floodings], 314 [poisoning dangerous to public safety] or 315 §§ 1, 3 or 4 [dangerous disturbances of rail, sea or air traffic], Section 316b §§ 1 or 3 [disturbance of public service plants] or Sections 316c §§ 1 to 3 [attacks on air and sea traffic] or who participates as a member in such an organisation, is liable to imprisonment of one to ten years. (2) If the perpetrator is one of the ringleaders or instigators, imprisonment may not be below three years. (3) Whoever supports or promotes an organisation as described in § 1 is liable to imprisonment of six months to five years.” | 0 |
train | 001-104933 | ENG | HRV | CHAMBER | 2,011 | CASE OF ZUGIC v. CROATIA | 3 | Remainder inadmissible;No violation of Art. 10 | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicant was born in 1925 and lives in Zagreb. 5. On 11 December 2000 the public utility company V.O., basing its case on unpaid bills for water supply services, instituted enforcement proceedings against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of the debt. 6. On 24 January 2001 the Court issued a writ of execution (rješenje o ovrsi) ordering the applicant to pay the amounts sought. However, since the applicant challenged the writ by objecting to it on 19 March 2001, the court set it aside. As a consequence, the enforcement proceedings were, pursuant to the relevant legislation, transformed into, and resumed as, regular civil proceedings. 7. The applicant, who has a formal education as a lawyer but is not an advocate, represented himself in the proceedings. 8. On 15 November 2005 judge J.G.F. of the Zagreb Municipal Court delivered a judgment ruling for the plaintiff. 9. On 27 December 2005 the applicant appealed against the firstinstance judgment. Section 357 of the Civil Procedure Act provides that an appeal to a second-instance court has to be lodged through a firstinstance court. Under section 358 of the same Act the first-instance court conducts a preliminary examination of the appeal and may declare it inadmissible if it finds that it does not meet certain procedural requirements, for example if it finds that it was lodged outside the statutory time-limit. It is, however, not authorised to decide on the merits of the appeal. Therefore, the applicant submitted his appeal intended for Zagreb County Court (Županijski sud u Zagrebu) to Zagreb Municipal Court. In his appeal he wrote, inter alia: “After twenty months of waiting ... on 15 November 2005 the second hearing was held, at which, in substance and without hearing [the parties] (apart from stating that the parties were present and that they maintained their positions) the impugned judgment was rendered. It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’ to which the defendant replied ‘where did you get that idea?’ [‘što Vam pada na pamet? ‘]and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression [navodeći komičan izraz] that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed. Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is! [Kakva li je ovo sudačka profesionalnost!] It is evident from the above-mentioned that in these proceedings no hearing was held in accordance with the law, which amounts to breaches of section 354 paragraph 2 subparagraphs 6 and 11 of the Civil Procedure Act. Apart from this, from the contested judgment or the transcripts of the hearings it cannot be discerned whether the court took any evidence ... for which reason the judgment could not be satisfactorily reasoned ... Instead of referring to the evidence taken and assessing its evidentiary value, the court immediately ... states on what basis it arrived at the contested findings, from which it is clear that it accepted all arguments of the plaintiff ...” 10. After it carried out the preliminary examination of the appeal, Zagreb Municipal Court forwarded it together with the case file to Zagreb County Court. 11. On 3 April 2007 Judge M.P. at Zagreb County Court delivered a judgment dismissing the applicant’s appeal and upholding the first-instance judgment. 12. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance judgment. On 21 January 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his constitutional complaint inadmissible. It found that even though the applicant relied in his constitutional complaint on the relevant Articles of the Constitution guaranteeing the right to a fair hearing and equality before the law, he had not substantiated his complaint by any constitutional law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint. 13. After it had completed the preliminary examination of the applicant’s appeal of 27 December 2005 in the above proceedings, on 4 January 2006 Judge J.G.F. at Zagreb Municipal Court issued a decision whereby it fined the applicant 500 Croatian kunas (HRK) for contempt of court. The relevant part of the decision read as follows: “I. The defendant Nikola Žugić from Zagreb ... is hereby fined 500 [Croatian] kunas because in his appeal of 27 December 2005 he insulted the court by stating: ‘It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’, to which the defendant replied ‘where did you get that idea?’ and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed. Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is!’ ... In the appeal of 27 December 2005 the defendant, insulted the court by, inter alia, [using] the words quoted in the operative provisions of this decision. It would follow from the quoted text that during the main hearing the court communicated with the parties in an improper way, that the judge behaved improperly and that she does not know the law. All this constitutes contempt of court and the statements quoted exceed the limits of necessary respect for the court, even attempting to call into question the knowledge and expertise of the judge at issue, which is an impermissible way for the parties to communicate with the court because it represents a direct insult to the judge as a person, implying that she is ignorant and incompetent to exercise the duty of a judge. When imposing the fine the court took into account the fact that the defendant insulted not only the court as an institution, but also the judge as a person, on account of which he had to be fined pursuant to section 110 taken in conjunction with section 10 of the [Civil Procedure Act].” 14. On 16 January 2006 the applicant lodged an appeal against that decision arguing, inter alia, that his statements had been arbitrarily interpreted by the first-instance court, that they had not been insulting, and that he had not had any intention of insulting anyone. 15. By a decision of 3 April 2007 Judge M.P. at Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision read as follows: “In this court’s view, the finding of the first-instance court that in his appeal the defendant insulted the court by making the above statements is correct ... It is to be noted that by the statements made in the appeal the defendant demonstrated disrespect for the court, which undoubtedly represents an improper way for the parties to communicate with the court, and exceeds the limits of a civilised and fair relationship with the court as an institution of a society.” 16. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance decision. On 25 October 2007 the Constitutional Court declared his constitutional complaint inadmissible on the ground that the contested decision did not concern the merits of the case and as such was not susceptible to constitutional review. 17. On 21 May 2008 the Zagreb Municipal Court of its own motion issued a writ of execution by garnishment of a part of the applicant’s pension with a view to collecting the above fine. The applicant appealed and the proceedings are currently pending before the Zagreb County Court. 18. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional right’)... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” 19. The relevant part of the 1977 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, 112/1999, 117/2003 and 84/2008 – “the Civil Procedure Act”), as in force at the relevant time, read as follows: “1. ... 2. Unless otherwise provided by this Act, the court shall fine a natural person between 500 and 10,000 [Croatian] kunas, or a legal entity between 2,500 and 50,000 [Croatian] kunas, if they commit a serious abuse of the rights they have in the proceedings. 3. The fine referred to in paragraph (2) of this section may be imposed on a party and an intervener, as well as on their representative if he or she is responsible for the abuse of rights. 4. The fine shall be imposed by the first-instance court. Outside the main hearing the fine shall be imposed by a single judge or the presiding judge. 5. ... 6. ... 7. The imposed fine shall be collected automatically [ex officio] as a pecuniary debt in accordance with the rules of enforcement procedure.” “1. The first-instance court shall fine a natural person between 500 and 5,000 [Croatian] kunas, or a legal person between 2,000 and 20,000 [Croatian] kunas, if in his, her or its submission they have insulted the court, a party or other participant in the proceedings. The fine may also be imposed on a representative of a party or an intervener if he or she is responsible for insulting the court. 2. Provisions of section 10 of this Act shall apply mutatis mutandis to cases referred to in paragraph (1) of this section. 3. Provisions of preceding paragraphs of this section shall apply in all cases where the court imposes a fine pursuant to the provisions of this Act, unless otherwise expressly provided for particular cases.” 20. The 2008 Amendments to the 1977 Civil Procedure Act (Zakon o izmjenama i dopunama Zakona o parničnom postupku, Official Gazette no. 84/2008 and 123/2008 (corrigendum), which entered into force on 1 October 2008, amended, inter alia, paragraph 7 and added five new paragraphs (8 to 12) to section 10 of the 1977 Civil Procedure Act. The relevant part of the amended section 10 reads as follows: “(7) If the person fined ... does not pay the fine within the fixed time-limit ... the court shall ... inform the [Tax Administration] of the unpaid fine with a view to collecting the fine [through tax enforcement proceedings] ... ... (12)... If within a year of service of ... a decision referred to in paragraph 2 of this section [the Tax Administration] does not succeed in collecting the fine, [it] shall inform ... the court [thereof], whereupon the fine shall be converted into a prison sentence in accordance with the rules of criminal law on converting fines into prison sentences, on which the court that imposed the fine shall issue a decision ....” 21. Section 52(1) of the 2008 Amendments provided that they were applicable to all pending proceedings unless otherwise provided in that section. 22. Article 52(3) of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) reads as follows: “A fine shall be converted into a prison sentence so that one [average] daily income is converted into one day of imprisonment, where the maximum duration of imprisonment into which the fine was converted shall not exceed twelve months.” 23. According to the practice of domestic courts, before taking a decision to convert the fine into a prison sentence a court has to summon and hear the person fined. An appeal always lies against such a decision. | 0 |
train | 001-85871 | ENG | GBR | ADMISSIBILITY | 2,008 | FOSTER v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Colin Foster, is a British national who was born in 1943 and lives in Lancashire. 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 3 September 2000. They had no children from the marriage. On 1 May 2001, the applicant made a claim for widows’ benefits under the new system in place as from 9 April 2001. On 12 June 2001 the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before 9 April 2001. On 25 June 2001 the applicant made a request for reconsideration. On 7 September 2001 his claim was reconsidered but the decision remained unchanged. On an unspecified date the applicant appealed. On 12 December 2001 the appeal tribunal confirmed the previous decision. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-75656 | ENG | BIH | ADMISSIBILITY | 2,006 | MIRAZOVIC v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Dragan Mirazović, is a citizen of Bosnia and Herzegovina and Sweden, who was born in 1948 and lives in Malmö, Sweden. He is represented before the Court by Mr D. Sadović, a lawyer practising in Mostar, Bosnia and Herzegovina. The respondent Government are represented by Ms Z. Ibrahimović, Agent, and Ms M. Mijić, Deputy Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 May 1992 the HVO forces (one of the legal predecessors of the armed forces of Bosnia and Herzegovina) requisitioned 70 empty gas cylinders from the applicant. Since the cylinders were neither returned to him nor did he obtain compensation for the loss, on 25 January 1999 the applicant initiated civil proceedings before the Second Municipal Court in Mostar seeking pecuniary damages together with default interest and legal costs from the Ministry of Defence of the Federation of Bosnia and Herzegovina. On 8 September 2000 the Second Municipal Court in Mostar granted the applicant’s claim for damages in the amount of almost 5,000 Bosnian markas (approximately 2,500 euros), his claim for default interest and his claim for legal costs. On 18 October 2001 the Mostar Cantonal Court upheld the award of damages, amended the award of legal costs and rejected the claim for default interest. On 27 March 2002 the First Municipal Court in Sarajevo decided not to enforce the final judgment indicated above pursuant to the Claims Arising from Requisitions for Warfare Act 2001. On 25 April 2003 the Sarajevo Cantonal Court upheld the first instance decision of 27 March 2002. The applicant did not appeal to the Constitutional Court of Bosnia and Herzegovina. The Constitution entered into force on 14 December 1995. The Constitutional Court of Bosnia and Herzegovina (hereinafter “the Constitutional Court”), which was set up pursuant to Article VI of the Constitution, is composed of nine members: four members from the Federation of Bosnia and Herzegovina (an Entity of Bosnia and Herzegovina), two from the Republika Srpska (the other Entity) and three non-citizens of Bosnia and Herzegovina or of neighbouring States, selected by the President of the European Court of Human Rights. The following are the relevant provisions of the Constitution: Article II § 2 “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.” Article VI § 3 “The Constitutional Court shall uphold this Constitution. a. The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to: Whether an Entity’s decision to establish a special parallel relationship with a neighbouring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina. Whether any provision of an Entity’s constitution or law is consistent with this Constitution. Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity. b. The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina. c. The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.” Article VI § 4 “Decisions of the Constitutional Court shall be final and binding.” According to the Constitutional Court’s decision no. U 23/00 of 2 February 2001 the term “judgment” contained in Article VI § 3 (b) of the Constitution cited above is to be interpreted extensively: “The term includes not only all kinds of decisions and rulings, but also a failure to take a decision where such failure is claimed to be unconstitutional.” In that case, the Constitutional Court found a violation of the right to a hearing within a reasonable time guaranteed by Article 6 of the Convention and ordered the competent court to decide the case “as a matter of urgency”. The Constitutional Court has found a violation of the “reasonable time” guarantee on a number of occasions thereafter (see, for example, the Constitutional Court’s decision no. AP 129/02 of 30 June 2004 ordering, on the one hand, that the competent court decide the case without further delay and, on the other hand, that the Federation of Bosnia and Herzegovina pay 1,000 Bosnian markas – approximately 500 euros – to the appellant within 30 days). The Constitutional Court has also examined the issue of statutory prevention of the enforcement of judgments on a number of occasions. The following is the relevant part of its decision no. AP 288/03 of 17 December 2004: “...31. The Constitutional Court holds that the administrative authorities must comply with legally valid court judgments. Moreover, the Constitutional Court points out that the state, in principle, cannot adopt laws [preventing] enforcement of legally valid court decisions, as it would be in contravention with the principle of the rule of law under Article I § 2 of the Constitution of [Bosnia and Herzegovina] and with the right to a fair hearing under Article II § 3 (e) of the Constitution of [Bosnia and Herzegovina] and Article 6 § 1 of the European Convention. ...35. The Constitutional Court concludes that in the present case there has been a violation of the right to a fair hearing under Article II § 3 (e) of the Constitution of Bosnia and Herzegovina and Article 6 § 1 of the European Convention.” It would appear that following the Constitutional Court’s decision in that case, the judgment in issue has been enforced. There was no award of damages. The Constitutional Court has subsequently come to the same conclusion in at least one similar case (see the Constitutional Court’s decision no. AP 703/04 of 23 March 2005). It would appear that the judgment in issue in that case has also been enforced following the Constitutional Court’s decision. There was again no award of damages. Finally, the Constitutional Court has accepted to examine a number of other issues (such as, for example, those relating to missing persons and the “old” foreign-currency savings) in which no effective remedy, other than an appeal to the Constitutional Court, was provided (see, for example, the Constitutional Court’s decision nos. AP 143/04 of 23 September 2005 and AP 130/04 of 2 December 2005). As to a constitutionality review, the Constitutional Court practises an abstract review pursuant to Article VI § 3 (a) of the Constitution and concrete review pursuant to Article VI § 3 (c). The abstract constitutionality review proceedings may be initiated only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity. The concrete constitutionality review may be initiated by any court in Bosnia and Herzegovina, including the Constitutional Court itself. The following is the relevant part of the Constitutional Court’s decision no. AP 106/03 of 27 October 2004 in which the latter concept (the concrete constitutionality review) was explained: “...32. Finally, the Constitutional Court notes ... that the problems of this sort arise out of a situation when challenged decisions are legal but unconstitutional, or when a law does not grant court protection to appellants in cases where a legislator failed to provide court protection of full jurisdiction at least in one instance although this was decreed by constitutional standards. In conclusion, the primary issue that is being raised here concerns the quality of a law. 33. In order to resolve this conflict, competent courts, when faced with such a problem, are obliged to initiate procedures of control of constitutionality ... 34. Should the courts fail to do so, it rests on the Constitutional Court of Bosnia and Herzegovina, the upholder of the Constitution of Bosnia and Herzegovina (the first sentence in Article VI § 3 of the Constitution of Bosnia and Herzegovina), to examine that issue if it occurs in a procedure under appellate jurisdiction. In doing so, the Constitutional Court entertains full jurisdiction as referred in Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina since this is the only way to protect the principle of the rule of law in its entirety, the principle that, inter alia, implies that laws are in hierarchical harmony. If this was not the case, the Constitutional Court would depend on the discretion of other courts and the legislator in fulfilling their positive obligation under Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina, which would be contrary to the first sentence of Article VI § 3 of the Constitution of Bosnia and Herzegovina. Moreover, the Constitutional Court is one of the “courts” in Bosnia and Herzegovina. Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina provides that “the Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution”. By linking the previous two sentences for the purpose of interpretation of Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina, one may infer that the Constitutional Court, if need be, entertains jurisdiction to assess constitutionality in a procedure under appellate jurisdiction by virtue of Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina. If this was the other way around, the Constitutional Court would be deprived of its function as “a court”. This conclusion is not affected by the fact that the Constitutional Court carries out both functions in one procedure at the same time (deciding a case within appellate jurisdiction under Article VI § 3 (b) and control of constitutionality of laws) whereas there are two procedures with other courts: deciding a case on the merits and initiation of procedure under Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina before the Constitutional Court.” The Federation of Bosnia and Herzegovina passed a number of acts dealing with claims arising from requisitions for warfare: see, for example, the Claims Arising from Requisitions for Warfare Act 2001 (Zakon o utvrđivanju i ostvarivanju potraživanja nastalih za vrijeme ratnog stanja i neposredne ratne opasnosti; published in the Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH” – no. 43/01 of 8 October 2001), the Claims Arising from Requisitions for Warfare Decree 2002 (Uredba o načinu utvrđivanja i realizaciji javnog duga Federacije Bosne i Hercegovine nastalog za vrijeme ratnog stanja i neposredne ratne opasnosti; published in OG FBH no. 17/02 of 9 May 2002; amendments published in OG FBH nos. 32/02 of 16 July 2002 and 34/02 of 20 July 2002), the Temporary Postponement of Enforcement Act 2004 (Zakon o privremenom odlaganju od izvršenja potraživanja na osnovu izvršnih odluka na teret budžeta Federacije Bosne i Hercegovine; published in OG FBH no. 9/04 of 16 February 2004; amendments published in OG FBH no. 30/04 of 31 May 2004) and the Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjih obaveza Federacije Bosne i Hercegovine; published in OG FBH no. 66/04 of 27 November 2004; amendments published in OG FBH no. 49/05 of 8 August 2005). | 0 |
train | 001-98050 | ENG | RUS | CHAMBER | 2,010 | CASE OF PAVLENKO v. RUSSIA | 3 | No violation of Art. 3 (substantive aspect);Violation of Art. 13;Violation of Art. 6-1 and 6-3-c;Remainder inadmissible;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicant was born in 1971 and is serving a sentence of imprisonment in the Irkutsk Region. 6. In November 1999, July 2000 and September 2000 criminal inquiries were opened following discoveries of the dismembered bodies of women (victims K., Ok. and A., Os.). 7. On 22 August 2000 the applicant was questioned in the presence of counsel in relation to an accusation of rape by victim G. On 15 September 2000 the case was discontinued for lack of a corpus delicti, in view of the apparently consensual nature of the relations. 8. Thereafter, on 3 February 2001 a Ms F. accused the applicant of rape and unlawful deprivation of liberty. It appears that on 3 February 2001 the applicant either came to the Barnaul police or was arrested with regard to that complaint. The applicant explained that he had consumed alcohol with the victim at his home on the previous evening, but denied any sexual assault. It appears that, having been apprised of his procedural rights, including the right to legal assistance, he waived this latter right. He was then questioned but apparently made no further statement. The investigator ordered his placement in custody and asked the administration of the temporary detention centre to ensure that the applicant, then a State official (a driver in a sobering-up centre), be kept separately from other detainees (see also paragraphs 43 and 44 below). According to the applicant, on the same date he was refused permission to contact his family in order to retain counsel. The case against the applicant was entrusted to four investigators in view of the case's “complexity and the large amount of work to be done”. On the same day, the investigator heard a Ms S. in relation to the accusations against the applicant. 9. In addition to the investigators, on 4 February 2001 investigator P. of the Altay Regional Prosecutor's Office requested the police department to assign officers for a “series of operational and search measures” to verify whether the applicant had been involved in recent cases concerning the disappearances of female students from a local university (see also paragraphs 14 and 25 below). 10. According to the applicant, after his arrest he asked to be represented by Mr K., an advocate at the local bar association. It appears that the investigator decided that K. could not represent the applicant, given a potential conflict of interest arising from the fact that at the time K. already represented a Mr P. According to the applicant, however, P. retained K. as counsel not earlier than on 19 February 2001. 11. On 6 February 2001 investigator A. listed charges against the applicant in relation to victim F. The applicant was informed of his right to remain silent and his right to legal assistance and admitted his guilt “in part”. He did not want to be represented by the on-duty legal-aid lawyer and thus required adjournment until the following day in order to be represented by (unspecified) counsel retained by his parents. 12. According to the applicant, his mother first learnt about his arrest on 6 February 2001 from his girlfriend, who in turn had learnt about it from a relative, a former law-enforcement officer. When the applicant's mother came to the investigator's office, she was reassured that the applicant did not wish other counsel. She was later told that the applicant was satisfied with the services of counsel D. According to the Government, the applicant's mother first learnt about the applicant's arrest on 4 February 2001. 13. On 7 February 2001 the investigator appointed D. as legal-aid counsel, the applicant's objection notwithstanding. The applicant reiterated his wish to be represented by counsel retained by his parents and remained silent. He was still refused permission to receive visits from them or to contact his family, on the ground that it would adversely affect the conduct of the investigation. As can be seen from the interrogation record, this interview with the investigator was held from 3.15 to 3.20 p.m. However, according to the visitors' logbook, the investigator saw the applicant from 2.44 to 5.06 p.m. on that day. 14. According to the applicant, he was daily questioned in relay for up to twelve hours by investigators and police officers in the temporary detention centre until 2 March 2001. Only the leading officer's name was noted in the visitors' logbook. According to the applicant, he was beaten up by officers who used techniques leaving no traces. In order to obtain confessions, officers also proffered threats against the applicant's next of kin, suggesting, for instance, that they would allow publication of an article in a local newspaper mentioning the names of the applicant's brother and girlfriend; that they would carry out searches in their flats; that they would stage his suicide with the aid of cellmates. On unspecified dates, the applicant was allegedly beaten up by his cellmates, who had been instructed to induce him to make admissions. The applicant subsequently accused the officers of ill-treatment (see paragraph 33 and 42 below). 15. Thus, the following interviews took place: On 8 February 2001 - by officers, from 4.10 to 5.15 p.m.; On 9 February 2001 - by officers, from 11.50 a.m. to 1.35 p.m. and from 5.20 to 7.40 pm. On the same date the authorities re-opened the proceedings concerning the alleged rape of G. (see paragraph 7 above). On 10 February 2001 – by officers, from 11.15 am to 3.20 p.m.; On 12 February 2001 – by the investigator, from 3 to 4.10 p.m. 16. On 13 February 2001 investigators A. and Sh. had access to the applicant from 10.25 a.m. to 12.25 p.m. and from 3.05 to 7.35 p.m. In his written statement the applicant confessed to a sexual assault against F. and the double murder of A. and Ok. in July 2000. The applicant was questioned from 5.30 to 7.25 p.m. in the presence of counsel D. During that interview, the content of Article 51 of the Constitution was explained to the applicant, and he confirmed that he understood it. He also confirmed he was willing to give testimony and endorsed his earlier confessions on the same day, stating that his admissions had been voluntary and were due to the fact that “he could no longer bear the burden”. According to the applicant, counsel D. was present only from 7.30 to 7.35 p.m. 17. The applicant was questioned by the investigator on 15 February 2001 from 5.27 to 6.57 p.m. According to the Government, at this interview the applicant confirmed his admission in respect of victim F, in the presence of counsel D.. 18. On 17 February 2001 the applicant was questioned by officers from 10.20 a.m. to 1 p.m. 19. On 18, 20 and 26 February 2001 the applicant confessed to several offences. According to the applicant, on each occasion he was brought to the principal investigator after questioning by officers, and signed the record. The events during the relevant period can be described as follows: On 18 February 2001 investigator A. visited the applicant from 12.30 to 2.10 p.m. The applicant was questioned in the presence of counsel D. from 12.30 to 12.50 p.m. about the double murder. In reply to the investigator's question, the applicant stated that he had not committed any other murders. On 19 February 2001 the applicant was questioned by officers from 2.35 to 4.13 p.m. On 20 February 2001 the applicant was questioned by police officers from 10 a.m. to 3.30 p.m. The applicant made a written statement concerning the murder of K., indicating that “the confession was voluntary without physical or psychological duress”. 20. Subsequent interviews (without the presence of counsel) were as follows: On 21 February 2001 the applicant was questioned by the investigator from noon to 3.30 and by (an) officer(s), from 3.15 to 5.25 p.m.; On 22 February 2001 – by (an) officer(s), from 11.40 a.m. to 2.35 p.m.; On 23 February 2001 – by the investigator, from 11.43 a.m. to 2.35 p.m.; On 24 February 2001 – by officers, from 12.15 to 1 p.m.; On 26 February 2001 the applicant was questioned by officer(s) from 9.50 a.m. to noon and by the investigator from 5 to 6.40 p.m. The applicant made a written statement confessing to the murder of victim Os. 21. As transpires from the visitors' register, on 27 February 2001 the investigator saw the applicant from 11.33 a.m. to 1.07 p.m., while police officer S. saw him from 5.05 to 5.55 p.m. on the same day. The photo identification lasted from 1.10 to 1.15 p.m. in the presence of counsel D. 22. Visits continued thereafter in March and April 2001 (see also paragraph 28 below). 23. According to the applicant, after his mother had read in the local newspaper that he had admitted to serious grave crimes, she realised that she had been misled by investigator A. and retained counsel S. (see below). 24. On 6 March 2001 the applicant was allowed for the first time to see his privately-retained counsel, Mr S. The applicant retracted and sought exclusion of all previously-collected evidence, including his confessions, as obtained under compulsion and without effective legal advice. 25. On 11 April 2001 police officer S. reported back to investigator P. that, following the order of 4 February 2001, a series of “operative measures” had disclosed the applicant's involvement in the murders of Ok., A., K. and Os. At the same time, no connection was established in relation to the disappearances of female students. The report mentioned that the applicant was still being investigated. 26. On 23 April 2001 the applicant was placed in solitary confinement after an altercation with cellmates. 27. During the preliminary investigation a large number of forensic reports were prepared and more than fifty persons were heard as witnesses; many of them gave oral testimony during the trial. Searches were conducted in the applicant's flat and a number of documents were seized. 28. Counsel S. complained that the applicant continued to be visited by police officers who, in his view, were not authorised to deal with the criminal case. On 31 May 2005 the investigator issued an order stating that only four investigators, including himself, were authorised to have meetings with the applicant. When questioned about their activities, the above officers explained to the investigator that they had been assigned the task of verifying whether there might be a link between the applicant and the disappearances of female students other than those already investigated. 29. Upon counsel's complaint, in June 2001 the investigator ordered an inquiry concerning the injuries to the applicant's face, caused on 23 April 2001, and whether he had complained about any ill-treatment. Investigator P. also informed the applicant that the investigators had not been aware that various officers had had meetings with the applicant in the temporary detention centre or the remand centre. 30. In October 2001 the investigator reported to the trial prosecutors' department that the activities carried out by the assigned officers did not permit the conclusion that the applicant had been involved in other criminal offences. 31. The case against the applicant was scheduled for trial before the Altay Regional Court. The applicant admitted in substance the charges in relation to Ms F. He argued that his intercourse with G. had been consensual; that he had no link to the other four persons (victims K., Ok., Os., A.); and that his pre-trial confessions in that connection had been obtained through ill-treatment and psychological pressure on the part of the police officers. In support of his allegation of duress the applicant provided the trial court with an extract from the visitors' logbook of the temporary detention centre for the period from 4 February to 23 March 2001. During that period the applicant received visits from various officers and investigators. 32. The trial court dealt with the applicant's allegations of ill-treatment, confession under duress and the alleged violation of his right to legal assistance during the preliminary investigation. The court heard investigator A., who confirmed that the applicant could not be represented by counsel “named by him” (possibly meaning Mr K.) because at the time the latter represented Mr P. The investigator also confirmed that the applicant was not allowed to receive visits from his mother, in order to prevent them from tampering with evidence and perverting the course of the investigation. The trial court upheld that argument, referring to the applicant's mother's attempt to hand over a message to the applicant asking him to remain silent and to possibly plead temporary insanity. 33. The trial court rejected the allegation of ill-treatment, relying on medical reports dated 3 and 14 February 2001 and considering that the admissions were thus “truthful”. The court heard some of the officers who visited the applicant in detention, and concluded that they had been empowered to question the applicant in relation to the cases for which he was being investigated and also other cases. The court also heard a Mr M., who had been detained with the applicant in March 2001. Mr M. stated that the interrogations of the applicant had spanned the entire day and the applicant had returned to the cell “exhausted”; there had been no traces of violence on him. 34. On 22 November 2001 the Regional Court convicted the applicant of several counts of rape and murder, and sentenced him to twenty-four years' imprisonment. 35. Regarding the applicant's conviction for raping G., the trial court held that “despite the applicant's retraction of his earlier admission, his guilt was proven by the victim's deposition”. The court also referred to several witness statements and medical evidence. 36. In finding the applicant guilty of the rape and unlawful deprivation of liberty of victim F., the trial court relied on the applicant's own admissions reiterated at the trial, the victim's deposition, statements by witnesses who saw the victim escaping from the applicant' flat, and medical expert reports. 37. In finding the applicant guilty of murdering victim K., the court relied on the applicant's pre-trial confession, his interview with the investigator in the presence of counsel D. and the applicant's identification of the victim by a photograph. The trial court considered that the above statements were collaborated by three witness statements as regards the victim's clothes on the day of the murder, the inspection record of the crime scene and the medical expert reports. 38. The trial court convicted the applicant of murdering Ok. and A. on the basis of the applicant's pre-trial admissions, his interview with the investigator in the presence of counsel D. and the applicant's identification of the victim by a photograph. The trial court considered that the above statements were collaborated by the other available evidence. 39. The applicant's conviction for murdering Os. was based on the applicant's pre-trial confession, which the court considered to be “truthful”, despite his retraction. The court held that the applicant could not have learnt the details of this crime from another source. 40. Having heard the prosecution and counsel S., on 22 May 2002 the Supreme Court of the Russian Federation upheld the trial judgment. The appeal court considered that there had been no violation of the defence rights since on 3 February 2001 the applicant had been apprised of his rights to remain silent and to legal assistance. The applicant had signed the record and had waived the right to counsel. From 7 February 2001 the applicant had been represented by counsel D. who attended all investigative measures relied up by the trial court. The appeal court noted that the applicant's pre-trial admissions had revealed circumstances which had not been previously known to the investigative authorities. For instance, as regards victim K., the applicant had given descriptions of the victim and her clothes, and had referred to circumstances concerning her character and way of life. The information supplied by the applicant was then confirmed by statements from various persons heard as witnesses at the trial. Thus, as regards victim Ok., her mother confirmed that the hairpin seized at the applicant's flat belonged to her late daughter. The other physical evidence, taken together, also refuted the allegation that the applicant had not been involved in the murders. 41. After the trial, the applicant sought the institution of criminal proceedings against the principal investigator in his criminal case, alleging forgery of evidence. On 27 December 2004 and 17 January 2005 the Regional Prosecutor's Office refused that request. The applicant unsuccessfully challenged this refusal in the courts. 42. The applicant also sought the institution of criminal proceedings against the officers who had interrogated him in February 2001, alleging ill-treatment. On 14 December 2004 the investigator in the Regional Prosecutor's Office refused to prosecute the officers. This decision was upheld by the higher prosecutor on 31 January 2005. On 19 May and 23 June 2005 the Regional Court took final decisions upholding the district courts' decisions declining jurisdiction in relation to the applicant's complaint about the decision of 14 December 2004. In separate proceedings, on 7 July and 13 October 2005 the Regional Court decided in the final instance that the applicant's complaint about the decision of 31 January 2005 was not amenable to court review. 43. The applicant was kept in the temporary detention centre of the Barnaul Department of the Interior (ИВС УВД г. Барнаула) from 3 February to 2 March 2001, and from 13 to 23 March 2001. Together with other four detainees, he was kept in a cell measuring six square metres. The applicant slept on the floor because no bed, mattress or bedding was provided. The cell was not heated; the ventilation and light were poor. The toilet was not separated from the living area. Food was distributed once a day. The applicant remained all the time in his cell since no outdoor activity was allowed. The applicant was refused permission to have visits or other contact with his family. 44. The applicant subsequently indicated that the levels of heating and humidity in the cell had been unacceptable; he had been given a cup of tea and a piece of bread in the morning and, at times, soup and porridge in the afternoon; he had had no access to a shower and no items for personal hygiene. 45. In the temporary detention centre the applicant was kept in cell no. 15, measuring eight square metres, together with another inmate. A toilet was separated from the main area. The applicant, like other detainees, was provided with a bed and a mattress. Although no bedding was provided, detainees were allowed to use their own bedding. The applicant was also given various items for personal hygiene and allowed to have a shower once per week. The cell had adequate lighting, ventilation and heating systems. The applicant was allowed one hour of outdoor exercise per day, was properly fed and allowed to receive food parcels from his relatives or family. He had access to drinking water. The applicant made no complaints about his detention in the temporary detention centre until December 2004. 46. The applicant's initial description of the conditions of his detention in Barnaul remand centre no. 22/1 reads as follows. The applicant was placed in a cell situated in the basement of the building. The number of inmates in his cell substantially exceeded the design capacity. The cell had a small window, which was not glazed but was instead covered with metal shutters, barring access to natural air and light. The internal light was poor. The toilet was not separated from the main area. The cell was infested with cockroaches. The applicant slept on the floor. The unheated cell was extremely damp. The quality of food was unsatisfactory. During family visits and outdoor activity the applicant remained handcuffed. 47. The applicant subsequently amended his account, indicating that he had been kept in the remand centre from 3 to 12 March 2001, and between 24 March 2001 and 27 June 2002. In the most recent period of his detention he had been alone in cell no. 122 measuring 4.1 square metres in the basement of the remand centre. During that period, the unheated cell was extremely damp; there was no ventilation. The quality of food was unsatisfactory. No bedding was provided. The cell window was not glazed; it was covered with metal shutters, barring access to natural air and light. The internal light was poor. The toilet was not separated from the main area. 48. According to the Government, the applicant was kept in Barnaul remand centre no. 22/1 from 2 March 2001 to 6 April 2002 and from 7 to 27 June 2002. Between April and June 2002, the applicant was kept in a Chelyabinsk remand centre. 49. The Government explained that the relevant logbooks had been destroyed due to the expiry of the retention period. Thus, with reference to affidavits from Mr M, the remand centre governor, the Government affirmed that from 3 to 23 March 2001 the applicant was kept in cell no. 212, measuring 16.9 square metres; from 24 March to 25 April 2001 – in cell no. 190, measuring 16 square metres; from 26 April 2001 to 6 April 2002 – in cell no. 122, measuring 4.5 square metres; and from 7 to 27 June 2002 – in cell no. 118, measuring 4.3 square metres. The applicant shared cells nos. 190 and 212 with two or three other detainees; upon his request, he was detained alone in cells nos. 122 and 118. The latter cells were situated on the ground floor and had windows measuring 0.36 square metres. In compliance with the national legislation in force at the time, the windows were covered with metal shutters, which, however, did not bar the normal access of air and light into the cell. 50. Mr M confirmed that as of 24 July 2007 the above cells had proper lighting, ventilation and heating systems, water supply and toilet facilities. The Government supplied photographs showing the interior of the above cells. 51. In reply to the applicant's complaint, on 30 January 2002 the Prosecutor's Office of the Altay Region admitted that his handcuffing on one occasion had been unlawful. 52. In December 2004 the applicant complained about the conditions of his detention to various public authorities. On 19 January 2005 the Prosecutor's Office acknowledged that the cell windows in Barnaul remand centre had been covered with metal shutters but rejected the other allegations as untrue. 53. On 1 February 2005 the Regional Department of the Interior accepted that some (unspecified) complaints concerning the applicant's detention in the temporary detention centre “had been confirmed”. On 14 July 2005 the Tsentralniy district prosecutor's office forwarded the applicant's renewed complaint for examination by the Regional Department of the Interior. 54. The applicant brought proceeding against the Tsentralniy district prosecutor's office on account, inter alia, of their alleged failure to examine his complaint and to bring the conditions of detention into compliance with the law. Having examined the matter under Article 125 of the Code of Criminal Procedure (see paragraph 59 below), on 16 January 2006 the Tsentralniy District Court of Barnaul rejected his claim. On 16 March 2006 the Altay Regional Court set aside this decision and remitted the matter to the district court. The court held that the first-instance court should have examined why the applicant had been detained in the temporary detention centre for one month. On 29 March 2006 the District Court decided that the prosecutor had failed to examine the applicant's complaint about his lengthy detention in the temporary detention centre. 55. In the meantime, on 27 February 2006 the Regional Prosecutor's Office informed the applicant that the cells in the temporary detention centre had plank beds, toilet facilities and normally housed four to five persons; no bedding was provided to detainees. It is unclear whether the above reply concerned the year 2006 or the period complained of by the applicant. 56. It appears that, having examined the applicant's complaints about the conditions of his detention, on 5 September 2006 the district prosecutor's office refused to initiate criminal proceedings under Articles 285 and 286 of the Criminal Code, concerning abuse of power by a public official. 57. Under Article 47 § 1 of the RSFSR Code of Criminal Procedure, in force at the material time, counsel could be admitted to the proceedings from the moment of announcing/listing charges, or – for an arrested or detained suspect – from the moment of giving him or her access to the arrest record or detention order. If a privately-retained counsel did not appear within twenty-four hours, the authority in charge of the case was allowed to suggest that the person retain another counsel, or to appoint counsel (Article 47 § 2). In order to act as counsel in criminal proceedings an advocate had to be in possession of an order issued by the legal office (§ 4). A single counsel could not represent persons with conflicting interests (§ 5). On 27 June 2000 the Constitutional Court declared the limitation period for access to legal assistance contained in Article 47 § 1 unconstitutional. On 25 October 2001 the Constitutional Court indicated that Article 47 § 4 did not require any special permission for meetings with counsel. However, in the same decision the Constitutional Court invalidated one provision of the 1995 Custody Act in so far as the authorities applied it as requiring counsel who wished to see their clients to obtain special leave from the authority in charge of the criminal case. 58. Under Article 96 of the RSFSR Code of Criminal Procedure, the officer or authority in charge of the criminal case was required to inform without delay the next of kin of the arrested or detained suspect or defendant about his or her place of detention. 59. Articles 123 and 125 of the Code concern judicial supervision over any (in)action on the part of an inquirer, investigator or prosecutor in so far as such (in)action affects a complainant's rights or impedes his or her access to a court. The judge either (i) invalidates the impugned (in)action as unlawful or lacking justification and requires the respondent authority to remedy the violation, or (ii) rejects the complaint. 60. Article 413 of the 2001 Code of Criminal Procedure provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention. 61. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies) provides that prisoners shall be allowed to inform their families immediately of their imprisonment (Rule 24.8). Upon the admission of a prisoner to prison, the authorities shall, unless the prisoner has requested them not to do so, immediately inform the spouse or partner of the prisoner, or, if the prisoner is single, the nearest relative and any other person previously designated by the prisoner (Rule 24.9). 62. Pursuant to Rule 44 § 3 of the Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, every prisoner shall have the right to inform at once his family of his imprisonment or his transfer to another institution. | 1 |
train | 001-87032 | ENG | ARM | ADMISSIBILITY | 2,008 | MELTEX LTD v. ARMENIA | 3 | Inadmissible | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | The applicant, Meltex Ltd, is a private Armenian broadcasting company (“the applicant company”) that was set up in 1995 and has its registered office in Yerevan. The applicant company was represented before the Court by Mr M. Muller, Mr T. Otty, Ms J. Gordon, Mr K. Yildiz, Ms A. Stock and Ms L. Claridge, lawyers practising in London, Mr T. Ter-Yesayan and Ms N. Gasparyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1995 the applicant company established the A1+ television company within its structure, with the intention of getting involved in television broadcasting. On 1 January 1996, in preparation for broadcasting, the applicant company opened a school to train personnel, such as journalists, cameramen and technicians who were later employed by the applicant company. On 25 August 1996 the applicant company started television broadcasting through its A1+ channel, first sharing capacity and content with Moscow “REN” TV, a Russian television company. Over time, the volume of the content produced by the applicant company increased significantly. On 22 January 1997 the applicant company was granted a license by the then Ministry of Communication (ՀՀ կապի նախարարություն) permitting it to install a television transmitter in Yerevan and to broadcast within the decimetric wave band. The license was granted for a period of five years. In September 1999 the applicant company established “Hamaspyur”, a network of nine private licensed regional television companies, broadcasting 24 hours a day. The content of the A1+ television channel included international and domestic news analysis (30%), advertising (32%) and various entertainment programmes. The applicant company submitted that the A1+ television channel was widely recognised as one of the few independent voices in television broadcasting in Armenia. In 2000-2001 legislative changes were introduced in the sphere of television and radio broadcasting. The Television and Radio Broadcasting Act («Հեռուստատեսության և ռադիոյի մասին» ՀՀ օրենք – “the Broadcasting Act”), passed in October 2000, established a new authority, the National Television and Radio Commission (Հեռուստատեսության և ռադիոյի ազգային հանձնաժողով – “the NTRC”), which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies. The NTRC was a public body composed of nine members appointed by the President of Armenia. The Broadcasting Act also introduced a new licensing procedure, according to which a broadcasting license was granted on the basis of a call for tenders conducted by the NTRC in respect of the list of available frequencies. During 2001 all existing broadcasting licenses were temporarily re-registered by the NTRC until the relevant calls for tenders were announced. On 3 September 2001 the NTRC replaced the applicant company's license with a new license. The new license was granted for band 37 and was due to expire on 22 January 2002. On 23 November 2001 the NTRC decided to postpone the call for tenders for band 37 until the adoption of appropriate rules and regulations and to permit the applicant company to continue to operate in band 37 for an indefinite period of time until such call for tenders was put out. On 19 February 2002 the NTRC announced calls for tenders for various broadcasting frequencies, including band 37. The applicant company and two other companies, Sharm Ltd and Dofin TV Ltd, submitted bids for band 37. The applicant company alleged that Sharm Ltd had never previously operated in the field of television broadcasting and its main focus had been as the organiser of entertainment shows for young people and students. None of its employees had a background in professional journalism and the company had no premises, equipment and financial or technical infrastructure to commence broadcasting at the time of its bid. It further alleged that Dofin TV Ltd had been registered less than a month before the tender process took place and had had no previous experience of any sort in the field of broadcasting. On 1 April 2002, before the winners of the tender process were announced, the applicant company instituted proceedings against the NTRC before the Commercial Court (ՀՀ տնտեսական դատարան). In its application to the court, the applicant company argued that the NTRC had unlawfully postponed the call for tenders for band 37, that the NTRC had violated the law and restricted the applicant company's opportunities by announcing separate calls for tenders for different bands as opposed to a single one for all bands and that the NTRC had exceeded its authority when defining the terms and conditions of the tendering procedure. On 2 April 2002 the NTRC held a points-based vote and recognised Sharm Ltd as the winner of the call for tenders for band 37. The decision stated: “Based on sections 37 and 50 of [the Broadcasting Act], sections 30, 31 and 63 of [the NTRC] Regulations Act and Paragraph 19 of Decision no. 4 of [the NTRC] of 24 January 2002 Approving the Tendering Rules for Television and Radio Broadcasting Licences, and taking into account the results of the call for tenders for television broadcasting on decimetric band 37 in the area of Yerevan, [the NTRC] decides (1) to recognise Sharm Ltd as the winner of the call for tenders for television broadcasting on decimetric band 37 in the area of Yerevan, and (2) to grant a television broadcasting license to Sharm Ltd.” On 16 April 2002 the applicant company lodged an additional application with the Commercial Court seeking, inter alia, to annul the decision of 2 April 2002. The applicant company also alleged that it had unsuccessfully requested the court to oblige the NTRC to present the minutes of their meeting which provided basis for this decision. On 25 April 2002 the Commercial Court rejected the applicant company's applications. The court found that, even though the NTRC should have announced the call for tenders two months prior to the expiration of the applicant company's license, this had not been done as certain legal acts, which were necessary for the proper conduct of the tender process, had not been adopted by that time. The court further found that the fact that the NTRC had announced separate calls for tenders instead of a single one did not contradict the law. The applicant company had not been precluded from submitting bids for all these calls for tenders. The court finally stated that the NTRC had been authorised under the law to define the terms and conditions of the tendering procedure and it had not exceeded its authority in doing so. The applicant company lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան). In its appeal, the applicant company raised the same arguments as before the Commercial Court, claiming that the latter had not interpreted the law correctly. It further complained about the court's rejection of its request concerning the minutes of the NTRC's meeting. On 14 June 2002 the Court of Cassation adopted a decision on the applicant company's appealinter alia, that: “...the arguments put forward in the appeal concerning a violation by the Commercial Court of [the relevant legal acts] are groundless, as [the NTRC], acting within the authority vested in it by the above legal acts ... defined the tendering rules for licensing of television broadcasting, which contains the rules on the conditions, procedures and time-limits of a call for tenders, submission of bids, recognising the winner of a call for tenders and declaring a call for tenders void. On 19 February 2002 [the NTRC] ... announced separate calls for tenders for unoccupied frequencies and on 2 April 2002 in its decision no. 37 recognised the winner of the call for tenders. ... The applicant's representative submitted a motion in court requesting that '[the NTRC] present the minutes of decision no. 37'. [The Commercial Court], stating that the dispute concerned the lawfulness of [NTRC's] decision no. 37 and not the decision's minutes, justly dismissed this motion. ...a well-founded dismissal of a motion which is not relevant for the resolution of the dispute has nothing to do with ... the requirements of Article 6 of [the Convention]. ...the judgment of the Commercial Court ” On the same day as the announcement of the license winner, the NTRC issued a memorandum to the Ministry of Transport and Communication (ՀՀ տրանսպորտի և կապի նախարարություն) requesting it to terminate broadcasts by the A1+ television channel. On 3 April 2002, at 00h01, the Television Network of Armenia State-owned CJSC («Հայաստանի հեռուստատեսային ցանց» ՊՓԲԸ – “the TNA”), with whom the applicant company had earlier entered into a lease agreement to temporarily rent industrial premises for the purpose of installing transmitter equipment, cut the electricity supply of the applicant company's transmitter and the A1+ television channel ceased to broadcast. The applicant company contested the actions of the TNA before the Commercial Court claiming that they had been unlawful and in violation of the lease agreement. On 17 May 2002 the Commercial Court rejected the applicant company's claim, finding that the actions of the TNA had been lawful and that the applicant company should have ceased broadcasting voluntarily as it was no longer licensed. The applicant company lodged an appeal on points of law with the Court of Cassation. On 28 June 2002 the Court of Cassation dismissed the applicant company's appeal as unsubstantiated. On 15 October 2002 the NTRC announced a new call for tenders for five other bands. The applicant company submitted bids for three of the five bands, namely bands 31, 39 and 51. On 27 May 2003 the NTRC announced another call for tenders for band 25. The applicant company submitted its bid. On 11 June 2003 the NTRC recognised the winner of the call for tenders for band 25. The applicant company was again refused a license. On 18 July 2003 the NTRC recognised the winners of the call for tenders for bands 31, 39 and 51. The applicant company was again refused a license. On an unspecified date, the NTRC announced a call for tenders for bands 3 and 63. The applicant company submitted bids for both bands. On 13 October 2003 the NTRC recognised the winners of the call for tenders. The applicant company was again refused a license. On 19 November 2003 the NTRC announced a call for tenders for the last vacant band, namely band 56. The applicant company submitted its bid. On 29 December 2003 the NTRC recognised the winner of the call for tenders. The applicant company was again refused a license. The relevant provisions of the Code, as in force at the material time, read as follows: “Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant's rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated.” “An appeal on points of law can be lodged on: (1) the ground of a material or a procedural violation of the parties' rights; [and] (2) the ground of newly discovered circumstances.” “Having examined a case, the Court of Cassation has the right: (1) to uphold the court judgment and to dismiss the appeal...; (2) to quash the whole or part of the judgment and to remit the case for a new examination...; (3) to terminate the proceedings or to leave the claim unexamined, if the grounds for [doing so] were disclosed during the proceedings in the court of first instance, the Commercial Court or the Court of Appeal.” “3. The Court of Cassation is not entitled to establish or consider as proven circumstances which have not been established by the judgment [of the Commercial Court] or have been rejected by it, to determine whether or not this or that piece of evidence is trustworthy, to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case.” The relevant provisions of the Broadcasting Act, as in force at the material time, read as follows: “In Armenia television and radio broadcasting shall be conducted on the basis of a licence.” “The National Television and Radio Commission (hereafter, the National Commission) is an independent body with the status of a public agency whose activity is regulated by this law, its regulations and the legislation of Armenia. The National Commission deals with licensing and monitoring of only private television and radio companies (television companies or radio companies). The National Commission: (a) shall allocate broadcasting frequencies on a public and competitive basis and ensure the publication of complete information on the results of a call for tenders; ... (c) shall grant licences...” “The National Commission shall have nine members appointed by the President of Armenia for a term of six years, with the exception of the first composition...” “A television and radio broadcasting licence shall be granted for a particular available frequency on the basis of a call for tenders...” “When selecting the licence-holder, the National Commission shall take into account: (a) the predominance of programmes produced in-house; (b) the predominance of programmes produced in Armenia; (c) the technical and financial capacity of the applicant; and (d) the professional level of the staff.” “A licence shall not be granted if: (a) the applicant cannot be a licence-holder pursuant to this law; (b) the information contained in the bid is inaccurate; or (c) the technical capacity for television and radio broadcasting is lacking or the declared technical capacity is insufficient. An applicant shall be informed in writing of the reasons for the refusal of a licence within ten days from the date of the decision. The refusal of a licence can be contested before the courts.” “... A licence to broadcast television and radio programmes or to produce and broadcast [such programmes] shall be granted to television and radio companies: (a) ...; (b) for a period of five years for on-air television and radio broadcasting.” The relevant provisions of the NTRC Regulations Act read as follows: “In order to grant a broadcasting licence, the Commission, at its meeting and within the period prescribed by the tendering rules, shall adopt a decision on the basis of the results of a call for tenders.” “Following the consideration of a bid, the Commission shall adopt one of the following decisions: (a) to grant a licence; or (b) to refuse a licence.” “A copy of the decision granting or refusing a licence shall be duly sent to the applicant within ten days from its adoption.” | 0 |
train | 001-71946 | ENG | POL | CHAMBER | 2,006 | CASE OF TELTRONIC-CATV v. POLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 7. On 15 April 1997 the applicant company filed a claim against the Best-Sat company in the Bielsko-Biała District Court (Sąd Rejonowy). The value of the claim was PLN 246,969.86. The claim resulted from Best-Sat’s refusal to pay the applicant company’s invoice issued on 8 October 1995 for the construction of a TV cable network, in accordance with the contract concluded between the parties. The applicant company requested that its claim be considered in a summary procedure (postępowanie nakazowe). 8. On 24 April 1997 the District Court decided that the case should be considered in the ordinary procedure as it did not fulfil the legal conditions for the summary procedure. On 14 May 1997 the applicant company filed with the Bielsko-Biała District Court an interlocutory appeal (zażalenie) against the decision of 24 April 1997. Subsequently, the court ordered the applicant company to pay a court fee of PLN 2,789.60 for the consideration of its interlocutory appeal. On 10 June 1997 the applicant filed with the Bielsko-Biała District Court an application for an exemption from that fee. However, on 21 July 1997 the District Court dismissed that application. The applicant filed another, apparently unsuccessful, interlocutory appeal against the decision of 21 July 1997, claiming that the company was on the brink of insolvency as a result of its enforceable claims not having been satisfied by the Best-Sat company. 9. On an unspecified later date, the case was transmitted to the Bielsko-Biała Regional Court (Sąd Wojewódzki) in order to be considered in the ordinary proceedings. On 3 February 1998 the Regional Court ordered the applicant company to pay a court fee of PLN 13,948.49 for lodging its claim. 10. On 17 February 1998 the applicant company filed with the Bielsko-Biała Regional Court an application for an exemption from the fee, pursuant to section 113 § 2 of the Code of Civil Procedure. It stated that the amount of the fee was considerably beyond its means. It also submitted that, for the first 10 months of 1997, it had made net profits of only PLN 7,695.37, while the company’s assets amounted to PLN 31,366.98, but consisted mostly of claims to be satisfied. 11. The applicant company stressed that it had no possibility to dispose of its assets promptly in order to secure funds to pay the court fee and, even if that were possible, it would lead to the winding up of the company. It further argued that the lack of funds to pay the court fee did not result from any fault in its activities or from a negligent failure to secure funds for the litigation. It also maintained that its claim resulted from work done over the past few years which had dominated the activities of the company. Consequently, it did not have other possibilities to secure sufficient funds from other contracts. 12. On 2 March 1998 the Regional Court ordered the applicant company to produce a number of documents concerning its financial situation. The relevant documents were submitted to the court as enclosures to a letter of 16 March 1998. In the same letter the applicant supplemented its application for exemption from the court fees. It stated that it had three enforceable claims, including two against the Best-Sat Company which were the subject of the pending litigation. The third claim, although enforceable as of 25 November 1997, had not been satisfied. The applicant company stated that its fixed assets of PLN 11,670.90 were necessary to continue the running of its business and, if disposed of, the company would have to be wound up. The plaintiff also submitted that in 1997 it had made net profits of PLN 2,723.19, which were used to set off the losses made in 1995 and 1996. 13. On 25 May 1998 the Bielsko-Biała Regional Court rejected the application. The court gave the following reasons for its decision: “At the request of the court, the plaintiff has submitted its balance sheets as of 30 November 1997 and of 30 March 1998, as well as a bank statement regarding its accounts as of 17 March 1998. In the court’s view the above documents prove unequivocally that the plaintiff makes profits from its business, as evidenced by the balance on its bank accounts for the period between December 1997 and March 1998. It should also be pointed out that the plaintiff has gross profits (przychód) from its business activity estimated at PLN 26,322.95, including gross profits from the sale of goods and materials in the amount of PLN 2,365.81. Furthermore, according to the balance sheet of 3 March 1998, the plaintiff company has significant fixed assets (majątek trwały) in the amount of PLN 7,192.67, and current assets (majątek obrotowy) in the amount of PLN 31,067.97. The examination of the above documents leads to the conclusion that the plaintiff can afford to pay the court fees because it has sufficient funds. It should also be pointed out that, in case of a lack of such funds, the plaintiff could obtain them by means of partners’ surcharges (dopłaty) since it is a limited liability company. All the other expenses of the plaintiff should be treated by it on equal terms with the expenses which are necessary to pursue its claims...” 14. On 4 June 1998 the applicant company filed an interlocutory appeal against the decision of 25 May 1998 with the Katowice Court of Appeal. It submitted that the District Court had made a mistake in calculating the amounts of fixed and current assets because the figures relied on were from 1 January 1997, but the value of the assets had decreased since then. As of 31 January 1998 the amount of fixed and current assets was estimated at PLN 5,019.27 and PLN 18,494.77 respectively. The applicant company argued that the combined value of all its assets only slightly exceeded the amount of the court fee, and that, if the latter had to be paid in that amount, the company would be forced to wind up. 15. The applicant company further pointed out that the fixed assets consisted of office equipment which was necessary to run the business, whereas its current assets consisted mostly of reserves of materials necessary to provide services to clients and claims which were the subject of separate litigation. Thus, even assuming that the value of current assets exceeded the amount of the court fee, it could not be presumed that the former could be disposed of in order to provide the funds necessary to pay that fee. 16. The applicant company also contested the Regional Court’s view that all expenses should be treated equally, and pointed out that any surplus would be used to pay taxes since failure to do so could result in prosecution. Finally, the applicant observed that the unpaid invoice which gave rise to the present claim related to work done by the applicant company over a period of two years, which had dominated the applicant’s business during that period. That was, to a large extent, the reason why the applicant company had been unable to secure funds for possible litigation expenses. Lastly, the applicant company, in principle, agreed with the Regional Court’s view as to the possibility of obtaining additional funds by means of partners’ surcharges. However, relying on section 113 § 2 of the Code of Civil Procedure, it stressed that a legal person was entitled to exemption from court fees if it proved that it did not have sufficient funds. 17. On 31 July 1998 the Katowice Court of Appeal rejected the applicant’s appeal as follows: “According to the plaintiff’s documents, its financial situation deteriorated only in 1998. However, it emerges from the documents produced in support of the statement of claim that the plaintiff’s claim results from work done between 1993 and 1995, since the notice to pay for that work is dated 16 January 1995. From that it unequivocally follows that the plaintiff could have secured the funds necessary for the pursuance of its claims prior to 1996 when its financial situation deteriorated, and when, as it transpires from its balance sheets, its assets and gross profits from the sale of goods and materials had been at the level which had been referred to in the contested decision. The Court of Appeal also does not subscribe to the plaintiff’s view that, if at the current moment the plaintiff does not have sufficient funds to pay the court fee, then it can successfully request to be exempted ... under section 113 § 2 of the Code of Civil Procedure. As follows from the established case-law of the Supreme Court, and also the case-law of this Court of Appeal, the possibilities of paying the court fees by a legal person should be assessed in the larger context not only of the funds currently held but also those that could possibly have been secured. When the plaintiff holds a current bank account, where its turnover is recorded, and that turnover still in December 1997 was of significant volume, then there are no reasons to assume that the plaintiff could not take out the necessary loan in order to obtain the funds needed to pursue claims of the very significant value of PLN 246,969.86. Obviously, interest will be charged on such a loan, but there are no grounds to hold that the cost of such a loan should be borne by the taxpayers, which would happen if exemption from court fees was granted... The Court of Appeal also fully shares the Regional Court’s argument that, since the plaintiff is a limited liability company, the obligation of the partners to make appropriate surcharges in order to secure funds to cover expenses related to the assertion of claims should be taken into consideration...” 18. The applicant company did not pay the required court fee. On an unspecified later date, the Bielsko-Biała Regional Court ordered that the applicant company’s statement of claim be returned to it, which meant that its claim was of no legal effect. 19. According to the applicant company’s tax return for 1997, in that year it made net profits of PLN 4,484.70. 20. Under Polish law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court. As the case proceeds, either party is obliged to pay further court fees at the time of lodging any appeal, unless granted exemption from such fees. Court fees are based on a percentage (if a fee is due for lodging a claim or an appeal) or a fraction (if a fee is due for lodging an interlocutory appeal) of the value of the claim in question. The court fees incurred by either party can, depending on the outcome of the litigation, be finally repaid by the losing party (who, in principle, is ordered to pay all the costs of litigation in a final judgment). 21. There are, however, categories of litigants who are exempted from court fees by virtue of statutory provisions. Some of those categories are listed in Article 111 § 1 of the Code of Civil Procedure. That provision, in the version applicable at the relevant time, exempted from court fees a party lodging a paternity action, a party seeking maintenance, a prosecutor, a court-appointed guardian and “any party exempted from court fees by the competent court” (that is to say, a party who had been granted an exemption under Article 113 of the Code, cited below). 22. The other categories of exempted litigants are listed in, inter alia, sections 8 and 9 of the Law of 13 June 1967 on Court Fees in Civil Cases (Ustawa o kosztach sądowych w sprawach cywilnych). Under section 8 of the Law, the State Treasury, municipalities and other public organs or institutions are not obliged to pay court fees, provided that the claim in question does not relate to their business activities. 23. In the case of a successful outcome of litigation initiated by a person exempted from court fees, the fees which would normally have been collected from that person for lodging and proceeding with the claim are awarded to the State Treasury against the opponent. 24. The Law of 13 June 1967 on Court Fees in Civil Cases (as amended) sets out general principles with respect to the collection of fees by courts. Section 5(1) of the Law, in the version applicable at the material time, stipulated: “Unless otherwise provided by the law, a party who has submitted to a court a pleading which is subject to court fees, shall pay such fees.” 25. The relevant part of section 16 of the Law, in the version applicable at the material time, provided as follows: “1. The court shall not take any action if the court fee due for lodging a given pleading is not paid. In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days, on pain of having the pleading returned. If the party does not comply with the time-limit, the pleading shall be returned to this party. ... 3. Any appeal, cassation appeal, interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [above] time-limit.” 26. Section 18 provided: “A pleading which has been returned to a party as a result of the fact that the court fee had not been paid, shall be of no legal effect.” 27. Exemption from the payment of court fees was (and still is) a matter for the discretion of the court competent to deal with the case. According to Section 112 § 2 of the Code of Civil Procedure, the competent court may grant partial exemption from the fees. Article 113 § 1 of the Code of Civil Procedure, in the version applicable at the material time, stipulated: “An individual may ask the competent court dealing with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details concerning his family, assets and income. It falls within the court’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested.” 28. The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read: “A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.” 29. Article 116 § 1 of the Code of Civil Procedure provides: “In case of doubt ... as to the real financial situation of the party requesting exemption from court fees, the court may order a verification of [his/her] declaration.” 30. Article 116 § 2 of the Code of Civil Procedure reads: “The court shall refuse to grant a party [to the proceedings] exemption from court fees if [his/her]claim or defence are of a manifestly ill-founded character.” 31. The relevant part of Article 120 § 1 of the Code, in the version applicable at the material time, stated: “The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist. In either instance, the party concerned shall pay all court and/or legal fees due in the case...” 32. Fees collected by courts do not constitute, nor are they equivalent to, security for costs. The court fees are transferred by financial departments of the courts to the State Treasury and are deemed to be part of its income. 33. On 11 January 1995 the Supreme Court (Sąd Najwyższy) gave a decision in which it referred for the first time to the “right to a court” guaranteed under Article 6 § 1 in the context of the requirement to pay court fees for lodging a claim or appeal (decision no. III ARN 75/95, published in OSN Zb. U. 1995, no. 9). That ruling concerned an extraordinary appeal lodged by the First President of the Supreme Court with the Supreme Court. The appeal was directed against a decision of the Supreme Administrative Court, refusing to exempt a claimant in administrative proceedings from payment of court fees. The Supreme Court held as follows: “1. From the date on which Poland became a member of the Council of Europe, the case-law of the European Court of Human Rights in Strasbourg may and should be taken into account in interpreting Polish law. 2. If the subject matter of a case is the party’s application for substantial financial assistance from the public authorities, particular diligence should be displayed in considering [that party’s] parallel application for an exemption from court fees. [Any decision] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court (as secured by Article 6 of the European Convention of Human Rights) ...” Although the relevant decision related to court fees for lodging an appeal with the Supreme Administrative Court by a person who had requested financial assistance from the public authorities, it has been applied mutatis mutandis to civil cases. | 1 |
train | 001-68378 | ENG | MKD | CHAMBER | 2,005 | CASE OF VESELINSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed | David Thór Björgvinsson | 10. The applicant was born in 1924 and lives in Skopje. He used to be an army serviceman of the Yugoslav Army until he retired in 1985. 11. In former Yugoslavia, the citizens used to pay a tax for housing. On the basis of the accumulated funds the State constructed “socially owned” apartments which were then rented to individuals at legally fixed rates. 12. The Yugoslav Army was the single army on the territory of former Yugoslavia governed by laws which were applicable throughout former Yugoslavia. The applicant, as an officer of the Yugoslav Army, paid monthly contributions from his salary to the Yugoslav Army for the construction of army apartments. All army servicemen were entitled to live in army apartments as tenants. 13. The applicant, as an army serviceman, used to live until 1982 as a tenant in an apartment owned by the former Yugoslav Army in Skopje. Once he started working for the Macedonian Secretary of Defence, he sought to obtain a bigger apartment. On 3 June 1982 the Governing Council (Извршен совет) of the Socialistic Republic of Macedonia issued a decision by which it rented to the applicant a bigger apartment in its possession. The applicant gave up his previously rented apartment which remained the property of the former Yugoslav Army. In 1985 the applicant retired and continued living in the new apartment. 14. On 29 December 1990 the Federal Assembly of the Socialist Federal Republic of Yugoslavia enacted a Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) (“Z.S.О.J.N.A.”), according to which army servicemen, current and retired, could purchase apartments in which they lived with a price adjustment for the amount of the paid contributions for the construction of army apartments and for development of the construction land. Section 26 of that law provides that the same purchase conditions apply to apartments which do not belong to the army, as it was in the case of the applicant. According to regulations issued by the Yugoslav Federal Ministry, the price difference was to be paid by the federal army (see paragraphs 39-42 below). 15. Following the fall of Yugoslavia and a referendum held on 8 September 1991, the former Yugoslav Republic of Macedonia declared independence. On 17 November 1991 it adopted a Constitution (Устав на РМ) and the Law on the Implementation of the Constitution (Уставен Закон за спроведување на Уставот). According to the Constitution the laws from former Yugoslavia remain in force, except for the laws regulating the organisation and competence of the former Yugoslav federal organs. On 21 February 1992 the Macedonian President and the General of the Yugoslav Army concluded an agreement for the withdrawal of the Yugoslav Army from Macedonian territory. 16. On 28 February 1992 the Macedonian Government concluded an Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) (“the S.P.O.V.P.N.T.R.M.”) with the Federal Yugoslav Ministry of Defence. According to this agreement the Macedonian Ministry of Defence took over all the obligations of the Yugoslav Army in respect of army apartments, including the obligation to sell these apartments with a price reduction. The Macedonian Government in 1992 and 1994 enacted regulations implementing this agreement. In 1992 the Macedonian Government enacted Regulations on the Terms of Purchase of the Apartments Obtained by Succession from the Yugoslav Army (Уредба за продажба на државниот стамбен фонд наследен од ЈНА) (“U.P.D.S.F.N.J.A.”), according to which present and former army servicemen living in apartments owned by the Macedonian Ministry of Defence, could purchase them under the Z.S.О.J.N.A. 17. From the Ministry of Defence’s decision of 12 June 1992 it appears that the Ministry exchanged the title of its apartments which were inhabited by civilians with the title of the apartments owned by the Housing Fund (“ПУИГ”) which were inhabited by servicemen. Thereby, the servicemen were able to exercise the right under the Z.S.O.J.N.A. to purchase the apartments at a reduced price. However, this exchange was limited and concerned only six apartments owned by the Housing Fund and twenty owned by the Ministry. No details were provided as to the criteria concerning the exchange. 18. In 1993 an amended version of the 1990 Law on the Sale of Socially Owned Apartments (Закон за продажба на станови во општествена сопственост) (“the Z.P.S.O.S.”) was promulgated in the Official Gazette. Under the law their tenants were entitled to purchase them on credit and at a beneficial price. Unlike the Z.S.О.J.N.A., the law did not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land, despite the fact that the tenants had also paid them. 19. On 26 June 1996 the Constitutional Court abrogated the Z.S.O.J.N.A. without retroactive effect and the respective Government’s regulations on the ground that they had been contrary to the 1991 Constitution. In particular, the court stated that: a) the Yugoslav Army, its “housing fund” and the “social ownership” no longer existed; b) the 1991 Constitution had abolished all the privileges enjoyed by army servicemen; and c) the Z.S.O.J.N.A. had created an unequal treatment in comparison to the citizens who were entitled to purchase their apartments under the Z.P.S.O.S. The S.P.O.V.P.N.T.R.M. was not mentioned in the Constitutional Court’s decision. 20. In 1992 the applicant requested the Macedonian Ministry of Defence to allow him to purchase the apartment owned by the Government at a reduced price or to give him another apartment which used to be owned by the former Yugoslav Army. On an unspecified date the applicant asked the Ministry of Defence to speed up the proceedings. On 4 December 1993 the Ministry informed him that it had been waiting for the Government to settle the issue. 21. On 20 October 1993 the applicant and fifteen other persons asked the Constitutional Court to examine the compatibility of the Z.P.S.O.S. and the relevant regulations issued by the Ministry of Defence with the Z.S.O.J.N.A. On 29 December 1993 this was refused by the Constitutional Court. 22. On 4 December 1993 the applicant instituted proceedings before the Skopje I Municipal Court (Општински Суд Скопје I) against the former Yugoslav Republic of Macedonia, requesting that the apartment be sold to him at a reduced price in accordance with section 21(2) of the Z.S.O.J.N.A. On 15 March 1994 the court granted the applicant’s request. The court held, inter alia, that the applicant, as a retired army serviceman, was entitled under sections 21(2) and 26 of the Z.S.O.J.N.A. to purchase the apartment at a reduced price. The court stated in particular that the purchase price should be reduced by the re-evaluated amount of the monthly contributions which the applicant had paid to the Federal Ministry of Defence for the construction of apartments and for the improvement of construction land. Whether the apartment had belonged to the Ministry of Defence or to the Government was irrelevant as both apartments now belonged to the single State-owned housing fund. 23. The Solicitor-General (Јавен правобранител) acting for the Ministry of Defence appealed against the above decision on the ground that there was no formal agreement between the Federal Army and, at that time, the Macedonian Governing Council for an exchange of the apartments and that the applicant had given up the apartment owned by the army for a bigger apartment owned by the Governing Council. Therefore, he had accepted that the apartment in question would be subject to different statutory rules. It further stated that the Z.S.O.J.N.A. had been applicable only to the apartments owned by the former Yugoslav Army which had later become the property of the Macedonian Government, but not to other apartments. 24. On 31 March 1995 the Skopje Appellate Court (Апелационен Суд Скопје) dismissed the appeal on the grounds (i) that an exchange of the right to use the apartments between the former Federal Army and the Macedonian Governing Council had taken place; (ii) that the applicant, as a former officer of the Yugoslav Army had paid contributions for the construction of army apartments and was therefore entitled to purchase an apartment at a reduced price under sections 21(2) and 26 of the Z.S.О.J.N.A.; and (iii) that its section 26 had explicitly regulated the cases of purchase of an apartment by an army serviceman that had not been owned by the army. 25. On 4 May 1995 the Solicitor-General lodged an appeal on points of law (ревизија) with the Supreme Court (Врховен Суд) alleging, inter alia, that since the day of independence it had been for the former Yugoslav Republic of Macedonia to regulate the use and purchase of the apartments owned by the former Yugoslav Army and that the agreement which had been concluded with the army could not have been applicable to the apartments not owned by the said army. In 1992 the Council of Ministers enacted a regulation which had made clear that the Z.S.O.J.N.A. applied only to sale-purchase agreements for the apartments previously owned by the former Yugoslav Army. 26. In the meantime, on 4 September 1995 the applicant and the Government concluded a purchase contract for the apartment on the basis of the Municipal and Appellate Courts’ judgments. The applicant thus purchased the apartment at a price reduced by the amount of contributions he had paid to the former Yugoslav Army. On 29 September 1995 the Skopje I Municipal Court authorised the contract. 27. From the copy of one document issued by the Public Enterprise for Administering State Property (Јавно претпријатие за стопанисување со стамбен и деловен простор на Република Македонија), it may be deduced that the applicant paid for the apartment in 1995 at the latest. It is not clear whether later the Ministry of Defence reimbursed the Housing Fund with the price difference for the apartment. 28. On 16 October 1997 the Supreme Court granted the appeal on points of law submitted by the Solicitor-General and dismissed the applicant’s request to purchase the apartment at a reduced price. It found that the Z.S.O.J.N.A. had provided for more beneficial conditions for the sale of apartments to army servicemen, and that it had governed the relations and status of the former Yugoslav Army and its housing fund, both of which had ceased to exist. The court held, inter alia, that as the former Yugoslav Republic of Macedonia was not a legal successor of the former Yugoslav Army, it was under no obligation whatsoever to cover the price difference. In addition, the new Macedonian Constitution had abolished special privileges of the army servicemen. 29. The court did not mention at all the decision of the Constitutional Court and the S.P.O.V.P.N.T.R.M. Nor did it observe that the applicant had already purchased the apartment by contract or that the Ministry of Defence had exchanged a number of apartments owned by the Housing Fund and inhabited by other servicemen. 30. The applicant was served with the decision on 16 March 1998. 31. The parties have not indicated whether the applicant was formally registered as the owner of the apartment in the Land Registry (Државен завод за геодетски работи) after the purchase agreement was authorised by the Municipal Court in 1995. From their submissions it appears that the applicant had already recorded his title over the apartment. In addition, the parties have not indicated whether the Government have taken any legal action to enforce the Supreme Court’s judgment of 16 October 1997. There is no information that such proceedings have ever been instituted. 32. The applicant still lives in the apartment in question. 33. Section 110 provides, as far as relevant, that the Constitutional Court decides on the conformity of laws with the Constitution. 34. Section 112 § 1 provides, inter alia, that the Constitutional Court shall repeal or invalidate a law if it determines that it does not conform to the Constitution. 35. Section 112 § 2 provides that the decisions of the Constitutional Court shall be final and executive. 36. Section 4 provides that all issues of succession arising out of the break-up of Yugoslavia shall be regulated by way of treaties with the other former republics. 37. Section 5 §§ 1 and 4 provide that the existing federal laws of former Yugoslavia shall be in force in the former Yugoslav Republic of Macedonia with the exception of the laws regulating the organisation and competence of the Yugoslav federal organs. 38. Section 6 provides that all federal laws which are inconsistent with the Macedonian Constitution shall be amended accordingly within one year from the day when the Constitution was promulgated. 39. Section 1 provides that the law in question regulates the housing of present and former Yugoslav Army servicemen and their families. 40. Section 21 § 1 provides that the purchase price for an apartment owned by the Yugoslav Army shall be determined on the basis of the apartment’s re-assessed construction value, its quality, equipment, location and other similar factors. The price thus determined shall be reduced by the amortisation of the apartment, but not more than 50% of the total amount of amortisation. 41. Section 21 § 2 provides that when an apartment is purchased by an active or retired army serviceman, the purchase price shall be reduced by the adjusted (re-assessed) amount of the monthly contributions paid by the servicemen for construction of army apartments and improvement of construction land. 42. Section 26 provides that when an army serviceman mentioned in Section 21 § 2 wishes to purchase an apartment which is not owned by the army, the army shall pay to the owner of the apartment the price difference between the adjusted and the normal purchase price. 43. According to Section 2 § 2 of that agreement, concluded between the Macedonian Ministry of Defence and the former Yugoslav Army, army apartments should be sold to army servicemen under the conditions set forth in the 1990 former Yugoslav Law on the Housing of the Army Servicemen (Z.S.O.J.N.A.). 44. Section 9 of the said agreement provides that the former Yugoslav Army shall not have any right to impose further obligations on the Macedonian Ministry of Defence after the signing of the agreement. 45. Section 10 provides that all other rights and obligations which the former Yugoslav Army had on the territory of the former Yugoslav Republic of Macedonia until 28 February 1992 in connection with real property, housing fund and business premises owned by it shall be transferred to the Macedonian Ministry of Defence. 46. Section 134 of the Law on Defence (Закон за одбрана) provides that real property which was owned by the former Yugoslav Ministry of Defence on the territory of the former Yugoslav Republic of Macedonia shall become the property of the former Yugoslav Republic of Macedonia. 47. Section 1 provides that this law regulates the conditions, manner and procedure for the sale of socially owned apartments. The law does not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land. 48. Section 2 provides that a decision to sell the (socially) owned apartment will be issued by its owner (the State) within 30 days from the day when this law enters into force. 49. Section 3 § 1 provides that the socially owned apartment may be sold to the tenant of that apartment or to members of his family. 50. Section 3 § 2 provides that if the owner of the apartment (the State) does not issue a decision to sell that apartment within the time limit specified in Section 2, then the holder of tenancy right may within 30 days request the appropriate court to issue a decision in non-contentious civil proceedings to replace the sale contract. 51. The law does not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land. 52. Section 384 provided that the filed appeal on points (ревизија) of law does not adjourn the execution of judgment against which it has been filed. 53. Section 387 provided that parties may present new facts and introduce new evidence in the proceedings only if these concern essential violations of the provisions for civil procedure for which an appeal on points of law is permitted. 54. Section 393 provided that the Supreme Court may dismiss an appeal on points of law as unfounded if it determines that the grounds it must examine ex officio, or which were included in the appeal, are ill-founded. 55. Section 395 § 1 provided that when the Supreme Court finds that the substantive provisions of an act are wrongly applied by the lower courts, it shall grant the appeal on points of law (ревизија) and deliver a judgment on the merits. 56. Section 144 § 3 provides that the lawful acquiring of ownership over a property does not have any bearing on the rights of other persons over that property. 57. Section 148 § 1 provides that the ownership title over real estate obtained by a legal act is acquired by recording that right (act) in the public records for registering real estate rights unless otherwise provided by the law. 58. Section 151 § 1 provides, inter alia, that the ownership title over a real estate is acquired by virtue of the recording. 59. Section 151 § 2 provides that the removal of ownership title from the public records, on the ground that the recording was incorrect, may be initiated by an action within three years from the day when the real estate was recorded. 60. Section 5 provides, inter alia, that the Land Registry (Државен завод за геодетски работи) is responsible for recording property rights over real estates. 61. Section 50 provides, inter alia, that the Land Registry shall record ownership rights over real estates. | 0 |
train | 001-84787 | ENG | UKR | ADMISSIBILITY | 2,008 | SKORIK v. UKRAINE | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | The applicant, Ms Lyudmila Vasilyevna Skorik, is a Ukrainian national who was born in 1963 and lives in the city of Kyiv, Ukraine. She was represented before the Court by Ms E. A. Prikhodko, who resides in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms I. Shevchuk, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In 1987 the applicant inherited a house with a plot of land. She subsequently had a land dispute with her neighbours, Ms G. and Ms T., as to the limits of their respective plots. On 2 August 1988 the Shevchenkivsky District Court of Kyiv found for the applicant in her dispute with G. concerning the border between their plots of land. On 23 May 1990 the Kiev City Court quashed the decision of 2 August 1988 and remitted the case for fresh consideration. The proceedings were subsequently terminated. On 18 March 1991 the first-instance court issued a ruling on reversal of execution of the decision of 2 August 1988. On 24 June 1991 the Executive Committee of the Shevchenkivsky District Council of Kyiv (hereafter “the Executive Committee”) decided that the limits of the plots should be in accordance with technical reports which had been drawn up in 1964. On 16 October 1991 the Shevchenkivsky District Court of Kyiv found against the applicant in her dispute with G. as to the use of a shed situated on the border of the applicant’s and G’s plots of land. The court decided that, despite the fact that according to the technical reports of 1964 the shed was situated on the applicant’s plot of land, there were no documents which could prove the property rights for the shed in question. The court further found that according to the testimonies of witnesses, since the 1950s the shed had been used by the household in which G. lived. On 20 November 1991 the Kiev City Court upheld in cassation the decision of the first-instance court. On 6 April 1992, following the above judicial decisions, the Executive Committee invalidated its decision of 24 June 1991 and approved the current limits of the plots in question. This decision was to the applicant’s disadvantage. In November 1999 the applicant instituted proceedings in the Shevchenkivsky District Court of Kyiv against G., T. and the Executive Committee, challenging the decision of 6 April 1992 and requesting that all obstacles to her free use of her land be removed. In May and November 2000 the court ordered forensic expert reports to be drawn up in the case. The first concluded that the actual limits of the land plots did not correspond to the technical documentation, and the second concluded that the actual limits corresponded to the decision of the Executive Committee of 6 April 1992. At the court hearing of 24 May 2001 the applicant sought to introduce an additional claim seeking the invalidation of land ownership certificates issued to G. and T. in June 2000. The defendants objected to this new claim as unrelated and noted that the applicant could submit it separately. The court subsequently rejected this additional claim within the impugned proceedings. On 6 December 2001 the Shevchenkivsky District Court of Kyiv found against the applicant, having established that she had challenged the decision of 6 April 1992 outside the statutory time-limit and that the actual border between the plots of land, as confirmed by the forensic report, corresponded to the decision of 6 April 1992. Given the validity of the decision of 6 April 1992 the court rejected the remainder of the applicant’s arguments as unfounded. On 13 March 2002 the Kyiv City Court of Appeal upheld the judgment of 6 December 2001. On 31 May 2002 the applicant posted a cassation appeal, which was received by the court on 10 June 2002. On 14 June 2002 the Shevchenkivsky Local Court rejected the applicant’s request for a cassation appeal as having been submitted too late. The court stated that, under the new wording of Article 321 of the Code of Civil Procedure (hereafter “the CCP”), which had entered into force on 4 April 2002, the time-limit for lodging an appeal in cassation was one month, and that the applicant had exceeded that time-limit by only submitting her appeal on 10 June 2002. On 7 October 2002 the Kyiv City Court of Appeal upheld the ruling of 14 June 2002, stating that the applicant had lodged her appeal on 10 June 2002, which had been outside the new one-month time-limit established by law, and had not requested an extension of the time-limit for lodging such an appeal. On 28 October 2002 the applicant’s representative lodged an appeal in cassation against the rulings of 14 June and 7 October 2002. On 27 May 2003 the Supreme Court returned the appeal to the first-instance court to decide on compliance of the appeal with procedural formalities, namely on the fact that the applicant’s representative had submitted the cassation appeal on her own behalf and not on behalf of the applicant. By a ruling of 25 June 2003 the Shevchenkivsky Local Court requested that the applicant’s representative bring the cassation appeal in compliance with procedural formalities and fixed the deadline for doing so at 18 August 2003. The representative resubmitted the appeal with the same shortcomings. On 19 August 2003 the first-instance court returned the cassation appeal without consideration for failure to comply with procedural formalities. On 24 October 2003 the Kyiv City Court of Appeal upheld the ruling of 19 August 2003. The applicant appealed in cassation. On 3 February 2004 the Shevchenkivsky Local Court requested that the applicant’s representative bring the cassation appeal in compliance with procedural formalities and fixed the deadline for doing so at 25 February 2004. By ruling of 25 February 2004 the same court extended the deadline for the applicant’s representative to submit her corrected cassation appeal to 10 March 2004. On 30 November 2004 a panel of three judges of the Supreme Court rejected the applicant’s request for leave to appeal in cassation against the rulings of 19 August and 24 October 2003. At the time of the second-instance decision on appeal, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the decision on appeal or within a year of the decision of the first-instance court, if the latter decision was not appealed against under the normal appeal procedure. On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (hereafter “the Amendment Act”), including the Article in question. It came into force on 4 April 2002. The new wording of Article 321 created a one-month time-limit for lodging a cassation application against the decision of an appellate court. | 0 |
train | 001-79648 | ENG | RUS | CHAMBER | 2,007 | CASE OF BELEVITSKIY v. RUSSIA | 3 | Preliminary objection dismissed (non-exhaustion);Violation of Art. 3;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed | Peer Lorenzen | 6. The applicant was born in 1981 and lives in Moscow. 7. On 11 October 2000, at the Luzhniki market, the applicant was arrested on suspicion of drug-dealing by the operative officers I. and K. of the Ramenskiy District police station of Moscow. He was identified by a Mr E. as the person who had sold him heroin. The exact time of the arrest was disputed by the parties. The applicant maintained that he had been apprehended at about noon, the Government claimed that it had happened at 4.30 p.m. 8. At 6.50 p.m. the applicant was searched at the police station by the police officer R. in the presence of two lay witnesses (ponyatye). A sachet containing 0.004 g of heroin was found on him. 9. A record of the applicant's arrest was drawn up at 11.50 a.m. on the following day. On the same day the investigator ordered the applicant's placement in custody. The decision did not specify the duration of the detention period (see paragraph 51 below for relevant legal provisions). 10. On an unspecified date a confrontation between the applicant and Mr E. was arranged. Counsel for the applicant was in attendance. Mr E. confirmed his statement that he had bought heroin from the applicant. 11. The applicant alleged that he had been beaten by police officers at the Ramenskiy District police station on 11 October 2000. The Government denied that allegation. 12. It follows from the medical certificate of 24 October 2000 issued by the trauma department of clinic no. 8 that on 13 October 2000 at 3.10 p.m. the applicant was brought for a medical examination by the Ramenskiy District police officers. The medical examination revealed “a haematoma in the area of fourth to sixth ribs on the left side, a haematoma in the left side of the lumbar region, an abrasion in the area of the left knee joint”. 13. On 18 December 2000 a senior assistant to the Nikulinskiy District prosecutor's office issued a decision not to institute criminal proceedings in connection with the applicant's claim of ill-treatment. The reasoning of the one-page decision was founded on the statements by the police officers R., I. and K. who had taken part in the applicant's arrest and search. They denied that they had exercised any mental or physical pressure on the applicant. 14. Counsel for the applicant contested the decision of 18 December 2000 before the deputy Moscow Town prosecutor. They submitted that the medical certificate of 24 October 2000 had been left outside the scope of the inquiry. The Moscow Town prosecutor ordered an additional inquiry. 15. On 29 March 2001 the senior assistant issued a further decision not to institute criminal proceedings. The entire reasoning read as follows: “During the additional inquiry, the Nikulinskiy District prosecutor's office examined the medical certificate which indicated that on 13 October 2000 [the applicant] had been brought to the medical unit where bodily injuries... had been recorded. It follows from the certificate issued by the head of the Krylatskoye District police station Mr Z. that the applicant did not have any health complaints on his placement in the investigations ward, of which he made a handwritten note in the medical register. Moreover, during the additional questioning of [the applicant] by the assistant prosecutor that took place before his placement in custody in the presence of the advocate [the name is unreadable], [the applicant] clarified that the police officers had not exercised pressure on him and that he had given the confession statement voluntarily. He had no claims against the police officers. Having examined the collected materials, I find that [the applicant's] allegations that he had been subjected to mental and physical violence by the police officers, have no objective confirmation. It is impossible to establish the circumstances in which the bodily injuries recorded in the medical certificate had been received because he did not mention these injuries to the assistant prosecutor and because [at that time] he had no visible injuries or health complaints.” 16. On 9 December 2000 the investigation was completed and the case file was transferred to the Nikulinskiy district prosecutor's office for final approval of the charge sheet. 17. On 13 December 2000 the case against the applicant and Mr E. was submitted to the Nikulinskiy District Court of Moscow for trial. 18. On 4 January 2001 the Nikulinskiy District Court of Moscow received the case-file. 19. On 11 January 2001 the Nikulinskiy District Court of Moscow issued a pre-trial decision. The decision represented a one-page printed template, in which the dates, the applicant's and his co-defendant's names, and the charges against them were filled in by hand. The relevant part read as follows (the pre-printed part in plain script and the part written by hand in italics): “The Nikulinskiy District Court is competent to try the case; sufficient evidence for examination of the case has been collected; the charge sheet has been prepared in compliance with the requirements of the criminal-procedure law; there are no grounds to revoke or vary the measure of restraint imposed on the defendant; the defendant or third parties have not lodged any motions. Recognising that the investigation of the case has been carried out in accordance with the RSFSR Code of Criminal Procedure and that the rights of the accused Mr E. and [the applicant] have been respected, and that there are no obstacles to the judicial examination, the court – HAS HELD – To fix the hearing of the criminal case against Mr E. and [the applicant] ... for 23 January 2001... with the participation of prosecutor, counsel. The measure of restraint – the same for each defendant...” The decision was issued in the absence of the applicant or his counsel and no copy thereof was served on them. 20. On 23 January 2001 the hearing was adjourned for one week owing to the absence of counsel for the applicant. 21. On 30 January 2001 the District Court held a preliminary hearing in the case. Counsel petitioned the court for the applicant's release pending trial. The court dismissed the request, finding as follows: “Having heard the parties to the proceedings and submissions by the prosecutor who asked that the petition for [the applicant's] release not be granted, the court finds that there are no grounds to vary the measure of restraint imposed on [the applicant] because [the applicant] is charged with a criminal offence classified as a particularly serious offence punishable with deprivation of liberty and [because] the court has not yet completely examined the evidence collected by the prosecution.” 22. On 5 and 22 February and 5 March 2001 counsel for the applicant appealed against that decision. They submitted that the applicant had a permanent place of residence in Moscow and no criminal record and therefore there were no reasons to believe that he would abscond. They also indicated that the applicant's detention from 11 to 12 October 2000 had not been recorded or covered with any authorisation. Moreover, the applicant had been only remanded in custody for two months and, accordingly, his detention after 12 December 2000 had been unlawful. 23. On 5 March 2001 the Moscow City Court upheld the decision of 30 January 2001. It found as follows: “Pursuant to Article 97 of the Code of Criminal Procedure, pre-trial detention in criminal cases is limited to two months. As it appears from the available materials, the criminal case was opened on 12 October 2000 and on the same day [the applicant] was remanded in custody; on 9 December [2000] [the applicant] was transferred to the Nikulinskiy District prosecutor's office of Moscow where the case-file was sent. Accordingly, there was no violation of Article 97 of the Code of Criminal Procedure during the investigation and the arguments in the appeal to the effect that the detention after 12 December 2000 had been unlawful are not grounded on the case materials. Pursuant to Article 96 § 2 of the Code of Criminal Procedure, persons charged with [drug-dealing] can be remanded in custody on the sole ground of dangerousness of the offence; in this connection the court upholds the findings of the first-instance court as to the absence of grounds for varying the measure of restraint, and considers these findings to be lawful.” 24. On 26 April 2001 counsel for the applicant again petitioned the trial court for his release pending trial. The request was refused. On 3 May 2001 the decision refusing the request was appealed against to the Moscow City Court. It does not appear that any response was received. 25. On 26 June 2001 the Nikulinskiy District Court extended, of its own motion, the applicant's detention by a further three months or until such time as the merits of the charges had been examined, finding that his release would “substantially impede a thorough, complete and objective examination of the case”. 26. On 5 July 2001 the applicant and Mr E. were convicted of drug-related offences by the Nikulinskiy District Court of Moscow. Mr E. was relieved from the punishment by virtue of the amnesty act. The applicant was sentenced to six years and six months' imprisonment in a high-security colony. 27. On 17 October 2001 the Moscow City Court quashed the conviction on substantive and procedural grounds and remitted the case for a new trial by a different bench. The City Court directed that the applicant remain in custody, without giving any reasons for that decision. 28. On 3 December 2001 the trial hearing was adjourned because Mr E. and witnesses did not appear. 29. On 18 December 2001 the hearing did not take place because the bench was involved in another criminal case. 30. On 19 December 2001 counsel for the applicant complained to the president of the Nikulinskiy District Court that, because of previous adjournments of the hearings, the request for the applicant's release had not been examined on the merits. She also pointed to inhuman conditions of the applicant's detention. It does not appear that any response was received. 31. On 10 January 2002 the hearing was adjourned because the presiding judge was ill. 32. On 21 January 2002 the court examined the request for release and dismissed it. As witnesses did not appear, the case was adjourned until 4 February 2002. On 27 January 2002 the applicant appealed against the refusal to the Moscow City Court. It does not appear that his appeal was examined. 33. On 4 February 2002 a new request for release was refused by the court. The hearing was adjourned until 12 February 2002 because of the absence of Mr E. and witnesses. 34. On 12 February, 5 and 19 March 2002 the hearings were adjourned again, as the witnesses never appeared. 35. On 17 April 2002 the court held a hearing. It heard the applicant, a witness for the defence and read out statements by witnesses who had failed to appear, including that by Mr E. 36. On 18 April 2002 the applicant was found guilty as charged and sentenced to six years and six months' imprisonment in a high-security colony and confiscation of property. As regards the applicant's allegations of ill-treatment by police officers, the court found as follows: “Statements by the witnesses Er. and G. [who testified] that [the applicant] was neatly dressed at the moment of his arrest, as well as the statement by the witness Ge. [who testified] that at the moment of the personal search [the applicant's] clothing was dirty and that he looked like a tramp cannot, in the court's opinion, confirm the fact that [the applicant] was subjected to physical pressure by police officers because this allegation was examined in the court hearing and found to be unsubstantiated; [this finding is] corroborated with statements by the [police officers] R., I., K., B., Mi. and Mu., and by the decision not to initiate a criminal investigation into [the applicant's] allegations... It follows from the medical certificate of 13 October 2000 that a doctor of the trauma department examined [the applicant] and found injuries... Before the court [the applicant] testified that these injuries had been inflicted on him by police officers. However, it was established in the court hearing that no physical or mental pressure had been exerted on [the applicant]; the court infers therefrom that the bodily injuries recorded on 13 October 2000 had been caused not under the circumstances described by [the applicant], but in some other way unrelated to [the applicant's] arrest and criminal proceedings against him.” 37. In finding the applicant guilty of drug possession and sale, the District Court relied on the material evidence (the sachet with heroin seized from the applicant), the testimony by Mr E. corroborated by statements of the police officers and lay witnesses present during the search and the record of the confrontation between the applicant and Mr E. 38. On 8 June 2002 the applicant appealed against the conviction. He complained, in particular, that the conviction was based, to a significant extent, on his self-incriminating statements given under the pressure of police officers on the day of his arrest, as well as on the statement by Mr E. who had fled from justice and did not testify in the second trial. 39. On 9 September 2002 the Moscow City Court dismissed the appeal and upheld the conviction. It repeated verbatim the first-instance court's findings as regards the applicant's allegations of ill-treatment. 40. From 11 July to 6 November 2001 and then from 23 April to 5 October 2002 the applicant stayed in remand centre no. IZ-77/3 in Moscow. 41. In 2001, the applicant was held in cells nos. 405, 406 and 706, measuring approximately 36 sq. m. It follows from the documents submitted by the Government that the exact numbers of detainees could not be established because the registers had already been destroyed, however, the design capacity of the remand centre had been exceeded by 300 per cent. 42. In 2002, the applicant was held in cells nos. 603, 602, 612. Cell 603 measured 26 sq. m and housed 21 to 37 detainees, cell 602 had 32 sq. m of floor space for 35 to 45 inmates, and cell 612 accommodated 4 to 6 persons on 9 sq. m. 43. On 3 October 2001 counsel for the applicant complained about “appalling conditions” of his detention to the Supreme Court of the Russian Federation and to the Minister of Justice. 44. On 10 October 2001 the applicant drafted a hand-written complaint to the Presnenskiy District Court of Moscow. He wrote that he had spent more than a year in overcrowded cells that swarmed with bugs and lice. He suffered from lack of fresh air that hardly penetrated through the windows covered with metal bars. A majority of his forty cell-mates were heavy smokers; the light was on round the clock and people had to sleep in shifts. The toilet was not separated from the rest of the cell and offered no privacy whatsoever. He had contracted various diseases, including scabies, “putrefaction of limbs”, constant headaches and hypertension. According to the applicant, he did not send that complaint because he feared the reprisals the prison officials had threatened him with. 45. On 10 October 2001 the applicant's representative received two similar responses from the Main Prisons' Directorate of the Ministry of Justice. She was told that on arrival to the detention facility the applicant had been examined by a doctor who found him in good health. On 6 September 2001 a general practitioner gave him preventive treatment for scabies; on 12 September 2001 he was diagnosed with vegeto-vascular dystonia of normotonic type; on 25 September 2001 he received preventive treatment for scabies; on 1 October 2001 the applicant was diagnosed with atypical dermatitis. His state of health was found to be “satisfactory”. 46. On 8 and 10 January 2002 the applicant's representative received responses to her further complaints. She was informed that on 11 October 2001 the applicant had sought medical assistance for pyodermatitis and received appropriate treatment. On 6 November 2001 the applicant had been moved to another prison and placed in a common cell with sixty-three other detainees. On 7 December 2001 the administration of the detention facility refused medicines brought by the applicant's mother because the medical office of the facility had had all the necessary medicines. On 20 December 2001 the applicant was diagnosed with skin itch and residual effects of pyodermatitis. 47. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities' own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113). 48. On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court. 49. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). A decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the CCrP). 50. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they committed. 51. After the arrest the suspect was placed in custody “pending the investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by a prosecutor. 52. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was transferred to a trial court. From that day the defendant's detention was “before the court” (or “pending the trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not normally exceed six months from the date the court received the file. The time-limit did not apply to defendants charged with particularly serious criminal offences. 53. The detainee or his or her counsel or representative could challenge the detention or extension order issued by a prosecutor, to a court. The judge was required to review the lawfulness of, and justification for, the order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1 of the CCrP). | 1 |
train | 001-58251 | ENG | TUR | GRANDCHAMBER | 1,999 | CASE OF OĞUR v. TURKEY | 1 | Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (estoppel);Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Luzius Wildhaber;Paul Mahoney | 8. The applicant is a Turkish national born in 1923 and she lives in Sarıyaprak, a district in the province of Siirt, where a state of emergency is in force. She lost her son during an operation by the security forces, which is described below. 9. On 24 December 1990 the security forces carried out an armed operation at a site belonging to a mining company some six kilometres from the village of Dağkonak. The applicant’s son, Musa Oğur, who worked at the mine as a night-watchman, was killed at about 6.30 a.m. as he was about to come off duty. 10. According to the Government, the scene of the incident had been used as a shelter by four terrorists who were members of the PKK (Workers’ Party of Kurdistan), including the applicant’s son. Musa Oğur had been hit by bullets from warning shots fired by the security forces. According to the applicant, her son had merely been one of the guards at the mining company’s site and he had been shot dead by the security forces without warning. 11. On the day of Musa Oğur’s death his employer, Mehmet Zeyrek, reported the incident to the Şırnak public prosecutor. He stated that his employee had been shot by the security forces and the village guards, whose identity he did not know. 12. On 26 December 1990 the public prosecutor’s office issued a decision in which it recorded the following: “On the date of the incident an operation was conducted by the security forces and the village guards, acting on information that an injured terrorist belonging to the PKK had taken refuge and was being cared for in a shelter near Mehmet Zeyrek’s mine. When, during the operation, the victim, Musa Oğur, one of the watchmen at the mine who guarded the mechanical shovels and bulldozers at the site belonging to Mehmet Zeyrek, left the shelter and the other watchmen and squatted in order to defecate, the security forces gained the impression that the suspect was escaping and they opened fire and killed him. The public prosecutor carried out an investigation and gathered the initial evidence.” The prosecutor’s office pointed out that the actions of the security forces under the orders of the governor of a region in which the state of emergency was in force were subject to the rules governing prosecutions of civil servants and accordingly declared that it had no jurisdiction, and, by a letter of 26 December 1990, forwarded the file to the Administrative Council of the province of Şırnak. 13. On 15 August 1991 the Administrative Council delivered its decision, which was signed by the deputy governor and the directors of the various government departments of the province but not served on the applicant’s lawyer. The Council concluded that no proceedings should be brought in the criminal courts against the civil servants of the security forces which had taken part in the operation on 24 December 1990. In its view, the victim, who was regarded as a suspect, had died after warning shots had been fired during the operation in question. Neither the evidence in the file nor taking statements from witnesses would make it possible, however, to identify with any certainty the person who had fired. 14. On 19 September 1991 the Supreme Administrative Court, to which the case had automatically been referred by the operation of law, upheld the decision of 15 August 1991 in the following terms: “Offences committed by civil servants acting in the course of their duties or in their official capacity are subject to the procedures governing prosecutions of civil servants …, an administrative investigating officer responsible for conducting the investigation is appointed by means of an order … In order that an investigation may be conducted in respect of a civil servant, the civil servant concerned must first of all be accurately identified. Failing any accurate identification, no investigation can be carried out, no investigation report can be drawn up and no court with competence in the matter may give judgment. The information in the investigation file has not made it possible to determine who committed the alleged offence; consequently, that investigation should not have been commenced. However, an investigation file was compiled by the appointed investigating officer and, on the basis of that file, the Administrative Council of the province decided that there was no case to answer, on the ground that the persons responsible were unknown and that it was impossible to investigate the case. The Supreme Administrative Court decides unanimously, for the aforementioned reasons, to uphold the decision of the Administrative Council and to send the case back.” 15. In a letter of 20 January 1993 the applicant’s lawyer enquired of the chairman of Şırnak Administrative Council about the progress of the proceedings, since during the administrative investigation the file had been inaccessible to the victim’s close relatives and they had had no means of learning what was in it. On 3 February 1993 the Şırnak provincial governor’s office sent him a copy of the decision of 15 August 1991 that there was no case to answer. The Supreme Administrative Court’s judgment was served on him on 15 March 1993. 16. Those appearing before the Court submitted various documents concerning the investigation following Musa Oğur’s death. 17. Musa Oğur’s employer alleged that the victim had been shot dead by the security forces and the village guards, whose identity, however, he did not know. He did not know the reasons for the murder but surmised that it might have been carried out by persons whose interests might have been affected by the mine he owned, where the victim worked as a night-watchman. 18. This document contains a detailed description of the incident of 24 December 1990 by six members of the infantry squad and their lieutenant, İsmail Çağlayan, all of whom took part in the operation. The events as they describe them took place as follows: “On 23 December 1990, following a report to the effect that a terrorist wounded during a clash with the security forces had taken refuge in a shelter on a hill six kilometres from the village of Dağkonak, three infantry squads … went to the scene of the incident. At 4.30 a.m. the area was placed under the control of the soldiers, who began to observe the shelter using infra-red sights. When movements were noted in this area at about 5 a.m., we approached the shelter under cover of heavy snowfall and fog. As we approached the shelter, we shouted to those inside that they were surrounded, that escape was impossible and that they should come out of the shelter within five minutes, leaving their weapons behind them. As nothing had happened after five minutes, we fired warning shots into the air. Someone came out of the shelter shooting and began to move away. After warnings which were ignored we fired, but the person we had glimpsed disappeared ... We waited until day broke and pinpointed the shelter ... We again told them to come out and three people emerged from the shelter. We told them to approach and we questioned them. We then went into the shelter, where we found three shotguns, food and medicines. ... outside, fifteen metres from the shelter, we found a wounded man, but he died while we were taking him to a safer place. We discovered three trenches twenty, fifty and eighty metres away from the shelter. We found shotgun cartridges, five of which smelt of smoke, as did one of the shotguns. When we searched the surrounding area, we found several footprints, but we were not able to follow them as they were covered by the falling snow. We concluded that the footprints probably belonged to the wounded terrorist and the accomplices who had come to his aid ... We inspected the medicines, namely hydrogen peroxide, ..., two cloths, ... and some penicillin powder. The incident was immediately reported to the brigade, we awaited the arrival of the inspection team, we made the sketch and this report was drawn up by those whose signatures appear below.” 19. This document contains a detailed sketch of the topography of the scene of the incident and the positions of the actors in it. It shows that the security forces and village guards split into three groups, one to the left of the shelter, one to its right and one in front of it. These fired several shots in the direction of the shelter and behind it. Some shots were fired from the shelter towards the group of armed forces on the left of the shelter. 20. The Şırnak public prosecutor reported the facts as follows: “Having been informed this morning at about ten o’clock that there had been a confrontation with the security forces near Mehmet Zeyrek’s coal mine at Araköyü-Şırnak, that a person had been wounded and had subsequently died after the confrontation and that the body was at the scene of the incident, we – Ali İhsan Demirel, public prosecutor, Namik Demiralay, pathologist, Yahya Bahsis, court registrar, and Bilgin Yilmaz, the pathologist’s assistant – decided to go to the scene at about 11.30 a.m. ... We found the body, covered with a blanket, at a hidden spot on a hill at Mehmet Zeyrek’s coal mine. ... The post-mortem carried out on the undressed body revealed that rigor mortis had not yet set in, that the body was partly cold, that the stains and marks had not yet turned bluish, that the bullet had entered the back of the skull about four finger-breadths from the nape of the neck, making a hole five centimetres in diameter, that it had exited from the upper part of the forehead at the hairline, shattering the bone and making an irregular three-centimetre hole. Bleeding was found where the bullet had entered and exited, the face was covered in blood, and there was white brain tissue where the bullet had exited ... The pathologist, Namik Demiralay, stated: ‘The wound due to the bullet which entered the occipital part of the cranium and exited through the frontal part caused the destruction of the brain and was therefore the cause of death. Since the gunshot wound was the certain cause of death and no other finding was made that could suggest any other cause, it was not considered necessary to carry out a full post-mortem.’ As Musa Oğur’s death, which occurred this morning in the course of an armed operation by the security forces in the region, was caused by a gunshot wound, as was recorded by the pathologist who examined the body, it is unnecessary to carry out a full post-mortem. The body has been released to the family ... A reconstruction of the events was carried out at the scene of the incident in the presence of the eyewitnesses, in order to determine the circumstances of the incident. Gendarmerie Warrant Officer Aydın Gülsen, acting as commander of Şırnak central gendarmerie station, was appointed as the technical expert ... The scene of the incident was identified and checked. One of the witnesses, Naif Zeyrek, who was questioned by a gendarmerie officer, stated: ‘This morning, at about 6.30 a.m., at the spot where we are standing at the moment, there were four of us watchmen employed by the Zeyrek mining company to guard the company’s bulldozers and mechanical shovels. A bulldozer had been set on fire once before. After that incident, in order to keep watch on the plant, we kept guard in this shelter that we had built and in the dugouts around it. Four of us were responsible for keeping watch here during the night. This morning, dawn had broken. We were in this shelter near the vehicles. We got up and said our prayers. The victim, Musa Oğur, had heard partridges up there and said he was going to go shooting. I told him not to go shooting, and in the end he did not go out. A few moments later, he crossed the threshold of the door and went towards that hill that I have already shown you. An instant later we heard shots. Shots ringing out from everywhere. I wanted to fire my shotgun but my mate stopped me. Then I saw the soldiers and shouted out to them to stop firing. When the firing stopped, we went outside. I heard Musa Oğur, he was wounded. As he was wounded, we removed him from the spot where he lay, which I have shown you, and carried him away. But he died in the process, so we put the body down.’ Another witness, Salih Oğur, who was questioned by a gendarmerie officer, stated: ‘Like my three mates, I was responsible for guarding the vehicles belonging to the Zeyrek mining company at the spot I have shown you. In order to guard the vehicles, we keep watch during the night in this shelter I built and in the dugouts we made near it. When we got up this morning, the victim, Musa Oğur, who is a relative of mine, said he had heard partridges and was going to go shooting. We stopped him from doing so. Then he did go out – I don’t know what for. Perhaps to relieve himself. A moment later we heard shots coming from different directions. It was snowy and a bit misty. Dawn was only just breaking. We did not go outside because of the firing. We tried to see what was going on outside through a door on the other side. As it became light, I could see that there were soldiers outside. While we were watching, we saw a soldier in the distance. We called out to him, telling him who we were. The soldiers asked us to come out of the shelter. We started walking to where they had told us to go. I heard Musa Oğur calling “Uncle!” We could not go to him immediately. We could not go and see him until the soldiers came up. He was wounded and could not speak. We took him from the place I showed you up to there for him to be treated. But as he did not survive the distance, we put him down where he had died. We did not fire any shots. As for Musa, he was unarmed when he went out. In order to guard the vehicles, we keep watch at night in the dugouts nearby. The spent cartridges in the first dugout are two or three days old. When we shoot, we do not leave spent cartridges in the dugouts. None of us fired a shot today.’ Another witness, Salih Zeyrek, who was questioned by a gendarmerie officer, stated: ‘I worked as a watchman with my mates. This morning, Musa Oğur went out to relieve himself. He was unarmed. A second later we heard shots. Musa called out “Uncle!” We did not go outside because of the firing. We looked out and saw soldiers. Then we called out to say who we were. At the time of the incident it was snowing and it was also foggy. Later, two of my mates and I left the shelter and walked towards the soldiers. Then we learned that Musa had been shot and wounded and we went to him. He was wounded and could not speak. We could hear him breathing. In order to get him to a doctor, we lifted him and carried him. While we were carrying him, he stopped breathing and we realised that he was dead. We left him where he had died. None of us fired a shot.’ An inspection of the scene of the incident was carried out in the presence of the witnesses and the technical expert. We made the following findings at the scene: Mehmet Zeyrek’s mining operation was spread over a large area; there were three mechanical shovels and bulldozers five or six metres from the shelter; the shelter, which was made of stone and built right into the mountainside, was a covered, concealed shelter which blended in with the landscape, and inside there were things belonging to the watchmen and a stove. We inspected the spot where, according to the witnesses, the dead man was wounded and the spot from which the shot might have been fired. We combed likely areas, looking for spent cartridges but not finding any. We examined the spot where the dead man was originally wounded. We walked about ten or fifteen paces down the hill. In the area referred to, we noted the presence of large quantities of blood and found a red turban (worn rolled round the head), which we presumed to be the dead man’s. There were two holes in the turban where the bullet had entered and exited. We took the turban away and mentioned it in the report. We examined two separate dugouts near the shelter, which we were told were the watchmen’s. In the dugouts we found eight spent shotgun cartridges. The cartridges were taken away and mentioned in the report. The technical expert ... stated: ‘I inspected the scene of the incident and listened to what the witnesses had to say; I recorded the locations of the shelter, the vehicles, the wounded man and the dugouts individually on simple sketches; I examined the spent cartridges and photographed the scene of the incident from various angles. I will hand these sketches and photographs over to you when the latter have been developed. When I examined the spent cartridges, I found that they were not recent but must have been two or three days old. When I examined the watchmen’s shotguns, which had been given into my care and two of which were Hoglus, I found and smelt powder on them. However, it is impossible to say whether it was fresh powder or not. There was no powder on the other two shotguns, nor did they smell of fresh powder.’ The three shotguns found in the shelter were recorded and taken for examination ...’ The medical expert was questioned about the medical supplies shown to him. He stated that they were used to treat grazes and wounds ... The witnesses were then questioned about the medical supplies. Salih Zeyrek volunteered the following information: ‘About ten days ago I fell here during working hours and injured my finger. I had these things bought to treat my finger. They belong to me. As the injury to my finger was slight, I treated it myself.’ He then showed us his injury. We noted a slight injury to the upper part of the third finger of his left hand. The pathologist, a medical expert, examined the wound and stated: ‘My observations allow me to conclude that the scratch on the witness’s hand is an old wound which became slightly infected and which has obviously been treated.’ Following the questioning of the eyewitnesses and the inspection of the scene of the incident, the technical expert was given ten days to develop his photographs and put his sketches into their final form. As there were no other verifications to be made at the scene, we decided to terminate the investigation. We decided to return to the office and then signed this report together, at 2.15 p.m. on 24.12.1990.” Later the same day, the public prosecutor interviewed Mehmet Zeyrek concerning his statement implicating the security forces and the village guards (see paragraph 17 above). 21. This document lists “the objects found at or near the spot where the victim died”: eight shotgun cartridges and a turban (kefi) “with a red and white pattern, in which there were two holes where a bullet had entered and exited”. 22. Aydın Gülsen, a gendarmerie warrant officer acting as commander of Şırnak central gendarmerie station and appointed as technical expert by the public prosecutor during his inspection of the scene of the incident, established the facts as follows: “I examined the wound which had caused the death of Musa Oğur, who was fatally wounded in an armed confrontation between the security forces and members of the PKK terrorist movement at Mehmet Zeyrek’s coal mine ... when the security forces went to the scene to check the accuracy of information they had received. I recorded the place in which he had been sheltering and the surrounding area in sketches, both of individual details and of the general scene. When the public prosecutor, Ali İhsan Demirel, went to inspect the scene of the incident, I made sketches to record the location of evidence found at the scene, traces of blood and the victim’s possessions and noted all other discoveries. During these inspections of the scene I noted, inter alia: 1. At 6.30 a.m. on the day of the confrontation, 24 December 1990, it was misty and was snowing heavily and visibility was no more than five metres in places. 2. The confrontation occurred at a spot where watchmen employed to guard the machinery belonging to the Zeyrek mine were working. The place, which was built into the hillside on two sides and had stone walls on the other two, like a hideout, was difficult to appraise and surround owing to the bad weather. During an exchange of fire between the security forces and members of the PKK terrorist movement who were firing from the shelter and seeking to escape, Musa Oğur was wounded in the head there, fell to the ground and rolled ten or twelve metres. After a warning had been given, the other persons in the shelter came out unarmed and gave themselves up. 3. At different places near the shelter, and at different distances from it, four dugouts had been constructed in which there were spent shotgun cartridges. 4. The spent cartridges were between one and three days old. An examination of the guns found in the shelter suggested that they had been used. 5. Musa Oğur was wounded and died when caught in crossfire, the security forces responding to fire from the shelter in bad weather which appreciably reduced visibility. 6. The security forces had approached the scene of the incident and examined the dugouts in which the shotgun cartridges were found. They noted that these dugouts were identical to those used by PKK members to take refuge and hide arms. 7. The manner in which the shelter had been built gave [the security forces] the impression that it was a hideout; it was misty and was snowing heavily and there were dugouts scattered across the landscape; in such a situation a shot – even from a shotgun – could very easily mislead the security forces and it must be pointed out that the security forces had no means of distinguishing between the shots fired by the persons in the shelter and those fired by the PKK members. 8. Regard being had to the statements made by both sides at the time of the incident, the conclusion is that the victim, Musa Oğur, died as a result of a head wound, that he was not killed intentionally but was caught in crossfire; that is the conclusion I have reached for the purposes of this expert report.” 23. This schedule lists the documents available to the public prosecutor, Ali İhsan Demirel, when he was drafting the decision of 26 December 1990 (see paragraph 12 above). Essentially, it comprises the report of the inspection of the scene of the incident and the autopsy performed on Musa Oğur, a record of medical supplies seized as evidence on 24 December 1990, the statements made by Naif Zeyrek, Salih Zeyrek and Salih Oğur on 24 December 1990 and a record of the objects found near Musa Oğur’s body on 25 December 1990 and seized as evidence. On 16 January 1991 the Şırnak central gendarmerie headquarters sent the incident report and the “sketch” (see paragraphs 18 and 19 above) to the Şırnak public prosecutor’s office, for information. 24. On 3 January 1991 the governor of Şırnak province wrote to Celal Uymaz, a gendarmerie lieutenant-colonel, instructing him to carry out, as investigating officer, the preliminary investigation into the events of 24 December 1990 and sending him the case file. On 22 January 1991 the governor sent him further documents. On 30 April 1991 the deputy governor wrote to Lt.-Col. Uymaz asking him to expedite the matter. On 3 August 1991 the investigating officer took evidence from the witnesses Salih Zeyrek and Salih Oğur. Mr Zeyrek’s statement, made through an interpreter, was recorded as follows: “I and my friends were the watchmen at the Zeyrek mine. On the morning of the day of the incident Musa Oğur went out to relieve himself. I was awake. So I saw him go out. He said he was going out to relieve himself. A few seconds later we heard shots. We were scared and did not go out of the shelter straight away. Looking outside, we saw the soldiers. We called out and said who we were. It was foggy and it was snowing. We left the shelter and went up to the soldiers. They told us that Musa was wounded. He was lying on the ground. He could not speak. He was breathing slowly. We immediately set off to find the doctor but Musa died on the way. The prosecutor and the pathologist examined him afterwards. None of us fired a shot during the incident.” In his statement Salih Oğur said: “... On the day of the incident Salih Zeyrek, Musa Oğur (the deceased), Naif Zeyrek and I were on the mine premises to guard the machinery. We slept in a shelter and at night we kept watch in the trenches around the site. We woke up at 6.30 a.m. Musa Oğur, who is a relative of mine, said that he had heard a partridge and that he wanted to take a look outside. We told him not to. He went out, saying that he was going to relieve himself. Just after that we heard shots. It was raining and it was foggy. We did not go out straight away. As it was light, I thought it might be soldiers. Looking outside, I saw a soldier. We called out and said who we were. The soldiers told us to come out of the shelter. We came out and walked towards the soldiers. It was then that we heard Musa Oğur’s voice. He was calling ‘Uncle’. We didn’t go to him straight away. The soldiers came up to us and we all went to see him together. He was wounded. He could not speak. We tried to carry him to a hospital but he died. We left him at the scene. None of us fired a shot during the incident. Musa was unarmed when he went out. Our job is to spend the night in the trenches and guard the machinery. The cartridges found in the first trench had been there for two days. We always leave spent cartridges where they fall.” 25. In his report the investigating officer records the facts as follows: “In the course of carrying out an operation in the region where the incident occurred, the internal security forces noticed a person behaving suspiciously and fired warning shots in his direction. Witness statements: (a) Salih Oğur: I was in the shelter. I came out when the shooting stopped. I saw that Musa Oğur had been hit. He died shortly afterwards. I do not know who fired. (b) Salih Zeyrek: I did not see who shot Musa Oğur. The soldiers were at the scene of the incident. I do not know them. I did not see who fired. It is not known who shot Musa Oğur or how he shot him. I propose that no (criminal) proceedings should be brought, seeing that it is not known who shot Musa Oğur or how he shot him.” 26. This schedule lists the documents available to the Administrative Council when it was drawing up its decision of 15 August 1991 that there was no case to answer (see paragraph 13 above). Essentially, it comprises – apart from the public prosecutor’s decision of 26 December 1990 that he had no jurisdiction and the documents in his office’s case file (see paragraph 12 above) – the “sketch” (see paragraph 19 above), the incident report of 24 December 1990 (see paragraph 18 above) and the expert report of 1 January 1991 (see paragraph 22 above). 27. On 4, 5 and 6 October 1995 three delegates of the Commission took the following statements in Ankara. 28. In 1990 this witness (born in 1960) was the public prosecutor in Şırnak. On the morning of 24 December 1990 he went to the scene of the incident with a doctor and other officials. He found that Musa Oğur had been hit by a bullet which had entered his body at the back of his neck and exited through his forehead. There were no cartridges or cartridge cases near the body. He questioned Musa Oğur’s employer, Mehmet Zeyrek, and the other mine watchmen. The watchmen said that they had not used their guns. 29. His account of the events was as follows. The weather had been bad (fog and falling snow) and the terrain was hilly, so that it had been difficult to see the shelter where the victim was. An informer had told the security forces that there were PKK members in the area. An armed squad of about thirty to fifty men had gone to the spot to arrest them. After the usual warnings had been given, someone had come out of the shelter and run away while warning shots were being fired; then the incident had occurred. The security forces must have been below the shelter, about thirty to fifty metres away from the victim. The security forces had not surrounded the shelter. The incident had occurred while they were moving towards the shelter. 30. According to the witness, there were shotguns and spent shotgun cartridges at the scene; some of the spent cartridges were recent but he had not been able to establish with certainty whether they had been fired that day or earlier. No forensic examination of the guns had been requested. The witness had not taken down the identities of the members of the security forces which had conducted the operation, nor had he taken evidence from them; he maintained that since they were civil servants, the Administrative Council alone had power to do so. He had not been notified of the Administrative Council’s decision. 31. This witness (born in 1958) was the owner of the mine where the incidents took place. He stated that he knew Musa Oğur. On 24 December 1990 he went to the scene of the incident and was questioned by the public prosecutor. He said that he stood by the terms of the statement he had made at that time. He stated that the security forces had been acting on a tip-off from an informer. He asserted that in his statement he had given the names of the persons who had told the security forces that PKK terrorists were using the shelter. He said that those persons had been motivated by a desire for personal revenge on his own family. The idea was to pursue a feud going back more than fifty years by misleading the security forces. According to the witness, none of the mine watchmen had a gun except Naif Zeyrek, his nephew, who had a shotgun. His nephew had not fired any shots, however. 32. At the material time this witness (born in 1966) was doing his national service and was a sergeant in the infantry. He had been serving in the Şırnak region for fifteen months. As a member of the squad which carried out the operation, he was an eyewitness and one of the six people who signed the incident report of 24 December 1990 (see paragraph 18 above). 33. He stated that after being tipped off that there were terrorists in the area round the village of Devran, his squad of seventeen or eighteen men had taken up position round the shelter during the night. The squad had split into two as a precaution. Owing to the weather (snow) and the darkness, the only thing they had been able to see was a light about two hundred metres ahead of them. They did not know that they were on a mining site. They had been fired on for two or three minutes. He had not been able to tell where the shots came from. He remembered that they came under fire from Kalashnikovs and shotguns. The squad commander, İsmail Çağlayan, an infantry lieutenant, had ordered his men to fire warning shots in response, and the whole squad had done so. About three or four series of warning shots had been fired. No verbal warning by loud hailer had been given. They had thought they were up against terrorists. When day broke, the witness, his lieutenant and two other members of the squad had approached the shelter. They had then seen the presumed terrorist lying dead on the ground. The body was about fifteen to twenty metres away from the shelter. There was no gun beside it. They had then enquired by radio if anyone had shot at this man and were told that no one had. In the shelter, they had found three shotguns, a large number of cartridges from those guns, medical supplies (dressings and bandages) and provisions (rice, sugar and flour). The witness emphasised that there had been a large quantity of these supplies and foodstuffs (enough to last a family for about two years), as was the case in PKK militants’ hideouts in the Cudi mountains. 34. According to the witness, no member of the squad could have shot the victim. In support of that assertion he cited the distance between the squad members and the victim (about two hundred metres), the weather (snow) and the rules governing such operations, which forbade shooting to kill. None of the squad had admitted firing in the direction of the victim. The witness stated that the squad had had infra-red sights, which were used to locate moving targets in the dark. 35. The witness said that he had not been informed that there were coal-mines at the location or that night-watchmen were on duty there. He deduced from this that the persons who had tipped them off about the presence of terrorists had wanted to have the army blamed. He explained that the Cudi mountains were one of the PKK’s favourite haunts. In his view, there was no difference between the mine watchmen’s shelter and those habitually used as hideouts by the PKK. He added that revealing the identities of the soldiers who had taken part in such operations could put their lives at risk. 36. At the material time this witness (born in 1969) was doing his national service and was a corporal. He was in his thirteenth or fourteenth month of military service. As a member of the squad which carried out the operation, he was an eyewitness and one of the six people who signed the incident report of 24 December 1990. 37. The witness stated that, following a tip-off, his squad had gone on an operation in the mountains to try to ambush some PKK members before daybreak. The squad had comprised eighteen men under Lieutenant İsmail Çağlayan, a regular soldier. The men had seen light coming from a shelter. Before dawn his fellow squad members had seen a man come out of the shelter and run off. Lieutenant Çağlayan had shouted to him to surrender. Shotgun and Kalashnikov fire had broken out. The witness had left his position, climbed a hill and found himself in a small wood. He had looked up and the man who had been running away had fired a Kalashnikov at him. The witness had fled, then pulled himself together and returned to his position with his squad. He stated that another member of the squad had pointed his loaded gun at him and that he had had to call out to make him lower it. There had been more gunfire. Lieutenant Çağlayan had given further verbal warnings in the terrorists’ direction and two or three men had come out of the shelter. One of the terrorists had been killed or wounded. In the shelter they had found large quantities of medicines, dressings, etc. 38. According to the witness, only one member of the squad had fired a warning shot into the air, on the commanding officer’s orders. Asked about Mr Akay’s statement that all the members of the squad had fired warning shots, the witness said that it was possible and that he did not remember exactly who had fired. Nor could he remember whether the commanding officer had used a loud hailer. He stated that he himself did not hear the order to fire warning shots, as the soldiers, who were lying on the ground, were more than fifty metres apart. The whole squad was spread out in a line made up of eighteen soldiers, each fifty metres apart. He was told by his nearest colleague in person, not by radio, that a warning shot had been fired. The distance between the soldiers and the shelter was about 800 to 1,000 metres. 39. The witness did not remember whether the victim had been armed. He had a vague recollection of a shotgun being found either near the victim or in the shelter. He was not sure whether there had been other weapons in the shelter. They had not found any Kalashnikovs at the scene but had thought that the terrorists had taken them with them when they fled. The witness said that he would not recognise the sound of a Kalashnikov but that officers would. Nor did the witness know what bullet had hit the victim. He stated that any warning shots fired by the military could not have hit the victim, because they had been fired into the air. According to him, it was certain that shots had been fired from the area of the shelter as they were tracer bullets, so that he had been able to see them and determine where they were coming from. The witness said that it was not until daybreak that he had seen the industrial plant and realised that he was on the site of a coal-mine. 40. This witness (born in 1946) is a lieutenant-colonel in the gendarmerie and at the material time was the head of intelligence and public safety at the gendarmerie headquarters in the town of Şırnak. He said that he had been appointed by the governor as investigating officer to carry out an investigation some two weeks after the incident had taken place. 41. His account of the events was as follows. The security forces had been informed that a wounded PKK terrorist had taken refuge in the area. They had fired warning shots in the direction of Musa Oğur, whom they believed to be a terrorist. Then the security forces, together with about fifty-four of the security guards employed to protect the Şırnak coal-mines, who were on the site, had opened fire. However, they had had no intention of killing the victim, or else he would have been hit by more than one bullet. Their intention had been to arrest a suspect whom they believed to be trying to escape. It was an accident that the victim had been hit by one of the warning shots. The victim was hit in the back of the neck, that is to say, according to the witness, where someone would be hit if running away in defiance of warnings. The security forces were spread out to the right and left of the shelter and in front of it. 42. According to the witness, in circumstances such as those in the case in question, the security forces were under orders to give a suspect at least three verbal warnings; they used a loud hailer to warn him orally and to order him to stop. If the suspect failed to obey, he had to be neutralised without the use of a firearm, by means of a rifle butt, bayonet or physical restraint. In the instant case there had been a considerable distance between the suspect and the security forces, and the latter had accordingly been compelled to fire warning shots into the air to make him stop. The witness acknowledged that the public prosecutor had recorded that shots had been fired at the victim with the intention of stopping him. His response was that the shot had not been intended to kill. He asserted that in the circumstances in which the incident had occurred (snow, fog and darkness) it was technically impossible to hit a target without night sights. He acknowledged that infantry units like the ones that had been deployed were equipped with infra-red field glasses enabling them to see in the dark. According to him, these were used to observe the terrain, however, and not to pinpoint targets. The witness stated that the security forces, the security guards from the Şırnak coal-mines and the mine watchmen were armed with G3 rifles. They were also entitled to shotguns. According to him, none of the shotguns found at the scene had been entered in the gun-licence register. 43. The witness stated that he had carried out his investigation on the basis of the documents drawn up for the purposes of the preliminary investigation (the incident report, the public prosecutor’s decision that he had no jurisdiction, the post-mortem report, etc.) and the oral evidence of two of the mine watchmen, Salih Zeyrek and Salih Oğur, whom the governor had identified. He did not visit the scene of the incident. He said that he had not considered it necessary to identify the members of the security forces who had taken part in the operation. He had not questioned any of them, because there had been so many of them and, in addition, village guards and fifty-four other members of the security service of the Şırnak coal-mines. Nor had he considered it necessary to interview the people who had signed the incident report, although he admitted that that report gave the name or number of the squads participating in the operation and that he could have called the members of those squads in for questioning by applying to the gendarmerie brigade commander. He had not identified the village guards who had taken part in the operation. He had not requested ballistic tests, because he had relied on the incident report and because about two weeks had elapsed since the events. The witness admitted that the finding in his report that warning shots had been fired had been based on the incident report. He had not seen any need to interview the six members of the security forces who had signed the incident report because, although he acknowledged that they had been eyewitnesses, he had thought that there was no point in questioning them since it had still not been proved that they had fired. 44. This witness (born in 1952) was in post at Siirt in December 1990. In 1991, as deputy governor of Şırnak, he chaired, in place of the governor, the Şırnak Administrative Council which on 15 August 1991 decided that the members of the security forces had no case to answer. He did not himself visit the scene of the incident. 45. The witness described as follows the rules governing the prosecution of civil servants. The governor appointed an investigating officer, who gathered all the evidence and submitted his findings to the Administrative Council. The case was considered at a meeting of the Administrative Council, during which each member of the Council made comments. The investigating officer did not attend that meeting. The decision whether or not criminal proceedings should be brought was taken by a majority. That decision was referred to the Supreme Administrative Court, which upheld or quashed it after studying the case file. The special rules governing criminal proceedings against civil servants applied in regions in which a state of emergency was in force. A state of emergency was declared by due democratic process, by a majority vote in the National Assembly. 46. The witness admitted that it was possible to find out the names of the commanders of squads carrying out such operations. He said that the security forces open fire only in self-defence. 47. In 1991 this witness (born in 1949) was Director of Public Health for Şırnak. He was a member of the Şırnak Administrative Council which on 15 August 1991 decided that there was no case to answer. He did not himself visit the scene of the incident. 48 He explained that the Administrative Council based its decisions on the documents already placed in the case file by the investigating officer (appointed by the governor) and was not strictly empowered to carry out its own investigation. It was the governor who had the duty and the power to investigate. The members of the Administrative Council were all subordinate to the governor. The Administrative Council generally met once a month, although sometimes there was no meeting. In that event the governor distributed the draft decision to the Council members for signature. When the Council did meet, it was chaired by the governor or his representative. The Council Secretary read out the case file. The members of the Council could examine the documents in the file. They were then invited to make comments and to sign the draft decision. In theory they could disagree with the conclusions proposed by the governor. Those who were not persuaded of the correctness of the conclusions could ask for further inquiries to be made. But ultimately the procedure was based on trust in the governor. Either the members were convinced and signed the decision or they were replaced by others who were willing to sign it. In practice, it was out of the question for the decision in the form proposed by the governor not to be signed. 49. The witness acknowledged that the decision in the instant case had not been a ruling that there was no case to answer but rather a decision not to bring criminal proceedings against civil servants and not to transfer the case file to the prosecutor for further investigations to be carried out with a view to identifying the probable culprits. He had not been informed of the outcome of the case. He stated that the gendarmerie knew the identity of the commanding officer of every operation carried out by the security forces at the coal-mines. 50. The following witnesses were also summoned by the Commission but did not appear: Mrs Sariye Oğur, the applicant and the victim’s mother; Mr Naif Zeyrek, Mr Salih Zeyrek and Mr Salih Oğur, watchmen at the mine; and other members of the security forces who had taken part in the operation on 24 December 1990. 51. 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 brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences 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). 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 duty is liable to imprisonment. 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). 52. 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), which is chaired by the governor, to conduct the preliminary investigation and, consequently, to decide whether to prosecute. In the instant case the presiding governor had under his command the security forces that carried out the operation in issue. 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. 53. 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 (see paragraph 52 above) also applies to members of the security forces under the governor’s authority. 54. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 51 above) or with the offender’s superior. 55. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 56. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities shall be subject to judicial review. ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 57. Article 8 of Legislative Decree no. 430 of 16 December 1990 specifies in this connection: “No criminal, financial or legal liability may be asserted against … the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” Additional section 1 of Law no. 2935 of 25 October 1983 on the state of emergency provides: “… actions for damages in respect of the exercise of powers conferred by this statute shall be brought against the administrative authorities in the administrative courts.” 58. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations). | 1 |
train | 001-93333 | ENG | POL | CHAMBER | 2,009 | CASE OF WOZNIAK v. POLAND | 4 | Violation of Article 5 - Right to liberty and security | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1968 and lives in Gdańsk. 6. On 20 July 2001 the applicant was remanded in custody by the Gdańsk Regional Court on suspicion of murder. The court held that there had been a risk that the applicant might obstruct the proceedings or abscond, given the severity of the penalty he faced. 7. Later, several other persons were detained and charged in connection with the same investigation conducted by the Gdańsk District Prosecutor’s Office. The charges against the applicant were also extended. 8. The applicant’s detention was subsequently prolonged on the following dates: 11 October 2001, 10 January, 18 April, 17 September 2002, 28 January, 2 July, 1 October, 30 December 2003, 3 February, 21 April, 7 December 2004, 24 February, 9 June 2005, 29 May and 21 September 2006. The courts relied mainly on the reasonable suspicion that the applicant had committed the offences in question and on he might obstruct the proceedings. Regard was also had to the number of suspects and the need to obtain further evidence. 9. During the investigation and the trial the applicant filed several unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. 10. From 20 March 2002 until 9 May 2002 and from 17 February 2003 until 18 March 2003 the applicant served prison sentences imposed in other sets of criminal proceedings against him. 11. On 14 June 2004 the Gdańsk Regional Court delivered a judgment in the case. The applicant appealed. 12. On 24 February 2005 the Gdańsk Court of Appeal partly quashed the first-instance judgment in respect of the applicant, sentenced him to 6-years’ imprisonment in respect of some of the charges, and remitted the remainder of the case for retrial. 13. Between 2005 and 2007 the Gdańsk Regional Court held fourteen hearings in the case. 14. The applicant was released on 14 May 2007. The Gdańsk Regional Court found that the necessary pieces of evidence had been obtained and the case was at its final stage, so there was no need to prolong the applicant’s detention. 15. The proceedings are pending. 16. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated 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. | 1 |
train | 001-114464 | ENG | HUN | COMMITTEE | 2,012 | CASE OF CSERJÉS AND OTHERS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Paulo Pinto De Albuquerque | 4. Upon a private company’s request, in May 1996 L. K., a forest engineer employed by the company, made an estimation of the amount of damages caused to the company’s territory by wild animals under the responsibility of a hunting society. Subsequently, on 1 August 1996 the company brought an action in compensation against the hunting society, the members of which were the applicants. 5. In March 1997 the hunting society was dissolved. The proceedings were discontinued on 10 June 1997, pending the identification of successors to the proceedings. 6. On 6 March 1999 the proceedings continued, as the plaintiff designated the applicants as successors to the proceedings. 7. The Kiskőrös District Court appointed an expert, J. K., to establish the value of the hunters’ house. The expert filed an opinion on 30 November 2000. 8. On 9 July 2003 the Kiskőrös District Court found for the plaintiff. This judgment was quashed by the Csongrád County Regional Court on 23 February 2005. 9. In the resumed proceedings, due to the bias declared by the judges in Bács-Kiskun County, the case was heard by the Szeged District Court. The court requested L. K. to submit a further expert report to establish the amount of damages caused. He filed an opinion on 24 January 2006. 10. On 3 March 2006 the first-instance court gave judgment, finding for the plaintiff. The applicants appealed, arguing - among others - that they had not received the copy of minutes of the hearing of 28 October 2005 on time, and questioning the impartiality of L. K. 11. On appeal, the Csongrád County Regional Court upheld the District Court’s judgment. Concerning the minutes of the hearing, the second-instance court pointed out that the District Court had no legal obligation to send them the minutes automatically. They had the options of requesting copies either by post or in person at the court. The applicants had requested the copies for the first time on 11 January 2006, following which the court had sent the minutes on 13 January 2006 despite the fact that the applicants had not paid the copy fees. The delivery of the mail sent according to the rules had not been successful. Following the repeated request of the applicants on 16 February 2006, the copies had been sent once again on 21 February 2006. Moreover, the court pointed out that the respondents had been present at the hearing, where they had the opportunity to take notes, and could have submitted observations within eight days to L. K.’s expert report, delivered to them on 13 February 2006. As to the impartiality of L. K., the court emphasised that he had been the only expert to see the damages on-site in 1996. Ten years after the occurrence of the damages, appointing a further forensic expert to proceed on the basis of documentary evidence would have been futile in the court’s opinion. In addition, L. K. had followed the court’s instructions when preparing the expert report. 12. The applicants lodged a petition for review with the Supreme Court, which upheld the final judgment on 10 May 2007. This decision was served on the applicants on 14 June 2007. | 1 |
train | 001-109286 | ENG | GBR | ADMISSIBILITY | 2,012 | TABBAKH v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Hassan Tabbakh, is a Syrian national who was born in Aleppo, Syria in 1969 and is currently detained in HMP Woodhill, Milton Keynes. His application was lodged on 21 July 2009. He was represented before the Court by Mr H. Miller of Birnberg Peirce Solicitors, a lawyer practising in London. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. After obtaining a degree in physics and mathematics from Aleppo University, Syria, the applicant became a mathematics teacher. 4. In 1999 the applicant was arrested by Syrian Military Intelligence. He was detained for approximately one month before being released without charge. During this period of detention he alleges that he was tortured. According to the applicant, he was repeatedly punched in the face and body while bound and blindfolded; he was knocked unconscious; he was attached to a wheel and beaten on his face, hands and feet with an electric cable; he was electrocuted with electrodes attached to his arms and legs; and he was hung from the ceiling and sexually tortured. 5. In 2000 the applicant fled Syria. In November 2001 he arrived in the United Kingdom and claimed political asylum. It was accepted that he had a well-founded fear of persecution if returned to Syria and in July 2005 he was granted Indefinite Leave to Remain in the United Kingdom as a refugee. 6. On 18 December 2007 the applicant was arrested at his home. Following a search of the applicant and his home, police officers found a plastic bag containing three plastic bottles, each containing a liquid and a solid mixture, a handwritten document in Arabic with diagrams, two bags of fertilizer pellets, two bags containing small pieces of aluminium foil, an MP3 audio player, a desktop computer and a USB memory stick. An analytical chemist confirmed that the contents of the bottles were flammable. Although incapable of causing an explosion, had the applicant used higher grade ingredients, he might have been able to construct a viable bomb. A translation of the Arabic document appeared to give instructions on the construction of an improvised explosive device. The audio player and computer devices were found to contain some Islamist material of an extremist nature. 7. The applicant was interviewed at length by police. He denied trying to make a bomb or that he had a terrorist purpose. He claimed that he was trying to make fireworks for the Eid festival at the end of Ramadan and that the Arabic instructions were for a friend who was going to test the fireworks. 8. Between 17 and 30 July 2008 the applicant stood trial before a judge and jury at Birmingham Crown Court. He was charged with one count of preparing a terrorist act contrary to section 5 of the Terrorism Act 2006. The prosecution case was that the applicant had been trying to make a bomb with the intention of committing an act of terrorism or assisting someone else to do so. 9. The applicant did not give evidence. He called a number of witnesses, including Dr Dene Robertson, a consultant psychiatrist who specialised in the treatment of torture victims. Dr Robertson concluded that the applicant was suffering from severe post-traumatic stress disorder and moderately severe depression. His symptoms included severe anxiety, loss of energy, loss of self-esteem, loss of appetite, feelings of guilt, recurrent thoughts of death, frequent angry outbursts, paranoia, difficulty concentrating, persistent flashbacks, vivid memories and recurrent nightmares of his torture. Furthermore, Dr Robertson noted that the applicant had been consistently self-harming whilst in custody at Belmarsh and Woodhill prisons and during his trial. He had made significant attempts to cut the arteries in his arms. He also had minor lacerations to his forearms and minor scratching to his throat. 10. Dr Robertson identified three reasons why he considered that it would be undesirable for the applicant to give evidence. First, he believed it likely that the applicant would become so hyper-aroused when being questioned by someone perceived to be hostile that he would lose selfcontrol. Frequent angry outburst during cross-examination by the prosecution could prejudice the jury against him. Secondly, the stress of giving evidence might lead to an inability to concentrate and remember which would impair his ability to answer questions appropriately. This could have a direct impact on the quality of his evidence. Thirdly, the stress of giving evidence would almost inevitably result in an increased risk of significant self-harm. 11. Although the applicant had refused to co-operate with Dr Cumming, the consultant psychiatrist instructed by the prosecution, Dr Cumming agreed that the applicant suffered from post-traumatic stress disorder. However, he was unable to form any opinion one way or another about the undesirability of the applicant giving evidence. 12. Following the close of evidence, the applicant made an application pursuant to sections 35(1)(b) and 35(3) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that the judge should rule that it was undesirable for the applicant to give evidence due to his medical condition and, consequently, that the judge should not direct the jury that they might draw such adverse inferences as appeared proper from the failure of the applicant to give evidence. 13. The judge accepted that the applicant suffered from post-traumatic stress disorder, largely as a result of being tortured in Syria, and that he would find it difficult to be questioned by anyone he perceived as hostile. He also accepted that the applicant had been self-harming for some time, and that the stress of giving evidence could well lead to an increased risk of self-harm. Nevertheless he refused the application and held that it was not undesirable for the applicant to give evidence. He did not accept that the applicant’s presentational problems would seriously prejudice the jury and he did not consider there to be a significant risk that the applicant would forget the basic chemistry or physics which the case involved. Moreover, the judge noted that in view of the importance of the applicant’s evidence to the case, he could not conclude that his psychiatric problems made it undesirable for him to give evidence, even if it resulted in an increased risk of self-harm. 14. The judge noted, however, that it was for the jury to reach a decision as to whether they should draw an adverse inference against the applicant or not. In his summing up, he directed the jury as follows: “The second matter which arises from his silence is that it could count against him. It doesn’t have to but it could. This is because you could come to the conclusion that he has not given evidence because he has no answer to the prosecution’s case, or at least none that would stand up to being tested by cross-examination. If you do draw that conclusion against him you must not convict him wholly or mainly on the strength of it. You must look for other evidence of guilt and use his failure to give evidence as some additional support for the prosecution case. It can’t stand alone, but it can support something else. You should only draw this conclusion against him if you think it is a fair and proper conclusion to draw. If it is not a fair and proper conclusion to draw, then you should not hold his silence against him in any way at all. And before drawing that conclusion against him you must also be satisfied about two things. The first is that the prosecution’s case is so strong that it clearly calls for an answer from him. The reasoning is that if the prosecution’s case is nothing, if you add nothing to it you are still left with nothing, so there has to be a case against him on the prosecution evidence which calls for an answer. The second element is that the only sensible explanation for his silence is that he has no answer to give or at least not one which would stand up to cross-examination. In this case the defence suggest that there is a different reason why he has not given evidence, namely, that he has a mental condition which would affect him as a witness if he gave evidence in three ways: firstly, that there is a real risk that he would lose his self-control and end up giving a bad impression of himself in the witness box; secondly, that the stress of giving evidence may mean that he can’t concentrate on what he’s saying, may forget things that he wanted to say. The third element is that the stress of giving evidence would result in an increased risk of him causing harm to himself: self-harming. So there are those three strands to the defence explanation, reason, why he has not gone into the witness box. I will come back to the detailed evidence about those matters in just a moment or two, but if you accept the defence explanation for his not giving evidence and you think that this amounts to a reason why you should not draw any conclusion against him from his silence then do not do so. Otherwise, subject to what I have said, you are entitled to draw a conclusion against him from his silence if you think it is a fair and proper conclusion to draw.” 15. The judge then summarised the medical evidence in some detail for the jury. In the transcript of his summing up, this summary exceeded ten pages. 16. On 30 July 2008 the jury convicted the applicant and the judge sentenced him to seven years’ imprisonment. The judge reduced his original sentence of eight years to take account of the applicant’s serious mental health condition. 17. On 14 January 2009 the applicant was granted leave to appeal against his conviction. On 3 March 2009 the Court of Appeal dismissed the appeal. The court noted that: , one can see that if the only issue to which his evidence could go was one of very peripheral significance the judge would be entitled to take that into account in concluding that it was undesirable for him to give evidence. In the present case reading the judge’s ruling as a whole, it is perfectly clear to us that the judge ruled that the risk of self-harm was not such in his judgment to make the giving of evidence undesirable and he went on to add that it did not become undesirable because any evidence that the defendant might give would be of insignificant relevance. That approach was, we are satisfied, one which the judge was quite entitled to take. We agree with the broad conclusion of Stanley Burnton J (as he then was) in R (on the application of Director of Public Prosecutions) v Kavanagh. The question posed by section 35 is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from some (his and our emphasis) physical or mental condition; it must be a mental condition which is such to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a Crown Court trial by the jury. The purpose of section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence. In this case the evidence was by no means all one way, even though the factual background abroad was accepted. The judge had ample material on which to reach the conclusion that he did. Having reached that conclusion, it remained of course for the jury to decide whether in its judgment it was right to draw any adverse inference against the defendant. No one here can know whether the jury did draw such an inference or not. But what is clear is that the judge left the whole history and all the medical evidence to the jury with punctilious care over ten pages of summing-up, as he did the possible contra-indications for which the Crown had argued. In other words the question was properly left to the jury. There is not and could not be any criticism of the terms of the summing-up. The question which matters in this appeal, as Mr Menon has helpfully put it, depends upon whether the judge’s original ruling was flawed. It was not, we are satisfied, and in those circumstances the appeal against conviction must be dismissed.” 18. The Court of Appeal held that here was no point of law of general public importance to certify. Consequently, the applicant was refused leave to appeal to the House of Lords. 19. Section 35(1) – (3) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) provides that: “(1) At the trial of any person ... for an offence, subsections (2) and (3) below apply unless— (a) the accused’s guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence. (2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” 20. In R (Director of Public Prosecutions) v. Kavanagh [2005] EWHC 820 (Admin) the Administrative Court gave guidance as to the test to be applied when considering section 35(1)(b) of the 1994 Act. Stanley Burnton J (as he then was) held that: “The court before whom a criminal trial takes place undoubtedly has a wide discretion in deciding on the issue to which subsection (1)(b) refers; that is to say, whether the physical or mental condition of the accused makes it undesirable for him to give evidence. Two things, however, are to be noted. The first is that there must be an evidential basis for any determination by the court that it is undesirable for the defendant to give evidence (see R v Cowan). A statement or a submission by an advocate does not constitute evidence at all, let alone the kind of evidence on which a court can properly conclude that it is undesirable for a defendant to give evidence. The second point is that it is not sufficient that the defendant suffers from some physical or mental condition. The mental condition must be such that makes it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence, for example, is insufficient to justify a conclusion that it is undesirable for the defendant to give evidence. Many, if not most, difficulties that a defendant, or indeed any other witness, may have in giving evidence, are matters to be taken into account by the judge of fact, be it magistrates or a jury, in assessing the reliability of his evidence. It does not justify a comprehensive failure to give evidence. It may go as to the weight of evidence, not as to the decision whether or not it is undesirable for him to give evidence. Secondly, the court will draw an inference against a defendant in circumstances where, to use the language of the standard direction, (a) the prosecution’s case is so strong that it clearly calls for an answer by him, and (b), that the only sensible explanation for his silence is that he has no answer or none that would bear examination.” | 0 |
train | 001-69352 | ENG | POL | CHAMBER | 2,005 | CASE OF KRASUSKI v. POLAND | 1 | No violation of Art. 6-1;No violation of Art. 13 | Nicolas Bratza | 10. The applicant was born in 1934. He died on 30 December 2004. He lived in Zielona Góra, Poland. 11. In July 1994 the applicant and his wife concluded a contract with E.W. and W.W., the owners of a company W. Under that contract the company was to carry out building work on the applicant’s house. On 24 November 1994 the applicant, considering that the company was in breach of the contract, withdrew from it. 12. On 1 February 1996 the applicant and his wife (“the plaintiffs”) sued E.W. and W.W. in the Zielona Góra Regional Court (Sąd Wojewódzki), seeking compensation for the serious damage to the house allegedly caused by the defendants. 13. On 13 March and 27 June 1996 the court held hearings and heard evidence from witnesses. 14. On 24 July 1996 the court instructed Poznań Technical University (Politechnika Poznańska) to prepare an expert report. The report was submitted to the court on 4 November 1996. The defendants challenged the report on 2 December 1996. 15. At a hearing on 23 December 1996 the Regional Court ordered the experts to revise their report. On 26 January 1997 they upheld their original conclusions. 16. On 17 July 1997 the plaintiffs modified their claim. 17. The court held a hearing on 29 October 1997. 18. On 31 March 1998 the court ordered the experts to supplement their report. 19. The parties filed their pleadings in March, April and October 1998. 20. On 4 November 1998 the court held a hearing. The Government maintained that in the course of the hearing the plaintiffs had modified their claim. The applicant contested this. 21. On 19 November 1998 the court gave judgment and dismissed the claim. The plaintiffs appealed. 22. On 18 May 1999 the Poznań Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case to the Regional Court. 23. On 30 September 1999 the Regional Court held a hearing. It decided to obtain a fresh expert report. In the meantime, the applicant had made two unsuccessful applications for his claim to be secured. 24. On 20 February 2000 the expert report was submitted to the court. 25. At the hearing held on 9 May 2000 the court heard evidence from the expert. 26. The Government submitted that on 16 May 2000 the plaintiffs had altered the amount of the damages they had sought. Subsequently, they applied for an exemption from the court fee due for the increased claim. On 12 October 2000 the court refused their application. That decision was later upheld by the Poznań Court of Appeal. The applicant denied that they had altered their claim. 27. On 28 February 2001 the plaintiffs again unsuccessfully applied for an exemption from payment of the court fee for the increased claim. Eventually, on 16 March 2001, the particulars of that claim were returned to them on account of their failure to pay the fee. 28. The Government maintained that at the hearing held on 8 May 2001 the plaintiffs had increased their claim and had stated that they would not seek an exemption from the court fee. However, on 4 June 2001 the particulars of the amended claim were again returned to them on account of their failure to pay the fee in question. 29. The applicant stated that this was not true. He maintained that, in a pleading of 11 May 2001, after the experts had again revised their valuation of the damage sustained, he had indeed extended the amount of the damages sought to 300,000 Polish zlotys (PLN), mostly because he had been forced to do so by the court. He had also sought an exemption from court fees since to do otherwise would have been illogical. 30. A hearing scheduled for 12 July 2001 was adjourned at the plaintiffs’ request. A subsequent hearing was held on 6 September 2001. 31. On 4 October 2001 the court heard evidence from the parties and closed the trial. On 11 October 2001 it gave judgment, awarding the applicant PLN 50,000 plus statutory interest. 32. On 30 November 2001 the applicant appealed against the judgment. Shortly afterwards, on 10 December 2001, the Regional Court ordered him to rectify the formal shortcomings in his appeal. On 8 January 2002 the applicant applied for an exemption from the court fees for lodging the appeal. The Regional Court rejected his application on 23 January 2002. The applicant unsuccessfully appealed against the refusal; eventually, he paid the court fees on 22 February 2002. 33. On 20 June 2002 the Poznań Court of Appeal heard, and dismissed, the applicant’s appeal. Since the applicant refrained from lodging a cassation appeal (kasacja) with the Supreme Court, the judgment became final on that day. 34. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” 35. Article 418 of the Civil Code, as applicable until 18 December 2001 (see paragraphs 38-39 below), provided for the following exception in cases where damage resulted from the issuing of a decision or order: “1. If, in consequence of the issuing of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issuing of the decision or order and if that breach is the subject of a criminal prosecution or a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the person’s superior. 2. The fact that such guilt has not been established by means of a criminal conviction or a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of a [statutory] bar to prosecution or disciplinary action.” 36. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision being made for the State’s tortious liability for its omission to enact legislation, a concept known as “legislative omission” (zaniedbanie legislacyjne) – they are also to be seen in the context of the operation of a new statute introducing remedies in respect of the unreasonable length of judicial proceedings (see paragraphs 38-41 below). Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “3. If damage has been caused by failure to give a ruling [orzeczenie] or decision [decyzja] where there is a statutory duty to do so, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless other specific provisions provide otherwise.” 37. However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 34 above) applies to all events and legal situations that subsisted before that date. 38. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Article 64 and Article 77 § 1 of the Constitution (see paragraphs 41-42 below). On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful actions of State officials in the performance of their duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage to the personal culpability, established in criminal or disciplinary proceedings, of the State official concerned. 39. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant: “The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for the actions of a public authority consisting in the issuing of unlawful decisions or orders will follow from the general principles on State liability as laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other principles on State liability, as laid down in specific statutes, and not necessarily only those listed in the Civil Code.” 40. Article 45 § 1 of the Constitution states: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” 41. Article 64 of the Constitution reads: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. 3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.” 42. Article 77 § 1 of the Constitution reads: “Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.” 43. 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 party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act. Section 2, in so far as relevant, reads as follows: “1. Parties... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).” Section 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 44. Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5(1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.” 45. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.” 46. Section 18 of the 2004 Act lays down the following transitional rules in relation to applications already pending before the Court: “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, as 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. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court. 3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.” | 0 |
train | 001-90243 | ENG | UKR | ADMISSIBILITY | 2,008 | PLYATSEVYY v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych | The applicant, Mr Denys Oleksandrovych Plyatsevyy, is a Ukrainian national who was born in 1985 and lives in Kamyanets-Podilsky. He is represented before the Court by Mr I.A. Melnyk, a lawyer practising in Kamyanets-Podilsky. The respondent Government are represented by their agent, Mr Y. Zaytsev. In January 2002 Mr V.L. complained to the police that the applicant had taken several hundred U.S. dollars from V.V., his minor son, as well as giving V.V. some forged dollar bills. On 23 February 2002 criminal proceedings were instituted against the applicant. In summer 2002 the police also received complaints from other minors, who alleged that on various occasions the applicant had extorted from them or robbed them of petty cash and various objects, such as an ice-cream cone or a school bag. Having found out about these complaints, the applicant’s mother, cousin, and, according to contested accounts of some minors, his advocate, visited the complainants’ families. On several occasions the applicant’s mother returned to the families the amounts of money claimed to have been stolen by the applicant. According to some records, she also returned the stolen school bag to R.G., one of the minors. According to other records, she gave R.G. a bag which simply resembled his. Following these visits, in August 2002 S.S., one of the complainants, as well as parents of three other complainants (O.L., I.D. and S.Z.) informed the police that their complaints against the applicant had been written under duress on behalf of the police officers. In spite of these submissions, on 26 August 2002 new charges of extortion and robbery were brought against the applicant. In September 2002 the applicant was further charged with hooliganism. In particular, he was accused that in August 2002 jointly with L.L. he had beaten S.R. in a public place. During the pre-trial investigation, twelve minors, including those whose parents had attempted to retract their complaints in August 2002, testified that the applicant had extorted from them or robbed them of their money and possessions. On 29 October 2002 the applicant and L.L. were committed to the Podilsky District Court (Подільський міськрайонний суд Хмельницької області, “the District Court”) for trial. On 25 November 2002 the District Court allowed the requests submitted by minors S.S., O.P., S.Z. and the parents of O.L., O.P., R.G. and I.D. to hold hearings in camera, in view of pressure purportedly exerted on them by the applicant’s entourage to retract their allegations. In the course of the hearings, the District Court questioned V.V. and his father, who confirmed their earlier testimonies that the applicant had taken several hundred dollars from V.V. and given him some forged bills. Five other minors (I.D., O.L., O.P., S.S. and S.Z.) confirmed their testimonies given to the police concerning petty extortion and robbery. O.L., S.Z. and I.D. corroborated each other’s statements concerning some of the episodes. The parents of O.P., S.S. and S.Z. corroborated the statements of their children and explained that the children had earlier complained to them on several occasions about the applicant’s conduct. The mother of R.G., the seventh minor, who was absent from the courtroom, spoke before the court in support of her son’s testimony given to the police concerning the theft of a school bag and several episodes of petty extortion. Those individuals who had earlier attempted to retract their accusations against the applicant contended before the court that they had done so under pressure from the applicant’s entourage. The judge further announced that another five minors, who had been questioned by the investigation under pseudonyms, had lodged requests to be dispensed from attendance at the hearings for fear of reprisals by the applicant’s entourage and that in these requests they had confirmed their earlier statements given to the police. The judge then read out the depositions given before the police by these minors, and other documentary evidence. According to the case file materials, the applicant, represented by the lawyer, did not question or challenge these testimonies before the District Court. Further, the District Court heard L.L. (the applicant’s co-accused on the charge of hooliganism) and some thirty other witnesses, who gave details predominantly concerning the beating of S.R. and V.V.’s character. On 10 December 2002 the District Court found that the applicant was guilty of some seven counts of robbery and eight counts of extortion in respect of the injured parties who had been examined in the courtroom. It further found that the applicant was guilty of three counts of robbery and six counts of extortion in respect of the victims whose identities had been concealed. The court finally designated the applicant’s actions as repeated robbery and extortion and sentenced him to three years’ imprisonment for each of the offences. The court further found it unnecessary to add up the two full terms and determined the final punishment as four years’ imprisonment. However, in view of the applicant’s age, other personal circumstances and the nature of his offences, the applicant was released from punishment subject to two years’ probation. The applicant, represented by a lawyer, appealed, seeking to be acquitted. He pleaded that the case had been falsified by the police in retaliation for his mother’s complaints that he had been beaten during the first questioning, in January 2002. Hence the victims who gave evidence against the applicant at the trial had done so under threats from the police to institute proceedings against them for their own transgressions, as they were all on the police juvenile offenders’ register. The episodes in respect of the anonymous victims had been completely falsified. Moreover, the testimony of I.B., one of these alleged victims, was improbable, as on the date of the purported offence the applicant had not attended the school in which he had allegedly committed it. No specific challenge was raised to the accounts of events contained in the testimonies of other absentee victims. The applicant further challenged various details of the testimonies obtained during the hearings as unreliable. Lastly, he complained that the hearings had been held in camera. On 4 March 2003 the Khmelnytsky Regional Court of Appeal (Апеляційний суд Хмельницької області) upheld the judgment of 10 December 2002, having found no violation, in that the hearing had been held in camera and that the case file materials contained sufficient evidence to find the applicant guilty of repeated extortion and robbery of minors. The applicant appealed in cassation before the Supreme Court of Ukraine, raising essentially the same arguments as before the Regional Court. On 15 July 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. On 12 January 2004 the applicant and his mother instituted civil proceedings against the Kamyanets-Podilsky Police Department, seeking monetary compensation for the pecuniary and non-pecuniary damage allegedly suffered as a result of their unlawful actions when investigating the applicant’s case. On 16 March 2005 the District Court rejected the applicant’s claim. The applicant appealed. On 17 May 2005 his appeal was dismissed by the Khmelnytsky Regional Court of Appeal. On 15 January 2002 the applicant was taken by police officers to the police department, where he was questioned in connection with the case above. The applicant was allegedly put under pressure, threatened and beaten to make him confess; and he was released from the police only upon the arrival of his mother some eleven hours after his apprehension. On 17 January 2002 the applicant was examined by a court medical expert at his request. No injuries were recorded. According to the applicant, the expert refused to record injuries. On 28 February 2002 the applicant was examined by a doctor, who established that he was suffering from cerebral concussion, injury to the left kidney and hepatitis. It was only then that the applicant told his mother that he had been beaten by the police officers. On 19 March 2002 the applicant’s mother lodged a criminal complaint against the police officers for the alleged ill-treatment of her son. On 16 May 2002 the Kamyanets-Podilsky Prosecutor’s Office decided not to bring any charges against the police officers. It found, inter alia, that there was no evidence that the officers had committed the alleged offences, other than the applicant’s own allegations. Furthermore, regard being had to the lapse of time between the interrogation and the date on which the injuries were discovered by doctors, the injuries could have been sustained elsewhere. On 27 May 2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision and ordered the applicant to undergo an additional medical assessment and additional measures to be taken to find possible witnesses. On 2 July 2002 the applicant’s mother withdrew her complaint. She explained that she had lodged it because she had been upset about the initiation of criminal proceedings against her son. On 3 July 2002 the Kamyanets-Podilsky Prosecutor’s Office terminated the inquiry into the incident as a result of the applicant’s mother’s request. On 4 October 2002 the Khmelnytsky Regional Prosecutor’s Office annulled this decision, having found that not all measures ordered in its previous decision had been carried out. On 14 October 2002 the applicant was examined by a medical expert. He found that the applicant had no injuries at the time of the assessment. As regards the injuries recorded at the end of February, it was not possible to determine whether the applicant’s version of events was probable, on account of the lapse of time between the purported ill-treatment and his first application to a doctor and the further lapse of time before the present assessment. In light of the above, on 24 October 2002 the Kamyanets-Podilsky Prosecutor’s Office dismissed the applicant’s mother’s request for the institution of criminal proceedings. According to Section 186, repeated robbery is punishable by four to six years’ imprisonment. According to Section 189, repeated extortion is punishable by three to seven years imprisonment. According to Section 52-1, an injured party in the criminal proceedings may request security measures to prevent a real threat of harm to his life, limb or property. If this request is granted, according to Section 52-3, the injured party’s personal data may be replaced by a pseudonym in all procedural documents. According to Section 290, in exceptional circumstances the court may absolve an injured party, in whose respect security measures have been indicated, from the duty to appear for the hearings, if he submits a written statement that he confirms his earlier depositions. According to Sections 303 and 308, the parties may request cross-examination of a witness or an injured party who is absent from the courtroom for safety reasons, via a teleconference. To reduce the risk of identification of the voice of the witness (the injured party), acoustic distortion may be created. If it is not possible to organise a teleconference, the court may examine the witness (the injured party) in the absence of the defendant. The judge in this event is obliged to disclose his testimony to the defendant and to give him an opportunity to comment on it. The defendant and other parties to the proceedings may ask questions of the witness (injured party), which are answered in the absence of the defendant. Further relevant provisions of the Code concerning the rights of defence in respect of examination of witnesses can be found in the admissibility decision in the case of Khivrenko v. Ukraine (no. 65743/01, 25 September 2007). | 0 |
train | 001-106188 | ENG | UKR | COMMITTEE | 2,011 | CASE OF SOBOLEV v. UKRAINE | 4 | Violation of Art. 6-1 | Angelika Nußberger;Ganna Yudkivska | 4. The applicant was born in 1975 and lives in Chernigiv. 5. On 29 May 1998 he lodged a claim with the Desnyanskyy District Court of Chernigiv (“the District Court”) against the Ministry of the Interior seeking damages for injuries caused to him by its employee Mr O. 6. From 18 December 1998 to 22 July 1999 and from 23 September 1999 to 1 November 1999 the proceedings were suspended pending the outcome of criminal proceedings against Mr O. 7. Following two remittals of the case for fresh examination, on 19 May 2004 the District Court partly allowed the applicant’s claim and awarded him certain amounts in damages. 8. On 16 September 2004 and 30 April 2007 respectively the Chernigiv Regional Court of Appeal and the Poltava Regional Court of Appeal (the latter court acting as a court of cassation) upheld the above judgment. The decision of 30 April 2007 was served on the applicant on 14 August 2007. 9. According to the Government, in the course of the proceedings the applicant three times amended his claim. The courts adjourned fifteen hearings following the applicant’s requests or due to his and other parties’ failure to attend them. The applicant disagreed stating that he had not been informed of the hearings which he had not attended. Some twenty two hearings were further adjourned following other parties’ requests, their failure to appear or for unspecified reasons. | 1 |
train | 001-21927 | ENG | NLD | ADMISSIBILITY | 2,001 | POLAT v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant, Sadullah Polat, is a Turkish national of Kurdish origin, born in 1972 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. On 5 January 1999, the applicant and twelve others left İstanbul by truck. The applicant arrived in the Netherlands on 11 January 1999 and, on 12 January 1999, pursued his journey to Germany, where his brother was residing and where he wished to apply for asylum. On 12 January 1999, the applicant was apprehended by the German authorities and handed over to the Netherlands authorities, who placed him in detention in accordance with Article 19 of the Aliens Act (Vreemdelingenwet) in order to verify his identity, nationality and residence title. On the same day, after the applicant had filed a request for asylum or a residence permit on humanitarian grounds, he was subsequently placed in aliens’ detention (vreemdelingenbewaring) pending the determination of his asylum request, in accordance with Article 26 § 1 (c) of the Aliens Act. On 18 January 1999, the applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) sitting in ‘s-Hertogenbosch against the measure of his placement in aliens’ detention and requested his immediate release. On 21 January 1999, the applicant was interviewed by an official of the Ministry of Justice in relation to the grounds for his asylum request. On 2 February 1999, following a hearing held on 1 February 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the applicant’s appeal against his placement in aliens’ detention. It held that there were sufficient grounds to justify the applicant’s placement in aliens’ detention. In this respect it noted that, at the time of his placement in detention and to date, the applicant did not have a valid residence title, valid identity documents or sufficient means of existence. At the time of his apprehension, the applicant had further been in the possession of a false Turkish identity card and he had only applied for asylum after having been handed over by the German authorities to the Dutch authorities whereas he could have made such an application during his stay in the Netherlands prior to his departure to Germany. In these circumstances, the Hague Regional Court held that there were sufficient grounds to conclude that there were reasons to believe that the applicant would seek to find ways of avoiding his expulsion and that therefore he had rightly not been transferred to an ordinary asylum seekers centre. The Regional Court further held that the fact that the applicant had applied for asylum did not imply that there were no longer any prospects for his expulsion. This would only be the case if it was highly likely that his request for asylum would be granted. However, this did not appear to be the case. Noting that the applicant had been heard in relation with his request for asylum on 21 January 1999, that the court had been informed that a decision was expected at short notice and that, pursuant to Article 26 § 3 of the Aliens Act, a placement in aliens’ detention ends where a request for asylum is not decided upon within four weeks, the Hague Regional Court found that there were as yet realistic prospects for the applicant’s expulsion and that the authorities were sufficiently diligent in their activities aimed at his expulsion. The Hague Regional Court concluded that the applicant’s placement in aliens’ detention was in accordance with the relevant statutory provisions and, after having weighed all interests involved, could reasonably be regarded as justified. On 4 February 1999, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request for asylum or a residence permit on humanitarian grounds and ordered his expulsion from the Netherlands. The applicant was, consequently, placed in aliens’ detention for the purposes of his expulsion in accordance with Article 26 § 1 (a) of the Aliens Act. At some unspecified point in time, the applicant filed an appeal against the decision of 4 February 1999 with the Hague Regional Court sitting in ‘s-Hertogenbosch. He further applied to the Regional Court for an injunction on his expulsion pending the appeal proceedings. As he had been placed in aliens’ detention he was not required, like asylum seekers not placed in such detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. On 5 February 1999, the applicant filed a second appeal with the Hague Regional Court sitting in ‘s-Hertogenbosch against the measure of his placement in aliens’ detention and he requested that he be released immediately. On 23 February 1999, following a hearing held on 22 February 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the applicant’s second appeal against his placement in aliens’ detention. Noting that the lawfulness of this placement had already been determined in its decision of 2 February 1999, it limited its examination to the lawfulness of the applicant’s continued placement in aliens’ detention. It held that the fact that the applicant had applied for an injunction on his expulsion did not, as such, affect the lawfulness of his placement in aliens’ detention, since – pending the determination of this request – it could not be said that there were no prospects for his expulsion. This would only be the case where it was highly likely that an injunction would be granted. This had, however, not appeared to be the case. Noting that the State Secretary had requested the Hague Regional Court on 9 February 1999 to give priority to the applicant’s request for an injunction, the Regional Court stated on this point that it assumed that the request for an injunction would be dealt with in the near future. Noting further that the question whether the applicant could be expelled to Turkey with a second Turkish identity card submitted by him was in the process of being examined, the Regional Court held that there remained realistic prospects for the applicant’s expulsion and considered that it could not be held that the authorities were insufficiently diligent in their activities aimed at the applicant’s expulsion. The Hague Regional Court concluded that the applicant’s placement in aliens’ detention was in accordance with the relevant statutory provisions and, after having weighed all interests involved, could reasonably be regarded as justified. On 13 October 2000 and without providing further details, the applicant informed the Court that his request for asylum had been unsuccessful and that, on 31 August 1999, he had been released from aliens’ detention on the basis of a temporary suspension of the expulsion of Turkish nationals of Kurdish origin. Article 26 of the Aliens Act, insofar as relevant, provides: “1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained: a. aliens whose expulsion has been ordered; b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered; c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees. 2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so. 3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month. ...” An alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before the Hague Regional Court. Where the Hague Regional Court finds that there are no prospects for expulsion within a reasonable time, it can order that the measure of placement in aliens’ detention be terminated. It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control. Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127) There is no time-limit for the filing of an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point. | 0 |
train | 001-89854 | ENG | BGR | CHAMBER | 2,008 | CASE OF SLAVCHO KOSTOV v. BULGARIA | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 6. The applicant was detained on 16 September 1995 and was charged with aiding and abetting another individual to commit murder and attempted murder on the previous day, the 15th – the applicant had been in the car of the victim when the latter and his wife had been shot and was a close relative of the alleged murderer. The applicant was placed in pre-trial detention on the same day. 7. The applicant was released on 12 October 1995 and a restriction was placed on him not to leave his place of residence without the authorisation of the public prosecutor’s office. 8. On 16 December 1996 the Sliven regional public prosecutor’s office terminated the criminal proceedings against the applicant as unproven and lifted the restriction on his movement. 9. Between 16 September and 12 October 1995 the applicant was detained at the Sliven Regional Investigation Service detention facility. 10. The applicant contended that at this detention facility there had been (a) overcrowding, as he had been accommodated in a cell with another five detainees, (b) insufficient oxygen in the cell, (c) inadequate hygiene, as he had had no access to a toilet and all six detainees had had to drink from the same water container, (d) insufficient food, (e) no possibility for visits by friends or relatives, and (f) no access to newspapers or other media. He also claimed that as a result of having been detained in such conditions his selfesteem had declined and he had endured physical and psychological suffering. 11. On an unspecified date in 1999 the applicant initiated a civil action for damages against the Chief Public Prosecutor’s Office under section 2 of the State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”: renamed in 2006). He claimed that he had been charged with an offence which he had not committed, that on 16 September 1995 he had been detained for almost a month and that a restriction had then been placed on his movement for more than a year. The applicant also argued that he had had to endure physical and mental pain and suffering as a result of the unlawful criminal proceedings against him and the inadequate conditions of detention at the Sliven Regional Investigation Service detention facility. In addition, because of the prolonged restriction on his movement he claimed to have suffered loss of income as he had been unable to accept a job in Greece. The applicant sought 50,000 Bulgarian levs (BGN: 25,641 euros (EUR)) in compensation of which BGN 35,000 (EUR 17,948) represented compensation for pecuniary damage and BGN 15,000 (EUR 7,692) represented compensation for nonpecuniary damage. 12. In a judgment of 23 April 2001 the Sliven Regional Court found in favour of the applicant and ordered the Chief Public Prosecutor’s Office to pay him BGN 5,000 (EUR 2,564). This represented compensation for the non-pecuniary damage suffered by the applicant as a result of the unlawful acts and actions of the public prosecutor’s office during the period from 16 September 1995 to 16 December 1996 in charging him with aiding and abetting another individual to commit murder, holding him in pre-trial detention and then replacing it with a restriction not to leave his place of residence without the authorisation of the public prosecutor’s office. In reaching its decision, the Regional Court took into account the fact that the criminal proceedings and the associated restrictions imposed on the liberty and movement of the applicant had lasted for more than a year, which it found had caused him suffering and had brought about the break-up of his relationship with his fiancée. The court further found that he had been detained in “extremely harsh conditions” at the Sliven Regional Investigation Service detention facility, which it considered to have caused him physical and mental pain and suffering and to have had a negative effect on his dignity as he had been held in an overcrowded cell with another six individuals, without access to a toilet, bathing or any other facilities in order to maintain even basic hygiene, had been given food only once a day, had not been allowed visits by friends or relatives and had had no access to newspapers or any other media. The Regional Court also took note of a report by the paramedic at the said detention facility that the applicant had been healthy at the time of his arrival there, but had then developed an inflammation of the sciatic nerve accompanied by pain in the pelvis area and down the left leg. Lastly, the court found that the applicant’s reputation had been damaged as a result of having been unlawfully held in pre-trial detention and having had criminal proceedings initiated against him. The Regional Court dismissed as unsubstantiated the remainder of the claims in respect of pecuniary and non-pecuniary damage and, by applying section 10 (2) of the SMRDA, ordered the applicant to pay court fees of four percent on the dismissed part of his claim, which amounted to BGN 1,800 (EUR 923). 13. Both the applicant and the Sliven regional public prosecutor’s office appealed against the judgment. 14. In a judgment of 16 November 2001 the Burgas Court of Appeal reached similar conclusions on the facts of the case. It also found that the applicant had had a good reputation and no criminal record and that the criminal proceedings against him, his arrest and detention in inadequate conditions and the restriction on his movement had damaged his reputation and had caused him pain and suffering. Nevertheless, the Court of Appeal considered the amount awarded to be excessive and lowered the compensation for non-pecuniary damage to BGN 3,000 (EUR 1,538). It upheld the remainder of the judgment of the Regional Court and ordered the applicant to pay an additional BGN 80 (EUR 41) in court fees, proportionate to the additionally dismissed part of his claim. 15. The parties’ ensuing cassation appeals were both dismissed by the Supreme Court of Cassation on 18 April 2003. 16. Criminal proceedings were initiated against the applicant on an unspecified date in 2004 for having committed perjury in the proceedings regarding the murder of 15 September 1995. 17. On an unspecified date the applicant concluded a plea bargain agreement with the Sliven district public prosecutor’s office whereby he pleaded guilty to perjury and was sentenced to ten months’ imprisonment, which was suspended for three years. The plea bargain agreement was approved by the Sliven District Court on 10 February 2005. 18. The relevant provisions of the CCP and the Bulgarian courts’ practice before 1 January 2000 are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 19. The SMRDA provided at the relevant time that the State was liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for, inter alia, unlawful pretrial detention, if the detention order had been set aside for lack of lawful grounds, or for being charged with an offence if the criminal investigation had been terminated because the suspect was the perpetrator (sections 1-2). 20. In respect of the regime of detention and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SMRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 5660, 8 April 2004). 21. The system of court fees, which existed at the relevant time, in proceedings under the SMRDA and the practice of the domestic courts has been summarised in the cases of Stankov v. Bulgaria (no. 68490/01, §§ 19 21, ECHR 2007...) and Mihalkov v. Bulgaria (no. 67719/01, §§ 1923, 10 April 2008). 22. Following the judgment in the case of Stankov (cited above) the system of court fees was changed as of 30 May 2008. At present, a flat rate court fee is due for filing a claim under the SMRDA, which varies depending on the type of the claimant and is either BGN 10 or BGN 25 (EUR 5.12 or EUR 12.82). The court fee due for each subsequent appeal or request for reopening is half the aforestated amounts – BGN 5 or BGN 12.50 (EUR 2.56 or EUR 24.38: section 9a of the SMRDA and sections 2a and 18 (3) of Tariff of state fees collected by the courts under the Code of Civil Procedure). 23. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. 24. The Sliven Regional Investigation Service detention facility was visited in 2006. 25. A summary of the relevant findings and observations of the CPT, prior to its 2006 visit report, is contained in the Court’s judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 44-56, 10 August 2006) and Malechkov v. Bulgaria (no. 57830/00, §§ 38-50, 28 June 2007). 26. In several of its reports the CPT has recommended that States apply a minimum standard of 4 sq m per detainee in multiple-occupancy cells (see, for example, the CPT reports on the 2002 visit to Bulgaria, CPT/Inf (2004) 21, paragraphs 82 and 87, on the 2004 visit to Poland, CPT/Inf (2006) 11, paragraphs 87 and 111, and the 2006 visit to Bulgaria, CPT/Inf (2008) 11, paragraphs 55, 77 and 90). 27. The CPT found that cells were often overcrowded – up to four persons in cells measuring 7 sq m. The cramped conditions were aggravated by the lack of direct access to natural light, poor artificial lighting and the absence of a differentiated day/night system, and inadequate ventilation. Further, the cells were in a poor state of hygiene and repair: the beds were dilapidated and in a bad state of repair, giving a very uneven base for the thin, tattered mattresses, and the blankets which were filthy. Similar to the reports cited above (see paragraph 26 above), the CPT recommended that cell occupancy rates be reduced to an acceptable level by applying a minimum standard of 4 sq m per detainee in multiple-occupancy cells. 28. The CPT further found that detainees were usually taken to the toilet three times during the day and kept plastic bottles or buckets in the cells for other occasions. They could take a shower once a week (sometimes, twice a week in the summer months). As regards personal hygiene items, only soap was occasionally provided. 29. Bed linen was usually provided by detainees’ families. There were no laundry facilities and detainees washed their clothes and bed linen themselves when they were taken to have a shower. Further, no cleaning materials were made available. 30. Food was provided three times a day, but the daily food allowance was less than BGN 1.50 (EUR 0.77) per person and detainees complained about the quantity and/or quality of the food. 31. There was no outdoor exercise yard due to the fact that the detention facility was located on one of the top floors in the building of the police station. Thus, the CPT found that detainees continued to spend months on end locked up in their cells twenty four hours a day. Inside the cells, in addition to books and newspapers, detainees were in principle allowed to have battery-operated radio and TV sets. 32. As to the arrangements for the provision of health care to detainees, the CPT found that there could be gaps of several days (up to a week) between admission and the initial medical examination by a doctor. Further, the general medical screening was cursory and did not identify detained persons’ health needs. Access to outside hospital facilities was in principle not a problem, but authorisation was needed from a prosecutor for such a transfer, and medical recommendations could be slowed down or overridden by legal considerations. | 1 |
train | 001-69503 | ENG | POL | ADMISSIBILITY | 2,005 | DZIEDZIC v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Ryszard Dziedzic, is a Polish national who was born in Poland and lives in Kołobrzeg. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 August 1995 the applicant was sued by certain H.B. and W.B., the owners of the “Bart-Lex” company, before the Kołobrzeg District Court Court (Sąd Rejonowy). They sought his eviction. The proceedings are pending. On 27 October 1995 the applicant lodged a claim against the “Bart-Lex” company with the Kołobrzeg Regional Court (Sąd Okręgowy). He sought a judgment stipulating that the defendant was obliged to make a declaration of will (oświadczenie woli) in the form of a consent to the sale contract. The proceedings are pending. On 15 April 1996 the applicant sued the “Bart-Lex” company before the Kołobrzeg District Court, seeking payment. The proceedings are pending. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: 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 | 001-68920 | ENG | DEU | CHAMBER | 2,005 | CASE OF BUCK v. GERMANY | 1 | Violation of Art. 8;No separate issue under Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 10. The applicant was born in 1938 and lives in Dettingen. 11. In August 1996 the Dettingen municipal authorities imposed a fine of 120 German marks (DEM), plus costs amounting to DEM 36, on V.B., the applicant's son, for having exceeded the speed limit of 50 km/h by 28 km/h on the evening of 21 May 1996, when travelling in a car belonging to the Trinkomat private limited company (Regulations 3 § 3 (1) and 49 § 1 (3) of the Road Traffic Regulations and section 24 of the Road Traffic Act – see “Relevant domestic law” below). The applicant is the owner and manager of that company. 12. On 4 September 1996 V.B. lodged an objection against the administrative decision imposing the fine. 13. On 12 March 1997 the trial in the case opened before the Bad Urach District Court. V.B. pleaded not guilty, stating that about fifteen other persons could have been driving the company car in question on that day. The applicant, summoned as a witness, refused to give evidence, as he was entitled to do as a family member. The hearing was adjourned to 19 March 1997. 14. On 13 March 1997 around 10 a.m. the applicant, on being asked by a policeman to give evidence about his employees in connection with the proceedings against his son, stated again that he did not wish to do so and that none of his employees was currently working on the business premises. On the same day a police officer, on the order of the Bad Urach District Court judge, asked the city of Dettingen to provide a passport photograph of the applicant's son. Police enquiries from the Dettingen trade authorities (Gewerbeamt) about the applicant's employees at the relevant time had led to nothing. 15. On 13 March 1997, at an unknown time, the Bad Urach District Court, in the context of the above proceedings against V.B., issued a warrant to search the business and residential premises of the applicant. The warrant read as follows: “In the context of the preliminary investigations against ... [V.B.] ... concerning the contravention of a traffic regulation, pursuant to Article 33 § 4 of the Code of Criminal Procedure without a prior hearing, in accordance with Articles 94, 95, 98, 99, 100, 102, 103, 105, 106 § 1, 111 et seq., and 162 of the Code of Criminal Procedure and section 46 of the Contraventions of Regulations Act, 1. the search of the business and residential premises of the father, Jürgen Buck, ..., 3 ... Street, Dettingen/Erms, Trinkomat company; 2. the seizure of documents that reveal the identity of the employees of Trinkomat in ... Dettingen between 20 May and 22 May 1996 are ordered. Reasons: The son of the manager of Trinkomat, who is charged with having committed, on 21 May 1996, a contravention of Regulation 3 of the Road Traffic Regulations with a company car, has stated at the trial hearing on 12 March 1997 that a driver employed by the company could have committed the offence. ...” 16. The search of the residential and business premises in Dettingen, a town of some 10,000 inhabitants, was effected the same day around 2 p.m. by four police officers from the local police station. Several documents, such as personnel files and statements on working hours, were seized; copies were made and the originals were given back to the applicant the next day. The documents disclosed the names of at least six persons, four women and two men, who had been employed by the applicant's company at the relevant time and revealed, furthermore, that another relative of the applicant could have been driving the company car at the time of the speeding offence. The applicant objected to the search and, assisted by counsel, appealed against the search and seizure decision on 13 March 1997, the very day on which the warrant had been issued. 17. On 21 March 1997 the Tübingen Regional Court, in a decision addressed to V.B., dismissed the appeal of 13 March 1997. It considered that the appeal against the search warrant was inadmissible as it was devoid of purpose (prozessual überholt), the search having been effected in the meantime. The relevance of the few documents seized could be established without the need for a further procedure. The appeal against the seizure order was ill-founded, as the documents seized were relevant for the assessment of the evidence because they could show whether, as asserted by the appellant, one of the company's employees had committed the traffic offence in question. Moreover, the seizure had not been disproportionate because copies of the originals had been filed and the originals handed back. 18. On 21 May 1997 the Tübingen Regional Court, upon a complaint by the applicant's representative, re-examined the applicant's appeal, declaring it inadmissible as far as the search warrant was concerned and unfounded as to the seizure order. In these respects the court repeated its earlier reasoning. The Regional Court added that its earlier decision of 21 March 1997 had become devoid of purpose and, for the sake of clarity, quashed it. 19. On 30 June 1997 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He submitted in particular that the District Court, at the hearing of 12 March 1997, had been unable to establish whether the person on the radar photo was V.B. He further stated that the documents seized showed that none of the six other persons who had been working for the applicant's company at the relevant time could have been the person shown on the radar photo. 20. On 13 September 1997 a panel of three judges of the Federal Constitutional Court refused to admit the complaint. The Constitutional Court disagreed with the Regional Court's finding that the appeal against the search warrant was inadmissible for the sole reason that the search had already been carried out. According to the Constitutional Court, that finding disregarded the principle of effective legal protection as guaranteed by Article 19 § 4 of the Basic Law. In support of its view, the Constitutional Court referred to its decision of 30 April 1997, which had reversed its former case-law on the point. Nonetheless, the Constitutional Court considered it inappropriate to admit the constitutional complaint. Indeed, when examining the lawfulness of the seizure order, the Regional Court had also, incidentally, addressed the question of the lawfulness of the search order. In any event, the impugned search warrant was obviously lawful. This decision was served on 24 September 1997. 21. On 19 March 1997, in the resumed trial proceedings, the Bad Urach District Court rendered its judgment against V.B. It found him guilty of having negligently exceeded a speed limit, imposed a fine of DEM 120 (approximately 61 euros) on him in accordance with the uniform scale of fines (Bußgeldkatalog) for the various road-traffic regulatory offences, and ordered him to bear the costs of the proceedings. 22. As regards V.B.'s personal background, the District Court noted that V.B. had had his driving licence since 1991, that he drove between 40,000 and 50,000 km per year and that there was no record of previous traffic offences. 23. The District Court, having regard to expert technical evidence, found that the radar check had been properly carried out and that the measurements were correct. Moreover, having compared the photographs taken on the occasion of the radar check, in particular the enlargement prepared by the expert, and V.B.'s passport photograph taken in 1994, which had been retained in the administrative files of the Dettingen municipal authorities, the court reached the conclusion that it was V.B. who had been driving the car. In this respect, the court compared the form of the face, the nose, the position of the eyes and the eyebrows. Furthermore, although V.B. had meanwhile grown a beard, the lower part of the face on the radar photos and of V.B.'s face on the passport photo, showing him without a beard, clearly matched. There were no indications that any other person with the same characteristics had been driving the car at the relevant time. 24. On 19 August 1997 the Stuttgart Court of Appeal dismissed V.B.'s request for leave to appeal. 25. The search complained of was ordered in the context of proceedings concerning an offence against the Road Traffic Act (Straßenverkehrsgesetz). Regulation 3 of the Road Traffic Regulations (Straßenverkehrsordnung) concerns speed limits. Subsection 3(1), sets a speed limit of 50 km/h in towns. Under Regulation 49 § 1 (3), it is a regulatory or petty offence (Ordnungswidrigkeit) to contravene Regulation 3; under section 24 of the Road Traffic Act such an offence is punishable by a fine. 26. The subject of regulatory or petty offences is governed by the Contraventions of Regulations Act (Ordnungswidrigkeitengesetz). Such offences are considered to be of minor importance and have, therefore, been removed from the category of criminal offences under German law. They are partly governed by special rules other than the rules applicable to criminal offences (see, in this connection, Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, pp. 10 et seq., §§ 17 et seq., and pp. 1718, § 49). Under section 46(1) of the Contraventions of Regulations Act, the provisions of the ordinary law governing criminal procedure – in particular the Code of Criminal Procedure – are applicable by analogy to the procedure in respect of contraventions of regulations, subject to the exceptions laid down in the said Act. 27. Article 103 of the Code of Criminal Procedure (Straf-prozessordnung) provides that the home and other premises (Wohnung und andere Räume) of a person who is not suspected of a criminal offence may be searched only in order to apprehend a person charged with an offence, to investigate the evidence of an offence or to seize specific objects, provided always that there are facts to suggest that such person, evidence or object are to be found on the premises to be searched. Under Article 105 of the Code of Criminal Procedure, searches may only be ordered by a judge or, in case of urgency (Gefahr im Verzug), by the public prosecutor's office and its officials. If a search is carried out in residential or business premises without the judge or public prosecutor being present, a municipal officer or two inhabitants of the municipality in which the search is made shall be requested to attend. | 1 |
train | 001-139017 | ENG | UKR | ADMISSIBILITY | 2,013 | GOLUBENKO v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens | 1. The applicant, Mr Vladimir Pavlovich Golubenko, is a Ukrainian national, who was born in 1952 and lives in Vilnyansk. 2. The applicant was granted leave to present his own case in the proceedings before the Court, in accordance with Rule 36 § 3 in fine of the Rules of Court. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Nazar Kulchytskyy. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. From 6 April to 14 November 2004 the applicant was detained in the Kherson Pre-Trial Detention Centre (SIZO). 5. From 14 November 2004 to 16 December 2006 he served his sentence in Orikhivska Prison no. 88, a correctional colony. 6. From 16 December 2006 to 30 January 2007 the applicant underwent a psychiatric examination in the psychiatric hospital of Vilnyansk Prison no. 20. 7. From 30 January 2007 until his release on 6 April 2009 he was detained in Sofiyivska Prison no. 55. 8. The applicant stated in his submissions before the Court that he was fully satisfied with the conditions of his detention and healthcare afforded to him in Vilnyansk Prison no. 20 and Sofiyivska Prison no. 55. 9. According to the applicant’s initial submissions, he was detained in “premises” measuring 42.5 sq. m (5.67 x 7.5 m). It had seventeen two-tier bunks and accommodated thirty-four inmates, all suffering from tuberculosis. 10. Later the applicant accepted without reservation the Government’s account, according to which he had been accommodated in a dormitory measuring 95.19 sq. m shared by thirty-eight inmates (see paragraph 18 below). 11. According to the applicant, there was no heating and the temperature inside never exceeded 9 degrees Celsius in winter. All the inmates therefore had to sleep in their outer clothes, which were permanently damp as there had been no place to dry them. 12. While there were two ordinary lamps and a night lamp, only the bulb in the night lamp worked. As a result, the lighting was poor. 13. The supply of electricity was limited and intermittent. More precisely, electric power was only supplied during the following periods: 220V from 6 to 7 a.m., 10 to 10.20 a.m., 12 to 12:20 p.m., 3 to 3.20 p.m., and 7 to 10 p.m.; and 110V from 10 p.m. to 6 a.m., and 4.30 to 7.30 p.m. 14. All the prisoners (the number of whom varied from 160 to 200) had to share seven taps for hand washing. Even those taps were unusable in winter, as the water pipes often cracked because of frost and were not properly maintained. When this happened the inmates had to fill plastic bottles with water from the shower block or the kitchen. Some of them preferred to use snow for “washing”. 15. Mere pits served for toilets, which were insufficient in number (only five). The prison was infested with rats. 16. The quality of food was poor. The applicant noted, in particular, that inmates were served porridge for lunch and dinner most days. Twice or three times per week mashed potatoes were on the menu. Inmates suffering from tuberculosis also received carrot juice in the morning, biscuits at lunch and cheese in the evening. Meat was served not as separate portions for each detainee, but from a communal casserole dish. Butter was also served from a shared dish. Sweets were offered instead of sugar. According to the applicant’s calculations, detainees suffering from tuberculosis received 20-30% fewer calories than the required nutritional amount. 17. The prison in question is a medium-security correctional colony for men who have served their prison sentence. The applicant was held in the “resocialisation” section, where inmates are accommodated in dormitories. The section measured 451 sq. m and comprised four dormitories (each measuring approximately 95, 71, 21 and 16 sq. m). 18. The applicant slept in dormitory no. 1 measuring 95.19 sq. m. He shared it with thirty-seven inmates, all having a medical history of tuberculosis. 19. There were two fluorescent tube lamps used for lighting in the dormitory. It also had six windows, each measuring 2.5 sq. m. 20. The dormitory had satisfactory sanitary conditions. It had a bathroom unit measuring 24 sq. m with one washing basin and four lavatory pans. 21. In addition, the section had the following: a bathroom unit measuring 36 sq. m with eight toilet pits and ten washbasins; an education room measuring 36.35 sq. m with two windows and one lamp; a room for taking meals measuring 60.12 sq. m with two lamps and two windows; a room for storing prisoners’ personal belongings measuring 14.37 sq. m with one window and one lamp; a special room for drying clothes and shoes measuring 14.38 sq. m with one window and one lamp. 22. Prisoners also had at their disposal a sports ground, a smoking area and an outside area for drying clothes. 23. The dormitories were ventilated twice a day: from 8 to 9 a.m. during the morning check, and from 5 to 5.30 p.m. during the evening check. 24. The prison was centrally heated in summer and by stand-alone boilers during the cold season. The temperature in the dormitories was maintained at 18-19 degrees Celsius. 25. Prison nutrition was in compliance with the applicable legal and regulatory requirements. The applicant was provided with the full nutritional amount for people infected with mycobacterium of tuberculosis. 26. Aside from alleging that the physical conditions of detention and nutrition in the prison had been inadequate for inmates suffering from or having previously suffered from tuberculosis, the applicant did not give any factual account regarding his diagnosis of tuberculosis and treatment. 27. According to the applicant’s medical file (a copy of which has been submitted to the Court by the Government), the applicant stated on several occasions that he had suffered from tuberculosis from 1984 to 1997. 28. On 28 July 2004, during one of his examinations by a tuberculosis specialist in the SIZO, the applicant was diagnosed with a minor inflammation in his left lung, known as a Ghon focus, with a limited likelihood of it progressing to tuberculosis. As a result, he was placed under medical supervision for five years. 29. Upon his arrival at the prison the applicant underwent a medical examination which included urine, blood and sputum tests and an X-ray. As a result, he was prescribed and underwent tuberculosis anti-relapse therapy. 30. On 19 April, 20 October and 17 December 2004, 17 December 2005 and 7 June 2006 the applicant was X-rayed. Furthermore, on 15 July 2004, 22 April 2005, 14 and 21 March and 28 September 2006 he was examined by a tuberculosis specialist. As a result, he was prescribed and received certain medication as preventive medical treatment. 31. According to the applicant’s initial submissions, during his detention in Orikhivska Prison no. 88 his sight progressively deteriorated for almost a year. Despite this, his requests for a specialist examination remained ignored, as the prison did not employ an ophthalmologist, and seeking an external consultation was not deemed feasible. 32. According to the applicant’s later observations in reply to those of the Government, all the inmates of Orikhivska Prison no. 88 who had any sight-related complaints could register for an examination with a visiting ophthalmologist from Orikhivska Town Hospital. The applicant provided no further details. 33. As submitted by the Government, the applicant did not raise a single complaint about his sight deterioration during his detention in Orikhivska Prison. 34. On 31 January 2007 he was diagnosed for the first time with visual impairment (no further details being available) in Sofiyivska Prison, and he was told to wear spectacles. The applicant was placed under dispensary supervision in that regard, with check-ups twice a year. He was also prescribed medical treatment for meibomitis of the upper eyelid of the left eye (an inflammation of glands that produce an oily substance to reduce the evaporation of a person’s tears). 35. The applicant alleged that he had contracted onychomycosis of both feet and the left hand, as a result of poor sanitary conditions. According to him, the head of the medical unit of Orikhivska Prison refused to provide him with any treatment, telling him that there was a lack of medication and that this type of infection was not dangerous. 36. According to the applicant’s medical file (submitted by the Government), on 20 April 2004, while the applicant was detained in the Kherson SIZO, he was examined by a dermatologist who did not diagnose him with any dermatological conditions. 37. As stated by the Government on the basis of the applicant’s medical file, during his detention in Orikhivska Prison the applicant only applied once for medical assistance regarding skin problems, on 23 December 2005. He was examined and diagnosed with a foot fissure. As a result, he was prescribed and treated with Methyluracil ointment. 38. According to the Government, the applicant did not subsequently raise any complaints regarding any dermatological conditions with the medical staff or prison administration. Nor did he raise any such complaints with the prosecutor. 39. On 16 December 2006 the applicant was transferred to the psychiatric hospital of Vilnyansk Prison no. 20. His general medical examination upon arrival there did not reveal any skin rashes, scabs, pediculosis or any other dermatological conditions. The applicant did not raise any complaints either. 40. On 26 February 2013 the applicant consulted an ophthalmologist who gave the following diagnoses: high-degree myopia, myopic astigmatism, central and peripheral chorioretinal dystrophy of the right eye; and low-degree myopia and myopic astigmatism of the left eye. Further examinations were recommended with a view to defining the appropriate treatment. 41. The applicant neither undertook the recommended examinations nor sought any treatment, referring to the fact that he was experiencing financial hardship. 42. On 28 February 2013 the applicant was also examined in a local dermatovenerologic hospital. He was diagnosed with onychomycosis of both feet and the left hand, and was recommended treatment. 43. The applicant did not pursue any treatment, which he explained to the Court was because of his low income. | 0 |
train | 001-81239 | ENG | DEU | ADMISSIBILITY | 2,007 | PAUL v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Manfred Paul, is a German national who lives in Lebrade. , may be summarised as follows. The applicant is a farmer and horse breeder. During the summer of 1996, fourteen of his horses were on a paddock near a sewage treatment plant operated by the Lebrade municipality. In November 1996, after he had returned the horses from the paddock, the applicant noted alterations to the horses’ hide at the croup, the neck and the back. Subsequently, some horses suffered from diarrhoea and lameness. Between December 1996 and summer 1998, all horses except two died naturally or had to be put down. The applicant subsequently sued the municipality. After he had filed an objection to a default judgment of 4 July 1997, the Kiel Regional Court dismissed his claim on 6 August 1999. It found that, irrespective of the legal basis for his claim and whether chemical or biological substances from the plant had reached the applicant’s property, the applicant had not established that there was a causal link between the impact of the sewage plant and the horses’ diseases. An expert opinion prepared for the court had concluded that there was hardly any available medical evidence which could clarify the cause of the death of the horses with any certainty. The Kiel Regional Court heard three veterinary surgeons who were familiar with horse diseases but found that none of them had established a reason for the horses’ demise: there was no support for the applicant’s suspicion that corrosive vapours from the plant had reached the skin of the horses, and it was not likely that the skin diseases of the animals had been caused by a form of corrosion. Rather, it was likely that the animals had died from enteritis caused by salmonellae. The Kiel Regional Court also noted that the applicant had filed a motion to hear the expert in person during the court hearing, but had not sufficiently substantiated his criticism of the expert’s findings. On 17 May 2001 the Schleswig Court of Appeal rejected the applicant’s appeal. It held that the Kiel Regional Court had no reason to obtain a further expert opinion or to hear the expert in person. The applicant had not submitted substantiated claims concerning the extent of the plant’s emissions or concerning the link between the alleged emissions and the damage. The Schleswig Court of Appeal found that section 6 of the Environmental Liability Act, which provides for a shifting of the burden of proof if a facility listed in Appendix 1 of the Act is inherently capable of causing the damage (see Relevant domestic law, below), did not apply because the sewage plant was not listed in Appendix 1 to the Act. The Schleswig Court of Appeal also considered that the applicant had not sufficiently substantiated how the plant could possibly produce corrosive vapours and how they could reach his property, which was not located in the prevailing wind direction. Thus, the Schleswig Court of Appeal saw no need to obtain further evidence at the appeal stage. On 28 February 2002 the Federal Court of Justice dismissed the applicant’s appeal on points of law. The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 30 April 2003. Relevant provisions of the Environmental Liability Act of 10 December 1990: “1. Facility liability for environmental impacts If a person suffers death or injury to his body or health, or if property is damaged, due to an environmental impact that issues from one of the facilities named in Appendix 1, then the operator of the facility shall be liable to the injured person for the damage caused thereby. 6. Presumption of causation (1) If a facility is inherently capable, on the facts of the particular case, of causing the damage that occurred, then it shall be presumed that this facility caused the damage. Inherent capability in a particular case is determined on the basis of the course of business, the structures used, the nature and concentration of the materials used and released, the weather conditions, the time and place at which the damage occurred, the nature of the damage, as well as all other conditions which speak for or against causation of the damage in the particular case. (2) Paragraph (1) shall not apply if the facility has been properly operated. A proper operation is present if the special operational duties have been complied with and no disruption of operations has occurred. ...” The sewage treatment plant operated by the defendant municipality is not among the facilities listed in Appendix 1 to the Environmental Liability Act. | 0 |
train | 001-105129 | ENG | DNK | CHAMBER | 2,011 | CASE OF OSMAN v. DENMARK | 3 | Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen | 6. The applicant was born in Somalia on 1 November 1987 as the youngest of five siblings. Currently she lives in Esbjerg. 7. From 1991 to 1995 the applicant lived with her family in Kenya. 8. In April 1994 the applicant’s father and a sister were granted asylum in Denmark. 9. Having been granted a residence permit in November 1994, on 11 February 1995 the applicant, who at the relevant time was seven years old, her mother and three siblings joined them. A few years later, the applicant’s parents divorced. The parents maintained joint custody of the applicant, who lived with her mother. From 1995 until August 2002, the applicant attended various schools, some of which expelled her due to disciplinary problems. 10. The applicant also had difficulties with her parents, who disapproved of certain aspects of her behaviour. Consequently, in May 2003, when the applicant was fifteen years old, her father decided to take her to Kenya to take care of her paternal grandmother, who was living at the Hagadera refugee camp in northeastern Kenya. It appears that the applicant’s mother did not want her to go but reluctantly agreed on the understanding that it would be a short trip. It also appears that the applicant believed that she was going on a short trip to visit her grandmother. 11. When the applicant’s father returned to Denmark, he was summoned for an interview with the Immigration Service on 10 November 2003 because the latter had been informed that he, who had been recognised as a refugee, had visited his country of origin. On 17 December 2003 the Immigration Service (Udlændingeservice) took the stand that the applicant’s father’s residence permit had not lapsed. In that connection, the applicant’s father was advised on the regulation regarding lapse of residence permits. 12. On 9 August 2005, three months before the applicant turned eighteen years old, she contacted the Danish Embassy in Nairobi with a view to returning to live with her mother and siblings in Denmark. Her father had joined her in Nairobi to help her submit the application for family reunification. He also remarried in Nairobi at the relevant time. An interview was conducted with the help of an English/Somali interpreter although it was stated that the applicant spoke Danish. The applicant explained that she had taken care of her grandmother, who had fallen seriously ill, until some of the grandmother’s children had arrived from Somalia to take over the care of their mother. 13. In a letter of 24 November 2005 to the Immigration Service the applicant’s mother stated, inter alia, that at the relevant time it had been decided temporarily to send the applicant to Kenya where the family had a network so that she could attend school and that the applicant had been living with her father’s friends. 14. On 21 December 2006 the Immigration Service found that the applicant’s residence permit had lapsed pursuant to section 17 of the Aliens Act because she had been absent from Denmark for more than twelve consecutive months; because she had not contacted the Immigration Service until August 2005; and because there was no information indicating that she could not have contacted the authorities in due time. They also considered that the applicant was not entitled to a new residence permit under section 9, subsection 1 (ii), of the Aliens Act, in force at the relevant time, since the applicant was 17 years old and the said provision only extended a right to family reunification to children below the age of 15. Finally, it found that no special circumstances existed to grant her a residence permit under section 9 c, subsection 1, of the Aliens Act. It noted in that connection that the applicant had not seen her mother for four years; that it had been the latter’s voluntary decision to send the applicant to Kenya; that she could still enjoy family life with her mother to the same extent as before; that she had stayed with the grandmother; and that except for the grandmother’s age, there was no information that the applicant could not continue to live with her or the grandmother’s children. 15. On 11 April 2007 the applicant appealed against the decision and maintained that it had not been her decision to leave the country; that from the refugee camp where she lived with her grandmother she was not able herself to go to Nairobi; and that during her stay outside Denmark she had not stayed in her country of origin. 16. According to the applicant, in June 2007 she re-entered Denmark clandestinely to live with her mother. It is disputed whether the Danish authorities were aware of this. 17. On 13 July 2007 the Immigration Service received a questionnaire from the applicant dated 12 July 2007 used for requests for exemption from the authorities revoking a residence permit despite a stay outside Denmark for a certain period. It was partly filled out and stated, inter alia, that it had been the applicant’s parents’ decision that she should leave Denmark at the relevant time; that the applicant spoke Danish, but could not read or write the language; that she spoke the language of the country in which she was currently residing, but that she could not read or write that language either; and that she was very afraid and could not reside in her country of origin as there was unrest. The applicant did not specify that she had actually returned to Denmark, but her signature was dated as set out above in Esbjerg, Denmark. It was also stated that her sister had assisted her in answering the questionnaire. 18. On 1 October 2007 the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for flygtninge, indvandrere og integration) upheld the decision by the Migration Service of 21 December 2006. It stated among other things: “... The Ministry emphasises that there is no information available of any circumstances that would lead to [the applicant’s] residence permit being deemed not to have lapsed ... [the applicant’s] parents did not apply for retention of [her] residence permit before she left, and neither she nor her parents contacted the immigration authorities during her stay abroad, and it has not been substantiated that illness or other unforeseen events prevented such contact. Thus, the Ministry finds that the illness of [the applicant’s] grandmother did not prevent [the applicant] or her parents from contacting the immigration authorities. Although the distance from Hagadera to Nairobi is significant [485 km] and it can be assumed that [the applicant] did not have the means to travel to Nairobi, the Ministry finds that these circumstances did not prevent [the applicant’s] parents from contacting the immigration authorities before [the applicant’s] departure, which was planned. The fact that [the applicant] stayed in Kenya and not in Somalia does not change the fact that [she] has resided abroad for more than twelve consecutive months. It is stated for the record that it was not [the applicant’s] decision to leave Denmark and stay away so long. The ministry finds that this will not lead to a different outcome of the case as [the applicant’s] parents had custody over her at the time of her departure ... they could thus lawfully make decisions about [her] personal circumstances...” 19. Upon request from the applicant, who was represented by counsel, on 11 December 2007 the Immigration Service brought the case concerning section 17 and section 9, subsection 1 (ii), of the Aliens Act before the City Court of Copenhagen (Københavns Byret), before which the case was decided on the documents submitted, without any parties being summoned. On 25 April 2008 it found against the applicant. It added that section 9, subsection 1 (ii), of the Aliens Act had been amended, limiting the right to family re-unification to children under 15 years instead of under 18 years in order to discourage the practice of some parents of sending their children on “re-upbringing trips” for extended periods of time to be “re-educated” in a manner their parents consider more consistent with their ethnic origins. It was preferable in the legislator’s view for foreign minors living in Denmark to arrive as early as possible and spend as many of their formative years as possible in Denmark. It found that such decision did not contravene Article 8 of the Convention as invoked by the applicant. 20. The decision was appealed against to the High Court of Eastern Denmark (Østre Landsret), henceforth the High Court, before which the applicant’s representative in his written submissions stated that the applicant remained in Kenya. On 30 October 2008 the High Court upheld the City Court’s decision. By way of introduction, it stated that according to section 52 of the Aliens Act, it could not review a final administrative decision of refusal of a residence permit under section 9c, subsection 1, of the Aliens Act. As to section 9, subsection 1 (ii) it confirmed that the applicant failed to fulfil the conditions. It took into account that the applicant’s parents had sent her voluntarily to Kenya to live with family for an indefinite period; that the applicant was seventeen years and nine months old, when in August 2005 she applied to re-enter Denmark; that her father visited her during her stay in Kenya; and that her mother would also be able to visit the applicant in Kenya to enjoy family life there. 21. Leave to appeal to the Supreme Court (Højesteret) was refused on 19 January 2008. 22. By letter of 27 January 2010 the Ministry of Refugee, Immigration and Integration Affairs advised the applicant of her duty to leave Denmark pursuant to section 30 of the Alien’s Act and the possibility of submitting an application for asylum under section 7 of the Aliens Act. The applicant was also advised that an application should be submitted in person to the Immigration Service or the police. 23. So far the applicant has not applied for asylum. 24. Article 63 of the Constitution read as follows: The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority. However, anyone wishing to raise such matters cannot avoid temporarily complying with orders issued by the public authorities by bringing them before the courts. 25. Applications for asylum are determined in the first instance by the Immigration Service and in the second instance by the Refugee Appeals Board under the Aliens Act (Udlændingeloven), the relevant provisions of which at the relevant time read as follows 1. Upon application, a residence permit will be issued to an alien if the alien falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951). 2. Upon application, a residence permit will be issued to an alien if the alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin. An application as referred to in the first sentence hereof is also considered an application for a residence permit under subsection 1. 3. A residence permit under subsections 1 and 2 can be refused if the alien has already obtained protection in another country, or if the alien has close ties with another country where the alien must be deemed to be able to obtain protection. 1. Upon application, a residence permit will be issued to an alien who arrives in Denmark under an agreement made with the United Nations High Commissioner for Refugees or similar international agreement, and who falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951), see section 7(1). 2. In addition to the cases mentioned in subsection 1, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin, see section 7 subsection 2. 3. In addition to the cases mentioned in subsections 1 and 2, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who would presumably have satisfied the fundamental conditions for obtaining a residence permit under one of the provisions of the Aliens Act if he had entered Denmark as an asylum-seeker. 4. In the selection of aliens issued with a residence permit under subsections 1 to 3, the aliens’ possibilities of establishing roots in Denmark and benefiting from the residence permit, including their language qualifications, education and training, work experience, family situation, network, age and motivation, must be emphasised unless particular reasons make it inappropriate. 5. Unless particular reasons make it inappropriate, it must be made a condition for a residence permit under subsections 1 to 3 that the alien assists in a special health examination and consents to the health information being transmitted to the Danish Immigration Service and the local council of the municipality to which the alien is allocated, and signs a declaration concerning the conditions for resettlement in Denmark. 6. The Minister of Refugee, Immigration and Integration Affairs decides the overall distribution of the aliens to be issued with a residence permit under subsections 1 to 3. 26. Before 1 July 2004 section 9, subsection 1 (ii) had the following wording: 1. Upon application, a residence permit may be issued to: - (i) .... (ii) an unmarried child of a person permanently resident in Denmark or of that person’s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark; 27. As from 1 July 2004 section 9 had the following wording: 1. Upon application, a residence permit may be issued to: - (i) .... (ii) an unmarried child under the age of 15 of a person permanently resident in Denmark or of that person’s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark: a. is a Danish national; b. is a national of one of the other Nordic countries; c. is issued with a residence permit under section 7 or 8; or d. is issued with a permanent residence permit or a residence permit with a possibility of permanent residence. (iii) ... 28. The age limit referred to in section 9, subsection (ii) was reduced from 18 to 15 years old by Act no. 427 of 9 June 2004. The amendment entered into force on 1 July 2004. The following appears from the explanatory notes: “It has turned out that some parents living in Denmark send their children back to the parents’ country of origin or a neighbouring country on so-called “re-education journeys” to allow them to be brought up there and be influenced by the values and norms of that county. This particularly occurs in situations where the child has social problems in Denmark. Moreover, there are examples of parents who consciously choose to let a child remain in his or her country of origin, either together with one of the parents or with other family members, until the child is nearly grown up, although the child could have had a residence permit in Denmark earlier. The result of this is that the child grows up in accordance with the culture and customs of its country of origin and is not influenced by Danish norms and values during its childhood. In the Government’s view, under-age aliens who will live in Denmark should come to Denmark as early as possible and spend the longest period of their childhood in Denmark in consideration of the child and for integration reasons. Similarly, children and young aliens who already live in Denmark should grow up here, to the extent possible, and not in their parents’ country of origin. Against that background, the Government finds that the age limit for under-age children’s entitlement to family reunification should be reduced from 18 to 15 years. The purpose of such reduction of the age limit for family reunification of children is to counteract both re-education journeys and the cases in which the parents consciously choose to let a child remain in its country of origin until the child is nearly grown up. However, a residence permit will still have to be issued to children over 15 years of age based on an application for family reunification if a refusal would be contrary to article 8 of the Convention... In cases where refusal of family reunification will be contrary to Denmark’s treaty obligations, and where section 9, subsection 1 (ii), of the Aliens Act does not allow for family reunification, a residence permit will thus have to be issued under section 9c, subsection 1, of the Aliens Act... In cases where the child has spent by far the largest part of his or her childhood in Denmark, and where the ties with the parents’ country of origin are very poor, including where the child has attended school in Denmark only, or where the child speaks Danish, but not the language spoken in the parents’ country of origin, regard for the best interest of the child might also imply, in these circumstances, that family reunification in Denmark must be granted. Circumstances may also exist in other situations which make it cogently appropriate to grant a residence permit in consideration of the best interest of the child even though the child is 15 years old or more at the time of the application. 29. Furthermore, the Aliens Act set out: 1. Upon application, a residence permit may be issued to an alien if exceptional reasons make it appropriate, including regard for family unity... 1. A residence permit lapses when the alien gives up his residence in Denmark. The permit also lapses when the alien has stayed outside Denmark for more than 6 consecutive months. Where the alien has been issued with a residence permit with a possibility of permanent residence and has lived lawfully for more than 2 years in Denmark, the residence permit lapses only when the alien has stayed outside Denmark for more than 12 consecutive months. The periods here referred to do not include absence owing to compulsory military service or any service substituted for that. 2. Upon application, it may be decided that a residence permit must be deemed not to have lapsed for the reasons given in subsection 1. 3. ... 1. An alien who is not, under the rules of Parts I and III to Va, entitled to stay in Denmark, must leave Denmark. 2. If the alien does not leave Denmark voluntarily, the police must make arrangements for his departure. The Minister of Refugee, Immigration and Integration Affairs lays down more detailed rules in this respect. 3. ... 1. An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country. 2. An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but see subsection 1. 1. Decisions pursuant to this Act are made by the Immigration Service, except as provided by sections 9(19) and (20), 46a to 49, 50, 50a, 51(2), second sentence, 56a, (1) to (4), 58i and 58j, but see section 58d, second sentence. 2. Apart from the decisions mentioned in sections 9g(1), 11d, 32a, 33, 34a, 42a(7), first sentence, 42a (8), first sentence, 42b(1), (3) and (7) to (9), 42d(2), 46e, 53a and 53b, the decisions of the Immigration Service can be appealed to the Minister of Refugee, Immigration and Integration Affairs ... 1. An alien who has been notified of a final administrative decision made under section 46 may request, within 14 days after the decision has been notified to the alien, that the decision is submitted for review by the competent court of the judicial district in which the alien is resident or, if the alien is not resident anywhere in the Kingdom of Denmark, by the Copenhagen City Court, provided that the subject matter of the decision is: (i) refusal of an application for a residence permit with a possibility of permanent residence under section 9, subsection 1 (ii); (ii) lapse, revocation, or refusal of renewal of such permit; ... 2. The case must be brought before the court by the Danish Immigration Service, which shall transmit the case to the court, stating the decision appealed against and briefly the circumstances relied on, and the exhibits of the case. 3. The court shall see that all facts of the case are brought out and shall itself decide on examination of the alien and witnesses; procuring of other evidence; and whether proceedings are to be heard orally. If the alien fails without due cause to appear in court, the court shall decide whether the administrative decision appealed against is to be reviewed without the alien being present or the matter is to be dismissed or proceedings stayed. 4. If found necessary by the court, and provided that the alien satisfies the financial conditions under section 325 of the Administration of Justice Act, counsel must be assigned to the alien, except where he himself has retained counsel. ... | 1 |
train | 001-102102 | ENG | UKR | CHAMBER | 2,010 | CASE OF ZHUPNIK v. UKRAINE | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-a - Information on nature and cause of accusation;Article 6-3-b - Preparation of defence;Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1944 and lives in Odessa. 6. In 1993 the applicant was responsible for the privatisation of a State company “A.” by way of a buyout of A. by its employees. 7. On 26 August 1995 criminal proceedings were initiated against the applicant on suspicion of having defrauded A.’s employees in the privatisation process. 8. On several occasions between September 1995 and March 1999 the proceedings were suspended (in particular, between 9 July 1997 and 3 April 1997; 25 March and 1 September 1999; and 5 September and 1 December 1999). 9. On 26 January 1999 the applicant was placed under an obligation not to abscond. 10. On 15 December 1999, in response to a complaint by the applicant’s advocate, the Odessa Prosecutors’ Office acknowledged that the proceedings had suffered unnecessary delays and inactivity on the part of the investigative authorities and informed him that disciplinary measures had been taken against the investigator in charge. 11. In April 2000 the Malinovskiy District Prosecutors’ Office of Odessa approved the final indictment and committed the applicant for trial. According to the indictment, the applicant was accused of fraud and an attempt to misappropriate State property by way of abuse of his position (Articles 17, 84 § 2 and 172 § 1 of the Criminal Code in force at the material time). 12. Between September 2000 and October 2003 the Primorskiy District Court of Odessa scheduled some thirty-three hearings in the applicant’s case. Twenty-four of these hearings were adjourned: nine on account of the absence of the prosecution or at the prosecution’s requests; five on account of the absence of one of the injured parties; six on account of other court business; and four on account of the applicant’s absences. 13. On 3 October 2003 the Primorskiy District Court of Odessa ruled that the applicant’s actions did not fall within the ambit of the provisions of the Criminal Code relied upon by the prosecution. His actions did, however, qualify as abuse of position punishable by Article 165 § 1 of the Criminal Code in force at the material time. Consequently, the court convicted the applicant of abuse of position and sentenced him to one year’s imprisonment, but absolved him from punishment, granting him an amnesty. 14. The applicant appealed, contending that the prosecution had never charged him with violating Article 165 § 1 of the Criminal Code. Consequently, the trial court had acted ultra vires in convicting him of the crime punishable by that statute. The applicant next presented various arguments in his appeal against the charge of abuse of position under Article 165 of the Criminal Code. 15. On 19 August 2004 the applicant complained to the Odessa Regional Court of Appeal of unreasonable delays in the proceedings against him, in particular, a protracted failure by the trial court to submit the case file to the Odessa Regional Court of Appeal. 16. On 21 August 2004 the Primorskiy District Court informed the applicant that his case had been transferred to the Odessa Regional Court of Appeal on 27 July 2004. 17. On 9 December 2004 the Odessa Regional Court of Appeal held an oral hearing in the applicant’s presence and upheld the applicant’s conviction. It found, in particular, that by re-qualifying the applicant’s charges under a different Article of the Criminal Code, the first-instance court had correctly assessed the facts and had in no way increased the burden on the applicant. It had therefore not exceeded the scope of its competence. 18. The applicant appealed on points of law, raising essentially the same arguments as in his ordinary appeal. 19. On 25 May 2006 the Supreme Court rejected the applicant’s appeal on points of law. 20. Pertinent provisions of the Criminal Code of 1960 (in force at the material time) read as follows: “... Misappropriation of State or collective property by an official by way of abuse of his position - Shall be punishable by deprivation of liberty from three to five years with or without confiscation of property and by deprivation of the right to occupy certain positions or carry out certain activities for a term of up to three years ...” “Abuse of power or position, i.e. intentional, promiscuous, or based on other personal interests or interests of third parties, use by an officer of his power or position contrary to the interests of the service, which causes significant damage to State or public interests or the rights and interests of certain physical or juridical persons protected by law, - Shall be punishable by deprivation of liberty from two to five years or correctional labour for up to two years, with deprivation of the right to occupy certain positions or carry out certain activities for up to three years ...” 21. Pertinent provisions of the Criminal Code of 1960 (as worded at the material time) read as follows: “Examination of a case shall be only in respect of the defendants and within the scope of the indictment announced to them ...” “Having completed preparatory actions ... the presiding judge shall explain to the participants of the hearing their rights, including the right to give explanations concerning the appeals presented and to speak during judicial deliberations ... After this, the presiding judge or one of the judges shall report the essence of the conviction or a ruling, shall inform who had appealed against it and to what extent, shall state the main arguments of the appeals and objections by other participants of the proceedings, if they had been submitted. The presiding judge shall verify whether the persons who have lodged the appeals support them. ... If the court of appeal has not carried out a judicial investigation upon completion of the [above] actions ... the presiding judge shall familiarise the participants of the hearing with any additional materials, if they were submitted, materials that arrived from the first-instance court by way of fulfilment of assignment, shall hear their arguments with respect to the appeal submitted ... and shall proceed to judicial deliberations. ... Before the court retires to the judges’ deliberation chamber (нарадча кімната) for preparation of the ruling ... the defendant, if he participated in the appeal hearing, shall be given an opportunity to give a final speech. ...” “As a result of the examination of an appeal ... the court of appeal may: 1) make a ruling upholding the conviction or the decision and reject the appeal; quash the conviction or the decision and return the case to the prosecutor for additional investigation or for a new trial by the first-instance court; quash the conviction or the decision and terminate the proceedings; modify the conviction or the decision; 2) pronounce its own conviction, having quashed the conviction of the first-instance court in full or in part; 3) pronounce its own decision, having quashed the decision of the first-instance court in full or in part. ...” | 1 |
train | 001-96271 | ENG | UKR | ADMISSIBILITY | 2,009 | SHAPOVAL v. UKRAINE | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | The applicant, Mr Volodymyr Sergiyovych Shapoval, is a Ukrainian national who was born in 1962 and currently lives in Hannover, Germany. The respondent Government were represented by their Agent, Mr Y. Zaytsev. The applicant signed a sales contract with Mr K. on behalf of the open joint stock company, Servis. According to the contract, the company transferred title to its premises to Mr K. On 31 October 1997 Mr K. died. On 4 August 1998 the company instituted civil proceedings against Mr K.’s successors seeking to have the contract declared null and void. By a ruling of 12 November 1998 the judge of the Velykomykhaylivsky Court ordered that the claim and the relevant documents from the case file be transferred to the Velykomykhaylivsky District Prosecutor (“the Prosecutor”) in order to establish whether criminal proceedings should be instituted against the applicant. On 31 August 1999 the Odessa Regional Court upheld the ruling of the first-instance court. On 28 July 2001 the applicant lodged a cassation appeal with the Supreme Court of Ukraine in accordance with the procedure prescribed by the Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure. On 14 September 2001 a panel of three judges of the Supreme Court of Ukraine refused to transfer the applicant’s appeal to a chamber of the Supreme Court of Ukraine for consideration on its merits. The applicant alleges that he received the final decision of the Supreme Court on 7 August 2003. Following the above events, on 28 April 1999 the Prosecutor instituted criminal proceedings against the applicant on charges of fraud, abuse of power and embezzlement of collective property. On 2, 10 and 21 June 1999 the applicant failed to appear before the investigator. On 21 June 1999 a pre-trial investigation was suspended in order to establish the applicant’s whereabouts. On 13 July 1999 it was resumed. On 15 July 1999 the Prosecutor’s Assistant issued an arrest warrant against the applicant. On 30 July 1999 the applicant was arrested. He was released on 4 November 1999 having given a written undertaking not to abscond. On 8 November 1999 the case was transferred to the Velykomykhaylivsky Court. On 20 January 2000 the case was transferred to the Frunzivsky Court. On 10 February 2000 the applicant challenged the judge sitting in his case. On 29 February 2000 the case was transferred to the Rozdilyansky Court. On 31 July 2000 the Rozdilyansky Court remitted the case to the Prosecutor for an additional pre-trial investigation on the ground that it had not been completed. On 18 and 29 September 2000 the applicant failed to appear before the investigator. On 30 September 2000 the pre-trial investigation was suspended in order to establish the applicant’s whereabouts. On 8 November 2000 the proceedings were resumed. The applicant challenged the investigator. On 15 November 2000 the applicant failed to appear before the investigator. The proceedings were suspended. On 12 January 2001 the Frunzivsky Court rejected an appeal by the applicant against the Prosecutor’s resolution of 28 April 1999. On 27 February 2001 the Odessa Regional Court of Appeal quashed that ruling and terminated the proceedings in that respect since the first-instance court had no jurisdiction to consider the applicant’s complaint. On 27 September 2001 the Supreme Court upheld the ruling of the Court of Appeal. Between 6 and 23 March 2001 the applicant acquainted himself with his case file. On 3 May 2001 the Prosecutor issued an indictment. On 8 May 2001 the case was transferred to the Velykomykhaylivsky Court. On 24 May 2001 the case was transferred to the Shyryayevsky Court. On 31 July 2001 the Shyryayevsky Court remitted the case to the Prosecutor for an additional pre-trial investigation on the ground that it had not been completed and there had been some procedural omissions. On 17 August 2001 the applicant went to Germany, where he currently resides. On 19 October 2001 the Prosecutor put the applicant on the list of wanted persons. Following the above events, the criminal proceedings against the applicant were suspended. In the period prior to 29 October 2007 the proceedings in the applicant’s case were resumed in order to perform certain investigative actions and then, on several further occasions they were suspended again. The applicant, on his own or with the assistance of his counsel, challenged the suspension of the criminal proceedings, the resolution of 28 April 1999 and the regular inactivity of the domestic authorities throughout the investigations of his criminal case. Some of his complaints and appeals were successful. In particular, on 17 July 2002, the investigator of the Velykomykhaylivsky Prosecutor’s Office ordered that the head of the local police office seize the original of the notary’s documents concerning the sale of the company’s premises. On 13 April 2004 the Velykomykhaylivsky Court, following the applicant’s complaint, found that the above action had not been performed. The court ordered it to be performed. By the same ruling the court ordered that the value of the company’s premises also be established. On 30 October 2007 the Odessa Regional Prosecutor’s Service quashed the ruling of 2 August 2004 of the investigator of the Velykomykhaylivsky Prosecutor’s Service, under which the criminal proceedings had been again suspended, and ordered that the pre-trial investigation be resumed. On 21 March 2008 the Frunzivsky Court ordered the applicant’s pre-trial detention. On 26 March 2008 the Odessa Regional Court of Appeal quashed that ruling. The pre-trial investigation is still pending. On 22 February 2005 the applicant challenged his arrest of 30 July 1999 and his pre-trial detention. On 20 May 2005 the applicant challenged the resolution of 28 April 1999 before the same court. On 8 July 2005 the Prymorsky District Court of Odessa quashed the resolution of 28 April 1999 and found the applicant’s arrest and pre-trial detention to be unlawful. On 24 November 2005 the Odessa Regional Court of Appeal, following an appeal by the Prosecutor, quashed the ruling of 8 July 2005 and terminated the proceedings in that respect on the ground that the Prymorsky Court had no competence to consider the applicant’s complaints. On 12 May 2006 the Supreme Court rejected a request by the applicant for leave to appeal in cassation. | 0 |
train | 001-70630 | ENG | MKD | ADMISSIBILITY | 2,005 | IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | null | The applicant, Mr Slobodan Ivanovski, is a Macedonian national who was born in 1946 and lives in Skopje. He was represented before the Court by a lawyer practising in Skopje, the former Yugoslav Republic of Macedonia. On 27 October 1997 an individual brought criminal charges for defamation against the applicant, who at that time was a police officer. In a summary procedure, on 3 October 2000 the Basic Court Skopje II Skopje found the applicant guilty and sentenced him to four months’ imprisonment suspended for one year. It found that the applicant told a third person (“the witness”) that the complainant would be convicted and sentenced to three years’ imprisonment and that he was unfit to carry a gun and that it would be seized. The court found the accusations credible and convicted the applicant of defamation. It, inter alia, stated: “...the defendant [name] on 15 October 1997 visited the witness [name] at his work in the elementary school ... on which occasion he made untruthful statements about the complainant [name] and told him that the latter would be sentenced to at least 3 years imprisonment and that he was unfit to carry weapons and his pistol would be taken away...The court finds that the accused [name] and the witness [name] took part in the incident by taking into account the clear and precise statement of the witness [name] who described the critical incident and the defendant’s statement, who states that he did meet with the witness on the stated day...” Before the decision was reached, on 3 October 2000, the court held a public hearing, which was attended by the complainant, the applicant and the witness to whom the defamatory statements were allegedly made. The applicant’s lawyer was not present at the hearing. She had not been properly summoned, which the court expressly noted in the minutes. However, despite the absence of the applicant’s lawyer, the court held the hearing as the applicant had been warned at the previous hearing held on 5 July 2000 that the (next) hearing would be held even in the lawyer’s absence, as legal representation was not compulsory and as the applicant had failed to secure the presence of his lawyer. The applicant did not explicitly object to the hearing proceeding in the absence of his lawyer. He did not ask for an adjournment and consented to giving evidence and himself put questions to the witness. In his evidence to the court, the applicant stated that he had been served with the criminal complaint, but that he was not able to judge whether to remain silent or to defend himself. He rejected the accusations and declared himself not guilty. He stated that he had known the complainant for about 40 years and they had recently met more often, as he was divorcing and was asking for some consultations with the complainant who was a retired lawyer. He started seeing the complainant’s daughter. Their relations became troubled when the applicant allegedly refused the complainant’s proposal to transfer some property to the name of his daughter. He admitted that he occasionally saw the witness while on official visits to the school where the latter worked, but that he did not make any of the alleged defamatory statements to him. The complainant stated that he had only known the applicant for several years and that he visited his house occasionally. As the applicant allegedly had asked him to found a company to enter into business relations with the underground in some neighbouring countries, he stopped all contact with him. After a couple of months, the complainant complained to the police authorities that the applicant was peering into his house, due to which internal disciplinary proceedings within the Ministry of the Interior were instituted against the latter. The event was noticed by the witness, who was a neighbour. He confirmed that, during the disciplinary proceedings, the applicant visited him several times in the school and threatened him to make him withdraw the statement. In the course of those visits, the applicant made untrue statements about the complainant to the witness which were the subject of criminal charges. The witness confirmed that the applicant was the one who peeked into the complainant’s house, about which he made a statement to the police authorities. The applicant allegedly visited him several times at the school in order to persuade him to be objective and not to make statements against him in the disciplinary proceedings. He stated that the applicant did not tell him anything against the complainant, except not to be under his influence and to give an objective statement in the disciplinary proceedings. He also said that he thought that the applicant had mentioned to him that a gun would be seized from the complainant and that he would go to prison, but that he did not understand how would that be done and by whom. He received neither threats nor anything else from the applicant. He was also contemplating to complain to the police authorities about the applicant’s visits. He, inter alia, stated: “... Sometime after that incident, the defendant ... visited me at work, and if I can say so, to pressure me because I understood he found out that a disciplinary procedure was initiated at his work place. He was telling me to be impartial and not to take the side of [name] the complainant, since he was my neighbour and he would definitely try to influence me to give a statement against him. During all those meetings, the defendant [name] was showing me pictures illustrating that he was in contact with the complainant’s [name] family. He was telling me about [name] his daughter, but he didn’t tell me anything about the complainant [name]. I repeat again that regarding the complainant [name] all he was saying was not to be under his influence and to give an impartial statement in the disciplinary procedure. That is all he was telling me. I say that he did not tell me anything regarding the complainant [name] as a person. I cannot quote him precisely, but I think that at one occasion, the defendant [name] mentioned that allegedly the complainant’s [name] pistol would be taken away and that he would be going to prison. But I did not understand in which context and by whom and in which way this would be done.” The court refused the applicant’s request to summon several witnesses for the purpose of describing his relations with the complainant and his daughter as irrelevant for the offence of which he was accused. The applicant appealed the court’s verdict on, inter alia, the following grounds: that the trial court violated his right to defend himself as he was tried in the absence of his lawyer; that the court erred in establishing the facts, especially in that it based its decision solely on the witness’s statement, which was not credible; and that it failed to call and examine the witnesses as proposed by the applicant. On 13 July 2001 the Appellate Court of Skopje dismissed both the applicant’s and his lawyer’s complaints as ill-founded. Regarding the applicant’s allegations of a violation of his right to defend himself before the trial court, the Appellate Court stated that: “...according to the minutes of the hearing held on 5 July 2000, the accused was warned that if he would not secure the presence of his lawyer for the hearing scheduled for 3 October 2000, it would be held in her absence, as legal representation for criminal offences of that type was not compulsory. As the accused, despite the warning of the trial court, failed to secure the presence of his lawyer, the court finds that the trial court has properly decided to hold the hearing in the absence of his lawyer for representation was not compulsory. Thus, it did not violate his right to defend himself...” The court dispensed with a hearing, albeit applicant’s request. On 26 September 2001 the Public Prosecutor refused the applicant’s request to lodge a request for protection of legality with the Supreme Court. Proceedings on the appeal Article 362 “(1) A notification of the Chamber’s session will be given to the defendant and his lawyer, the person damaged as a complainant or to the private prosecutor who, within the period prescribed for the appeal or reply to the appeal, have requested to be informed about the session or have proposed a hearing to be held before the second instance court (Articles 364 to 366). The Chairman of the Chamber or the latter may decide a notification about the Chamber’s session also to be given to the parties when they have not requested it or to the party which has not requested it, if their presence would be useful for any matter to be clarified...” Article 364 “(1) The hearing before the second instance court will be held only if it is necessary for new evidence to be presented due to an erroneously or incompletely established facts or for the evidence be re-presented and there are no justified reasons for the case be referred back to the first instance court for a retrial. (2) For the hearing before the second instance court the defendant and his counsel, the prosecutor, the person damaged, the defence attorneys and legal representatives of the complainant, the person damaged as a complainant and the private prosecutor are summoned, as well as the witnesses and experts whom the court will decide to be heard...” Summary proceedings Article 416 “In the proceedings before the court in first instance for crimes of which a fine or imprisonment up to three years is prescribed as a main punishment, the provisions of Articles 417 to 430 of this Code will apply. If these provisions do not otherwise provide, the other provisions of this Code will be accordingly applied.” Article 431 “(1) When the second instance court decides on appeal against the judgment of the first instance court delivered in a summary proceedings, both parties will be notified about the Chamber’s session only if the Chairman of the Chamber or the Chamber finds that the presence of the parties would be useful for the clarification of any matter...” Defamation Article 172 “(1) A person who expresses or spreads some untruth about another, which could damage his honor and reputation, shall be fined or sentenced to imprisonment of up to six months. (2) If the crime from par. 1 is committed by means of the press, radio, television, or through other public media or at a public gathering, the offender shall be fined or sentenced to imprisonment of up to one year. (3) If the untruth that is expressed or spread is of such significance that it caused or could have caused severe consequences for the complainant, the offender shall be sentenced to imprisonment of three months to three years. (4) If the accused proves the truth of his statement, or if he/she proves that he had reasonable grounds to believe in the truthfulness of what he had stated or spread, he shall not be punished for defamation, but may be punished for insult (article 173), respectively for slight by reproach about a crime (article 175). (5) A person who falsely expresses or spreads about another that he/ she has committed a crime which is prosecuted in the line of duty, he/ she shall be punished for defamation, even though he/ she had had reasonable grounds to believe in the truthfulness of what he/ she expressed or spread, if the expression or spreading is not performed under the conditions from article 176, item 2. The truthfulness of the fact that another has committed a crime for which he/ she is prosecuted in line of duty may be proved only with a sentence that has come into effect and with other evidence only if the prosecution of the trial is not possible or is not allowed.” | 0 |
train | 001-114102 | ENG | HRV | CHAMBER | 2,012 | CASE OF GRUBIĆ v. CROATIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 4. The applicant was born in 1972 and lives in Zagreb. 5. On 8 May 2006 the applicant was arrested on suspicion of having committed armed robberies. 6. On 11 May 2006 an investigating judge of the Zagreb County Court (Županijski sud u Zagreb) opened an investigation in connection with a suspicion that the applicant and six other persons, acting as an organised criminal group, had committed more armed robberies, aggravated murders and attempted aggravated murders. 7. During the investigation the applicant was detained under Article 102 § 1(3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). 8. On 7 May 2007 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Državno odvjetništvo, Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Office”) indicted the applicant and six other persons in the Zagreb County Court on charges of conspiracy to commit armed robbery and aggravated murder. 9. The applicant’s pre-trial detention was extended and he remained in detention throughout the trial. 10. On 17 April 2009 a three-judge panel of the Zagreb County Court extended the maximum statutory limit of the applicant’s detention under Article 109 § 1(5) of the Code of Criminal Procedure for a further six months. This decision was based on section 28(3) of the Office for the Suppression of Corruption and Organised Crime Act, which provides for a possibility to extend the maximum duration of pre-trial detention for a further six months in cases of corruption and organised crime. 11. On 21 April 2009 the Zagreb County Court found the applicant guilty of armed robbery and aggravated murder, and sentenced him to thirty years’ imprisonment. On the same day the trial panel of the Zagreb County Court ordered that the applicant be committed to prison under Article 102 § 4 of the Code of Criminal Procedure. The relevant part of the decision reads: “The detention of the accused, Ognjeg Grubić, has been extended by decision of this court ... on 17 April 2009. The accused has been sentenced to long-term imprisonment of thirty years. Under Article 102 paragraph 4 of the Code of Criminal Procedure, detention shall always be ordered when a sentence of five or more years’ imprisonment is imposed. ... “ 12. On 21 September 2009 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment. 13. On 6 November 2009 a three-judge panel of the Zagreb County Court extended the applicant’s detention for a further nine months, basing its decision on Article 109 § 2 of the Code of Criminal Procedure. The relevant part of the decision reads: “By the first-instance judgment of this court of 21 April 2009 ... the accused, Ognjen Grubić, was found guilty of offences under Article 218 § 2 of the [Criminal Code] and was sentenced to long-term imprisonment of thirty years ... By order of this court ... of 21 April 2009 under Article 102 § 4 of the Code of Criminal Procedure, the accused, Ognjen Grubić, has been detained since 8 May 2006. ... Article 109 § 2 of the Code of Criminal Procedure provides that in cases where a non-final judgment has been adopted the maximum period of detention, until the judgment becomes final, may be extended by one quarter of the term when the maximum period of detention is three years, if [the offence at issue] carries a long-term prison sentence. Since under the above-mentioned Article the maximum period of detention under Article 109 § 1(5) of the Code of Criminal Procedure against the accused, Ognjen Grubić, may be extended for a further nine months, it has been decided as noted in the operative part of this decision.” 14. On 18 November 2009 the applicant lodged an appeal against the above decision, arguing that he had not been given an opportunity to be heard when his detention had been extended and that the decision to extend his detention was not sufficiently reasoned. 15. The Supreme Court dismissed the applicant’s appeal on 25 November 2009. The relevant part of the decision reads: “The accused has been detained since 8 May 2006. Under Article 109 § 1(5) of the Code of Criminal Procedure the maximum period of his detention expired on 8 May 2009. Thereafter the first-instance court extended his detention under section 28(3) of the Office for the Suppression of Corruption and Organised Crime Act ... for a further six months until 8 November 2009. By the impugned decision the detention was extended under Article 109 § 2 of the Code of Criminal Procedure for one quarter, namely nine months. Therefore under this provision he may be detained until 8 August [2010].” 16. On 16 December 2009 the Supreme Court dismissed the applicant’s appeal against the first-instance judgment as ill-founded. 17. On 24 June 2010 the applicant lodged a further appeal with the Supreme Court against its judgment of 16 December 2009. 18. On 6 August 2010 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 109 § 4 of the Code of Criminal Procedure for a further three months. The relevant part of the decision reads: “By the judgment of the Supreme Court ... of 16 December 2009 the first-instance judgment ... of this court of 21 April 2009 in which the accused, Ognjen Grubić, was found guilty was upheld in part ... The accused Ognjen Grubić is detained by order ... of the panel of the Zagreb County Court of 6 November 2009 by which his detention under Article 109 § 1(5) of the Code of Criminal Procedure was extended for a further nine months. He can therefore be detained until 8 August 2010. Given that the accused personally and through his defence lawyer ... lodged appeals against the judgment of the Supreme Court ... of 16 December 2009, and in view of the provision of Article 109 § 4 of the Code of Criminal Procedure and the fact that his detention expires on 8 August 2010, [this] panel has found that the conditions for extending his detention under Article 109 § 4 of the Code of Criminal Procedure have been met.” 19. The applicant lodged an appeal against the above decision on 17 August 2010. He argued that his detention after 16 March 2010 had been unlawful since under Article 109 § 4 of the Code of Criminal Procedure the detention should have lasted for a maximum of three months following the adoption of the judgment against which an appeal was allowed. He pointed out that the judgment of the Supreme Court, against which an appeal was allowed, was adopted on 16 December 2009 and that therefore his detention should have lasted only until 16 March 2010. 20. The Supreme Court dismissed his appeal on 25 August 2010. The relevant part of the decision reads: “The case file reveals that the accused Ognjen Grubić has been detained since 8 May 2006. On 6 November 2009 the Zagreb County Court extended his detention for a further nine months and the detention under that decision lasted until 8 August 2010. The second-instance judgment in this case was adopted on 16 December 2009. Under Article 109 § 4 of the Code of Criminal Procedure, from the date of adoption of the second-instance judgment against which an appeal is allowed, as in the present case, the accused may be detained until the judgment becomes final but not for more than three months. However, the case file reveals that the first-instance judgment, and the second-instance judgment against which an appeal is allowed (and [the appeal] was lodged in this case) were adopted within the period of detention under Article 109 § 2 of the Code of Criminal Procedure. Under Article 109 § 4 of the Code of Criminal Procedure and according to the conclusions of the meeting of the Supreme Court Criminal Division on 23 March 2006, the maximum period of detention can be extended after the period under Article 109 § 2 of the Code of Criminal Procedure. In this case this means beyond 8 August 2010 and not, as suggested by the accused, after the date of the second-instance judgment. Thus all the accused, regardless of the date of the second-instance judgment, are in the same position.” 21. On 3 September 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s decision, reiterating that his detention after 16 March 2010 had been unlawful. 22. On 8 September 2010 the Supreme Court, acting as the final court of appeal, dismissed the applicant’s appeal against the judgment of 16 December 2009 and his conviction thus became final. 23. On 23 September 2010 the Constitutional Court, endorsing the arguments of the Supreme Court, dismissed the constitutional complaint against the Supreme Court’s decision of 25 August 2010. 24. On 12 October 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the Supreme Court’s judgment of 8 September 2010 by which his conviction became final. 25. The proceedings before the Constitutional Court are still pending. 26. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows: “... (4) When judgment is pronounced, detention shall be ordered if the accused is sentenced to five or more years’ imprisonment.” “(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of: 1. six months for offences carrying a statutory maximum sentence of three years’ imprisonment; 2. one year for offences carrying a statutory maximum sentence of five years’ imprisonment; 3. eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment; 4. two years for offences carrying a sentence of more than eight years’ imprisonment; 5. three years for offences carrying a sentence of long-term imprisonment. (2) In cases where a judgment has been adopted but has not yet become enforceable, the maximum term of pre-trial detention may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision. (3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year. (4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months. (5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.” 27. The relevant provision of the Office for the Suppression of Corruption and Organised Crime Act (Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta - USKOK, Official Gazette nos. 88/2001, 12/2002, 33/2005, 48/2005, 76/2007) is worded as follows: “(1) Custody under Article 98 of the Code of Criminal Procedure shall be extended to 48 hours. (2) The total duration of pre-trial detention in the above proceedings, in the case of extended investigation (Article 204, paragraph 1 of the Code of Criminal Procedure) may be twelve months. (3) If the pre-trial detention during the investigation had been extended under paragraph 2 above, the total duration of the pre-trial detention under Article 109 of the Code of Criminal Procedure shall be extended for six months.” 28. The relevant part of the guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006 (published on the Supreme Court’s website under no. Su IVk-155/2006-1) reads: “... Where a first-instance judgment and a second-instance decision quashing the first-instance judgment have been adopted within the time prescribed for detention under Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP and after the expiry of that period also under Article 109 § 3 of the CCP. The overall duration of detention under Article 109 § 3 of the CCP is to be extended only after the time-limit prescribed in Article 109 § 2 of the CCP has expired, irrespective of whether the first-instance court has adopted a fresh judgment in the retrial proceedings. The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed according to the criminal offence of which the accused was found guilty, even where the State Attorney has filed an appeal on any grounds. Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CCP. Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 2 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CCP, after the expiration of the time-limit under Article 109 § 2 of the CCP. Where a second-instance decision against which an appeal is allowed has been adopted within the time-limit set by Article 109 § 3 of the CCP, the overall duration of detention may be extended under Article 109 § 4 of the CCP, after the expiration of the time-limit set by Article 109 § 3 of the CCP. Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 1 of the CCP, the overall duration of detention may be extended under Article 109 § 2 of the CCP, after the expiration of the time-limit set by Article 109 § 3 of the CCP. Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 2 of the CCP, the overall duration of detention may be extended under Article 109 § 3 of the CCP. ...” 29. The Supreme Court’s practice as regards interpretation of Article 109 of the Code of Criminal Procedure is reflected in decisions nos. II Kž-427/09-5 and II Kž-323/22-3. The relevant part of decision no. II Kž-427/09-5 of 22 July 2009 reads as follows: “The Supreme Court, as the court of second-instance, considers that the first-instance court correctly established that in the present case the conditions for the extension of the overall detention of the accused ... under Article 109 § 2 of the Code of Criminal Procedure had been satisfied, and thus extended his overall detention for a further nine months. In a non-final judgment of the Sisak County Court of 7 May 2008 ... the accused ... was found guilty ... and sentenced to twenty years’ imprisonment. That judgment ... was upheld by a judgment of the Supreme Court on 3 December 2008 ... against which the accused lodged an appeal. In view of the sentence given, the detention of the accused is obligatory under Article 102 § 4 of the Code of Criminal Procedure. The accused was detained between 6 January and 5 October 1992 (nine months) and also since 1 March 2007. The maximum period of detention [applicable to him], of three years under Article 109 § 1(5) of the Code of Criminal Procedure, was due to expire on 1 June 2009. Given that the accused was, inter alia, convicted of the criminal offence of aggravated murder ... [which is] punishable by twenty years’ imprisonment, a court may, under Article 109 § 2 of the Code of Criminal Procedure, extend his overall detention for one quarter [of the term referred to in subparagraphs 4 and 5 of paragraph 1 of Article 109 of the Code of Criminal Procedure], that is to say for a further nine months. Therefore, the Supreme Court finds that the extension of the accused’s detention for a further nine months by the first-instance court was well founded and lawful ... ... The accused’s submissions based on Article 109 § 4 of the Code of Criminal Procedure in which he argued that his detention should be lifted because more than three months had passed since the second-instance judgment was adopted are also unfounded. The Supreme Court considers that where, as in the present case, a first-instance judgment and a second-instance judgment against which an appeal is allowed have been adopted within the time-limit for detention under Article 109 § 1 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure, and after that time-limit expires, it may be extended further under Article 109 § 4 of the Code of Criminal Procedure.” The relevant part of decision no. II Kž-323/22-3 of 27 June 2011 reads as follows: “After the adoption of the first-instance judgment, the detention was extended under Article 109 § 2 of the Code of Criminal Procedure ... until 29 June 2011. The second-instance judgment against which an appeal is allowed was adopted on 25 May 2011. Under Article 109 § 4 of the Code of Criminal Procedure, from the date when the second-instance judgment against which an appeal is allowed was adopted, as in the present case, detention may last until the judgment becomes final but not for more than three months. Since the first-instance judgment and the second-instance judgment against which an appeal is allowed were adopted within the time-limits for detention set out in Article 109 § 2 of the Code of Criminal Procedure, the detention can be extended under Article 109 § 4 of the Code of Criminal Procedure only after the period of detention under Article 109 § 2 of the Code of Criminal Procedure has expired, which in this case means after 29 June 2011. Therefore since the detention of the accused ... under Article 109 § 2 of the Code of Criminal Procedure can last until 29 June 2011, detention under Article 109 § 4 of the Code of Criminal Procedure was extended from that date until the judgment becomes final but not for more than three months, namely until 29 September 2011.” | 0 |
train | 001-86146 | ENG | GBR | GRANDCHAMBER | 2,008 | CASE OF BURDEN v. THE UNITED KINGDOM | 1 | Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);No violation of Art. 14+P1-1 | Anatoly Kovler;András Baka;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Stanislav Pavlovschi | 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. The applicants are unmarried sisters, born on 26 May 1918 and 2 December 1925 respectively. They have lived together, in a stable, committed and mutually supportive relationship, all their lives; for the last thirty-one years in a house built on land inherited from their parents in Wiltshire. 11. The house is owned by the applicants in their joint names. According to an expert valuation dated 12 January 2006, the property was worth 425,000 pounds sterling (GBP), or GBP 550,000 if sold together with the adjoining land. The sisters also jointly own two other properties, worth GBP 325,000 in total. In addition, each sister owns in her sole name shares and other investments worth approximately GBP 150,000. Each has made a will leaving all her property to the other. 12. The applicants submitted that the value of their jointly owned property had increased to the point that each sister’s one-half share was worth significantly more than the current exemption threshold for inheritance tax (see paragraph 13 below). 13. By sections 3, 3A and 4 of the Inheritance Tax Act 1984, inheritance tax is charged at 40% on the value of a person’s property, including his or her share of anything owned jointly, passing on his or her death, and on lifetime transfers made within seven years of death. The charge is subject to a nil rate threshold of GBP 300,000 for transfers between 5 April 2007 and 5 April 2008 (section 98 of the Finance Act 2005). 14. Interest is charged, currently at 4%, on any tax not paid within six months after the end of the month in which the death occurred, no matter what caused the delay in payment. Any inheritance tax payable by a person to whom land is transferred on death may be paid, at the taxpayer’s election, in ten equal yearly instalments, unless the property is sold, in which case outstanding tax and interest must be paid immediately (section 227(1)-(4)). 15. Section 18(1) of the Inheritance Tax Act provides that property passing from the deceased to his or her spouse is exempt from charge. With effect from 5 December 2005 this exemption was extended to a deceased’s “civil partner” (see paragraphs 16-18 below). 16. The purpose of the Civil Partnership Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and to confer on them, as far as possible, the same rights and obligations as entailed by marriage. 17. A couple is eligible to form a civil partnership if they are (i) of the same sex; (ii) not already married or in a civil partnership; (iii) over the age of 16; and (iv) not within the prohibited degrees of relationship. 18. A civil partnership is, like marriage, indeterminate in nature and can end only on death, dissolution or annulment. The Civil Partnership Act created a comprehensive range of amendments to existing legislation, covering, inter alia, pensions, tax, social security, inheritance and immigration, intended to create parity between civil partnership and marriage for all purposes except in the very few cases where there was an objective justification for not doing so. The courts have similar powers to control the ownership and use of the civil partners’ property upon dissolution of a civil partnership as upon dissolution of a marriage. 19. When the Civil Partnership Bill was passing through Parliament, an amendment to it was adopted in the House of Lords by 148 votes to 130, which would have had the effect of extending the availability of civil partnership, and the associated inheritance-tax concession, to family members within the “prohibited degrees of relationship”, if (i) they were over 30 years of age; (ii) they had cohabited for at least twelve years; and (iii) they were not already married or in a civil partnership with some other person. The amendment was reversed when the Bill returned to the House of Commons. 20. During the course of the debate in the House of Lords, Lord Alli, a Labour peer, stated: “I have great sympathy with the noble Baroness, Lady O’Caithlin [the Conservative peer who proposed the amendment], when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times – at Second Reading and in Grand Committee –and I have pushed the government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings.” During the same debate, Lord Goodhart, a Liberal Democrat peer, stated: “There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue.” During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith, Member of Parliament, Deputy Minister for Women and Equality, stated: “As I suggested on Second Reading, we received a clear endorsement of the purpose of the Bill – granting legal recognition to same-sex couples, ensuring that the many thousands of couples living together in long-term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law, with all the difficulties that that invisibility brings. We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives, not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them.” 21. The Human Rights Act 1998 entered into force on 2 October 2000. Section 3(1) provides: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Section 4 of the 1998 Act provides (so far as relevant): “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ... (6) A declaration under this section ... (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” Section 6 provides: “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or (b) in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. ...” Section 10 provides: “(1) This section applies if (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies – (i) all persons who may appeal have stated in writing that they do not intend to do so; or (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned; or (b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.” 22. The Government submitted that the objective of giving the national courts the power under section 4 had been to provide a formal means for notifying the government and Parliament about a situation in which legislation was found not to comply with the Convention, and to provide a mechanism for speedily correcting the defect. Once a declaration had been made (or once the European Court of Human Rights had found a violation based on a provision of domestic law), there were two alternative avenues for putting right the problem: either primary legislation could be introduced in Parliament, or the minister concerned could exercise his summary power of amendment under section 10 of the Human Rights Act 1998. 23. When the Human Rights Bill passed through the House of Lords on 27 November 1997, the Lord Chancellor explained that: “[W]e expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.” One of the ministers with responsibility for the Human Rights Act explained to the House of Commons on 21 October 1998 that: “Our proposals [for remedial orders] safeguard parliamentary procedures and sovereignty, ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture. They also ensure that we can do it in the context of not having to worry that if something is decided by the Strasbourg Court or by our courts that creates an incompatibility, we do not have a mechanism to deal with it in the quick and efficient way that may be necessary.” 24. According to statistics provided by the Government and last updated on 30 July 2007, since the Human Rights Act came into force on 2 October 2000 there had been twenty-four declarations of incompatibility. Of these, six had been overturned on appeal and three remained subject to appeal in whole or in part. Of the fifteen declarations which had become final, three related to provisions that had already been remedied by primary legislation at the time of the declaration; seven had been remedied by subsequent primary legislation; one had been remedied by a remedial order under section 10 of the Act; one was being remedied by primary legislation in the course of being implemented; one was the subject of public consultation; and two (relating to the same issue) would be the subject of remedial measures which the government intended to lay before Parliament in the autumn of 2007. In one case, A v. Secretary of State for the Home Department [2005] 2 AC 68, the House of Lords made a declaration of incompatibility concerning section 23 of the Anti-Terrorism, Crime and Security Act 2001, which gave the Secretary of State power to detain suspected international terrorists in certain circumstances. The government responded immediately by repealing the offending provision by section 16 of the Prevention of Terrorism Act 2005. 25. While in common law systems there has traditionally been freedom of testamentary devolution, in civil law systems the order of succession is generally established by statute or code, with some particularly privileged categories of heirs, normally the spouse and close relatives, being granted automatic rights to a portion of the estate (the so-called reserved shares), which cannot generally be modified by the decedent’s will. The position of each heir depends therefore on the combined effect of family law and tax law. 26. From the information available to the Court, it would appear that some form of civil partnership, with varying effects on matters of inheritance, are available in sixteen member States, namely Andorra, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Iceland, Luxembourg, the Netherlands, Norway, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. Spouses and close relatives, including siblings, are granted statutory inheritance rights in virtually all member States. In a majority of member States, siblings are treated less favourably in terms of succession rights than the surviving spouse but more favourably than the surviving civil partner; and only a few member States grant the surviving civil partner inheritance rights equal to those of the surviving spouse. Inheritance tax schemes usually follow the order of succession, although in certain countries, such as France and Germany, the surviving spouse is granted a more favourable tax exemption than any other category of heir. | 0 |
train | 001-58169 | ENG | ROU | CHAMBER | 1,998 | CASE OF VASILESCU v. ROMANIA | 2 | Preliminary objection rejected (estoppel);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | null | 7. Mrs Elisabeta Vasilescu, a Romanian national born in 1897, lives at Potgoli (county of Dâmboviţa). 8. On 23 June 1966, police officers from the Argeş miliţia searched the applicant’s house without a warrant, in connection with a police investigation that had been started in respect of her husband for unlawful possession of valuables, an offence under the legislation then in force (Decree no. 210/1960). They seized 327 gold coins, most of which were pierced for use in jewellery, two of them having been made into ear-rings. 9. On 4 July 1966 these items were deposited at the Argeş branch of the National Bank of Romania and that fact was officially recorded. 10. On 8 July 1966 Argeş miliţia headquarters decided not to press charges against the applicant’s husband and discontinued the investigation of the case in accordance with Article 261 of the former Code of Criminal Procedure (see paragraph 25 below). The police concluded that the offence committed in the case was not likely to constitute a threat to society, but they nevertheless decided to keep the items in question. 11. On 24 May 1990 State Counsel for the county of Argeş, of whom the applicant had enquired what had happened to her property, informed her that there was nothing in the archives of State Counsel’s office at the Argeş Court of First Instance which made it possible to establish that an investigative measure of that kind had been ordered in the case. 12. The applicant subsequently lodged an application for restitution with the Procurator-General of Romania (“the Procurator-General”). On 11 October 1990 the Procurator-General replied that no seizure order or search warrant had been issued in respect of her or her husband, either in 1966 or thereafter. 13. At an unspecified date in 1991 the Ministry of the Interior confirmed to the applicant that an investigative measure had indeed been ordered in 1966 in respect of the property she was claiming and that subsequently charges against her husband had been dropped. According to the Ministry, the seizure had, however, been kept in force by State Counsel at the Argeş Court of First Instance. 14. In 1991 the applicant brought an action for recovery of possession of forty gold coins that had been made into a necklace and a pair of ear-rings against the National Bank, with which they had been deposited. In the Găeşti Court of First Instance she argued that these items had been unlawfully confiscated by the police without any order from a competent judicial authority. In support of her claim, she relied on the Procurator-General’s reply of 11 October 1990 (see paragraph 12 above). 15. On 21 February 1992 the court, basing its decision on the witness evidence gathered and documents in the case file, found for the applicant and ordered the National Bank to return the items claimed. The court also found that the Argeş police had seized, in all, 327 gold coins belonging to the applicant. 16. The National Bank appealed to the Dâmboviţa County Court (tribunalul judeţean), which dismissed the appeal on 7 October 1992. The court found that at the end of the police investigation in respect of the applicant’s husband, a decision had been taken on 8 July 1966 not to prosecute and that, at all events, there was no statutory provision prohibiting the applicant from recovering possession of the items in issue. 17. In 1993, since the applicant considered that she was entitled to have returned to her all the items kept by the miliţia, she requested the Procurator-General to lodge with the Supreme Court of Justice (curtea supremă de justiţie) a special appeal against the judgment of 21 February 1992 (see paragraph 15 above and paragraph 27 below). 18. On 10 June 1993 the Procurator-General informed the applicant that he did not intend to grant that request. In his view, the judgment of 21 February 1992 was lawful and well-founded. 19. On 19 August 1993 the Procurator-General informed the applicant that if she was not satisfied with the decisions in her case, she could avail herself of the new appeal created by Law no. 59 of 1993 amending the Code of Civil Procedure. 20. As a consequence both the applicant and the National Bank appealed to the Ploieşti Court of Appeal (curtea de apel) against the judgment of 21 February 1992. The applicant sought the return of all the coins in issue, while the bank sought to have the earlier decisions quashed. The bank argued that the courts had no jurisdiction to rule in the case as all complaints about investigative measures came within the exclusive competence of State Counsel, as provided in Articles 275 to 278 of the Code of Criminal Procedure (“the CCP” – see paragraph 26 below). 21. In a judgment of 22 February 1994 the Court of Appeal dismissed both appeals. As regards the applicant, it pointed out that she had initially claimed only the forty coins and the pair of gold ear-rings and that she was consequently not entitled to amend the claim on appeal. With respect to the defendant bank, the court laid emphasis on the decision not to prosecute that had been taken during the criminal investigation in respect of the applicant’s husband. It noted, further, that the Procurator-General had taken no action on Mrs Vasilescu’s application for restitution and that he had done no more than persuade her to take legal proceedings. As to the charge of unlawful possession of gold objects, the court said that there had been no basis in law for their retention by the police and that consequently the courts below had been right to order that they should be returned. That judgment became final. 22. In 1994 the Procurator-General made an application to the Supreme Court of Justice under Article 330 of the Code of Civil Procedure (see paragraph 27 below) to have the judgments of 21 February and 7 October 1992 and 22 February 1994 quashed. In his pleading he reiterated the argument that in trying the case in question, the civil courts had exceeded their jurisdiction ratione materiae and encroached on State Counsel’s exclusive competence in the matter (see paragraph 26 below). He consequently applied for the case to be transferred to the appropriate authority. The applicant complained of a breach of Article 21 of the Constitution, which guaranteed free access to the courts (see paragraph 24 below) and submitted that the appeal should be dismissed. 23. On 20 October 1994 the Supreme Court of Justice allowed the Procurator-General’s application and quashed all the judgments concerned, holding that under Article 275 of the CCP, State Counsel for the county of Argeş had sole jurisdiction to entertain Mrs Vasilescu’s application for return of the items in issue. 24. Article 21 of the Constitution provides: “Everyone shall be entitled to apply to the courts for the protection of his rights, liberties and legitimate interests. The exercise of this right shall not be restricted by any statute. …” 25. The relevant provisions of the Code of Criminal Procedure before the revision of 1 January 1969 provided: Article 115 § 4 “Metal objects and precious stones … shall be deposited with the nearest branch of the National Bank within forty-eight hours…” Article 187 “The bodies responsible for criminal investigation shall seek permission from State Counsel to carry out the following: (a) house searches, other than in cases of offences discovered while they are being committed or immediately thereafter; … Permission shall be given in writing on the basis of a reasoned order issued by the body in charge of the investigation. …” Article 261 “If, during the course of inquiries, a factor supervenes which prevents the institution or continuation of criminal proceedings, the body responsible for the investigation may drop the proceedings. … Termination of criminal proceedings shall be effected by means of a reasoned order…” 26. As amended by the Law of 12 November 1968, which came into force on 1 January 1969, the relevant provisions of the Code of Criminal Procedure are worded as follows: Article 168 “An indicted or charged person … may complain about a preventive measure to the criminal investigation body which ordered it or to State Counsel in charge of the investigation, until the case is brought to court; thereafter, the complaint shall be addressed to the court. … If the person concerned has not disputed the enforcement of the preventive measure before the criminal proceedings have ended and become final, they may be challenged in accordance with the civil law.” Article 169 “… Any other person who maintains that he has a right over the seized property may apply, in accordance with Article 168, for a ruling on the existence of that right and for an order for the return of the property…” Article 220 “Where State Counsel finds that a procedural step or measure taken by the body responsible for the criminal investigation is not in conformity with the provisions of law, he shall revoke it in a reasoned order.” Article 275 “Any person whose legitimate interests have been infringed may lodge a complaint against any measures and decisions taken during a criminal investigation. … The complaint must be made to State Counsel supervising the work of the body responsible for the criminal investigation and may be lodged either directly with State Counsel or with the said criminal investigation body. …” 27. The relevant Articles of the Code of Civil Procedure, as amended by Law no. 59/1993, provide: Article 330 “The Procurator-General may, either of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice to quash any final judicial decision on any of the following grounds: (1) where the judicial authority has exceeded its jurisdiction; …” Article 399 “Any enforcement may be challenged by any aggrieved person or other person concerned…” Article 400 “Interlocutory applications and any disputes arising between the parties … over the meaning, scope or application of the operative provisions of a judicial decision which is being executed shall be made to the judicial authority which issued the authority to execute…” | 1 |
train | 001-106835 | ENG | TUR | CHAMBER | 2,011 | CASE OF GÜMÜŞSOY v. TURKEY | 4 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect) | David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque | 4. The applicant was born in 1968 and lives in İstanbul. 5. The applicant is the editor and owner of Devrimci Mücadele Birliği (Revolutionary Struggle Union), a monthly political magazine. At about 12.30 p.m. on 29 November 2001, with a search warrant issued by the Istanbul State Security Court, police officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters conducted a search of the journal’s office. An identity check was carried out and the police arrested four persons, including the applicant, who were present in the office at the time. According to the search and arrest report signed by seven police officers, the applicant resisted the officers. He was subsequently handcuffed and put in a minibus to be taken to the Security Headquarters building. The applicant alleged that he had been beaten and insulted in the car by three police officers. In particular, he stated that one officer, A.Ç., had head-butted him and broken his nose. 6. At 7 p.m. the same day the applicant was taken to Haseki Hospital where he was examined by a doctor. In his report, the doctor noted bruises under the applicant’s eyes and swelling on the bridge of his nose. The applicant was transferred to the Ear, Nose and Throat Service for consultation. The doctor examined the applicant at 9 p.m. the same day, noted the injury to the applicant’s nose and requested an X-ray. 7. On 30 November 2001 the X-ray of the applicant’s nose revealed that it was broken. 8. On 3 December 2001 the applicant was examined once again at the State Security Court branch of the Forensic Medicine Institute. The doctor who examined him explained in his report that the applicant had complained that he had been subjected to ill-treatment in police custody. It was reported that the applicant had stated that he was beaten up in the minibus while he was being taken to the Security Headquarters, and that he had been under psychological pressure while he was in police custody. Referring to the Xray of 30 November 2001, which showed that the applicant’s nose had been broken, the doctor concluded that he was unfit to work for ten days. 9. On the same day the applicant was released by order of the public prosecutor. 10. On an unspecified date, the applicant lodged a criminal complaint with the Beyoğlu Public Prosecutor, alleging that he had been ill-treated while in police custody. 11. On 5 December 2001 the applicant was examined once again at the Beyoğlu branch of the Forensic Medicine Institute. It was noted that he had bruising under his eyes and swelling on his nose. In a final report of 14 December 2001, the Beyoğlu branch of the Forensic Medicine Institute, with reference to the X-ray of 30 November 2001, concluded that the applicant’s nose had been broken, and stated that he was unfit to work for fifteen days. 12. On 21 December 2001 the Beyoğlu Public Prosecutor declared lack of jurisdiction and transferred the case file to the Fatih Public Prosecutor’s Office. The Fatih Public Prosecutor conducted two separate investigations into the applicant’s complaints. In file no. 2001/28563, an investigation was commenced in respect of two police officers who had been on duty at the Anti-Terrorist Branch of the Istanbul Security Headquarters on the day of the applicant’s arrest. In connection with this investigation, the public prosecutor gave a decision on 17 January 2002 that he would not prosecute these two officers, for lack of evidence. 13. In file no. 2002/1953, the Fatih Public Prosecutor conducted an investigation into the events which took place during the applicant’s arrest and his transfer to the Security Headquarters building. On 17 January 2002 the Fatih Public Prosecutor decided to transfer the case back to the Beyoğlu Public Prosecutor’s Office. Accordingly, on 15 February 2002, the Beyoğlu Public Prosecutor filed an indictment with the Beyoğlu Criminal Court against seven police officers, accusing them of ill-treating the applicant under Article 245 of the former Criminal Code. The applicant joined the proceedings as a civil party. 14. During the proceedings, the applicant lodged an objection, stating that the case should be dealt with by the Beyoğlu Assize Court, as the police officers’ actions had amounted to torture. On 17 March 2002 the Beyoğlu Criminal Court declared that it did not have jurisdiction and transferred the case to the Beyoğlu Assize Court. In a hearing held on 17 September 2002, the applicant identified police officer A.Ç. as the person who had broken his nose. 15. On 6 April 2007, on the basis of medical reports and witness statements, the Beyoğlu Assize Court found it established that Officer A.Ç. had broken the applicant’s nose by head-butting him. Considering that the use of force had not been proportionate, the court found the police officer guilty of ill-treating the applicant under Article 245 of the former Criminal Code. Having regard to the duration of the treatment, the court decided that the act did not amount to torture, since it had not been systematic. In conclusion, A.Ç. was sentenced to six months’ imprisonment and banned from public service for three months. The court then converted his sentence to a fine, having had regard to the fact that he did not have a criminal record. Furthermore, the court decided to suspend his sentence under Law no. 647, considering that he was unlikely to break the law again. The other six police officers were acquitted of the charges against them. 16. The applicant appealed against this decision. 17. On 24 February 2010 the Court of Cassation, noting that the statutory time-limit for the offence had expired, decided to drop the criminal proceedings against the accused police officer. 18. A description of the relevant domestic law and practice in force at the material time can be found in Okkalı v. Turkey (no. 52067/99, §§ 4749, ECHR 2006XII (extracts)), and Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004IV (extracts)). | 1 |
train | 001-104155 | ENG | HRV | CHAMBER | 2,011 | CASE OF BREZOVEC v. CROATIA | 3 | Remainder inadmissible;Violation of P1-1 | Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1941 and lives in Vojnić. 6. In 1980 the applicant became the holder of a specially protected tenancy (stanarsko pravo) of a flat in Vojnić. He lived in the flat with his family until 1 October 1991 when Vojnić was occupied. He then fled the occupying forces and went to live in Karlovac. 7. The applicant found a job in Karlovac and, as an internally displaced person, on 30 January 1992 he was awarded a flat there on a temporary basis. In July 1996 the competent authorities terminated his status as an internally displaced person. Following a civil action by Mr T.M., the applicant was forced to leave the flat in Karlovac on 21 January 1999. 8. The applicant claimed that – following the military operation “Storm” by which Croatia regained control of almost its entire territory in August 1995 – on 8 October 1995 he had visited Vojnić, where he had found the flat in respect of which he had the specially protected tenancy uninhabitable and in a very bad state of repair. This had been confirmed on 4 March 1996 by the findings of the Commission for the Assessment of War Damage. He further submitted that he had immediately commenced rebuilding work on the flat with a view to moving into it. 9. However, on 23 August 1996, while the applicant was working in Karlovac, the local authorities, accompanied by the police, entered into the flat, made a list of personal belongings, changed the locks and gave the keys of the flat to a certain Z.H., a local policeman. Five days later the Commission for Temporary Takeover and Use of Certain Property of the Municipality of Vojnić (Komisija za privremeno preuzimanje i korištenje određene imovine Općine Vojnić – “the Sequestration Commission”) issued a decision letting the flat to Z.H. and his family on a temporary basis. 10. On 20 December 1996 the applicant and his wife made a request for the purchase of the flat to the Municipality of Vojnić. In doing so they relied on the Specially Protected Tenancies (Sale to Occupier) Act, which entitled holders of specially protected tenancies of flats in social or state ownership to purchase their flats under favourable conditions (see paragraph 29 below). They received no reply. 11. On 7 August 1998 the Ministry of Reconstruction and Development (Ministarstvo razvitka i obnove) adopted a decision letting the flat to Z.H. and his family for their use. 12. On 16 October 2000 the Municipality of Vojnić issued a decision allowing the applicant to live in the flat. The applicant has been living in the flat ever since. 13. Meanwhile, on 12 May 2000, the applicant and his wife brought a civil action against the State in the Vojnić Municipal Court (Općinski sud u Vojniću) with a view to obtaining a judgment which would allow them to purchase the flat in accordance with the Specially Protected Tenancies (Sale to Occupier) Act. On 9 January 2001 the court dismissed their action. It found that the applicant's flat was owned by the State and not the Municipality of Vojnić and that therefore the plaintiffs should have directed their request for its purchase to the State and not to the Municipality. Following an appeal by the applicant and his wife, on 26 September 2001 the Karlovac County Court (Županijski sud u Karlovcu) quashed the first-instance judgment and remitted the case. It found, inter alia, that the fact that the plaintiffs had made their request for the purchase of the flat to the Municipality and not the State should not have been held against them. 14. In the resumed proceedings, on 11 September 2003 the Vojnić Municipal Court again dismissed the plaintiffs' action. The court first determined, as a preliminary issue, whether the plaintiffs had retained their specially protected tenancy of the flat in Vojnić, the existence of that tenancy being a statutory precondition for buying the flat under the Sale to Occupier Act. In this respect the court found that: (a) the plaintiffs had left the flat in October 1991 and (b) in the period between 5 August 1995, when Vojnić was liberated, and 23 August 1996, when the flat was awarded to Z.H., they had been living in Karlovac and had only occasionally visited and used the flat in Vojnić. That being so, the court concluded that since they had not used their flat permanently for living purposes, the plaintiffs' specially protected tenancy had been terminated. Consequently, they were not entitled to purchase the flat in question. 15. On 18 February 2004 the Karlovac County Court dismissed the plaintiffs' appeal and upheld the first-instance judgment, which thereby acquired the force of res judicata. Relying on the finding of the first-instance court that the plaintiffs had left the flat in 1991 and had not used it in the period between 5 August 1995 and 23 August 1996, the second-instance court expressly referred to section 2 of the Act on the Lease of Flats on the Liberated Territory (see paragraph 19 below) in holding that the plaintiffs' specially protected tenancy had been terminated ex lege because after the Act's entry into force they had not used their flat for a period longer than ninety days. As a result, they had no right to purchase it. 16. The applicant then lodged a constitutional complaint alleging, inter alia, infringements of his constitutional rights to equality before the law, to property and to a fair hearing. 17. On 29 June 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the constitutional complaint and served its decision on the applicant on 20 July 2006. The relevant part of the Constitutional Court's decision reads as follows: “The [ordinary] courts established that the flat at issue in Vojnić had on 28 August 1996 been awarded to [Z.H.] for temporary use, and that the plaintiffs had in the period between August 1995 and 28 August 1996 only occasionally visited the flat, which could not be considered use of the flat. The first-instance court therefore dismissed the plaintiff's action in accordance with section 2 of the Act on the Lease of Flats on the Liberated Territory, according to which the specially protected tenancy of flats located in the previously occupied, now liberated, territory of the Republic of Croatia was to be terminated by the operation of law if the holder of the specially protected tenancy left the flat and did not use it for a period exceeding 90 days following the Act's entry into force. The court established that the complainant had not used the flat between August 1995 and 28 August 1996 and that his specially protected tenancy had [therefore] been terminated by the operation of law. Given that his specially protected tenancy had been terminated by the operation of law after 5 January 1996, the complainant could no longer be considered the holder of a specially protected tenancy and therefore was not entitled to make a request for the purchase of the flat. The County Court found that the first-instance judgment was correct and had been rendered on the basis of correctly and completely established facts and the correct application of the substantive law. Assessing the arguments raised in the constitutional complaint in the light of Article 14 paragraph 2 of the Constitution, the Constitutional Court has found that the complainant's constitutional right to equality before the law was not breached by the contested judgments. The legal views expressed in the contested judgments are based on the correct application of the relevant substantive law and on the constitutionally acceptable interpretation of that law. The Constitutional Court finds that the [ordinary] courts, relying on the facts established in the proceedings, gave reasons for their views expressed in the contested decisions, which undoubtedly do not result from the arbitrary interpretation or application of the relevant substantive law. ... The content of the constitutional right to a fair hearing guaranteed by Article 29 paragraph 1 of the Constitution is limited to procedural guarantees of a fair hearing. Therefore, assessing the arguments raised in the constitutional complaint in the light of that constitutional right, as well as other constitutional rights guaranteed by Article 29 of the Constitution, the Constitutional Court examines possible procedural breaches in the proceedings before the courts and, on that basis and looking at the proceedings as a whole, ascertains whether the proceedings were conducted in a manner which secured a fair hearing to the complainant. Having examined the contested decisions and the first-instance case file, the Constitutional Court finds that the complainant's constitutional right guaranteed by Article 29 paragraph 1 of the Constitution has not been breached. As regards the complainant's argument concerning the breach of the constitutional right of ownership guaranteed by Article 48 paragraph 1 of the Constitution, it has to be noted that the Constitutional Court, on the basis of Article 48 of the Constitution, protects the right of ownership at the constitutional level in such a manner that it prevents restriction or taking of that right by the state authorities, unless a restriction or taking is provided for by law. The Constitutional Court finds that the contested judgments are based on the relevant legislation and are well reasoned, and that the complainant's right of ownership guaranteed by Article 48 of the Constitution has not been breached.” 18. 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: “All shall be equal before the law.” “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “The right of ownership shall be guaranteed.” 19. The Act on the Lease of Flats on the Liberated Territory (Zakon o davanju u najam stanova na oslobođenom teritoriju, Official Gazette no. 73/95), which was in force between 27 September 1995 and 5 August 1998 provided, in its relevant part, as follows: Section 1(1) “This Act regulates the lease of flats of which the specially protected tenancy ... has been terminated pursuant to the provisions of this Act, and which are located in the previously occupied, now liberated, territory of the Republic of Croatia.” Section 2(1) “The specially protected tenancy of the flats referred to in section 1 of this Act shall be terminated by the operation of law [i.e. ex lege] if the holder of the specially protected tenancy leaves the flat and does not use it for a period exceeding 90 days following this Act's entry into force.” Section 3(1) and (2) “(1) Flats referred to in section 1 of this Act which are in state ownership shall be let by the Ministry of Reconstruction and Development. (2) Other flats [i.e. those in social ownership] shall be let by the [Sequestration] Commission established on the basis of the Temporary Takeover and Administration of Certain Property Act.” Section 4(2) and (3) “(2) The Ministry of Reconstruction and Development or the [Sequestration] Commission shall issue a decision ... on the lease of a flat. (3) Against the Commission's decision referred to in the preceding paragraph one may lodge an appeal to the [competent] Ministry ... within eight days. (4) The appeal does not suspend the enforcement of the decision.” 20. On 3 June 2003 the Constitutional Court adopted a decision in case no. U-III-1701/2000 (published in Official Gazette no. 122/2003 of 30 July 2003) where the complainant, the holder of the specially protected tenancy of a flat in Benkovac, brought an action against the local authorities in order to be allowed to purchase the flat in question. The second-instance court ruled against him, finding that his specially protected tenancy had been terminated ex lege because he had left the flat in 1991 when the town had come under the control of the occupying forces, and had returned to it only after the expiry of the time-limit set forth in section 2(1) of the Act on the Lease of Flats on the Liberated Territory. It found that he was therefore not entitled to purchase the flat at issue. The Constitutional Court ruled for the complainant and quashed the contested judgment. In so doing it held as follows: “... [T]he Act on the Lease of Flats on the Liberated Territory refers to persons who left the previously occupied territory of the Republic of Croatia after the liberation in 1995. The complainant did not leave Benkovac after its liberation in 1995 but was expelled therefrom in 1991. Therefore, in the view of the Constitutional Court, the complainant does not belong to the category of persons to which the Act on the Lease of Flats on the Liberated Territory applies. The second-instance court erroneously applied to the complainant's particular legal situation ... the Act on the Lease of Flats on the Liberated Territory. Consequently, that court wrongly held in the contested judgment that the complainant's specially protected tenancy of the flat in Benkovac was terminated by the operation of section 2(1) of the Act on the Lease of Flats on the Liberated Territory after the expiry of the ninety-day time-limit following its entry into force (that is, on 5 January 1996). For these reasons, the complainant's constitutional right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution, as well as his constitutional right to a fair hearing guaranteed by Article 29 paragraph 1 of the Constitution, was violated by the contested judgment.” 21. On 9 December 2004 the Constitutional Court adopted a decision in case no. U-III-1451/2004 (published in Official Gazette no. 187/2004 of 29 December 2004) where the complainant, the holder of the specially protected tenancy of a flat in Petrinja, brought an action against the local authorities in order to be allowed to purchase the flat in question. The ordinary courts ruled against her, finding that her specially protected tenancy had been terminated ex lege because she had left the flat and gone to live abroad in August 1995 when the Croatian authorities regained control of Petrinja following the military operation “Storm”, and had returned to Croatia only in 2001, that is, after the expiry of the time-limit set forth in section 2(1) of the Act on the Lease of Flats on the Liberated Territory. It found that she was therefore not entitled to purchase the flat at issue. The Constitutional Court firstly referred to its interpretation of the Act on the Lease of Flats on the Liberated Territory provided in decision no. U-III-1701/2000 of 3 June 2003 (see the preceding paragraph), according to which that Act applied: “... to persons who left the previously occupied territory of the Republic of Croatia after the liberation in 1995.” Having established that the complainant had indeed left her flat in Petrinja in August 1995 and had returned to Croatia only in 2001, the Constitutional Court dismissed her constitutional complaint. 22. On 6 May 2005 the Constitutional Court adopted a decision in case no. U-III-2174/2002 (published in Official Gazette no. 65/2005 of 25 May 2005) where the complainant, the holder of the specially protected tenancy of a flat in Pakrac, brought an action against the local authorities in order to be allowed to purchase the flat in question. The ordinary courts ruled against her, finding that her specially protected tenancy had been terminated ex lege because she had left the flat in 1991 when Pakrac had come under the control of the occupying forces, and had returned to it only in spring 1996, that is, after the expiry of the time-limit set forth in section 2(1) of the Act on the Lease of Flats on the Liberated Territory. They found that she was therefore not entitled to purchase the flat at issue. The Constitutional Court ruled for the complainant and quashed the contested judgments of the ordinary courts. In so doing it held as follows: “... [T]he Act on the Lease of Flats on the Liberated Territory refers to persons who left the previously occupied territory of the Republic of Croatia after the liberation in 1995. The complainant left the flat in Pakrac in August 1991. Therefore, in the view of the Constitutional Court, the complainant does not belong to the category of persons to which the Act on the Lease of Flats on the Liberated Territory applies. The [ordinary] courts erroneously applied to the complainant's particular legal situation ... the Act on the Lease of Flats on the Liberated Territory. Consequently, the [ordinary] courts in the contested judgments wrongly held that the complainant's specially protected tenancy of the flat in Pakrac was terminated by the operation of section 2(1) of the Act on the Lease of Flats on the Liberated Territory after the expiry of the ninety-day time-limit following its entry into force (that is, 5 January 1996). For these reasons, the complainant's constitutional right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution, as well as his constitutional right to a fair hearing guaranteed by Article 29 paragraph 1 of the Constitution ..., was violated by the contested judgments.” 23. The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), which was in force between 25 December 1985 and 5 November 1996 provided, in its relevant part, as follows: Section 97 “1. The provider of the flat may terminate the specially protected tenancy... [inter alia] if the tenant does not pay the rent or the utility charges for three consecutive months, or for three months over the last twelve months. 2. Termination of the specially protected tenancy for the reasons enunciated in paragraph 1 may be effected if the tenant does not pay the rent or the utility charges due... within a reasonable time after being warned by registered mail to do so.” Section 99 “1. A specially protected tenancy may be terminated if the tenant [...] ceases to occupy the flat for an uninterrupted period exceeding six months. 2. A specially protected tenancy shall not be terminated under the provisions of paragraph 1 of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons. 3. It shall also be considered that the flat has not been used for an uninterrupted period when the tenant only occasionally visits the flat ...” 24. Under section 105(1) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy. 25. In its decision no. Rev-616/1988 of 11 October 1988 the Supreme Court interpreted section 99 of the Housing Act in the following way: “The specially protected tenancy is not lost ex lege by the mere fact of non-use of the flat for a period exceeding six months. Rather, that is a ground for termination of a specially protected tenancy that can be terminated only by the provider of the flat.” 26. The tenancy was terminated as soon as the court's judgment upholding the claim of the provider of the flat became res judicata (see, inter alia, the Supreme Court's decision no. Rev-1009/1993-2 of 15 June 1994). 27. In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003, and Rev-590/03-2 of 17 December 2003) starting with decision no. Rev-155/1994-2 of 16 February 1994, the Supreme Court interpreted another aspect of section 99(1) of the Housing Act as follows: “The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se, make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act ..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.” 28. The Lease of Flats Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, abolished the specially protected tenancy as such (section 30 paragraph 1) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 52 paragraph 1). 29. The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/91 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled the holder of the specially protected tenancy of a flat in social or state ownership to purchase it from the provider of the flat under favourable conditions. 30. Section 4(2) provided that a written request for the purchase of a flat had to be made within one year of the date of the Act's entry into force (this time-limit was by subsequent amendments to the Act extended until 31 December 1996 for the flats located on the liberated territory). 31. The relevant part 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) provides 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.” | 0 |
train | 001-4860 | ENG | GBR | ADMISSIBILITY | 1,999 | McGUINNESS v. THE UNITED KINGDOM | 1 | Inadmissible | Nicolas Bratza | The applicant is an Irish citizen, born in 1950 in Northern Ireland. He is an elected member of the United Kingdom Parliament, representing Sinn Féin. He lives in Derry, Northern Ireland. The applicant is represented before the Court by Mr Michael Flanigan, a solicitor practising in Belfast. A. The facts as submitted by the applicant may be summarised as follows. In the General Election held on 1 May 1997 the applicant was elected Member of Parliament (“MP”) for the Mid-Ulster constituency in Northern Ireland. His party, Sinn Féin, which polled 16.1% of the votes cast in Northern Ireland in the General Election, is an Irish republican political party committed to the principle that the Irish people have the right to self-determination. The applicant made known to his constituents during the electoral campaign that, in line with official Sinn Féin policy, he would not take the oath of allegiance (“the oath”) to the British monarchy which MPs are required to swear as a condition of taking their seats in Parliament. The applicant did, however, affirm that he would attend the Palace of Westminster, the seat of Parliament, in order to avail himself of the normal facilities afforded to MPs, namely office accommodation, staff allowances, research facilities, travel allowances, broadcasting services and access to restricted areas for the purpose of making informal contact with other MPs. It was the applicant's understanding that elected members who did not take the oath were nonetheless entitled to benefit from these services. The oath, as set out in section 1 of the Parliamentary Oaths Act of 1866 (“the 1866 Act”), amended by sections 2, 8 and 10 of the Promissory Oaths Act of 1868, is as follows: “I [name] do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law. So help me God.” On 14 May 1997 the Speaker of the House of Commons (“the Speaker”) made the following Statement to the House: “This House has traditionally accommodated great extremes of opinion. I am sure therefore that the House would not wish to put any unnecessary obstacle in the way of Members wishing to fulfil their democratic mandate by attending, speaking and voting in the House. Equally, I feel certain that those who choose not to take their seat should not have access to the many benefits and facilities that are now available in the House without also taking up their responsibilities as Members. The present position is that under the terms of the Parliamentary Oaths Act 1866, any Member who fails to take the oath or make the affirmation that is required by law and who then votes or sits during any debate after the election of the Speaker is subject to a penalty of [GBP] 500 on each occasion and his or her seat is automatically vacated. In 1924 one of my predecessors ruled that any such Member could not receive a salary and this regulation also applies to allowances. In the interests of the House and making use of the power vested in the Speaker to control accommodation and services in the Commons parts of the Palace of Westminster and the precincts, I have decided to extend these restrictions. As from the date of the end of the Queen's speech the services that are available to all other Members from the six departments from the House and beyond will not be open for use by Members who have not taken their seats by swearing or by affirmation ... .” On 19 May 1997 the applicant travelled to Westminster together with Mr Gerry Adams, the other Sinn Féin MP elected at the 1997 General Election and leader of the party. They were officially informed that they would be barred from using any services or facilities if they did not take the prescribed oath. On 4 July 1997 Mr Adams wrote to the Speaker requesting her to review her decision. The Speaker replied on 8 July 1997 stating that her decision stood for the reasons set out in the Statement. On 12 August 1997 the applicant applied to the High Court of Justice of Northern Ireland for leave to apply for judicial review of the Speaker's decision and for a declaration that the 1866 Act, in so far as it required him to swear or affirm allegiance to the British monarchy, was incompatible with his constitutional rights as an MP. Mr Justice Kerr heard the application on 1 October 1997. On 3 October 1997 Mr Justice Kerr refused the application. As to the applicant's challenge to the Speaker's authority to extend the restriction on facilities and services, the judge ruled that the Speaker was acting as a delegate of the House and on behalf of the House. Furthermore, he pointed out that the government of the day decided in March 1965 that the control of the accommodation and services in the House of Commons and its precincts should be vested in the Speaker on behalf of the House. The judge further ruled that he was: “quite satisfied that ... the Speaker's action lies squarely within the realm of internal arrangements of the House of Commons and is not amenable to judicial review. Control of its own internal arrangements has long been recognised as falling uniquely within Parliament's domain and superintendence from the Court's intervention is excluded ... .” As to the applicant's challenge to the validity of the 1866 Act Mr Justice Kerr ruled that, being primary legislation, the court did not have jurisdiction to review it. As to the applicant's claim that the Speaker's action was not a “proceeding” under Article 9 of the Bill of Rights 1869, the judge did not rule on the matter, but he said that if it had been necessary for him to do so, he would have held that the Speaker's decision to introduce the restrictions was a proceeding in Parliament and so could not be challenged by way of judicial review under Article 9 of the Bill of Rights of 1869 (see domestic law and practice below). The applicant did not appeal to the Court of Appeal, following advice from counsel that an appeal would be to no avail. On 4 December 1997 the Speaker met with the applicant and Mr Adams, and refused once again to reconsider her decision to restrict facilities and services of Parliament to members who had not taken the oath. B. Relevant domestic law and practice Appended to the Official Report for 14 May 1997 following the Statement of the Speaker was a list of services to which the new regulations apply, including: legal services, procedural services (including the tabling of questions, motions and amendments, and public petitions), broadcasting services, Vote Office services, services available from the Parliamentary Office of Science and Technology, the provision of passes, special permits and car parking facilities, access to those areas within the parliamentary precincts which are open only to pass holders, the booking of Committee rooms, conference rooms and interview rooms, office accommodation services for members and their staff, computer services, except those available to the public, the allocation of Gallery tickets, the sponsoring of exhibitions in the Upper Waiting Hall, members' medical services, library and research services, except for those services of the Public Information Office generally available to the public, services provided by the Official Report, payroll and other financial services provided to members and their staff, insurance services, catering services provided for members and their staff, including the sponsoring of banqueting services, police and security advice available within the precincts, services in the members' post offices and travel services. Article 9 of the Bill of Rights of 1869 provides that: “... the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” In Bradlaugh v. Gossett (1884) 12 Q.B.D. 271, also involving a challenge to the Parliamentary Oath Act of 1866, the court held that the matter related to the internal management of the procedure of the House of Commons and that the court had no power to interfere with the MPs' decision to exclude the plaintiff from the House. In the case of Prebble v. Television New Zealand (1995) 1 A.C. 321, the Privy Council ruled: “In addition to Article 9 itself, there is a long line of authority which supports a wider principle ... that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges.” | 0 |
train | 001-78410 | ENG | UKR | CHAMBER | 2,006 | CASE OF HUNT v. UKRAINE | 3 | Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 8;No separate issue under Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Peer Lorenzen | 4. The applicant was born in 1953 and lives in Riga, Latvia. 5. The applicant was married to Mrs M., a Ukrainian national. They lived in Ukraine. They have a son, N., who was born in 2000. Mrs M. also had another child, M., who was adopted by the applicant in November 2002. 6. In January 2003 the applicant left Ukraine and in April 2003 the applicant and Mrs M. divorced. 7. On 24 June 2003 Mrs M. wrote a letter to the Head of the Department for Combating Organised Crime of the Ministry of the Interior requesting that the applicant be banned from entering Ukraine. Mrs M. complained, in particular, that in June 2003 the applicant had come to Cannes, France, where their son N. had been on holidays with a nurse, and had threatened to take N. away. She further stated that in his previous marriage the applicant had inflicted grievous bodily harm on his wife. 8. On 26 June 2003 the Ministry of the Interior sent a request to the State Committee of Border Control to ban the applicant from entering Ukraine. 9. On 27 June 2003 the State Committee for Border Control informed the Ministry that Mr. Hunt was prohibited from entering Ukraine for five years. The applicant learned about this decision shortly afterwards. 10. In November 2003 the applicant was informed by Mr T., his lawyer in another civil case, that his former wife had lodged a claim with the Pechersky District Court of Kyiv seeking to deprive the applicant of his parental rights with respect to his natural son N. The applicant could not be present in the court due to the prohibition on entering Ukraine, but was represented before the court by his lawyer, Mr T. 11. On 5 December 2003 the first-instance court found for Mrs M. and decided to deprive the applicant of his parental rights. The court based its decision on the fact that the applicant did not fulfil his parental duties properly, in particular he did not participate in bringing up the child, did not contact him and had lost any interest towards him. The court also took into consideration that the applicant had not complained to the local tutelage and supervision board that Mrs M. refused him access to the child. The court disregarded the applicant's argument about the impossibility of participating in the up-bringing of the child due to the prohibition on entering the country, stating that the applicant had not met his son since January 2003. According to the Government, the domestic courts had been aware that the applicant had deliberately indicated false data on his place and date of birth in official documents and that he had been previously criminally prosecuted and had never been formally acquitted. 12. This decision was appealed against by the applicant's representative to the Kyiv City Court of Appeal. In the appeal it was mentioned that the conclusion of the court of first instance that the applicant did not want to meet his son was incorrect, since in her request of 24 June 2003 to the police Mrs M. had clearly mentioned his attempt to see their son in June 2003. It was also mentioned that the applicant had tried to lodge a request with the tutelage and supervision board of the Pechersky Local Administration of Kyiv, but had been informed that his presence was required in order for the request to be examined. The representative complained that the court of first instance heard only witnesses of the opposing party, who had been employed by Mrs M. He noted that the court had not sought to receive first-hand information from the applicant himself through the international legal assistance instruments. 13. On 5 March 2004, the court of appeal upheld the decision of the first instance court. Having repeated the findings of the first instance court, the court of appeal noted that the applicant's objections had not been supported by any evidence and the arguments of the opposite side had been confirmed by testimonies of two nurses of the child. It further decided that the arguments of the applicant's appeal did not dispose of the findings of the first-instance court and did not influence the correctness of those findings. 14. The applicant appealed in cassation. In his appeal he reiterated his previous arguments and complained that the court of appeal refused to call a witness on his behalf. 15. On 1 June 2004 the panel of three judges of the Supreme Court of Ukraine rejected the applicant's request for leave to appeal in cassation, having found that the lower courts did not violate any substantive or procedural law. 16. By letter of 7 June 2004, the Ministry of Justice of Ukraine informed the applicant's lawyer that the service abroad of judicial documents could be conducted under the relevant international instruments. In relations between them, Ukraine and the United States of America used the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965. 17. On 12 May 2003 the Pechersky District Court of Kyiv examined the applicant's request to correct the date of his birth in the civil state register. The court decided for the applicant. 18. On 16 June 2003 the same court quashed its previous decision of 12 May 2003 in the light of newly discovered circumstances and re-opened the proceedings. 19. On 19 December 2003 the court rejected the applicant's request concerning mistake in his date of birth in the register. On 10 March 2004 and 5 July 2004 respectively the Kyiv City Court of Appeal and the Supreme Court upheld the decision of the first instance court. 20. On 1 October 2004 the Pechersky District Court of Kyiv considered a claim by the applicant, in which he requested to invalidate the decision on adoption of M., the elder son of Mrs M., and rejected it as unsubstantiated, having found that at the time of adoption the applicant and Mrs M. had genuine and good family relations. 21. On 8 June 2005, the same court invalidated the above-mentioned decision on adoption of M. by the applicant. 22. On 15 October 2003 the Pechersky District Court rejected the applicant's complaint against the decision about prohibition of his entry in Ukraine. 23. On 11 February 2004 the Kyiv City Court of Appeal upheld the decision of the first instance court. 24. On 1 March 2005 the applicant appealed in cassation. The proceedings are still pending. 25. The relevant extracts of the Constitution of Ukraine read as follows: Article 26 “Foreigners and stateless persons who are in Ukraine on legal grounds enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties of Ukraine...” Article 32 “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...” Article 51 “...The family, childhood, motherhood and fatherhood are under the protection of the State.” 26. Article 6 of the Code provided that civil proceedings should be conducted on the grounds of equality of persons regardless, in particular, of their place of residence. 27. Article 103 of the Code provided that the claimant and the defendant had equal procedural rights. 28. Article 423 provided that foreign citizens had equal procedural rights with Ukrainian citizens in civil proceedings. The Ukrainian legislation could foresee restrictions on procedural rights of citizens of other countries, where the procedural rights of Ukrainian citizens were restricted. 29. Article 70 of the Code provided that parents could be deprived of their parental rights if it was established that they neglected their duties of bringing up their children, or abused their parental rights, treated the children cruelly, influenced the children harmfully by their immoral, antisocial behaviour, as well as when the parents were chronic alcoholics or drug addicts. The deprivation of parental rights did not preclude the possibility for a person concerned to seek access to the child through the courts. 30. Article 71 established the circle of persons entitled to seek deprivation of parental rights before the courts. It also envisaged participation of guardianship authorities and the prosecutor in the hearing. 31. This Code replaced the Marriage and Family Code and contains similar provisions as to deprivation of parental rights. 32. Article 18 provides that foreigners can marry and divorce Ukrainian citizens under Ukrainian law. They have equal rights in family relations with Ukrainian citizens. 33. Article 22 provides that foreigners are entitled to seek protection of their individual, property and other rights in the courts and other state bodies. In judicial proceedings foreigners have equal procedural rights with Ukrainian citizens. 34. Article 25 stipulates that entry to Ukraine can be prohibited to a foreigner in the interests of national security and public order, if public health, the protection of the rights and legitimate interests of Ukrainian citizens and residents require so, if the foreigner violated Ukrainian legislation during his previous stay in Ukraine, etc. | 1 |
train | 001-71679 | ENG | RUS | CHAMBER | 2,005 | CASE OF ZAUGOLNOVA v. RUSSIA | 4 | Violation of Art. 6-1 (non-enforcement of judgment);Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1946 and lives in Neryungri. 5. On 10 April 2002 the Nyuringri Town Court granted the applicant’s civil action against the Neryungri Town police department and awarded her 16,683.23 Russian roubles (“RUR”). On 5 June 2002 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment on appeal. On the same day the judgment became final and enforceable. 6. On 3 December 2002 the Nyuringri Town Court issued a writ of execution. 7. On 16 July 2003 the applicant submitted the writ of execution to the Neryungri Town police department. 8. On 8 December 2004 the Neryungri Town Administration transferred RUR 16,683.23 to the applicant’s account. | 1 |
train | 001-78693 | ENG | RUS | ADMISSIBILITY | 2,006 | ARTYOMOV v. RUSSIA | 1 | Inadmissible | null | The applicant, Mr Igor Vladimirovich Artyomov, is a Russian national who was born in 1962 and lives in Vladimir. The applicant has been the leader of the public movement Russian All-Nation Union (Русский общенациональный союз – Russkiy obshchenatsionalniy soyuz) since its inception in the early 1990s. On 7 December 1998 the Ministry of Justice registered the movement as a public association. On 23 December 2001, at the sixth general assembly of the movement, members decided to reorganise the movement into a political party bearing the same name. An application for the party’s registration was lodged with the Ministry of Justice. By a letter of 28 June 2002, the Ministry of Justice refused the application on a number of grounds. The first ground for the refusal was that the adjective “Russian” (русский – russkiy) in the name of the party referred to an ethnic group, whereas section 9(3) of the Political Parties Act prohibited the establishment of political parties based on professional, racial, ethnic or religious affiliations. The applicant contested that particular ground for the refusal before a court of general jurisdiction. By a judgment of 24 January 2003, the Taganskiy District Court of Moscow dismissed the applicant’s complaint after hearing evidence from several experts called by the defence. The experts concurred that the meaning of the word russkiy was ambiguous, since it could be understood either as denoting anything related to Russia – and in this sense its meaning was closer to the word rossiyskiy (российский) – or as referring to one particular ethnic group, the Russians. A representative of the Ministry of Justice submitted to the court that the word “all-nation” (общенациональный – obshchenatsionalniy) in the name of the applicant’s party also had two meanings, the first being “an association of people belonging to different nations” and the second “an association of the people of one nation”. However, since it was preceded by the word russkiy, these two adjectives had to be read together and understood as “an association of the nation of [ethnic] Russians”. The District Court accepted that interpretation, which was not disputed by the applicant, and found that the applicant’s party was founded on the basis of ethnic affiliation. This amounted to a breach of section 9(3) of the Political Parties Act, even though the party’s articles of association and programme did not indicate protection of the interests of Russians as its main objective. On 18 September 2003 the Moscow City Court upheld the judgment on appeal, endorsing the reasoning of the District Court. The applicant challenged section 9(3) of the Political Parties Act before the Constitutional Court, alleging that it was incompatible with the Russian Constitution. The Constitutional Court joined his complaint with those of the Orthodox Party of Russia and Mr Savin. On 15 December 2004 the Constitutional Court issued Ruling no. 18-P. It noted at the outset the special role of political parties as the only form of public association vested with the right to nominate candidates in elections to State bodies. According to the Political Parties Act, membership of political parties is individual and voluntary and may not be restricted on account of professional, social, racial, ethnic or religious affiliation, gender, social origin, property or place of residence. The court concluded that the right of individuals of any ethnicity or religion to become members of a party whose objectives and goals they shared could not be restricted. It further found as follows. “The principles of pluralist democracy, a multi-party system and a secular State that form the constitutional basis of the Russian Federation – in so far as they apply to legal regulation of the establishment and functioning of political parties, including conditions for their registration – may not be interpreted or implemented without regard to the particular features of Russia’s historic development, the ethnic and religious structure of Russian society and the specific character of interaction between the State, political power, ethnic groups and religious denominations. ... The principle of a secular State cannot be applied in the Russian Federation in the same way as in those countries that have a single-faith and single-nation social structure and boast a well-developed tradition of religious tolerance and pluralism. In particular, some of those countries have permitted the establishment of political parties based on Christian democratic ideology; in these cases the term ‘Christian’ has moved beyond denominational confines and designates affinity with the European system of values and culture. In multinational and multi-denominational Russia, owing to the specific modus operandi of leading faiths ..., their influence on public life and their invocation in political rhetoric (which has historically been linked to the ethnic question), public consciousness is more likely to identify the terms ‘Christian’, ‘Orthodox’, ‘Muslim’, ‘Russian’, ‘Tartar’, etc. with specific denominations or ethnic groups, rather than with a system of values common to the Russian [rossiyskiy] people in its entirety. Furthermore, contemporary Russian society, including political parties and religious associations, has not yet acquired substantial experience of democratic coexistence. In these circumstances, parties based on ethnic or religious affiliation would inevitably strive to assert principally the rights of their respective ethnic and religious communities. Competition among parties based on ethnic or religious affiliation ... could lead to stratification of the multinational people of Russia instead of the consolidation of society, to the opposition of ethnic and religious values, exaltation of some and belittlement of others and, ultimately, to attributing predominant importance not to those values which are common to the entire nation but to those restricted to one ethnic ideology or religion, a result which would be contrary to the Russian Constitution (Articles 13 and 14). The establishment of parties based on religious affiliation would open the door to the politicisation of religion and religious associations, political fundamentalism and the clericalisation of parties ... The establishment of parties based on ethnic affiliation could lead to a situation where representatives of parties advocating the interests of large ethnic groups – to the detriment of those of small ethnic groups – would predominate in elected governing bodies; a situation which would violate the principle of equal rights irrespective of ethnic origin, established in the Russian Constitution (Articles 6 § 2, 13 § 4 and 19 § 2). Thus, the constitutional principle of a democratic and secular State, as applied in the particular social and historic context existing in the Russian Federation as a multinational and multi-denominational country, does not allow political parties to be established on the basis of ethnic or religious affiliation. For those reasons, in the face of unrelenting inter-ethnic and interdenominational tension and the ever-growing political demands of modern-day religious fundamentalism, when any religion-based distinction, once brought into the sphere of politics (and therefore, into the struggle for power), may acquire an ethnic dimension and lead to a division of society along ethnic and religious lines (a division, in particular, into Slavic-Christian and Turko-Muslim elements), the introduction into the Political Parties Act of a ban on the establishment of political parties based on ethnic or religious affiliation is compatible with the authentic meaning of Articles 13 and 14 of the Russian Constitution read together with Articles 19 §§ 1 and 2, 28 and 29 ...” Finally, the Constitutional Court noted that it was not competent to determine whether in a particular case a party had been established on the basis of national or religious affiliation and whether a party’s name reflected its aims, namely the promotion of ethnic or religious interests, these matters coming within the jurisdiction of the ordinary courts. The Russian Constitution guarantees plurality of ideologies and political parties and prohibits the activity of public associations which incite social, racial, ethnic or religious discord (Article 13). Article 14 guarantees the secularity of the Russian State and equality of religions. Article 19 establishes the principle of equality before the courts and the law. Article 28 guarantees the right to freedom of conscience and religion. Article 29 guarantees the right to freedom of thought and expression and prohibits the promotion of social, racial, ethnic, religious or linguistic superiority. The Political Parties Act (Federal Law no. 95-FZ of 11 July 2001) provides as follows: “(3) The establishment of political parties based on professional, racial, ethnic or religious affiliation is not allowed. The terms ‘professional, racial, ethnic or religious affiliation’ shall be understood in the present Federal Law as inclusion in the articles of association and programme of the political party of the aims of protection of professional, racial, ethnic or religious interests, as well as reference to those aims in the name of the political party.” | 0 |
train | 001-88366 | ENG | GBR | ADMISSIBILITY | 2,008 | FOY v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Bernard Foy, is a British national who was born in 1940 and lives in Wigan. He was unrepresented before the Court. 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 28 September 1989. His claim for widows’ benefits was made on 21 February 2002 and was rejected on 14 March 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 11 July 2002. 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 applicant was not in receipt of child benefit at the time of his claim. 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 | 001-111044 | ENG | ITA | GRANDCHAMBER | 2,012 | CASE OF SCOPPOLA v. ITALY (No. 3) | 2 | No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote) | András Sajó;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Vincent A. De Gaetano;Vladimiro Zagrebelsky | 11. The applicant was born in 1940 and is currently in compulsory residence at San Secondo Hospital – Fidenza (Parma). 12. On 2 September 1999, after a violent family dispute, the applicant killed his wife and injured one of his sons. He was arrested the following day. 13. At the end of the preliminary investigation the Rome prosecution service asked for the applicant to be committed to stand trial for murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm. 14. On 24 November 2000, under the summary procedure under which the applicant had elected to stand trial, the Rome preliminary hearings judge (giudice dell’udienza preliminare) found the applicant guilty of all the charges and noted that he should be sentenced to life imprisonment. However, because the summary procedure had been used, he sentenced the applicant to thirty years’ imprisonment and a lifetime ban from public office within the meaning of Article 29 of the Criminal Code (see paragraph 36 below). 15. The judge noted that the applicant had first attempted to strangle his wife with the cable of the telephone she had used to call the police. Then, when his wife and children ran out of the flat and down the stairwell of the building, he had fired several shots at his wife at close range, and at one of his sons, who had initially been ahead of his mother but had gone back to help her. 16. In fixing the sentence the judge took into account certain aggravating circumstances, namely the fact that the applicant’s criminal behaviour had been against his own family and had been triggered by so trifling an incident as his children having allegedly broken his mobile phone. 17. The judge made no allowance for the fact that the applicant had no previous criminal record, an argument the applicant had relied on as a mitigating circumstance. He found that the applicant’s attitude in denying some of his actions and blaming his family, who he claimed were guilty of rebelling against his authority, showed that he felt no remorse whatsoever. 18. Lastly, the judge noted that according to witness statements the applicant had been responsible for other episodes of violence over the past twenty years, such as insults, physical violence and threats against his wife and children, including with weapons. 19. Both the Public Prosecutor’s Office and the applicant appealed against that judgment, and in a judgment of 10 January 2002 the Rome Assize Court of Appeal sentenced the applicant to life imprisonment, upholding the conclusions of the preliminary hearings judge as to which aggravating and mitigating circumstances should be taken into account. 20. The applicant appealed on points of law, and in a judgment deposited with its registry on 20 January 2003 the Court of Cassation dismissed the appeal. 21. Under Article 29 of the Criminal Code, the life sentence imposed on the applicant entailed a lifetime ban from public office, which in turn led to the permanent forfeiture of his right to vote, in conformity with section 2 of Presidential Decree no. 223 of 20 March 1967 (“Decree no. 223/1967” – see paragraph 33 below). 22. The applicant’s disenfranchisement was not mentioned in the judgments against him. 23. In application of section 32 of Decree no. 223/1967 (see paragraph 35 below), on 2 April 2003 the electoral committee deleted the applicant’s name from the electoral roll. 24. On 30 June 2004 the applicant lodged a complaint with the electoral committee. Referring to the Hirst v. the United Kingdom (no. 2) judgment (no. 74025/01, 30 March 2004), amongst other authorities, he alleged that depriving him of the right to vote was incompatible with Article 3 of Protocol No. 1 to the Convention. 25. The complaint was rejected, and on 16 July 2004 the applicant lodged an appeal with the Rome Court of Appeal. He contended that the fact that the removal of his name from the electoral roll, as an automatic consequence of his life sentence and lifetime ban from public office, was incompatible with his right to vote guaranteed by Article 3 of Protocol No. 1 to the Convention. 26. By a judgment deposited with its registry on 29 November 2004 the Court of Appeal dismissed the appeal. It pointed out that, unlike in the Hirst (no. 2) case (cited above), where every person sentenced to imprisonment was divested of the right to vote, with no assessment of the competing interests or the proportionality of the measure, in Italian law the impugned measure was applied only where the offence was punishable with a particularly heavy sentence, including life imprisonment. The court found that the automatic aspect of the application of the voting ban to any custodial sentence was lacking in the applicant’s case. 27. The applicant appealed on points of law, alleging, inter alia, that his disenfranchisement was a consequence of the ancillary penalty banning him from public office (which was itself the result of the main penalty imposed on him). In his view the impugned ban had nothing to do with the offence committed and the courts had no power to decide to apply such a measure. 28. In a judgment deposited with its registry on 17 January 2006 the Court of Cassation dismissed the applicant’s appeal. First, it referred to the Hirst (no. 2) judgment of 6 October 2005 (Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 77, ECHR 2005IX), where the Grand Chamber considered that the withdrawal of voting rights in the United Kingdom “concern[ed] a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity”. It then noted that in Italian law, under Article 29 of the Criminal Code, only those offenders sentenced to at least three years’ imprisonment were deprived of the right to vote. Where the offence attracted a sentence of less than five years, the disenfranchisement lasted only five years, a lifelong ban on voting being reserved for offenders sentenced to between five years and life. 29. On 24 March 2003, the applicant lodged an application with the Court alleging, inter alia, that his life sentence had breached Articles 6 and 7 of the Convention. 30. In a judgment of 17 September 2009 the Grand Chamber of the Court found violations of those Articles (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009). 31. ’s sentence of life imprisonment is replaced by a penalty consistent with the principles set out in the present judgment, which is a sentence not exceeding thirty years’ imprisonment.” (see Scoppola (no. 2), cited above, § 154). 32. Consequently, by a judgment deposited with its registry on 28 April 2010, the Court of Cassation reversed its judgment of 20 January 2003 (see paragraph 20 above), set aside the judgment of the Rome Assize Court of Appeal of 10 January 2002 (see paragraph 19 above) and fixed the applicant’s sentence at thirty years’ imprisonment. 33. In the Italian legal system a ban from public office is an ancillary penalty (Article 28 of the Criminal Code) which entails forfeiture of the right to vote (Presidential Decree no. 223/1967) and for which express provision is made by law in connection with a series of specific offences, irrespective of the duration of the sentence imposed – such as embezzlement of public funds, by a public official (peculato) or otherwise, extortion, and market abuse (punishable, respectively, under Articles 314, 316 bis, 317 and 501 of the Criminal Code); certain offences against the judicial system, such as perjury by a party, fraudulent expertise or interpretation, obstructing the course of justice and “disloyal counsel” (consulenza infedele) (punishable, respectively, under Articles 371, 373, 377 and 380 of the Criminal Code); and offences involving abuse and misuse of the powers inherent in public office (Article 31 of the Criminal Code). 34. Conviction for any offence punishable by imprisonment also results in the offender being banned from public office. The ban from public office may be temporary (where the sentence is three years or more) or permanent (for sentences of five years or more and life imprisonment). The relevant domestic legal provisions are the following. 35. Presidential Decree no. 223/1967 (on the Unified Code governing the active electorate and the maintenance and revision of the electoral rolls) reads as follows, in so far as relevant: “1. The following persons shall not vote: ... (d) persons who have been sentenced to penalties entailing a lifetime ban from public office... (e) persons under a temporary ban from public office, for the duration of that ban. 2. Judgments in criminal cases shall entail the loss of voting rights only once they have become final.” “No change may be made to the electoral rolls ... save ...: (3) where the right to vote has been lost as a result of a judgment or other measure by a judicial authority. ... (7) appeals against decisions to change the electoral rolls may be lodged with the relevant electoral committee within a ten-day time-limit. The committee shall decide within fifteen days ...” “The decisions of the electoral committee ... may be challenged by appeal to the appropriate Court of Appeal.” 36. The Criminal Code provides as follows, in so far as relevant: “The ban from public office may be for life or temporary. In the event of a lifetime ban from public office, unless the law provides otherwise, the convicted person shall be deprived of: (1) the right to vote or stand for election in any electoral body (comizio elettorale) and all other political rights.” ... “A sentence to life imprisonment or to imprisonment for no less than five years shall entail a lifetime ban from public office for the convicted person; sentencing to imprisonment for not less than three years shall entail a five-year ban from public office ...” 37. Articles 132 and 133 of the Criminal Code lay down sentencing guidelines for the trial courts and read as follows: “Within the limits set by the law, the court shall apply the sentence at its discretion; it shall justify its use of this discretionary power with proper reasoning. In increasing or decreasing the sentence the court shall not overstep the statutory limits for each type of sentence, save where expressly provided for by law.” “In exercising the discretionary power mentioned in the preceding Article the court shall take into account the gravity of the offence, having regard to: (1) the nature, type, means, object, time, place and any other attribute of the action; (2) the gravity of the harm done or the danger caused to the victim of the offence; (3) the level of intent or the degree of guilt. The court shall also take into account the offender’s propensity to commit crime (capacità a delinquere), based on: (1) the motives behind the offence (motivi a delinquere) and the character of the offender (reo); (2) the offender’s past criminal and judicial record and, in general, the person’s life and conduct prior to committing the offence; (3) the offender’s conduct at the time of, or after, the offence; (4) the offender’s personal, family and social situation.” 38. Articles 178 and 179 of the Criminal Code provide for the rehabilitation of offenders and read as follows: “Rehabilitation shall terminate any ancillary penalties and other penal effect of the conviction, unless otherwise provided by law.” “Rehabilitation may be granted three years after the day on which the main penalty has been completed or otherwise extinguished, provided that the offender has displayed consistent and genuine good conduct. ...” 39. Law no. 354 of 26 July 1975 provides, inter alia, for the possibility of early release. The relevant part of section 54 (1) reads as follows: “In order to facilitate reintegration into society, convicted prisoners who take part in the re-education scheme may have their sentence reduced by forty-five days for every six months served ...” 40. The relevant provisions of the International Covenant on Civil and Political Rights read as follows: “1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. ... 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ...” “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.” 41. In its General Comment no. 25 (1996) on Article 25 of the International Covenant on Civil and Political Rights, the Human Rights Committee expressed the following view: “14. In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.” 42. In its views on the Yevdokimov and Rezanov v. Russian Federation case (21 March 2011, no. 1410/2005), the Human Rights Committee, referring to the Court’s judgment in Hirst (no. 2) [GC] (cited above), stated: “ 7.5 ... the State party, whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment, did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the Covenant. In the circumstances, the Committee concludes there has been a violation of article 25 alone and in conjunction with article 2, paragraph 3, of the Covenant...” 43. Article 23 of the American Convention, under the heading “Right to Participate in Government”, provides: “1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.” 44. This document, adopted by the European Commission for Democracy through Law (“the Venice Commission”) at its 51st plenary session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002, lays out the guidelines developed by the Commission concerning the circumstances in which people may be deprived of the right to vote or to stand for election. The relevant passages read as follows: “i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions: ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. the deprivation must be based on mental incapacity or a criminal conviction for a serious offence; v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.” 45. Nineteen of the forty-three Contracting States examined in a comparative law study place no restrictions on the right of convicted prisoners to vote: Albania, Azerbaijan, Croatia, Cyprus, Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Moldova, Montenegro, Serbia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine. 46. Seven Contracting States (Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the United Kingdom) automatically deprive all convicted prisoners serving prison sentences of the right to vote. 47. The remaining sixteen member States (Austria, Belgium, Bosnia and Herzegovina, France, Germany, Greece, Luxembourg, Malta, Monaco, Netherlands, Poland, Portugal, Romania, San Marino, Slovakia and Turkey) have adopted an intermediate approach: disenfranchisement of prisoners depends on the type of offence and/or the length of the custodial sentence. Italy’s legislation on the subject resembles that of this group of countries. 48. In some of the States in this category the decision to deprive convicted prisoners of the right to vote is left to the discretion of the criminal court (Austria, Belgium, France, Germany, Greece, Luxembourg, Netherlands, Poland, Portugal, Romania and San Marino). In Greece and Luxembourg, in the event of particularly serious offences disenfranchisement is applied independently of any court decision. 49. In 1992 the Supreme Court of Canada unanimously struck down a legislative provision barring all prisoners from voting (Sauvé v. Canada (no. 1), Supreme Court Report, 1992, vol. 2, p. 438). Amendments were introduced limiting the ban to prisoners serving sentences of two years or more. The Federal Court of Appeal upheld that provision. However, on 31 October 2002 the Supreme Court held by five votes to four, in the case of Sauvé v. Attorney General of Canada (no. 2), that section 51 (e) of the 1985 Canada Elections Act, denying the right to vote to all persons serving sentences of two years or more in a correctional institution, was unconstitutional as it infringed Articles 1 and 3 of the Canadian Charter of Rights and Freedoms, which provide: “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” “3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” 50. The majority opinion given by Beverly McLachlin CJ considered that the right to vote was fundamental to democracy in Canada and the rule of law and could not be lightly set aside. Limits on this right required not deference, but careful examination. The majority found that the Government had failed to identify the particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, in particular as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives of enhancing civic responsibility and respect for the rule of law and imposing appropriate punishment. 51. The minority opinion given by Gonthier J found that the objectives of the measure were pressing and substantial and based upon a reasonable and rational social or political philosophy (for further details of these opinions, particularly concerning the objectives of the impugned measure, see Hirst (no. 2) [GC], cited above, §§ 36-37). 52. On 1 April 1999 the Constitutional Court of South Africa considered the application of prisoners for a declaration and orders that the Electoral Commission take measures enabling them and other prisoners to register and vote while in prison. It noted that, under the South African Constitution, the right of every adult citizen to vote in elections for legislative bodies was set out in unqualified terms, and it underlined the importance of that right: “The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.” 53. The Constitutional Court found that the right to vote by its very nature imposed positive obligations upon the legislature and the executive and that the Electoral Act must be interpreted in a way that gave effect to constitutional declarations, guarantees and responsibilities. It noted that many democratic societies imposed voting disabilities on some categories of prisoners. Although there were no comparable provisions in the Constitution, it recognised that limitations might be imposed upon the exercise of fundamental rights, provided they were, inter alia, reasonable and justifiable. 54. The question whether legislation barring prisoners would be justified under the Constitution was not raised in the proceedings and the court emphasised that the judgment was not to be read as preventing Parliament from disenfranchising certain categories of prisoners. In the absence of such legislation, prisoners had the constitutional right to vote and neither the Electoral Commission nor the Constitutional Court had the power to disenfranchise them. It concluded that the Commission was under the obligation to make reasonable arrangements for prisoners to vote. 55. The Constitutional Court of South Africa examined whether the 2003 amendment to the Electoral Act, depriving of the right to vote those prisoners serving sentences of imprisonment without the option of a fine, was compatible with the Constitution. 56. The Constitutional Court found the measure unconstitutional, by nine votes to two, and ordered the Electoral Commission to take the necessary steps to allow prisoners to vote in elections. 57. Chaskalson CJ, for the majority, concluded that in a case such as this where the government sought to disenfranchise a group of its citizens and the purpose was not self-evident, there was a need for it to place sufficient information before the court to enable it to know exactly what purpose the disenfranchisement was intended to serve. Moreover, in so far as the Government relied upon policy considerations, there should be sufficient information to enable the court to assess and evaluate the policy that was being pursued (see paragraphs 65 and 67 of the judgment). Chaskalson CJ further noted that this was a blanket exclusion aimed at every prisoner sentenced to imprisonment without the option of a fine, and that there was no information about the sort of offences concerned, the sort of persons likely to be affected and the number of persons who might lose their vote for a minor offence. 58. Madala J, for the minority, considered that the temporary removal of the vote and its restoration upon the prisoner’s release was in line with the Government’s objective of balancing individual rights and the values of society, particularly in a country like South Africa with its very high crime rate (see paragraphs 116 and 117 of the judgment). 59. The High Court of Australia found by four votes to two against the general voting ban that had been introduced in the place of the previous legislation, which had provided for the loss of the right to vote only in connection with prison sentences of three years or more (see Roach v. sElectoral Commissioner [2007] HCA 43 (26 September 2007)). 60. The High Court noted, inter alia, that the earlier legislation took into account the seriousness of the offence committed as an indicium of culpability and temporary unfitness to participate in the electoral process, beyond the bare fact of imprisonment (see paragraph 98 of the judgment). | 0 |
train | 001-106778 | ENG | RUS | CHAMBER | 2,011 | CASE OF BALENKO v. RUSSIA | 4 | No violation of Art. 3 (procedural aspect) | Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1958 and lived in Novotroitsk, Orenburg Region. On 17 March 2010 the applicant died. On 29 April 2010 Ms Aleksandra Balenko, the late applicant’s mother (born on 14 September 1937), and Mr Timofei Balenko, the late applicant’s son (born on 17 January 2000), expressed their wish to pursue the proceedings before the Court. 6. On an unspecified date the police received information that certain “persons with a criminal propensity” would be gathering at the grave of a deceased gangster on 1 May 2004 and that they would be carrying guns, explosives and drugs. 7. On 1 May 2004 a group of police officers came to the cemetery and started checking the identification of the men and women gathered at the said grave. The applicant was among them. He did not have any documents on him. He was placed in a police car together with G. and R. to be taken to the police station by officers S. and Kh. 8. On the way to the police station an altercation occurred between the applicant and the police officers. As a result, the applicant sustained multiple injuries and S. had an index finger cut. The police officers and the applicant disputed the circumstances of the incident. It appears that investigation was opened into the incident on the same day and resulted in two sets of proceedings. 9. The applicant was released from the police custody on 2 May 2004. On the same day he was examined by a doctor in a clinic, who noted numerous bruises on his face and alcoholic intoxication. 10. On 23 June 2004 the applicant underwent an X-ray examination which showed that he had sustained a fractured nose. 11. On an unspecified date the applicant lodged a complaint about police brutality. With regard to the events of 1 May 2004, he submitted that he had been detained by the police at the cemetery. No explanation had been furnished by the police officers as to the reasons for his detention. The applicant had criticised the police’s actions and the policemen had then forced him into the car together with G. and R. On the way to the police station he had continued to express his dissatisfaction with the police. S., who had been driving the car, had turned back, had told him to shut up and had hit him in the face, breaking his nose. Then S. had stopped the car, and together with Kh., the other police officer, had pulled the applicant out of the car and had continued beating him. The applicant had lost consciousness. He had then been taken to the police station and released the next day. 12. On 12 July 2004 the applicant was subjected to another forensic examination. The expert reiterated the earlier findings of the forensic examination of 2 May 2004, including the nature and time of the injuries, and added that the applicant had also sustained a fractured nose with a time of the injury similar to that of the other injuries. 13. On 3 November 2004 an investigator from the Leninskiy District Prosecutor’s Office in Orsk dismissed the applicant’s complaint of police brutality as unsubstantiated. In particular, the investigator stated as follows: “In the course of the inquiry [the applicant] submitted that on 1 May 2004 the policemen had beaten him up at the cemetery ... in Orsk. As result, he sustained injuries, including the nose fracture. He denied having assaulted the police officer. Within the framework of the inquiry in response to the [applicant’s] complaint of police brutality, he underwent a medical examination. It was established that [the applicant] sustained bruises on the top right side of the head, bruises on the left part of the forehead, bruises under the left eye and dorsum of the nose, petechiae on the left temple and on the right cheek and a fractured nose. The said injuries resulted from blunt force trauma... [Policeman] S. submitted that [on 1 May 2004] he had been in the taskforce which arrived at the cemetery... where he had asked [the applicant] to proceed to the police car. Neither he nor other policemen had beaten the applicant. [The applicant] could have sustained injuries ... when they had pulled him out of the car after his assault. It was possible that [the applicant] had caused those injuries himself when resisting the policemen, hitting himself against the car and then falling. [Policeman] Kh. submitted that [the applicant] had refused to get out of the car and had resisted when they pulled him out. ... Having regard to the above, [I conclude] that the [applicant’s] complaint of police brutality has not been confirmed. ... The fact that the applicant resisted being pulled out of the car suggests that his injuries could have been caused by his own actions or by the actions of the policemen who restrained him.” 14. The applicant did not appeal against the decision of 3 November 2004 to the courts 15. A criminal investigation was opened against the applicant due to the version of events provided by police officers S. and Kh. concerning the incident of 1 May 2004. According them, in the car the applicant took out a knife and tried to stab S., who was driving the car, in the neck. S. saw the applicant’s movements in the rear-view mirror and covered his neck with his hands. The applicant cut S.’s right index finger. Kh. grabbed the applicant by the arm. S. stopped the car and got out. He opened the rear door and pulled out the applicant, who had managed to free himself from Kh. The applicant fell out of the car, hitting his head against the car as he did so, and then landed on his face. The knife fell onto the road. The police officers handcuffed the applicant and took him to the police station. 16. The investigator ordered the forensic examination of the applicant. On 2 May 2004 the forensic expert examined the applicant and noted the following injuries: bruises on the top right side of the head, bruises on the left part of the forehead, bruises under the left eye and top of the nose, and petechiae (evidence of bleeding under the skin) on the left temple. The expert considered that the said injuries could have resulted from blunt force trauma occurring no earlier than one day prior to the applicant’s examination. 17. On the same day R. was questioned by an investigator and stated the following: “As I had drunk wine, I immediately fell asleep in the back seat. Then I was woken up by noise. I saw that the policeman who was in the driver’s seat had blood on his right hand. I can confirm that when we were leaving the cemetery, that policeman had no injuries on his hands. Nor did I see any blood on him. When I was woken up by the noise to see the policeman’s hand covered with blood, I felt sick and lost consciousness. I cannot tell whether the car stopped on the way [to the police station]. Nor do I know why the policeman’s hand was bleeding. I do not know if anyone in the car had a knife on him... I regained consciousness when the car stopped at the police station.” 18. G. was also questioned on 2 May 2004. He stated the following: “[At the cemetery] I was asked to get into [a police car]. I complied and got into the back seat. There was a guy wearing sunglasses sitting next to me behind the driver’s seat... [He] was severely intoxicated. He was mumbling... On the way [to the police station] the guy who was sitting behind the driver moved his right arm towards the driver. In his hand he had an object which resembled a knife. The driver saw the guy’s movements in the rear-view mirror and leaned forward. After that, the guy made another move with his right arm – [holding] the object resembling a knife – towards the driver. The driver, however, covered his neck with his right hand to protect himself and then grabbed the guy by the right hand. Then the driver stopped the car, opened the rear door next to the guy with the sunglasses with his left hand, grabbed the guy’s right hand – holding a knife – with his left hand and pulled him out of the car. He kicked the guy in the chest. The other policeman ... took out a gun, told the others present in the car to sit and be quiet. Then he got out of the car and helped the driver to handcuff the guy. When the driver pulled the guy out of the car, the guy fell down on the asphalt and hit his face.” 19. On 14 May 2004 the applicant was charged with assaulting S. 20. It appears that on 8 June 2004 the applicant was remanded in custody pending investigation. He was released on 11 June 2004. 21. On 21 July 2004 a court authorised the applicant’s detention arguing that the applicant might abscond, tamper with evidence or put pressure on witnesses. He remained in custody pending investigation and trial. In particular, the court noted as follows: “The court takes into account the fact that [the applicant] has a permanent place of residence. However, he is not officially married and he is unemployed ... The [applicant’s] contacts with G. and R., even though denied by the [applicant’s] lawyer, have been noted by [the investigators]. Furthermore, the applicant himself did not deny that he was in contact with them... Pursuant to the materials in the case-file, G. and R. are the only eye-witnesses of the crime the applicant is charged with. Those persons have registered residence in Orsk and Novotroitsk. They are unemployed and failed to appear [for questioning]. The court considers that, if released, the applicant might influence those witnesses. ... The court takes into account the information furnished by [the police department] concerning the applicant’s connection with [known gangsters], that he is a member of an organised criminal group... Having regard to the above, the court considers that ... the applicant might continue his criminal activities.” 22. The investigating officer commissioned several expert evaluations, including that of the knife found at the alleged crime scene. As it turned out, the quality of the fingerprints on the knife was not good enough to determine their origin. The investigator also questioned the applicant, the police officers involved, the paramedic who had attended to S., and R.’s mother. 23. On 13 September 2004 the investigator summoned G. and R. to appear for questioning. Neither G. nor R. were found at their last known addresses. The police questioned their neighbours and family, who stated that they had no knowledge of G. and R.’s whereabouts. 24. On 22 November 2004 the forensic expert prepared another report on the basis of the prior medical documentation, including the results of the medical examination of 2 May 2004, the forensic report of 2 May 2004, Xray examinations of 23 June and 14 July 2004, and the applicant’s medical file. The expert concluded that the applicant might have sustained a fractured nose approximately two to three weeks prior to the date of the first X-ray examination of 23 June 2004. As regards the origin of the injury, the expert reiterated the earlier forensic findings. 25. On 5 December 2004 the investigator forwarded the applicant’s case file to the court. 26. During the trial the applicant pleaded not guilty. He denied assaulting S. or having had a knife. 27. On 23 December 2004 the applicant unsuccessfully asked the court to admit as evidence written statements made by G. and R. which corroborated his version of the events of 1 May 2004. In particular, the court indicated as follows: “Pursuant to the [rules of criminal procedure], [such] statements cannot be considered as evidence. Furthermore, [G. and R.’s] signatures are not duly certified, which fact may give rise to doubts as to whether the statements were made by G. and R. and as to their admissibility as evidence. If the defence can obtain R. and G.’s attendance in court for questioning or indicate their whereabouts to the court, the court, if requested so by the parties, may summon and question those persons.” 28. On 27 December 2004 the Orenburg Regional Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. In particular, the court noted as follows: “... the fact that the [applicant] has committed the crime ... is confirmed by the following evidence: By the testimony given by [police officer] S. ...; ... By the testimony given by [police officer] Kh. ...; ... By the testimony of [Police officer] Sh., who testified that on the way from the cemetery to [the police station] he was in the car that followed the one S. was driving. ... When S. stopped his car, [Sh.] saw S., whose right hand was bleeding, and Kh., who ran out of the car. They opened the rear door of the car and pulled [the applicant] out. [The applicant] had a knife in his right hand. The [police officers] knocked the knife out of his hand, put him on the ground and handcuffed him. Then S. wrapped his injured finger with a handkerchief. Some fifteen minutes later an ambulance appeared and provided medical assistance to S. ... The crime scene investigation report notes that ... inside the [police car], eight brown stains were discovered on the left rear door. Brown spots resembling blood ... were also discovered inside the car on the steering wheel, on the interior of the window pane next to the driver’s seat, on the door near the driver’s seat, [and on the] windscreen wiper stalk near the steering wheel. A handkerchief covered with brown stains was found on the floor of the car, on the left side near the driver’s seat. A flick knife ... was found next to the left of the car ... ... The report on the findings of the biological forensic expert evaluation ... of 25 October 2004 states that blood, which could have belonged to S., was found on the flick knife and the handkerchief and in four samples taken from the asphalt next to the police car, the car’s steering wheel, the handle in the car and the [applicant’s] right hand. It is possible that the samples also contain the [applicant’s] blood provided that he sustained injuries causing bleeding, but it is ruled out that the blood belonged only to him... Further to defence counsel’s request, witness V., [R.’s mother], testified in court. ... She learnt from her son, R., that on the way to the police station [the applicant] continued to “ask for trouble” in the car. The policemen advised him to shut up and then one of them punched him in the face with his fist. He started bleeding. The policemen pulled him out of the car and continued beating him. Regard being had to all the evidence examined in the course of the proceedings, the court views witness V.’s testimony critically ... Her testimony is refuted not only by the testimony given by S. and Kh., but also by data contained in the crime scene investigation report and the findings of the biological forensic expert report. According to the testimony given by S., Kh., and [the applicant], the latter was seated in the back seat of the car. [The applicant] and ... V. alleged that the [applicant] bled severely after the policeman hit him in the face. However, this is not confirmed by the crime scene investigation report, which shows that there was no blood discovered in the seat occupied by the [applicant] in the car. Furthermore, according to the above-mentioned report and the findings of the biological forensic expert evaluation report, the blood found both in the car and next to it, belonged to [S.] and possibly to [the applicant]. It did not belong only to [the applicant]. Having regard to the data contained in the crime scene investigation and the forensics reports, it is not possible to accept as substantiated the applicant’s allegations about being beaten in police custody ... According to the testimony given by S. and Kh., the applicant sustained the injuries as a result of the police efforts to put a stop to his unlawful actions. He hit his head and face against the asphalt and the frame of the car when [the policemen] pulled him out of the car. This is confirmed by the findings of the medical forensic report of 6 May 2004 confirming that [the applicant] could have sustained the injuries as a result of contact with solid blunt objects within the period in question. ... The court finds [the applicant] guilty [beyond reasonable doubt].” 29. On 11 March 2005 the Supreme Court of Russia upheld the applicant’s conviction on appeal. As regards the trial court’s failure to question G. and R., the Supreme Court indicated as follows: “According to the materials of the case file, G. and R. were detained together with [the applicant] and placed in the same police car. They made written statements [about the incident]. However, they were not questioned, pursuant to the rules of criminal procedure. During the investigation and at trial it was impossible to establish their whereabouts. According to V.’s testimony, R. is her son. He left home on 3 May 2004. Since then, he has showed up only once – in August 2004. His whereabouts are not known to her. As regards her son’s account of the events of [1 May 2004], V. gave contradictory testimony. First, she claimed that her son had seen that [the applicant] had been beaten up and covered with blood. He had not remembered, however, what had happened in the car because he had been asleep there after drinking. Then she asserted that [the applicant] had been beaten up by the policemen in the car and then next to it. Under such circumstances, the [trial] court had reasons to critically assess that witness’s testimony. The court’s decision not to admit as evidence G. and R.’s written statements submitted by [the applicant’s] counsel has also been justified.” 30. On an unspecified date the applicant sued the State Treasury for damages resulting from his injuries. On 29 May 2006 the Tverskoy District Court of Moscow dismissed the claim without examination of the merits for the applicant’s failure to comply with certain procedural requirements for lodging civil claims. It appears that the applicant failed to comply with those requirements and on 1 August 2006 the statement of claim was returned to him. On 21 December 2006 the Moscow City Court upheld the decision of 1 August 2006 on appeal. 31. On an unspecified date the applicant resubmitted his claims. On 29 October 2007 the Tverskoy District Court dismissed them. The applicant’s representative was present in court. On 4 March 2008 the Moscow City Court upheld the judgment on appeal. 32. On 18 April 2006 the applicant was transferred to correctional colony no. 5 in the Orenburg Region. On 20 September 2007 he was placed in a prison hospital. He died on 17 March 2010. The autopsy showed tuberculosis and AIDS as causes of death. 33. On 15 June 2009 the case file containing the applicant’s complaint of police brutality was destroyed after the expiry of the statutory period for its storage. | 0 |
train | 001-70629 | ENG | ALB | ADMISSIBILITY | 2,005 | ZYFLLI v. ALBANIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Bujamin Zyflli, is an Albanian national who was born in 1945. At the time his application was lodged with the ECHR he was serving a sentence in Kruja Prison. He currently lives in the city of Devoll. and the Government pursuant to Rule 49 § 2 (a) of the Rules of Court, may be summarised as follows. On 3 April 1989 the applicant was arrested and charged with murder and the possession of firearms. On 25 May 1989 the Korça District Court found him guilty and sentenced him to twenty years’ imprisonment. From June 1989 to August 1992 the applicant served his sentence in Batër Prison, during the course of which he was required to do forced labour in a mine. Between August 1992 and 1997 he was transferred to three different prisons. Under the Amnesty Act of 13 November 1989 the applicant was excused from serving four years, ten months and two days of imprisonment. Under a pardon issued on 28 December 1995 he was entitled to two years’ remission of sentence. In 1996 the applicant argued that he had been excused from serving two years three months and six days of imprisonment under two pardons. On 13 March 1997 he left prison, at a time when the State no longer had control over prisons when Albania was reduced to turmoil. According to the applicant, an Amnesty Act of 1997 entitled him to two years’ remission. On 11 September 2000 he gave himself up to the authorities in order to serve the rest of his sentence, which according to the applicant amounted to a few months. On 5 February 2003 and 25 March 2004, following the applicant’s requests, the Kruja District Court granted him a total of six months’ remission for good behaviour. In 2003 the applicant lodged two applications with the judge responsible for the execution of sentences for a reduction of sentence as follows: (a) nine months and sixteen days corresponding to three years’ forced labour while in Batër Prison; (b) two years, three months and six days under two pardons issued in 1996; (c) one month being the period he had spent in pre-trial detention; and (d) two years under the Amnesty Act of 1997. According to the applicant, his detention from 2001 onwards was unlawful. On 22 October and 13 November 2003 the Kruja District Court decided to stay the proceedings in view of requests by the applicant for the cases to be struck out of the list. The applicant did not appeal against the above mentioned decisions. Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Government stated on 1 July 2004 that the applicant had eight months and fourteen days of his sentence left to serve. They submitted that the applicant had been entitled to remission of sentence for the following periods: (a) two years under the pardon of 28 December 1995; (b) four years, ten months and two days under the Amnesty Act of 13 November 1989; (c) one month for his pre-trial detention; (d) six months granted by the domestic court for good behaviour; (e) one month and twenty days corresponding to thirteen days’ forced labour. With regard to the applicant’s claim to a reduction in sentence on account of the forced labour, the Government submitted that the applicant’s prison file revealed that during three years in Batër Prison he had worked a total of thirteen days in a period between June and July 1989, entitling him to one month and twenty days’ remission. As regards the remainder of the time the applicant spent in Batër Prison there was nothing in his prison file to indicate whether he had been certified fit to work in the mine. The Government observed, however, that the applicant had failed to lodge a request for certification of facts with the domestic courts in order to have his prison file restored. According to the Government, the applicant did not receive a pardon in 1996 or qualify for remission under the Amnesty Act of 1997. On 14 March 2005 the applicant was released from prison having served his sentence. The relevant provisions of the Code of Civil Procedure read as follows: “When the creation, modification or cessation of a person’s personal or property rights depends on a fact and the document which certifies the existence of such fact has disappeared or has been lost and cannot be reissued or obtained in any other way, the interested party shall be entitled to request certification of such fact by a court decision.” (a) Under a pardon issued on 28 December 1995 the Albanian President, exercising his right to grant convicted prisoners a pardon, decided that the applicant was entitled to two years’ remission of sentence. (b) In 1996 the Albanian President granted six pardons under his prerogative powers, but according to the Government, the applicant was not among the recipients. Section 7 of the Amnesty Act of 13 November 1989 provided that all convicted prisoners at the time the Act entered into force were entitled to remission of a quarter of their sentence. | 0 |
train | 001-78568 | ENG | ROU | CHAMBER | 2,006 | CASE OF LUPAS AND OTHERS (No. 1) v. ROMANIA | 1 | Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Vladimiro Zagrebelsky | 5. The nineteen applicants, whose names are listed in the appendix, are the descendants of some of the co-owners of a plot of land of approximately 50 hectares in Constanţa, on the Black Sea coast. 6. In a judgment of 16 April 1937 the Bucharest Court of Appeal, ruling on an application for partition of real estate consisting of approximately 50 hectares of land on the Black Sea coast and appurtenant buildings, formerly the property of the late Alexandru N. Steflea, noted that some of the heirs had sold their shares of the estate to Nicolae Lupaş, who therefore remained a co-owner of the property in common with twelve other heirs. 7. With a view to taking the property out of common ownership, the Court of Appeal divided it into 360 shares, of which 249.6 were allocated to Nicolae Lupaş, the twelve other heirs being assigned either 9/360, 8/360 or 14.4/360 of the property. 8. Following a further purchase of shares in the estate, Nicolae Lupaş became the owner of 264/360 of the property, which was now owned in common with eleven other heirs. 9. By Decree no. 102 of 20 April 1950 the National Assembly, on a proposal by the Council of Ministers, expropriated the land in question on public-interest grounds, together with an adjoining plot of land belonging to a third party, with a view to building a military base. 10. After 1950, once the plan to build a military base had been abandoned, the County Police Inspectorate took possession of a large portion of the land that had belonged to Nicolae Lupaş and the other co-owners, while other parts were transformed following consolidation works on the cliff or were allocated to private individuals to build housing. 11. Following proceedings for the recovery of possession of the plot adjoining the land that had belonged to Nicolae Lupaş and the other co-owners, the Constanţa Court of First Instance ruled in a final judgment of 5 December 1994 that Decree no. 102/1950 contravened the 1948 Constitution as in force on the date of the expropriation, and ordered the return of the land to the heir of its former owner. The court held, firstly, that the plan to build a military base had been abandoned shortly after the expropriation and, secondly, that the former owner had not received any compensation for the expropriation of his property. 12. In 1998 the applicants Adrian Lupaş, Nicolae Lupaş, Ovidiu Lupaş, Verginiu Lupaş and Ana Teodosiu, as the children and heirs of Nicolae Lupaş, who had died in 1959, brought an action against Mr and Mrs B., alleging that they had illegally taken possession of a plot of land measuring 638 sq. m at 30 Turda Street, on part of the land that had formerly belonged to Nicolae Lupaş. The applicants submitted that the plot in question was part of the land of which Nicolae Lupaş had been allocated a 249.6/360 share by the Bucharest Court of Appeal in 1937 and that the State had never had valid title to it. 13. Mr and Mrs B. applied for the case to be struck out on the ground that the applicants lacked the capacity to take proceedings, firstly because the land in question had been expropriated before Nicolae Lupaş's death, and secondly because they had not formally accepted their ascendant's estate. They submitted that the action was in any event inadmissible in that it had been brought solely by Nicolae Lupaş's heirs, without the consent of the heirs of the eleven other co-owners. 14. The fourteen other applicants, Nicolae Chirescu, Dan Mihai Banciu, Mihai Anton Ricci, Dumitru Mircea Gheorghiu, Teodor Grigoriu, Minerva Ionescu, Dorina Voinescu, Sorina Moarcas, Rodica Ionescu, Vanda Rosculet, Eugenia Steflea, Elisabeta Stoica, Diana Ruxandra Tomescu and Ioana Greceanu, the heirs of nine of the eleven co-owners in question, applied to join the action, asserting their rights over the plot of land forming the subject matter of the proceedings. They instructed Adrian Lupaş, the first applicant, to represent them. 15. According to the information provided by the applicants, the heir of one of the former co-owners refused to join their action, while the heirs of another former co-owner could not be traced. 16. In a judgment of 30 March 2000 the Galaţi County Court, finding that the first five applicants had proved that they were the heirs of Nicolae Lupaş and that the latter had owned a 264/360 share of the estate of Alexandru N. Steflea, dismissed Mr and Mrs B.'s first objection. 17. However, the court held that the land in issue had not belonged exclusively to Nicolae Lupaş, who had merely been one of the co-owners. Accordingly, observing that the consent of the heirs of two of the co-owners had not been obtained, the court declared the main action and the application to join the proceedings inadmissible on the ground that, since it entailed a legal transaction disposing of property, an action for recovery of possession of property held in undivided shares could be brought only with the consent of all the co-owners. However, the applicants' shares represented only 342/360 of the property in issue. 18. Arguing that it was not necessary to obtain the consent of all the co-owners since the action for recovery of possession was for the benefit of all of them, the applicants appealed against the judgment to the Galaţi Court of Appeal. A hearing was held on 5 September 2000, in the absence of the first applicant, and delivery of the judgment was adjourned until 8 September 2000, despite a request for additional time which the first applicant maintained he had made in order to be able to instruct a lawyer. 19. The Court of Appeal dismissed the appeal. In its judgment it noted, firstly, that in its 1937 judgment the Bucharest Court of Appeal had not formally divided the co-owned property into individual parts, with the result that it was still held in common despite the creation of shares. It further observed that it was common knowledge that an action for recovery of possession of property held in undivided shares could not be brought by one of the co-owners without the others' consent, since the aim of such an action was not only to protect the ownership of shares but also to secure recognition of title to the property as a whole and its return to the claimant. 20On that account, they informed the Supreme Court of Justice that the heir of one of the former co-owners had refused to take part in the proceedings although he had been notified of their existence, and that it had been impossible to obtain the other heirs' consent as they were scattered across various countries. 21. In a judgment of 24 April 2001 the Supreme Court of Justice dismissed the application, holding that the applicants could not seek recovery of a property held in undivided shares to the detriment and in breach of the rights of the heirs of the other co-owners. 22. In 1999 the applicants Adrian Lupaş, Nicolae Lupaş, Ovidiu Lupaş, Verginiu Lupaş and Ana Teodosiu brought an action against a commercial company, Histria Shipmanagement, for recovery of possession of a plot of land measuring 405 sq. m at 30 Turda Street, which occupied part of the land that had formed the subject of the Bucharest Court of Appeal's 1937 judgment. They also sought the annulment of the contract signed in 1999 by which the company had purchased the land from a third party, asserting that that party had never had valid title to the land in issue. 23. The commercial company objected that the action was inadmissible in that it had been brought solely by Nicolae Lupaş's heirs. 24. In a judgment of 28 February 2000 the Constanţa County Court allowed the company's objection and declared the action inadmissible. 25. The court observed that the judgment given by the Bucharest Court of Appeal in 1937 had merely allocated Nicolae Lupaş shares of the land that had belonged to Alexandru N. Steflea and that the land had not subsequently been divided into individual parts. 26. Observing that the aim of an action for recovery of possession of a property held in undivided shares was not only to protect the ownership of a share of the property but also to secure recognition of title to the property as a whole and its return to the claimant, the court concluded that since they had not obtained the consent of all the heirs of the former co-owners, the applicants were not entitled to seek recovery of the land in issue. 27. The applicants appealed to the Galaţi Court of Appeal, which found against them in a judgment of 30 January 2001, holding that it was common knowledge that an action for recovery of possession of property held in undivided shares could not be brought by one of the co-owners without the others' consent. 28. The applicants applied to the Supreme Court of Justice to have that judgment quashed. They submitted that since individual co-owners could sell their shares without the other co-owners' consent, there was no cause to prohibit a co-owner from seeking recovery of the entire property held in common in order to protect his ownership of his own shares. They argued that, since an action for recovery of possession that resulted in the return of the property to the co-owners benefited all of them, it was unnecessary to obtain the consent of all the co-owners. 29. Lastly, they submitted that regard should be had to the particular circumstances of their case, namely that the property had in their view passed illegally into State ownership and that it had been difficult, if not impossible, to identify all the heirs of the former co-owners on account of the social and historical circumstances of the period and the time that had since elapsed. 30. Observing that the proceedings for partition that had ended with the Bucharest Court of Appeal's judgment of 16 April 1937 had not resulted in the actual division of the property, the Supreme Court of Justice ruled that the applicants could not claim exclusive ownership of the land in issue. 31. Accordingly, pointing out that the unanimity rule precluded a co-owner from engaging in any transaction entailing the administration or disposal of property held in undivided shares without the other co-owners' consent, the Supreme Court dismissed the application in a judgment of 15 May 2002. 32. In 1999 the applicants Adrian Lupaş, Nicolae Lupaş, Ovidiu Lupaş, Verginiu Lupaş and Ana Teodosiu brought an action against two third parties for recovery of possession of two plots of land measuring 469.32 sq. m and 459 sq. m at 30-32 Patriei Street, which occupied part of the land that had formed the subject of the Bucharest Court of Appeal's judgment of 16 April 1937. 33. They submitted that in a 1996 decision of the Constanţa City Council one of the third parties had been wrongly granted title to the two plots of land, one of which had subsequently been sold to the other third party. At the applicants' request, the action was also directed against the City Council. 34. The City Council objected that the action was inadmissible in that it had been brought by the heirs of only some of the co-owners of the land. 35. The fourteen other applicants, Nicolae Chirescu, Dan Mihai Banciu, Mihai Anton Ricci, Dumitru Mircea Gheorghiu, Teodor Grigoriu, Minerva Ionescu, Dorina Voinescu, Sorina Moarcas, Rodica Ionescu, Vanda Rosculet, Eugenia Steflea, Elisabeta Stoica, Diana Ruxandra Tomescu and Ioana Greceanu, applied to join the action in order to assert their rights over the plots of land forming the subject matter of the proceedings. 36. In a judgment of 30 October 2000 the Constanţa County Court declared the action inadmissible on the ground that the aim of an action for recovery of possession of property held in undivided shares was to secure recognition of exclusive title to the entire property and its return to the claimant. 37. It held that, since they had failed to obtain the consent of all the heirs of the former co-owners, the applicants were not entitled to seek recovery of the plots of land in issue since they were able to claim ownership of only shares of the property. 38. The applicants appealed against that judgment to the Constanţa Court of Appeal, which found against them on 18 April 2001. As the County Court had done, it based its conclusion on the finding that it was impossible to seek recovery of possession of property held in undivided shares without the consent of all the co-owners. 39. The applicants applied to the Supreme Court of Justice to have that judgment quashed. They submitted that since individual co-owners could sell their shares without the other co-owners' consent, there was no cause to prohibit a co-owner from seeking recovery of the entire property held in common in order to protect his ownership of his own shares. They argued that, since an action for recovery of possession that resulted in the return of the property to the co-owners benefited all of them, it was unnecessary to obtain the consent of all the co-owners. 40. They further submitted that regard should be had to the particular circumstances of their case, namely that the property had in their view passed illegally into State ownership and that it had been difficult, if not impossible, to identify all the heirs of the former co-owners on account of the social and historical circumstances of the period and the time that had since elapsed. 41. Lastly, they argued that the requirement to obtain the consent of all the co-owners had ceased to apply following the entry into force of Law no. 10/2001 on the legal status of immovable property wrongfully seized by the State between 6 March 1945 and 22 December 1989, which provided for the possibility of restoring ownership of shares of a property held in common. 42. The Supreme Court of Justice observed at the outset that the proceedings for partition initiated by the Bucharest Court of Appeal's judgment of 16 April 1937 had not resulted in the division of the land. It held that in those circumstances, the applicants' action did not concern a particular property of which they claimed to be the exclusive owners, but shares that could not be separated from those belonging to the other co-owners. 43. It also dismissed the argument concerning Law no. 10/2001 on the ground that the law had not come into force until after the action had been brought in 1999. It pointed out that in any event, the new rule was applicable only in the context of the special procedure provided for in Law no. 10/2001, whereas the applicants' action for recovery of possession had been based on the provisions of the Civil Code. 44. Accordingly, applying the unanimity rule, the Supreme Court of Justice dismissed the application in a judgment of 18 September 2002. 45. Although there was no provision in statute law for the application of the rule that an action for recovery of possession of property held in undivided shares had to be brought by all the co-owners, the former Supreme Court held in a judgment of 24 November 1972 that a single co-owner could not initiate such an action, stating as follows: “... as long as the property remains co-owned in undivided shares, the co-owners' rights over it are indeterminate and they cannot claim exclusive rights over their shares until after the property has been divided, when each co-owner has been granted exclusive ownership of part of it. It follows that one [individual] co-owner cannot seek recovery of a property held in undivided shares prior to its partition, since an action for recovery of possession implies the existence of an exclusive and determinate right, which a co-owner can acquire only as a result of the partition.” 46. The case-law developed by the former Supreme Court has been adhered to by the courts with very few exceptions, one being a judgment delivered by the Supreme Court of Justice on 29 September 2000. After recapitulating the unanimity rule, the court held: “... in the instant case, and more generally in the case of actions for recovery of possession of property that was nationalised in the period from 6 March 1945 to 22 December 1989, the legal status of such property and of the persons claiming that it was wrongfully nationalised differs substantially from ordinary cases. Former owners or their heirs are precluded from applying for partition of the property before seeking recovery of it by the fact that they do not have title to the property until it has been established that it was wrongfully nationalised and that the State does not have valid title to it. In such sui generis cases, actions for recovery of possession are complex and go beyond the standard model; one or more co-owners, but not necessarily all of them, may bring a court action seeking a ruling ... that the State does not have valid title to the property ... and, consequently, that the wrongfully nationalised property belongs to the owner or his or her heirs. They may subsequently apply for partition of the property.” | 1 |
train | 001-4820 | ENG | AUT | ADMISSIBILITY | 1,999 | YILDIRIM v. AUSTRIA | 3 | Inadmissible | Nicolas Bratza | The applicant is a Turkish national, born in 1956 and living in Eferding in Austria. He is represented before the Court by Mr Hans Leitner, a lawyer practising in Wels. A. On 17 July 1989 the applicant married an Austrian national before the competent authorities in Turkey. At the time of their marriage his wife was already pregnant and the applicant knew that he was not the father of the future child. After their marriage, the applicant and his wife moved to Austria. They separated in September 1989. On 15 January 1990 the applicant's wife gave birth to a daughter. As the applicant and his wife were still married, the child was deemed to be their legitimate daughter in accordance with section 138 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) and was entered in the birth register as such. The applicant submits that he was not aware of this legal presumption or the fact that the husband can only bring an action to contest the legitimacy of a child born in wedlock within a one-year time-limit after its birth, while after that only the Public Prosecutor can do so. Moreover, he claims that his wife had assured him that the name of the natural father had been entered in the birth register. In 1991 the applicant and his wife filed a petition for divorce by consent with the Wels District Court. The applicant submits that it was only in the course of the divorce proceedings that he became aware of the fact that the child was considered to be his daughter. By then the one-year time-limit for contesting the child's legitimacy had already expired. On 4 November 1991 the applicant, referring to section 158 of the Civil Code, requested the Wels Public Prosecutor's Office (Staatsanwaltschaft) to institute proceedings to contest the legitimacy of the child. On 11 November 1991 the Public Prosecutor's Office heard the applicant's wife. She stated that she had not had any sexual relationship with the applicant before their marriage and that Mr. T.M. was the child's father. T.M. was questioned by a German court under letters rogatory. He conceded having had a sexual relationship with the applicant's wife before her marriage, but claimed that he was not the only one. On 21 January 1993 the Wels Public Prosecutor's Office informed the applicant that it did not see any reason to bring an action to contest the legitimacy of the child. Such an action would not be in her interests as T.M., whom the mother considered to be the child's natural father, had also denied his paternity. As the action could result in the finding that the applicant was not the child's father, she risked losing her maintenance claim against him, and it appeared uncertain in the circumstances whether or not it would ever be possible to determine who her natural father was. On 8 April 1993 the Linz Senior Public Prosecutor's Office (Oberstaatsanwaltschaft) dismissed the applicant's request to instruct the Public Prosecutor's Office to file an action to contest the legitimacy of the child. It confirmed the Public Prosecutor's assessment of her interests and added that the said action was not required by any public interest as the applicant had already known when he married that his wife was pregnant with another man's child. On 12 April 1994 the Federal Ministry of Justice (Bundesministerium für Justiz) rejected the applicant's further request to instruct the Public Prosecutor's Office to file an action to deny his paternity, on the ground that the applicant could not claim to have a right to the initiation of proceedings by the Public Prosecutor. The Ministry noted that the one-year limitation-period during which the husband could lodge an action to contest the legitimacy of a child born in wedlock served the purpose of limiting any uncertainty as regards the status of the child. Thus, it served legal certainty and, as a general rule, the interests of the child. Nevertheless, the legislator had accepted as a consequence that paternity based on the presumption of legitimacy and natural paternity will in some cases not coincide. Following expiry of the time-limit, only the Public Prosecutor could bring such an action if it was required in the interests of the child or in the public interest. The applicant had argued that the public interest required an action in his case, as he had not been familiar with Austrian law and had therefore failed to comply with the time-limit. However, the Ministry noted that, according to his own submissions, he had known that his wife was pregnant with another man's child when they were married. Given that they separated before the child's birth, he could have been expected to seek legal advice, all the more so as Turkish law contains a similar time-limit for such actions. The applicant had further argued that the action was required in the interests of the child, who had no contact with him and did not regard him as its father. Her maintenance would not be endangered as Austria was a welfare State. In this regard the Ministry found that the Public Prosecutor had rightly assessed the situation. It did not suffice that the child's interests were not endangered; the action had to be required in its interest. This was not the case, as it was by no means sure that eventual paternity proceedings against T.M. would be successful. On 20 June 1994 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant's complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof). On 14 December 1995 the Administrative Court rejected the applicant's complaint on the ground that he had no right to appeal. As he had failed to introduce an action within the one-year time-limit, he no longer had any right to contest the child's legitimacy himself. Nor did he have a right to have such proceedings introduced by the Public Prosecutor. The decision was served on the applicant on 20 May 1996. B. Relevant domestic law According to section 138 § 1 of the Civil Code a child who is born while its mother is married is presumed to be legitimate. This presumption may only be rebutted by a judicial decision establishing that the child is not the child of the mother's husband. Section 156 §§ 1 and 2 of the Civil Code provides that the mother's husband may contest the legitimacy of the child within a one-year time-limit, which starts running from the moment when the husband learns about the circumstances which cast doubt on the child's legitimacy, but not before the birth of the child. Section 158 of the Civil Code provides that, in case the husband has not contested the legitimacy of the child within the one-year time-limit, or in case he has died or his whereabouts are unknown, the Public Prosecutor may contest the legitimacy of the child, if he deems that this is required in the public interest or in the interests of the child or its descendants. | 0 |
train | 001-60995 | ENG | ITA | CHAMBER | 2,003 | CASE OF C. SPA v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award | Christos Rozakis | 8. The applicant is a company based in Lainate. 9. In 1987, it became the owner of several flats in Milan, which had all been leased by the previous owner. 10. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 11. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990. 12. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises. 13. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990. 14. Between 8 June 1990 and 8 November 1999, the bailiff made thirty-five attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 15. On 19 May 2000, the applicant recovered possession of the flat. 16. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 17. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1989. 18. On 20 November 1990, the applicant served notice on the tenant requiring him to vacate the premises. 19. On 10 December 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 4 January 1991. 20. Between 4 January 1991 and 11 November 1997, the bailiff made twenty-seven attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 21. In March 1998, the tenant vacated the premises. 22. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 23. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990. 24. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises. 25. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990. 26. Between 8 June 1990 and 11 April 2000, the bailiff made thirty-eight attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 27. On an unspecified date, the applicant recovered possession of the flat. 28. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 29. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990. 30. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises. 31. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990. 32. Between 8 June 1990 and 8 November 1999, the bailiff made thirty-four attempts to recover possession. Each attempt proved unsuccessful, as under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 33. In June 1998, the tenant vacated the premises. 34. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. 35. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990. 36. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises. 37. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990. 38. Between 8 June 1990 and 1 February 2000, the bailiff made thirty-eight attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession. 39. On an unspecified date, the applicant recovered possession of the flat. 40. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 1 |
train | 001-58839 | ENG | ITA | CHAMBER | 2,000 | CASE OF A.O. v. ITALY | 4 | Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award | Christos Rozakis;Vitaliano Esposito | 8. In 1969, the applicant let at a low rent, pursuant to a 1969 law on rent control (equo canone), an apartment he owned in Rome. 9. On 10 October 1986 the applicant served a notice to quit (disdetta) on the tenant on expiry of the term on 31 December 1987, but she refused to leave. 10. In a writ served on the tenant on 28 November 1986, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate (pretore). 11. In a decision of 10 April 1987, which was made enforceable on the same day, the magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 September 1988. 12. On an unspecified date the applicant served notice (precetto) on the tenant requiring her to vacate the premises. He subsequently served notice on the tenant informing her that the order for possession would be enforced by a bailiff (significazione di sfratto). 13. Between 28 November 1989 and 29 March 1991, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful as, under the statutory provisions providing for the suspension or staggering of the evictions, the applicant was not entitled to police assistance. The competent prefect, in fact, had to give priority in the grant of police assistance to any pending urgent cases. Thereafter, the applicant decided not to pursue the enforcement proceedings, in order to avoid useless costs, given the lack of prospects of obtaining the assistance of the police. He resumed the proceedings on a later, unspecified date. 14. On 15 November 1995 the bailiff evicted the tenant. In the report on the eviction, the bailiff noted that the tenant, who was elderly and sick, had been lying in bed for two years; she had to be transferred by ambulance to a council flat which was allocated to her by the Municipality of Rome on the same day. 15. The applicant thus recovered possession of his flat. 16. The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court’s official reports, §§ 18-35. | 0 |
train | 001-80738 | ENG | MKD | CHAMBER | 2,007 | CASE OF GROZDANOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Art. 6-1 | Peer Lorenzen | 5. The applicant was born in 1934 and lives in Ohrid. 6. On 30 December 1993 the applicant concluded a loan agreement (“the agreement”) (договор за одобрување на кредит) with the “Makbanka-BS” A.D. (“the company”), in accordance with which he received a loan in the amount of DM 40,000 (German Marks) under the following conditions: to repay the loan within three months with 8% monthly interest. The applicant took the loan for the benefit of Mr K.S. who had been ineligible to apply due to his poor financial status. 7. On the same date, the then Ohrid Municipal Court entered a notice (“the notice”) in the public register, recording a mortgage in favour of the company over a house and a plot of land owned by the applicant. 8. The principal amount of the loan with interest was paid by Mr K.S. within the three-month period as set forth in the agreement. Despite that fact, the company continued charging 8% interest although the validity of the agreement had not been extended. Until 10 May 1996 the amount was paid by Mr K.S. on behalf of the applicant. After that date, the applicant continued to pay the 8% interest until 26 October 1996 when the loan was completely repaid. 9. On 29 May 1997 the Ohrid Court of First Instance deleted the notice from the public register after it had received a notification by the company that the loan had been completely repaid. 10. On an unspecified date in 1997, Mr K.S. brought a civil action against the company and the applicant claiming the difference between the interest actually paid and the domestic rate, following the three-month period. According to the expert opinion given in this case, Mr K.S. and the applicant overpaid in the sum of DM 85, 831. On 28 October 1997 Mr K.S. withdrew the claim against the applicant. On 6 February 1998 the Ohrid Court of First Instance dismissed the applicant's request to intervene in the proceedings as a claimant and ordered his claim to be registered separately. On 16 September 1998 the court's decision became final and the applicant's action was registered as a separate claim. 11. Mr K.S.'s claim was dismissed on 10 February and 17 October 2000 respectively, by the Court of First Instance and the Court of Appeal. The courts considered that the company had no legal capacity to stand in the proceedings as it had concluded the agreement with the applicant and not with Mr K.S. The courts further found Mr K.S.'s claim ill-founded as he had not been a party to the agreement, even though the applicant had concluded it for his benefit. 12. It appears that the applicant's claim was dismissed by the trial court's decision of 16 February 2000. On 1 June 2000 the Bitola Court of Appeal upheld the applicant's appeal and remitted the case for a fresh consideration. 13. On 3 April 2001 the Ohrid Court of First Instance dismissed as ill-founded the applicant's claim for unlawful enrichment (неосновано збогатување). It held that the company had lawfully charged 8% interest as the loan had not been repaid in time and accordingly as such the applicant had been liable to pay interest as set forth in the agreement. It concluded, therefore, that the agreement had been implicitly extended without a need for a further express agreement by the parties. The court further declared as withdrawn the applicant's claim against Mr K.S. 14. On 25 September 2001 the Bitola Court of Appeal upheld the applicant's appeal and remitted the case for re-examination. It held that the lower court had not properly established in what capacity the company had concluded the agreement: as an undertaking or a savings institution (штедилница). Relying on a letter of the National Bank of 4 May 1999, it stated that the company had not been incorporated as a savings institution at the time when the agreement had been concluded and consequently, that it had not been authorised to give loans in foreign currency. It held that the manner of incorporation of the company was decisive for the legal status of the agreement: namely, whether it was null and void or whether another agreement was implicitly concluded. In the latter case, the company could only charge statutory interest, but not at the rate as provided for by the agreement. 15. On 24 December 2001 the Ohrid Court of First Instance upheld the applicant's claim. The court found that, at the time when the agreement had been concluded, the company had not been incorporated in compliance with the Law on Banks and Savings Institutions and, as a consequence, it had not been authorised to give loans in foreign currency, but only in domestic currency. It further established that the company had been incorporated as a savings institution on 1 March 1994, i.e. following the conclusion of the agreement. It consequently declared the agreement null and void. As the agreement met the statutory requirements of another agreement (договор за заем), the court decided to consider it as it had been so concluded. As the company was not authorised to enter into loan agreements in foreign currency and to charge interest as set forth by the agreement, the court ordered it to repay the applicant DM 85,831, as the difference between the interest actually paid and the domestic rate, together with interest. 16. On 7 February 2002 the company appealed. By submissions of 26 February and 19 March 2002 it supplemented the appeal. 17. On 14 March 2002 the applicant replied to the company's appeal. 18. On 25 April 2002 the Bitola Court of Appeal dismissed the company's appeal and upheld the lower court's decision. It held that the court below had correctly established the facts and applied domestic law. It reiterated that, at the time when the agreement had been concluded, the company had not been incorporated in accordance with the Law on Banks and Savings Institutions and, as such, it had not been authorised to give loans in foreign currency. It also found that the lower court had correctly declared the agreement null and void. 19. On 15 May 2002 the Ohrid Court of First Instance granted the applicant's request for enforcement and ordered the company to pay the amount due. The money was subsequently transferred to the applicant. 20. On 22 May 2002 the company submitted to the Supreme Court an appeal on points of law (ревизија). 21. On 9 July 2002 the public prosecutor lodged with the Supreme Court a request for the protection of legality (барање за заштита на законистоста). 22. On 27 February 2003 the Supreme Court gave a single decision upholding the company's appeal on points of law and the public prosecutor's request for the protection of legality. It overturned the lower courts' decisions and dismissed the applicant's claim. It found that the lower courts had properly established the facts, but had incorrectly applied the substantive law. It found that at the time when the agreement had been concluded, the company had been registered as a financial institution authorised to enter into loan and savings agreements with physical persons. It stated, inter alia, that: “... In accordance with the Law on Banks and Savings Institutions of 1993 in force at that time, [the company] was authorised to accept savings in domestic currency from physical persons and to give loans to physical persons and sole proprietors. Inferences can be drawn that [the company] was not authorised to accept or to give loans in foreign currency to citizens. However, that law does not provide for nullity of such agreements nor does it prohibit the execution of such operations by savings institutions. Such operation of a savings institution is regulated by penalty provisions. It is undisputed that the agreement concluded between the parties [the company and the applicant] was voluntarily executed by [the applicant]... “ 23. The court rejected the lower courts' reasoning that the agreement had been null and void, as the company had been registered and authorised to enter into such agreements irrespective of whether it had concerned foreign currency. It stated that that fact could have only influenced the execution of the agreement. It went on to conclude that the applicant could not have requested restoration of the money already paid to the company under the agreement, as the latter was a financial institution set up by virtue of law, the operation of which was authorised by the National Bank. Moreover, the scope of reference of the company was regulated by a law which could not have been unknown to the applicant. 24. The decision was served on the applicant on 24 April 2003. 25. On 5 May 2003 the Ohrid Court of First Instance granted the company's request for enforcement of the Supreme Court's decision. The money, which had already been transferred to the applicant, has been deducted from the latter's pension in monthly instalments since then. 26. Section 374 of the Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provides that appeals on points of law must be submitted to the first-instance court in sufficient number of copies for the court, the opposing party and the public prosecutor. 27. Section 376 of the Act provides that, inter alia, the presiding judge of the first-instance court's panel of judges shall communicate a copy of a timely, complete and admissible appeal on points of law to the opposing party and to the public prosecutor authorised to file a request for the protection of legality. According to paragraph 3 of this section, the opposing party may, within thirty days from the service of the appeal, lodge with the court a reply. According to paragraph 4, after receipt of the reply or after expiration of the time-limit for reply, the presiding judge of the first-instance court's panel of judges shall transfer the appeal and any reply, together with the complete file, to the [the Supreme Court] through the second-instance court. 28. Section 381 § 1 of the Act provides that [the Supreme Court] shall uphold the appeal on points of law and overturn the impugned decision if it finds that domestic law was wrongly applied. 29. Section 392 of the Act provides that the Supreme Court shall give a single decision if an appeal on points of law and a request for the protection of legality were submitted against the same decision. 30. Section 394 of the Act provides that, if not otherwise regulated, the above provisions likewise apply to a request for the protection of legality submitted by the public prosecutor. | 1 |
train | 001-57997 | ENG | ITA | CHAMBER | 1,996 | CASE OF FERRANTELLI AND SANTANGELO v. ITALY | 3 | Violation of Art. 6-1 (reasonable time, impartial tribunal);No violation of Art. 6-1 (fair trial);No violation of Art. 6-3-d;Just satisfaction rejected (out of time) | C. Russo | 7. Mr Vincenzo Ferrantelli and Mr Gaetano Santangelo, who were born respectively in 1958 and 1959 at Alcamo (Trapani) and who currently live in Brazil, have a heavy prison sentence pending against them following their conviction by the Caltanisetta Court of Appeal on 6 April 1991 in a judgment that was upheld by the Court of Cassation on 8 January 1992 (see paragraphs 30 and 32 below). 8. On 26 January 1976 two police officers (carabinieri) were murdered at a barracks in Alcamo Marina. Some clothes, firearms and ammunition were found to be missing. 9. In the night of 11 to 12 February the Alcamo police arrested Mr G.V. who was driving a car with false registration plates. He was found to be unlawfully in possession of firearms. The police concluded on the basis of an initial inspection that one of the two pistols that they had seized had been used to commit the murders and the other had been stolen from the barracks. 10. G.V. was taken to the police station and gave the name of a lawyer, who was not able to come immediately. In the latter’s absence, G.V. agreed to an informal interview in the course of which he stated that he belonged to a revolutionary group. Shortly afterwards he asked to see his father, in whose presence he made other revelations concerning the circumstances of the raid, which had been directed against the Italian State rather than the two police officers. While his father was out of hearing, G.V. told the investigators that the applicants and two other persons, G.M. and G.G., had taken part in the crime. All four were friends of his; Mr Ferrantelli was in fact his cousin. G.V. also gave the police information as to the whereabouts of the articles stolen during the attack. 11. When his lawyer arrived at 3 a.m. on 13 February, G.V. confirmed that he had committed the murders, but retracted his statements concerning the involvement of the other persons. A little later he repeated in writing his first statements indicating what part each of those concerned had played. 12. The applicants and the other suspects were arrested at their homes between 4 and 5 a.m. on 13 February 1976. They were taken to the Alcamo barracks and were immediately questioned by the carabinieri. At first they were questioned on their own and then, after 10 a.m., a lawyer appointed by the authorities to act for them was present. They all admitted having taken part in the attack, but gave accounts that were inconsistent with each other and with that given by G.V. 13. According to the admissions register of Trapani prison, when the applicants arrived at the prison they appeared to be in a state of shock and had bruises and abrasions. Mr Ferrantelli told the staff of the admissions office that he had slipped and injured himself. 14. In the course of the afternoon of 13 February, the Trapani public prosecutor questioned all the suspects. G.V. reaffirmed that he had committed the double murder, but again retracted his statements concerning the involvement of the applicants, maintaining that he had made them under duress. Mr Ferrantelli and Mr Santangelo also retracted their confessions. Mr Ferrantelli likewise referred to pressure brought to bear on him by the investigators and ill-treatment at their hands. Mr Santangelo claimed that the police officers had persuaded him that it was in his interests to make a confession because, in view of the damming accusations made by G.V., he would be sentenced to life imprisonment if he did not. At a later stage he maintained that he too had suffered ill-treatment. Expert medical examinations established that the applicants had slight injuries to their bodies. 15. After a period during which he refused all communication with the investigators and his family, in July 1977 G.V. wrote a letter to the investigating judge asking to be questioned. During his interview with the judge, which was attended by a lawyer appointed by the authorities to act for him, he indicated that he intended to make new revelations in writing. On 26 October 1977 he was found hanged from a high window in the prison hospital with a handkerchief in his mouth. G.V had only one arm, but the authorities concluded that he had committed suicide. 16. On 23 January 1978 the applicants, who had not had an opportunity to examine or have examined G.V. in the proceedings prior to his death, were committed for trial with the two other accused. 17. On 18 May 1978 the Trapani Assize Court quashed the committal and ordered further inquiries to establish whether the applicants’ allegations about the pressure to which they had been subjected could be substantiated, to identify the presumed perpetrators of the ill-treatment and to verify whether the statements to the police officers were credible and voluntary. The prosecuting authority lodged an appeal on points of law, which was dismissed in January 1979. 18. As the maximum period for pre-trial detention had expired, the applicants were released on 19 May 1979. On 11 March 1980, the new investigation having reached its conclusion, the four accused were committed for trial. The investigating judge found that there was no case to answer in the matter of the alleged ill-treatment as the material facts of the offence had not been established (perché il fatto non sussiste). He took the view that the injuries noted by the medical reports had been caused by blows received by the accused in the struggles which occurred during their transfer from the barracks. Indeed some of the police officers who had been present at the time had similar injuries. The state of shock observed on their arrival at the prison was attributed to a lack of sleep and the lengthy interrogation. As regards the description by the accused of the premises where the alleged ill-treatment had been carried out and the fact that the accused had named the two officers who were said to have perpetrated the violence, the judge concluded that they could have seen the premises in question on a previous occasion and that the two officers were well known in the small town of Alcamo. 19. The proceedings in the Trapani Assize Court began on 25 November 1980 and ended on 10 February 1981 with the acquittal, on the basis of the benefit of the doubt, of the applicants and G.G. G.M. was convicted and sentenced to life imprisonment. 20. The prosecuting authority and the accused appealed. Mr Ferrantelli and Mr Santangelo, in particular, sought their unqualified acquittal. 21. On 23 June 1982 the Palermo Assize Court of Appeal, basing its decision essentially on the statements made to the police officers, also found the applicants and G.G. guilty of the double murder. 22. On 22 December 1984 the Court of Cassation, to which G.M., G.G., Mr Ferrantelli and Mr Santangelo had appealed, on a date that has not been specified, quashed the judgment of 23 June 1982 and remitted the case of G.M. and G.G. to Palermo Assize Court of Appeal and that of the applicants to the Juvenile Section of the Palermo Court of Appeal. The Court of Cassation noted that even if the pressure described by the appellants had not been as serious as they claimed, the contested confessions had been made without a judicial officer being present. The Trapani judges had not intervened in the first stage of the inquiry except to carry out acts of a purely formal nature. For thirty-six hours the carabinieri had thus been completely free to conduct their inquiries as they wished. 23. On 7 March 1986 the Juvenile Section of the Palermo Court of Appeal acquitted the applicants on the basis of the benefit of the doubt. The prosecuting authority and the applicants again appealed to the Court of Cassation. 24. On 12 October 1987 the Court of Cassation quashed the decision of the court below on the ground that it had regarded as established the facts found in the judgment of 22 December 1984, whereas those facts ought to have been the subject of a new investigation. The case was remitted to the Juvenile Section of the Caltanisetta Court of Appeal. At the same time the Court of Cassation set aside the judgment of the Palermo Assize Court of Appeal of 26 November 1985 convicting G.G. and sentencing him to life imprisonment. The case was remitted to the Caltanisetta Assize Court of Appeal for a decision as to whether there were any extenuating circumstances. 25. On 31 May 1988 the Juvenile Section of the Caltanisetta Court of Appeal quashed the judgment of the Trapani Assize Court of 10 February 1981 in so far as it concerned the applicants and transmitted the file to the Palermo public prosecutor’s office. Allowing the objection raised by counsel for Mr Santangelo, the appeal court applied the Constitutional Court’s judgment of 15 July 1983 (no. 222) which had declared Article 9 of the Royal Legislative Decree of 20 July 1934 (no. 1404) unconstitutional. That provision had removed from the jurisdiction of the juvenile court (tribunale per I minorenni) criminal proceedings brought against minors accused of committing a criminal offence in concert with adults. 26. On 2 June 1988 the Assize Court of Appeal, presided over by Judge S.P., accorded G.G. the benefit of general extenuating circumstances. It took the view that the facts had been definitively established by the Palermo Assize Court of Appeal, it referred to the "co-perpetrators" of the double crime and to the "precise statement by G.V. that G.G. together with Santangelo had been responsible for physically carrying out the murders". 27. On 6 October 1989 the Palermo Juvenile Court, which was trying the case at first instance, acquitted the applicants on the basis of the benefit of the doubt. The applicants and the prosecuting authority appealed. 28. By an order of 18 April 1990 the Juvenile Section of the Palermo Court of Appeal raised a question as to the proper jurisdiction and transferred the file to the Court of Cassation. It considered that, in declaring the nullity of the judgment of the Trapani Assize Court of 10 February 1981 - applying retrospectively the decision of the Constitutional Court - the Juvenile Section of the Caltanisetta Court of Appeal had breached Article 544 of the former Code of Criminal Procedure, which was in force at the time and which prohibited raising at a retrial on remittal grounds of nullity allegedly arising out of the conduct of earlier stages in the proceedings or the investigation. 29. On 2 October 1990 the Court of Cassation remitted the case to the Juvenile Section of the Caltanisetta Court of Appeal, having confirmed the validity of the judgment of 10 February 1981. 30. On 6 April 1991 that court, presided over by S.P., who had also presided over the Caltanisetta Assize Court of Appeal in G.G.’s trial (see paragraph 26 above), sentenced Mr Santangelo to twenty-two years and five months’ imprisonment and a fine of 450,000 Italian lire. Mr Ferrantelli was sentenced to fourteen years and ten months. In its judgment the court noted that lawyers had been continuously present throughout the interrogations, which ruled out any possibility of pressure of such a nature as to undermine the credibility of the confessions. Admittedly one of the lawyers appointed by the authorities to act for the applicants maintained that he had found Mr Ferrantelli chained to a radiator, but according to the same person he had been released before the beginning of the interrogation. Referring to Article 192 para. 3 of the new Code of Criminal Procedure, which provides that statements made by a person accused of the same offence may be relied on only if they are corroborated by other items of evidence which confirm their credibility, the appeal court based its decision, inter alia, on the following considerations: - the fact that the accused had all made statements implicating each other; - the fact that it would have taken five people to carry out such an attack; - the credence that could be attached to the statements of G.V. concerning his responsibility, which was confirmed by other physical evidence; - a number of items of evidence establishing that those statements were voluntary; - the fact that the accused were friends; - the fact that the applicants had helped G.V. to buy or transport the oxygen bottles for the oxyacetylene torch used to cut open the barracks door; - the fact that on the evening of 12 February 1976 G.V.’s father had been seen by the carabinieri, who were following him, in the applicants’ company, near Mr Santangelo’s home, and on that occasion the latter had appeared worried, while Mr Ferrantelli had sought to reassure him; - the discovery at Mr Santangelo’s home of a box of matches of a brand that was no longer manufactured, the matches being the same type as those used to light the oxyacetylene torch and found in a garage rented by G.V. The matches had been stolen by G.V. from a tobacconist in January 1976; - finally the lack of a convincing alibi for any of the accused. 31. On 4 June 1991 the prosecuting authority and the applicants appealed to the Court of Cassation complaining, inter alia, of the inadequacy of the appeal court’s statement of grounds. 32. In a judgment of 8 January 1992, deposited in the registry on 28 February, the Court of Cassation dismissed the applicants’ appeal, finding that the appeal court’s assessment of G.V.’s statements implicating them, their confessions and the corroborating evidence was not open to criticism in terms of the statement of grounds. 33. An application of 18 January 1992 seeking a pardon from the President of the Republic was rejected on a date that has not been specified. | 1 |
train | 001-92611 | ENG | POL | CHAMBER | 2,009 | CASE OF KULIKOWSKI v. POLAND | 2 | Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1964. He is currently serving a prison sentence. 7. On 22 March 2000 the applicant was arrested. On 24 March 2000 he was remanded in custody by the Gliwice District Court (Sąd Rejonowy) on suspicion that he had killed his mother. His pretrial detention was subsequently extended by the Katowice Regional Court (Sąd Okręgowy) on 19 June 2000, by the Katowice Court of Appeal (Sąd Apelacyjny) on 6 September 2000, by decisions of the Gliwice Regional Court of 5 March and 13 July 2001, and by decisions of the Katowice Court of Appeal of 13 March, 29 May, 10 July and 28 August 2002. 8. The domestic courts justified the applicant’s pretrial detention in its initial phase by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed, as well as by the need to secure the proper course of the proceedings. During that time, an autopsy, a number of unspecified biological tests and an inspection of the crime scene were carried out. At the later stage of the applicant’s detention, the authorities referred to the severity of the sentence likely to be imposed on him. In addition, they emphasised that the investigation could not be completed for reasons beyond the prosecutor’s control, namely delays in obtaining expert reports and in viewing the applicant’s testimony recorded on video tape. 9. From 17 December 2001 until 2 January 2002 the applicant was concurrently serving a sentence of sixteen days’ imprisonment, imposed on an unspecified date by the Zabrze District Court in another criminal case. 10. The applicant’s minor sons and his wife were witnesses in the investigation. In May 2002 the prosecutor decided that a psychologist should be present when the younger son was to be interviewed by the prosecution. Apparently the older son was also interviewed by the prosecutor on an unspecified date. The applicant submitted that his wife and two sons were not allowed, for an unspecified period, to communicate with him in writing or to visit him in prison. The prosecution relied on Article 217 of the Code of Execution of Criminal Sentences (see paragraph 30 below). 11. The applicant was indicted on 20 November 2000. In the proceedings before the first- and second-instance courts he was represented by a legal-aid lawyer. 12. On 14 August 2002 the Gliwice Regional Court convicted the applicant of murder and sentenced him to twelve years’ imprisonment. 13. On 19 December 2002 the Katowice Court of Appeal upheld that judgment. A copy of the judgment was served on the applicant on 17 January 2003. 14. On 21 February 2003 the Katowice Court of Appeal appointed a legalaid lawyer for the purposes of the cassation proceedings. 15. A copy of the judgment of 19 December 2002 was served on the legal-aid lawyer on 3 March 2003. 16. By a letter of 20 March 2003 the lawyer informed the Katowice Court of Appeal that, in her opinion, a cassation appeal in the applicant’s case lacked prospects of success and that she therefore refused to prepare and lodge one with the Supreme Court. By a letter of 27 March 2003 the Katowice Court of Appeal informed the applicant of the lawyer’s refusal and, further, that no other legal-aid lawyer would be appointed for the purpose of lodging a cassation appeal in his case. 17. The court’s letter was served on the applicant by the prison administration on 1 April 2003. 18. 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 stated 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. 19. Under the Law of 6 June 1997 - Code of Criminal Procedure (“the Code”), which entered into force on 1 September 1998, a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. The cassation appeal has to be lodged and signed by an advocate, on pain of being declared inadmissible. The relevant part of Article 523 § 1 of the Code provides: “A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed (niewspółmierności kary).” 20. Pursuant to Article 524 § 1 of the Code, a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within thirty days from the date of service of the judgment of the appellate court with its written grounds on the party or, if the party has been represented, on his or her lawyer. 21. Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers’ fees, a request for legal aid may be made under Article 78 of the Code. 22. A grant of legal aid expires upon a judgment of an appellate court. A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with the Supreme Court. The relevant part of Article 84 § 3 of the Code provides: “A defence counsel appointed under the legalaid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.” 23. In its decision of 17 June 1997 (V KX 57/97, OSNKW 1997/9010/82) the Supreme Court stated that cassation proceedings had a special character in that the judgment essentially became final after it had been upheld by the appellate court. Bearing in mind the special character of these proceedings, the court was of the view that at this stage the mere fact that the convicted person was granted legal aid was sufficient to ensure an effective exercise of his or her defence rights. It was the lawyer’s task to analyse the case and establish whether there were grounds on which to lodge a cassation appeal against the judgment of the appellate court. If the lawyer was of the opinion that there were no grounds on which to do so, there was no legal basis in the Code of Criminal Procedure that would either oblige the lawyer to prepare such an appeal against his or her better judgment, or oblige the court to assign another lawyer to prepare such an appeal in the case. 24. In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legalaid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legal-aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legal-aid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99). 25. In a later decision of 1 July 1999 the Supreme Court expressed the opinion that such negligence could be proved only in disciplinary proceedings instituted against a lawyer under the provisions of the Bar Act (V KZ 33/99). 26. In its decisions of 13 March and 17 September 2002 the Supreme Court expressed the view that when a legal-aid lawyer refused to represent a convicted person before the Supreme Court, the appellate court was not obliged to assign a new lawyer to the case (II KZ 11/02, II KZ 36/02). 27. On 26 February 2002 the Supreme Court changed its previous position concerning the date from which the timelimit for lodging of a cassation appeal started to run (see paragraph 20 above). It examined a particular situation where a legal-aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer’s refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with the legal-aid lawyer’s refusal had a right to take other measures to seek legal assistance necessary for an effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 and in a number of similar decisions given in 2008. It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time-limit in such situations was calculated, but the strand of the case-law launched by the decision given in February 2002 was both dominant and correct, and also accepted by doctrine as providing to the defendants adequate procedural guarantees of access to the Supreme Court within a reasonable time-frame (II KZ 16/08). 28. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998. 29. Article 214 § 1 reads as follows: “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as those secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” 30. Article 217 § 1 reads, in so far as relevant, as follows: “(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.” This provision further provides that a detainee is allowed to receive visitors, provided that he has obtained permission from the investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun). 31. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force. Paragraph 36 of the Rules provides: “The detainee’s correspondence ... is dispatched through the intermediary of the authority at whose disposal he remains.” 32. In 1990, the UN adopted the Basic Principles on the Role of Lawyers (the Basic Principles). They provide, in particular: “13. The duties of lawyers towards their clients shall include: (a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients; (b) Assisting clients in every appropriate way, and taking legal action to protect their interests; (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate. 14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession. 15. Lawyers shall always loyally respect the interests of their clients. 33. A number of recommendations have been adopted by the Committee of Ministers of the Council of Europe with regard to access to justice and the provision of legal-aid services. In particular, Recommendation No. R (81) 7 on measures facilitating access to justice provides: “4. No litigant should be prevented from being assisted by a lawyer. The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided. Where, having regard to the nature of the matter involved, it would be desirable, in order to facilitate access to justice, for an individual to put his own case before the courts, then representation by a lawyer should not be compulsory.” “Recalling that in addition to the right of access to the law and to justice provided for in Article 6 of the European Convention on Human Rights, the other provisions of the Convention and particularly Articles 2, 3 and 8 are equally applicable to the very poor, as are the other legal instruments of the Council of Europe such as the European Social Charter; Considering that this recommendation is intended to improve, especially with regard to the very poor, existing legal advice and legal aid systems, and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed. Recommends that the governments of member states: 1. Facilitate access to the law for the very poor (“the right to the protection of the law”) by: ... b. promoting legal advice services for the very poor; ... 3. Facilitate effective access to the courts for the very poor, especially by the following means: c. recognising the right to be assisted by an appropriate counsel, as far as possible of one’s choice, who will receive adequate remuneration; e. simplifying the procedure for granting legal aid to the very poor, [...]” “The Committee of Ministers, under the terms of Article 15.b of the Statue of the Council of Europe, [...] Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms; [...] Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers, Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation. 1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. 1. All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers, 2. Lawyers should be encouraged to provide legal services to persons in an economically weak position. 3. Governments of member States should, where appropriate to ensure effective access to justice, ensure that effective legal services are available to persons in an economically weak position, in particular to persons deprived of their liberty. 4. Lawyers’ duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds.” 36. On 6 June 2007 the Committee of Ministers adopted an Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). Noting that the number of cases in which the European Court had found violations of Article 5 § 3 of the Convention against Poland was constantly increasing, it concluded that this revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 34, 3 February 2009; not final). 37. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released a Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland, stressing that examples of cases brought to the Court where pre-trial detention had lasted between 4 to 6 years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pre-trial detention in Polish law. A more detailed rendition of the relevant parts of the Memorandum can be found in the above mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35). | 1 |
train | 001-72117 | ENG | EST | ADMISSIBILITY | 2,006 | DOROCHENKO v. ESTONIA | 4 | Inadmissible | Nicolas Bratza | The applicants, Mr Vladimir Dorochenko and Ms Nina Dorochenko, are Russian nationals, who were both born in 1949 and live in Smolensk, the Russian Federation. They are represented before the Court by Mr A. Arjupin, legal adviser of the Legal Information Centre for Human Rights in Tallinn, and Mr W. Bowring, barrister and professor of law at the London Metropolitan University. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Mr Vladimir Dorochenko, the first applicant, was born in Ukraine. In 1951 he moved to Estonia together with his parents. In 1970 he married Ms Nina Dorochenko, the second applicant, who had been born in Estonia in 1949. Both applicants are of Russian origin. The applicants have three children who all live in Estonia. Their daughter Yulia (born in 1971) is a stateless person. She has a permanent residence permit in Estonia. The applicants’ first son Sergey (born in 1975) is a Russian national. He too holds a permanent residence permit. The applicants’ second son Vitaly (born in 1983) is a Russian national and he holds a temporary residence permit in Estonia for five years (until 11 July 2006). At the time the application was lodged with the Court, he was living together with the applicants. The first applicant’s mother who had had a permanent residence permit to live in Estonia died on 4 December 2004. His father (born in 1923), a Russian national, resides in Estonia on the basis of a permanent residence permit. The second applicant’s mother and the applicants’ grandchildren are also living in Estonia. From 1969 to 1995 the first applicant served in the Soviet and Russian armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory. In 1995 until his assignment to reserve on 12 April 1995 (see below) the first applicant served as a senior midshipman in the Paldiski military unit. His duties included the dismantling of a nuclear reactor in Paldiski. On 10 April 1995 the commander of the Paldiski military unit issued a decree by which the first applicant was assigned to the reserve as of 12 April 1995. He was discharged from the Paldiski military unit and sent to the Zadneprovsk military unit in Smolensk, Russia. According to the decree, it was decided to allocate financial means to the applicants and their two sons for their travel to Smolensk. As the applicants did not have housing in Russia, the first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America. On 10 April 1995 he signed a written commitment in this connection. The form of the commitment was in Russian. In the form, signed by the first applicant, it was stated that he wished to take part in the programme for providing housing for officers of the Russian armed forces. It was further stated that if he received housing in the context of the programme, he and his family would vacate the dwelling that was at their disposal in the Baltic country and that in the future he would be able to visit the Baltic countries only as a foreigner on general basis. Furthermore, it was stated that the applicant had no housing in Russia, that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge. It was confirmed that the dwelling he possessed in the Baltic country had not been privatised or sold and that he had not received any payment for it. On 20 April 1995 the first applicant submitted an application for taking part in the programme. In the application form, signed by the first applicant, it was stated that if he were to receive a dwelling in the context of the aid programme, he, together with his family, would vacate the dwelling that was at his family’s disposal in the Baltic country and not seek to stay in the Baltic countries as permanent residents. It further stated that in the future he would be able to visit the Baltic countries only as a foreigner. It was stated that he and his family did not possess a dwelling in the Baltic countries and that they would not seek to privatise or sell the dwelling at their disposal and that they had not received and would not receive any payment for vacating their current dwelling. It was also stated that he confirmed that at the moment of signing the application he did not have housing in Russia and that he had not paid anyone for the right to take part in the programme. It was stated that he was aware that if all the preconditions for taking part in the programme were fulfilled and he were to comply with all the conditions and requirements of the programme, he would receive money for buying a dwelling. Finally, it was stated that he was also aware that the participation in the programme was voluntary and that if it were to prove unsuccessful, his place in a municipal waiting list of applicants for dwelling would be retained. On 21 April 1995 the first applicant concluded an agreement in Smolensk with the company Smolenskiy DSK to the effect that he would pay an equivalent of 25,000 US dollars and receive an apartment at Popov Street 120-349 in Smolensk. The agreement was to become valid if the first applicant were to get money in the context of the programme for granting military reserve officers certificates for obtaining housing. On 4 July 1995 the applicants submitted an application for a residence permit in Estonia. On 31 August 1995 the mayor of Smolensk allocated apartment no. 337 at 120 Popov Street to the first applicant and ordered that he be registered as its owner. On 18 December 1995, the first applicant was entered in the list of staff of the military unit in Smolensk. On 11 July 1996 the applicants were granted temporary residence permits in Estonia for five years. As from 1997 the first applicant was working as a guard in Estonia. The second applicant was working as a housemaid, also in that country, as from 1999. In 1999 the Foreigners’ Act (Välismaalaste seadus) was amended so as to exclude the possibility of issuing or extending residence permits to persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme. On 28 November 2000 the second applicant privatised (purchased on favourable conditions from the municipality) an apartment no. 56 at 1 Muuli Street in Paldiski. On 13 February 2001 the second applicant, acting as her son Sergey’s proxy, privatised an apartment no. 10 at 1 Kivi Street in Paldiski. On 30 April 2001 the applicants applied for extensions of their residence permits. On 2 November 2001 the Minister of the Interior issued orders by which the applicants were refused extensions. The refusal was based on two grounds. Firstly, the first applicant had served as a professional member of the armed forces of a foreign country and had retired. This ground applied also to the second applicant as a family member of the first applicant. Secondly, the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme. The applicants submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus). They contested the retroactive application of the provisions of the Foreigners’ Act so as to refuse extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received an accommodation abroad within the framework of an international aid programme. The Foreigners’ Act did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in Russia. They argued that their legitimate expectation rights and the principle of legal certainty had been violated. They also maintained that their commitment to leave the country had not been made to the Estonian authorities. They further complained that their right to family and private life had been violated. On 8 May 2002 the Tallinn Administrative Court dismissed the complaint. It observed that the Foreigners’ Act provided that the residence permits of former professional members of armed forces of a foreign country and of their family members could be extended only in exceptional circumstances. Although the Minister of the Interior’s orders did not state why such an exception did not apply in the applicants’ case, the Administrative Court found the orders to be lawful, since the Foreigners’ Act in any case did not permit extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received accommodation abroad within the framework of an international aid programme. It dismissed the applicants’ claim that their legitimate expectation rights and the principle of legal certainty had been violated, holding that the principle of legitimate expectation could not be extended so far as to prevent the legislator from making any changes to the legislation in force at any point of time. The Administrative Court rejected the complaint concerning the violation of the right to family and private life, finding that the applicants could enjoy family life in the country of which they were nationals and in which they had undertaken to settle, when consenting to participate in the aid programme. In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants stressed that the first applicant’s elderly parents, whom the applicants had to take care of, lived in Estonia. The second applicant had been born in Estonia and had been living there ever since. The first applicant had lived in Estonia for fifty years. They supported financially their children, who lived in Estonia, including one child who lived together with them. Also their grandchildren lived in Estonia. The first applicant had opted for the aid programme and adopted Russian nationality only because of the lack of certainty as to the possibility to remain living in Estonia. On 6 January 2003 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. The Court of Appeal noted that in his written consent to take part in the aid programme, the first applicant had stated that the size of his family was four persons, including the two sons. Thus, the first applicant had known already at the time he had been consenting to take part in the aid programme that his parents would remain in Estonia. On 20 May 2003 the Supreme Court (Riigikohus) upheld the judgments. It reiterated that on 26 July 1994 Estonia and the Russian Federation had concluded a treaty concerning the withdrawal of the Russian troops from Estonia. According to the treaty the Russian military servicemen and their family members had to leave Estonia. The United States aid programme had been set up to facilitate the resettling of the military servicemen. The fact that Estonia had not been a party to the programme, did not, in the Supreme Court’s view, exclude the legitimacy of the enactment and application of the provision of the Foreigners’ Act, under which the applicants had been denied the extensions of the residence permits. The Supreme Court agreed with the opinion of the Court of Appeal that in case the first applicant’s parents wished to stay in Estonia, the grown-up children of the applicants could take care of them. On 5 September 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet) issued a precept to the applicants requiring them to leave Estonia. The applicants complied with the precept and cancelled their registration of residency in Paldiski. According to the population registration database the applicants left Estonia on 25 November 2003 and settled in Smolensk. In the applicants’ submission they had to leave Estonia in December 2003, after the police had entered their flat in November in order to execute the precepts by force. Section 12(4) of the Foreigners’ Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended, if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, as an exception, a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision. Section 12(9)(4) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended, if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had received accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. It was subject to an amendment in 2001, which does not appear to have relevance to the present case. According to the Government of Estonia, in April and July 1993 the President of the United States of America and the President of the Russian Federation agreed to undertake a project for providing up to 5,000 units of housing for Russian military officers demobilized from the Baltic countries or elsewhere outside Russia. The Government submitted to the Court a copy of “Russian Military Officer Resettlement Program. Housing Certificate Program” and “Russian Military Officer Resettlement Program. Housing Construction Program. Information Digest”. These information materials appear to have been handed out by the American side in the Aid Programme to the participating Russian officers. According to the information materials, the Russian Military Officer Resettlement Programme had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About a half of the units of housing had to be constructed, whereas the rest of the housing units had to be provided through a housing certificate programme. In order to take part in the Programme, the officers had to present a discharge order, passport, official verification of the family size and composition, official verification of current residence in the Baltics and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests. The officers had to declare that they and their families did not own housing in Russia nor would they own, privatise or sell any dwellings in the Baltics and would not receive any payments in connection with vacating any dwelling. The officers declared their understanding that if they were found to be eligible to participate in the Programme and if all Programme’s terms and conditions were met, they would receive appropriate apartments (in the framework of the housing construction programme) or financial assistance for the purchase of housing units (in the framework of the housing certificate programme). In order to obtain a registration of residence (propiska) in the Passport Desk for their new apartment, the officers had to present their Russian Passport and the Russian passports for all family members along with proof of cancellation of their registration of residency (vypiska) for all members of the family in the Baltics. Officers had to move in within 45 days after notification by the Russian Offices of Social Assistance or by the local administration, otherwise their apartments could be reassigned. Participation in the Programme was voluntary; no enrolment fee was required. After the independence of the Republic of Estonia was restored on 20 August 1991, the Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over its armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of the Russian troops from the Estonian territory and on the conditions of their temporary stay in Estonia. On the same day, Estonia and Russia concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia. The Treaty and the Agreement entered into force on 2 February 1996, having been subject to temporary application from the day of signing, that is, from 26 July 1994. According to the Treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in the active service of the Russian armed forces. Family members of the military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year. The Agreement provided that retired military personnel, i.e. persons discharged from the army service and receiving pension, and their family members could apply for residence permit in Estonia. The Estonian Government could deny a residence permit due to a threat to national security. On 30 July 1994 an agreement on the procedure and terms for the dismantling of the nuclear reactors, and for ensuring nuclear and radiation safety on the Pakri peninsula of the Republic of Estonia was concluded between the Government of Estonia and the Government of the Russian Federation. This Agreement entered into force on the day of its signing and it remained effective until 30 September 1995. According to the Agreement, work for the dismantling of nuclear reactors and ensuring nuclear and radiation safety was to be performed by specialists of the Russian Federation. Estonia undertook to give temporary residence permits to the specialists and their family members for the period of validity of the agreement. In cases where the postponement of the departure was required, including the absence of the housing in Russia, the validity of the residence permits of the family members could be extended until 15 May 1996. After the expiry of the residence permits the specialists together with their family members had to leave Estonia. | 0 |
train | 001-58593 | ENG | GBR | GRANDCHAMBER | 1,999 | CASE OF T. v. THE UNITED KINGDOM | 2 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Independent tribunal);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings) | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 7. The applicant was born in August 1982. On 12 February 1993, when he was ten years old, he and another ten-year-old boy, “V.” (the applicant in case no. 24888/94), had played truant from school and abducted a two-year-old boy from a shopping precinct, taken him on a journey of over two miles and then battered him to death and left him on a railway line to be run over. 8. The applicant and V. were arrested in February 1993 and detained pending trial. 9. Their trial took place over three weeks in November 1993, in public, at Preston Crown Court before a judge and twelve jurors. In the two months preceding the trial each applicant was taken by social workers to visit the courtroom and was introduced to trial procedures and personnel by way of a “child witness pack” containing books and games. The trial was preceded and accompanied by massive national and international publicity. Throughout the criminal proceedings, the arrival of the defendants was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court. In the courtroom, the press benches and public gallery were full. The trial was conducted with the formality of an adult criminal trial. The judge and counsel wore wigs and gowns. The procedure was, however, modified to a certain extent in view of the defendants' age. They were seated next to social workers in a specially raised dock. Their parents and lawyers were seated nearby. The hearing times were shortened to reflect the school day (10.30 a.m. to 3.30 p.m., with an hour's lunch break), and a ten-minute interval was taken every hour. During adjournments the defendants were allowed to spend time with their parents and social workers in a play area. The judge made it clear that he would adjourn whenever the social workers or defence lawyers told him that one of the defendants was showing signs of tiredness or stress. This occurred on one occasion. 10. At the opening of the trial on 1 November 1993 the judge made an order under section 39 of the Children and Young Persons Act 1933 (see paragraph 30 below) that there should be no publication of the names, addresses or other identifying details of the applicant or V. or publication of their photographs. On the same day, the applicant's counsel made an application for a stay of the proceedings, on the grounds that the trial would be unfair due to the nature and extent of the media coverage. After hearing argument, the judge found that it was not established that the defendants would suffer serious prejudice to the extent that no fair trial could be held. He referred to the warning that he had given to the jury to put out of their minds anything which they might have heard or seen about the case outside the courtroom. 11. During the trial, the prosecution presented evidence for the purpose of establishing that the two defendants were criminally responsible for their actions in that they knew that what they were doing was wrong (see paragraph 27 below). The applicant had refused to be examined by Dr Susan Bailey, a consultant psychiatrist instructed by the prosecution. Dr Eileen Vizard, a consultant child and adolescent psychiatrist who had originally been instructed by T.'s solicitors, was subpoenaed by the Crown to give evidence. In her report of 5 November 1993 prepared for the applicant's solicitors, Dr Vizard had expressed the opinion that the applicant presented as a boy of good or at least average intelligence who had answered questions spontaneously and appropriately and who would have known the difference between right and wrong in February of that year, more particularly that it was wrong to take a child from his mother, injure him and leave him on a railway line. In addition, she found that T. showed the signs of post-traumatic stress disorder, involving a constant preoccupation with the events of the offence, a generalised high level of anxiety and poor eating and sleeping patterns. This disorder, combined with the lack of any therapeutic work since the offence, limited his ability to instruct his lawyers and testify adequately in his own defence. At trial Dr Vizard stated that, although she considered that the applicant was fit to stand trial, she had some concern as to how the post-traumatic stress symptoms affected his understanding of the procedures. The prosecution also called the headmistress at the school attended by the two boys. She stated that from the ages of four and five children were aware that it was wrong to strike another child with a weapon. She stated that V. and the applicant would have been aware that what they were doing was wrong. Another teacher gave evidence to the same effect. 12. In addition, evidence was given by persons who had witnessed V. and the applicant in the shopping centre from which the two-year-old boy was taken and who had seen the three boys at various points between the shopping centre and the vicinity of the railway line, where the body was later found. The tapes of the interviews of the police with V. and the applicant were replayed in court. Neither the applicant nor V. gave evidence. 13. In his summing-up to the jury, the trial judge noted that witnesses had arrived in court in a blaze of publicity and that many had faced a bevy of photographers. They had had to give evidence in a large court packed with people and not surprisingly several of them were overcome with emotion and some had had difficulty in speaking audibly. This was one of the factors to be borne in mind in assessing their evidence. He instructed the jury, inter alia, that the prosecution had to prove to a standard of sureness, in addition to the ingredients of the offences charged, that the applicant and V. knew that what they were doing was wrong. 14. On 24 November 1993, the jury convicted V. and the applicant of murder and abduction. Neither applicant made any appeal to the Court of Appeal against his conviction. 15. Following their conviction, the judge modified the order under section 39 of the 1933 Act (see paragraph 10 above) to allow the applicant and V.'s names, but no other details, to be published. The following day – 25 November 1993 – their names, photographs and other particulars were published in newspapers throughout the country. On 26 November 1993 the judge granted an injunction restraining, inter alia, the publication of the addresses where the boys were being detained or any other detail which could lead to information about their whereabouts, care or treatment being revealed. 16. In a report on the applicant dated November 1997, Dr Eve Jones of the Adolescent Forensic Service, who had worked with T. since May 1995, explained that “trust building has been a difficult and long drawn out process which is partly due to [T.'s] fear of retaliation and media interest and partly due to his innate fear and dislike of psychiatrists”. As part of the process of trust building, Dr Jones had agreed with the applicant that their sessions should be confidential, with progress being reported in general terms only. It follows that there is limited psychiatric evidence relating to, inter alia, the effect of the trial on the applicant. 17. In his memorial to the Court the applicant stated that, due to the conditions in which he was put on trial, he was unable to follow the proceedings or take decisions in his own best interests. He had been severely intimidated and caused feelings of anxiety and oppression by the procedures followed. 18. In a report on the applicant V. dated February 1998, Sir Michael Rutter, Professor of Child Psychiatry at the Institute of Psychiatry, University of London, observed: “I have also been asked to comment on the likely mental and emotional effects on children in general, and on [V.] in particular, of the prolonged trial process being in public. In my opinion there are two negative aspects of the trial process as they apply to children of [V.'s] age. First, one serious consequence of the long time involved in a trial means that there is an inevitable delay in providing the psychological care and therapeutic help that is needed. A child of ten has many years of psychological development still to come and it is most important that there is not a prolonged hiatus when this is impeded by the trial process. In particular, when children have committed a serious act, such as killing another child, it is most important that they are able to come to terms with the reality of what they have done and with all that that means. That is not possible at a time when a trial is still underway and guilt has still to be decided by the court. Thus, I conclude that the very prolonged nature of the trial process is bound to be deleterious for a child as young as ten or eleven (or even older). The fact that the trial process is held in public and that the negative public reactions (often extreme negative reactions) are very obvious is a further potentially damaging factor. While it is crucially important for young people who have committed a serious act to accept both the seriousness of what they have done and the reality of their own responsibilities in the crime, this is made more difficult by the public nature of the trial process ...” 19. Following the applicant and V.'s conviction for murder, the judge sentenced them, as required by law, to detention during Her Majesty's pleasure (see paragraph 34 below). He subsequently recommended that a period of eight years be served by the boys to satisfy the requirements of retribution and deterrence (the “tariff” – see paragraphs 38-40 below). He commented that he could not determine the boys' relative culpability, and stated: “Very great care will have to be taken before either defendant is allowed out into the general community. Much psychotherapeutic, psychological and educational investigation and assistance will be required. Not only must they be fully rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others. ... If the defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been eighteen years. However these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard, or suffered abuse, drunkenness and violence. I have no doubt that both boys saw video films frequently showing violent and aberrant activities. In my judgment the appropriate length of detention necessary to meet the requirement of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the defendants when it was committed is eight years ... . Eight years is 'very very many years' for a ten or eleven year old. They are now children. In eight years' time they will be young men.” 20. The Lord Chief Justice recommended a tariff of ten years. The applicant's representatives made written representations to the Home Secretary, who was to fix the tariff period. 21. By a letter dated 16 June 1994, the Secretary of State informed the applicant that the family of the deceased child had submitted a petition signed by 278,300 people urging him to take account of their belief that the boys should never be released, accompanied by 4,400 letters of support from the public; that a Member of Parliament had submitted a petition signed by 5,900 people calling for a minimum of twenty-five years to be served; that 21,281 coupons from the Sun newspaper supporting a whole life tariff and a further 1,357 letters and small petitions had been received of which 1,113 wanted a higher tariff than the judicial recommendations. The applicant's solicitors were given an opportunity to submit further representations to the Secretary of State. 22. By a letter dated 22 July 1994, the Secretary of State informed the applicant that he should serve a period of fifteen years in respect of retribution and deterrence. The letter stated, inter alia: “In making his decision, the Secretary of State had regard to the circumstances of the offence, the recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also has regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice. The Secretary of State takes fully into account the fact that you were only ten years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult. The Secretary of State notes the representations which were made on your behalf regarding the relative culpability of yourself and your co-defendant. The Secretary of State notes that the trial judge was unable to determine this. The Secretary of State has reached the same conclusion. The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be eight years, and ten years respectively. The trial judge added that if the defendants had been adults then the appropriate tariff would have been eighteen years. The Secretary of State has had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of twenty-five years and not eighteen years as suggested by the trial judge. For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of fifteen years in your case. The Secretary of State is satisfied that such a tariff is consistent with the tariffs fixed in other cases. The Secretary of State is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and, in the light of such fresh representations, to reduce the tariff if appropriate.” 23. The applicant instituted judicial review proceedings challenging, inter alia, the tariff which had been set by the Secretary of State as being disproportionately long and fixed without due regard to the needs of rehabilitation. Leave was granted on 7 November 1994. 24. On 2 May 1996, the Divisional Court upheld part of the applicant's claims. On 30 July 1996, the Court of Appeal dismissed the appeal of the Secretary of State. On 12 June 1997, the House of Lords by a majority dismissed the Secretary of State's appeal and allowed the applicant's cross-appeal. A majority of the House of Lords found that it was unlawful for the Secretary of State to adopt a policy, in the context of applying the tariff system, which even in exceptional circumstances treated as irrelevant the progress and development of a child who was detained during Her Majesty's pleasure. A majority of the House of Lords also held that in fixing a tariff the Secretary of State was exercising a power equivalent to a judge's sentencing power and that, like a sentencing judge, he was required to remain detached from the pressure of public opinion. Since the Secretary of State had misdirected himself in giving weight to the public protests about the level of the applicant's tariff and had acted in a procedurally unfair way, his decision had been rendered unlawful (see further paragraph 41 below). The tariff set by the Secretary of State was accordingly quashed. 25. On 10 November 1997, the Secretary of State informed Parliament that, in the light of the House of Lords' judgment, he had adopted a new policy in relation to young offenders convicted of murder and sentenced to detention during Her Majesty's pleasure, pursuant to which, inter alia, he would keep the tariff initially set under review in the light of the offender's progress and development. The Secretary of State invited the applicant's representatives to make representations to him with regard to the fixing of a fresh tariff. 26. At the time of the adoption of this judgment, no decision has been taken in respect of the applicant's tariff. The Government in their memorial informed the Court that although the applicant V. had submitted representations regarding the appropriate length of tariff, similar representations were still awaited in respect of T., and the Home Secretary was in addition seeking independent psychiatric advice regarding both detainees. 27. Pursuant to section 50 of the Children and Young Persons Act 1933 as amended by section 16(1) of the Children and Young Persons Act 1963 (“the 1933 Act”), the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of a criminal offence. The age of ten was endorsed by the Home Affairs Select Committee (composed of Members of Parliament) in October 1993 (Juvenile Offenders, Sixth Report of the Session 1992-93, Her Majesty's Stationary Office). At the time of the applicant's trial, a child between the ages of ten and fourteen was subject to a presumption that he did not know that what he was doing was wrong (doli incapax). This presumption had to be rebutted by the prosecution proving beyond reasonable doubt that, at the time of the offence, the child knew that the act was wrong as distinct from merely naughty or childish mischief (C. (a minor) v. the Director of Public Prosecutions [1996] Appeal Cases 1). The doli incapax presumption has since been abolished with effect from 30 September 1998 (section 34 of the Crime and Disorder Act 1998). 28. Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under eighteen years must be tried summarily in the Magistrates' Court, where the trial usually takes place in the specialist Youth Court, which has an informal procedure and from which the general public are excluded. The exceptions are children and young persons charged with murder, manslaughter or an offence punishable if committed by an adult with fourteen or more years' imprisonment, who are tried in the Crown Court before a judge and jury. 29. Where a child is tried in the Youth Court, section 49 of the 1933 Act imposes an automatic prohibition restraining the media from reporting the child's name or personal details or from publishing his photograph or any other information which might lead to his identification. The court has a discretion to dispense with the restriction following conviction if it considers it in the public interest to do so. 30. Where a child is tried in the Crown Court, there is no restriction on the reporting of the proceedings unless the trial judge makes an order under section 39 of the 1933 Act, which provides: “(1) In relation to any proceedings in any court ... the court may direct that – (a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein; (b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court. (2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine ...” This provision was extended by section 57(4) of the Children and Young Persons Act 1963 to cover sound and television broadcasts. The Court of Appeal interpreting section 39 has held that, since Parliament intentionally distinguished between trial in a Youth Court, where there is a presumption against publicity, and trial in the Crown Court, where the presumption is reversed, there should be a good reason for the making of an order under section 39 of the 1933 Act (R. v. Lee (a minor) 96 Criminal Appeal Reports 188). 31. An accused is “unfit to plead” if by reason of a disability, such as mental illness, he has “insufficient intellect to instruct his solicitors and counsel, to plead to the indictment, to challenge jurors, to understand the evidence, and to give evidence” (R. v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of at least two medical experts. Where a jury has found the defendant unfit to plead, either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence, in which case the court may make a hospital order against him (Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5). Alternatively, the trial may be postponed indefinitely until the accused is fit to plead. 32. In the case of Kunnath v. the State ([1993] 1 Weekly Law Reports 1315), the Privy Council quashed the conviction of an uneducated peasant from Kerala in Southern India who had been sentenced to death for murder after a trial in Mauritius conducted in a language he did not understand and where the evidence was not translated for him by an interpreter. The Privy Council stated, inter alia: “It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. The basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and if so, upon what matters relevant to the case against him.” 33. In England and Wales, adults convicted of murder are subject to mandatory life imprisonment (Murder (Abolition of Death Penalty) Act 1967). Adults convicted of certain violent or sexual offences, for example manslaughter, rape, or robbery, may be sentenced to life imprisonment at the discretion of the trial judge, if he or she considers that (i) the offence is grave and (ii) there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside. 34. Offenders under the age of eighteen who are convicted of murder are automatically to be detained “during Her Majesty's pleasure”, in accordance with section 53(1) of the Children and Young Persons Act 1933 (as amended), which provides: “A person convicted of an offence who appears to the Court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct.” Until the age of eighteen a child or young person detained during Her Majesty's pleasure will be held at a children's home or other institution providing facilities appropriate to his age. At the age of eighteen, the detainee becomes liable to be transferred to a Young Offenders' Institution and, at the age of twenty-one, to detention in the same institution as an adult sentenced to life imprisonment for murder. 35. At the time of the applicant's conviction the effect of the sentence of detention during Her Majesty's pleasure was that the child or young person was detained for an indeterminate period, the duration of which was wholly within the discretion of the Home Secretary. The Secretary of State had a discretion to refer the case of a detained child to the Parole Board for its advice and, if so advised by the Parole Board, had a discretion to decide to order the child's release (Criminal Justice Act 1991 (“the 1991 Act”), sections 35(2) and (3) and 43(2); see the speech of Lord Browne-Wilkinson in the House of Lords, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407 at p. 492A-F, hereafter “Ex parte V. and T.”). 36. On 1 October 1997, section 28 of the Crime (Sentences) Act 1997 was brought into force in order to implement the judgments of the European Court in the Hussain and Singh cases (Hussain v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 252, and Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 280). The section provides that, after the tariff period has expired (see paragraphs 38-40 below), it shall be for the Parole Board, and not, as previously, for the Secretary of State, to decide whether it is safe to release on licence an offender serving a sentence of detention during Her Majesty's pleasure for an offence of murder committed before the age of eighteen. 37. A person detained during Her Majesty's pleasure who is released on licence is liable to be recalled throughout his or her life, subject to the decision of the Parole Board. 38. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, Ex parte V. and T., op. cit., at pp. 492G-493A). 39. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public. 40. A different regime, however, applies under the 1991 Act to persons detained during Her Majesty's pleasure or serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] Appeal Cases 531, and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864).). 41. In the judicial review proceedings brought by the applicant (Ex parte V. and T., op. cit.), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise in respect of sentences of detention during Her Majesty's pleasure. Lord Steyn held: “The starting point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.” Lord Hope held: “But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ... If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...” Lord Hope also commented on the imposition of a tariff on a child offender: “A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody.” Lord Goff stated, inter alia: “... if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when doing so, he is under a duty to act under the same restraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful. In so holding I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment ...” 42. On 10 November 1997, the Secretary of State announced that, in the light of the House of Lords' decision, he would adopt the following policy in respect of fixing the tariff for young offenders convicted of murder and detained during Her Majesty's pleasure: “I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any case of a person convicted under section 53(1) of the Children and Young Persons Act 1933. I shall then set an initial tariff with that advice, and the offender's personal circumstances, in mind; I shall continue to invite representations on the prisoner's behalf and give reasons for decisions. Officials in my Department will receive annual reports on the progress and development of young people sentenced under section 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers. When half of the initial tariff period has expired, I, or a Minister acting on my behalf, will consider a report on the prisoner's progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate ...” 43. The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. They provide, as relevant: “4. Age of criminal responsibility 4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. Commentary The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.). Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable. ... 8. Protection of privacy 8.1 The juvenile's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling. 8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published. ... 17. Guiding principles in adjudication and disposition 17.1 The disposition of the competent authorities shall be guided by the following principles: (a) The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society; (b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; ... (d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case. ... Commentary ... Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and future of the young person. ...” 44. This treaty (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 3(i) of the UN Convention states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37(a) and (b) provides: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age. (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ...” Article 40 provides as relevant: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the reintegration and the child's assuming a constructive role in society. 2. To this end ... the States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ... (vii.) To have his or her privacy fully respected at all stages of the proceedings. 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular: (a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal laws; (b) whenever appropriate and desirable, measures for the dealing with such children without resorting to judicial proceedings, providing that human rights are fully respected. ...” 45. In its concluding observations in respect of the United Kingdom (CRC/C/15/add.34) dated 15 February 1995, the Committee set up by the United Nations to monitor compliance with the UN Convention stated, inter alia: “35. The Committee recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child-oriented ... 36. More specifically, the Committee recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom ...” 46. The ICCPR provides in Article 14(4), which broadly corresponds to Article 6 of the European Convention, that: “In the case of juvenile persons, the procedure shall be such as will take account of their age, and the desirability of promoting their rehabilitation.” 47. The above recommendation, adopted by the Committee of Ministers on 17 September 1987, states, inter alia: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ... Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors, and that the latter need specialised interventions and, where appropriate, specialised treatment, based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child; Convinced that the penal system for minors should continue to be characterised by its objective of education and social integration ...; ... Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”), Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action; 5. to avoiding committing minors to adult courts, where juvenile courts exist; ... 8. to reinforcing the legal position of minors throughout the proceedings by recognising inter alia: ... the right of juveniles to respect for their private lives; ...” 48. The age of criminal responsibility is seven in Cyprus, Ireland, Switzerland and Liechtenstein; eight in Scotland; thirteen in France; fourteen in Germany, Austria, Italy and many Eastern European countries; fifteen in the Scandinavian countries; sixteen in Portugal, Poland and Andorra; and eighteen in Spain, Belgium and Luxembourg. | 1 |
train | 001-100928 | ENG | AUT | CHAMBER | 2,010 | CASE OF KUGLER v. AUSTRIA | 3 | Violations of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant lives in Imst, Austria. 7. The applicant is the co-owner of a plot of land in Lech, Austria which had been designated as building land (Bauland); one building had already been constructed on the land. On 22 July 1987 the Lech municipal authorities informed the applicant that they intended to modify the area zoning plan (Flächenwidmungsplan) and to designate the remaining part of the land as open land (Freihaltefläche) because, being located on a steep slope, they considered that the remaining part was not suitable for construction under the Vorarlberg Regional Planning Act (Raumplanungsgesetz). 8. On 6 August 1987 the applicant lodged an application for a building permit in order to construct a hotel on the plot of land at issue. 9. On 14 June 1988 the Lech municipal authorities issued a building prohibition in respect of the applicant's plot of land. 10. The Bludenz District Administrative Authority (“the District Administrative Authority”) (Bezirkshauptmannschaft) held a hearing on 23 September 1988 concerning the applicant's application for a building permit. On 4 July 1991 the Lech municipal authorities extended the building prohibition. 11. On 31 July 1991 the applicant lodged an application for a transfer of jurisdiction (Devolutionsantrag) because the District Administrative Authority had not reached a decision within the statutory six-month time-limit. 12. The Vorarlberg Regional Government (“the Regional Government”) allowed that application on 10 October 1991 but dismissed the applicant's application for a building permit on the ground that the permit would contravene the building prohibition. The applicant lodged a complaint with the Constitutional Court. 13. On 19 March 1992 Lech Municipal Council (“the Municipal Council”) issued a decree determining the maximum building density (Baunutzungszahl) for the category of land which included the applicant's land, and on 2 July 1992 it lifted the building prohibition. The applicant thereupon asked the Regional Government to reopen the building permit proceedings. 14. On 28 September 1992 the Constitutional Court dismissed the applicant's complaint against the decision of 10 October 1991. It found that the building prohibition was lawful. 15. On 29 September 1992 the Regional Government dismissed the request to reopen the building permit proceedings. The applicant lodged a complaint with the Administrative Court. 16. On 28 January 1993 the Administrative Court dismissed the applicant's complaint. It found that the conditions for reopening the building permit proceedings had not been met. That decision was served on 24 February 1993. 17. The applicant requested a partition of land (Grundstücksteilung) on 26 September 1995, but withdrew this request on 30 April 1996. 18. On 11 November 1996 the applicant lodged a fresh application for a building permit to enable him to carry out construction work on his land. 19. On 26 February 1997 the District Administrative Authority informed the applicant of the Lech municipal authorities' submissions to the effect that the maximum building density laid down by the decree of 19 March 1992 did not allow the construction of another building on his plot of land. The applicant commented on this information. After the Lech municipal authorities had submitted further comments on 6 October 1997, the applicant asked the District Administrative Authority to decide on his application. 20. On 25 June 1997 the Municipal Council adopted a building plan (Bebauungsplan) which amended the decree of 19 March 1992 but left the maximum building density unchanged. On 1 July 1997 the Regional Government approved the building plan. 21. On 28 October 1997 the District Administrative Authority dismissed the applicant's application for a building permit. It found that the maximum building density defined in the building plan did not allow the construction of another building on the applicant's plot of land. On 12 November 1997 the applicant lodged an appeal. 22. The Regional Government dismissed the appeal on 2 June 1998 and upheld the District Administrative Authority's finding. 23. On 16 July 1998 the applicant lodged a complaint with the Constitutional Court and requested an oral hearing. He submitted that the area zoning plan and the building plan were unlawful, and claimed that the Regional Government had refused to allow him to consult the case file in the building plan proceedings. 24. On 7 September 1998 the Lech municipal authorities submitted their observations; on 15 September 1998 the Regional Government did likewise. 25. On 6 October 1998 the applicant's counsel consulted the case file at the Constitutional Court, which, on the following day, forwarded all the case file documents to him. 26. On 8 June 2001 the applicant's counsel asked the Constitutional Court if he could consult further documents concerning the original area zoning plan. 27. On 12 June 2001 the Constitutional Court declined to deal with the complaint because it lacked any prospect of success. It found that, considering the hillside location of the plot of land, its allegedly unlawful designation appeared to be reasonable. 28. Subsequently, the case was transferred to the Administrative Court and on 11 October 2001 the applicant amended his complaint and requested an oral hearing. He submitted that the refusal to issue the building permit had been based on an unlawful area zoning plan and building plan. He requested that a hearing be held and an on-site inspection carried out, and that he be given the opportunity to consult all the documents concerning his plot of land. 29. On 20 March 2003 the Administrative Court dismissed the complaint. It found that the refusal to issue the building permit had been lawful, because the maximum building density for the plot of land at issue had already been exceeded by the construction of the existing buildings. Furthermore, it found that it was not necessary to hold a hearing or to carry out an on-site inspection, because the applicant had merely contested the lawfulness of the area zoning plan and the building plan, which had already been reviewed by the Constitutional Court. That decision was served on 30 April 2003. 30. On 19 January 2005 the applicant applied for a building permit for a private house on the same plot of land. 31. Following a hearing held on 5 August 2005, on 2 September 2005 the Lech municipal authorities granted the application; the decision was served on the applicant's counsel on 5 December 2005. 32. In Austrian law area zoning plans and any amendments thereto are regarded as decrees (Verordnungen), even if they only concern one individual's property. Accordingly, the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them. The lawfulness of decrees can be challenged before the Constitutional Court under Article 139 of the Federal-Constitution Act. However, case-law has established that area zoning plans cannot be directly challenged in proceedings under Article 139 by the individuals affected if it is possible to institute administrative proceedings. 33. This is the case, in particular, where the area zoning plan is the basis for the granting or withholding of building permits. The persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. 34. The review of the lawfulness of general legal acts such as decrees issued by administrative authorities as to their lawfulness and of laws (Gesetze) as to their constitutionality is concentrated with the Constitutional Court. Only that Court is therefore to carry out this review. Article 139 of the Federal-Constitution Act, insofar as relevant, provides as follows: “(1) The Constitutional Court decides on application by an ordinary court or an independent administrative tribunal whether decrees issued by a federal or regional authority ... are contrary to law, but ex officio in so far as the Constitutional Court would have to apply such a decree in a case pending before it. It also decides on application by the Federal Government whether decrees issued by a regional authority are contrary to law and likewise on application by the municipality concerned whether ordinances issued by a municipal affairs supervisory authority ... are contrary to law. It decides furthermore whether decrees are contrary to law when an application alleges direct infringement of personal rights through such unlawfulness in so far as the decree has become operative for the applicant without the delivery of a judicial decision or the issue of a ruling ... (2) If the applicant of a complaint lodged with the Constitutional Court, entailing application of a decree by the Constitutional Court, receives satisfaction, the proceedings for the review of a decree shall nevertheless continue. (3) The Constitutional Court may repeal a decree as contrary to law only to the extent that its repeal was expressly requested or the Constitutional Court would have had to apply it in the pending case. If the Constitutional Court reaches the conclusion that the whole decree a) has no legal basis, b) was issued by an authority without competence in the matter, or c) was published in a manner contrary to law, it shall repeal the whole decree as unlawful. This does not hold good if repeal of the whole decree manifestly runs contrary to the legitimate interests of the applicant who has filed a complaint pursuant to the last sentence in para 1 above or whose case has been the occasion for the initiation of ex officio review proceedings into the decree.” | 1 |
train | 001-76890 | ENG | TUR | CHAMBER | 2,006 | CASE OF KABASAKAL AND ATAR v. TURKEY | 3 | No violation of Art. 6-1 (composition of state security court);Violation of Art. 6-1 (non-communication of prosecutor's observations);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicants were born in 1979 and 1977 respectively and were serving their prison sentences in Ordu prison at the time of their applications to the Court. 9. On 11 November 1998 the applicants were arrested and taken into custody by police officers at the Anti-terror branch of the Sivas Security Directorate on suspicion of membership of an illegal organisation, namely the TDP. 10. On 18 November 1998 they were brought before a judge who ordered their remand in custody. 11. On 31 December 1998 the public prosecutor at the Erzurum State Security Court filed a bill of indictment with the latter charging the applicants under Article 168 § 2 of the Criminal Code with membership of an illegal organisation. 12. The first hearing, held before the Erzurum State Security Court on 12 January 1999, in the applicants’ absence, was taken up with procedural matters, such as the measures to be taken for securing the presence of the accused. 13. On 5 February 1999 the court heard the applicants. The first applicant stated that he accepted in part the accusations against him. In this respect he maintained, inter alia, that he had wanted to join the armed forces of the TDP and that he was apprehended, together with the coaccused, on his way to the rural area. The second applicant also stated, inter alia, that he was apprehended, together with the coaccused, before he had joined the rural cadre of the organisation. He maintained that he was a sympathiser of the organisation and not a member. Both applicants also repudiated the statements they had given to the police, claiming that they had been made under duress. 14. In the next hearing held on 2 March 1999 the applicants stated that they had nothing to say. On 23 March 1999 the court heard a witness and one of the coaccused. The witness stated that he knew only one of the accused and that he had loaned his car to him. The applicants maintained that, in view of the judgment of the European Court on Human Rights concerning State Security Courts, they were boycotting the court and were not going to give any statements. 15. In the next hearing held on 20 April 1999, the first applicant submitted that he was neither a member nor a participant in any activity of the organisation in question and that he had been apprehended prior to attending a meeting with members of the organisation. 16. In the hearings held on 18 May 1999 and 15 June 1999 the second applicant stated that he had nothing to say. The first applicant requested the rectification of some of his words contained in the previous minutes of the hearings. 17. In a hearing held on 13 July 1999 the civilian judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. At this hearing and the next one held on 10 August 1999, the court took some procedural decisions and heard several of the co-accused, including the second applicant who maintained that he had nothing to say. 18. In a hearing held on 8 September 1999 the applicants submitted their written submissions in which they challenged, in particular, the veracity of their statements given in police custody. 19. On 5 October 1999 before the court two persons filed petitions to intervene as third-parties in the proceedings. The applicants reiterated their previous submissions. 20. At a hearing held on 12 October 1999 the court accepted the request for the third-party intervention of two persons. On the same day, the public prosecutor read out his observations on the merits. The public prosecutor, relying on the submissions of the applicants, the co-accused and the materials found during the applicants’ arrest, requested that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. The applicants’ request for an extension of time to submit their observations on the merits was granted by the court. 21. At each hearing, the court examined and dismissed the requests of the applicants to be released. 22. On 26 October 1999 the court heard the submissions of the applicants on the merits. The applicants also submitted four pages of written submissions. On the same day the Erzurum State Security Court convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment. 23. On 6 December 1999 the applicants appealed to the Court of Cassation against the judgment of the State Security Court. In their petition the applicants submitted arguments based on domestic law and, in particular, challenged the veracity of their statements to the police. 24. Following a hearing held on 5 June 2000, the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of the firstinstance court. This decision was pronounced, in the absence of the applicants’ representative, on 14 June 2000. 25. On an unspecified date, the applicants were released from prison. 26. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey, no. 42739/98, §§ 20-21, 7 November 2002; Öcalan v. Turkey [GC], no. 46221/99, §§ 54, ECHR 2005-...; and Göç v. Turkey [GC], no. 36590/97, § 34, ECHR 2002V. 27. On 2 January 2003 Article 316 of the Code of Criminal Procedure Law was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties. 28. By Law no. 5190 of 16 June 2004, published in the Official journal on 30 June 2004, State Security Courts were abolished. | 1 |
train | 001-22229 | ENG | ESP | ADMISSIBILITY | 2,000 | FRANQUESA FREIXAS v. SPAIN | 1 | Inadmissible | Georg Ress | The applicant [Ramón Franquesa Freixas] is a Spanish national who was born in 1943 and lives in Tarragona. He is a lawyer. In connection with criminal proceedings for misappropriation of assets, brought against the applicant by Barcelona investigating judge no. 18, the applicant was awarded legal aid and a lawyer was assigned by the court to assist him. At the public hearing of the case the applicant’s officially assigned lawyer raised an objection, as a preliminary issue, on the ground that the applicant had informed her that he no longer had confidence in her ability to represent him because she was specialised in labour law and not criminal law. She requested the judge to suspend the hearing In a judgment of 22 December 1997 Barcelona criminal-court judge no. 1 dismissed that objection on the ground that criminal law, as such, did not constitute a specialisation. He added that the applicant, who had not appointed a lawyer of his choice, had not expressed any intention to defend himself either. He also referred to the lawyer’s professional experience. On the merits, the court found the applicant guilty of the offence of misappropriation, sentenced him to four months’ imprisonment and ordered him to pay damages to the victim of the offence. The applicant appealed against that judgment to the Barcelona Audiencia Provincial. He disputed the judge’s legal classification of the offence with which he had been charged. A new lawyer – this time one matching his requirements – was appointed by that court to assist him. In a judgment of 9 July 1998, delivered after proceedings deemed to be inter partes, the Barcelona Audiencia Provincial dismissed the appeal and upheld the lower court’s judgment. That judgment was served on the applicant’s officially assigned lawyer on 2 September 1998. According to the applicant, the officially assigned lawyer did not send him a copy of the judgment upholding his conviction. The applicant therefore personally contacted the Audiencia Provincial asking it to serve the judgment of 9 July 1998 on him directly, which was done on 9 September 1998. On 23 October 1998 the applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 24 of the Constitution (right to a fair trial). In his grounds in support of his amparo appeal, the applicant’s representative stated that the judgment of the Audiencia Provincial had been served personally on his client on 9 September 1998. In a decision of 6 May 1999 the Constitutional Court held the amparo appeal to be inadmissible on the ground that it had been lodged out of time. The court gave the following reasons for its decision: “As this court has stated on many occasions (see, among others, the decisions of the Constitutional Court 559/1984, 705/1986, 160/1987, 194/1989 and 223/1089), service of documents on the representative of a party to a trial shall produce the same effects as service on the represented party where section 44(2) of the Constitutional Court Act (CCA) does not require personal service for the purpose of calculating the relevant time-period. That is so irrespective of the fact that the rules of ordinary law can impose an additional requirement of serving judgments personally. Consequently, if account is taken of the fact, as can be seen from the file, that the appellate court’s judgment was served on the applicant’s lawyer on 2 September 1998, the amparo appeal of 23 October 1998 was lodged out of time because it was lodged long after the twenty-day time-limit provided for by section 44(2) of the CCA for lodging a constitutional appeal.” Constitutional Court Act “The time-limit for lodging an amparo appeal shall be twenty days from service of the decision delivered in the judicial proceedings.” Code of Criminal Procedure “Final judgments shall be delivered and served on the parties and their lawyers...” | 0 |
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