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train | 001-59881 | ENG | POL | CHAMBER | 2,001 | CASE OF OLSTOWSKI v. POLAND | 4 | Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Georg Ress | 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. On 14 December 1993 the applicant was arrested by the police. On 16 December 1993 the Starogard Gdański District Prosecutor (Prokurator Rejonowy) charged the applicant with the commission of robbery together with three accomplices and remanded him in custody. The charges related to a brutal assault of a businessman who had been attacked with a baseball bat and tear gas and robbed of 122,864 zlotys. 10. On 22 February 1994 the Gdańsk Regional Court (Sąd Wojewódzki) decided to extend the applicant’s detention. On 1 March 1994 the applicant appealed against that decision to the Gdańsk Court of Appeal (Sąd Apelacyjny). On 16 March 1994 the appellate court dismissed the appeal. It rejected the applicant’s contention that the Regional Court’s decision referred only in general terms to the reasons justifying his detention. In addition, the appellate court considered that the evidence taken from one of the witnesses gave rise to reasonable suspicion that the applicant had committed the robbery. 11. On 24 May 1994 the Gdańsk Regional Court decided to extend the applicant’s detention until 1 September 1994. It considered that the evidence showed that the applicant had probably committed the criminal offence with which he was charged. The court pointed out that several pieces of evidence remained to be taken, including the psychiatric examination of the applicant. It also considered that the fact that the investigation in the case was not concluded at that stage could not be attributed to the inactivity of the prosecuting authorities. On 27 May 1994 the applicant appealed to the Gdańsk Court of Appeal against that decision. On 15 June 1994 his appeal was dismissed. 12. On 29 August 1994 the Gdańsk District Prosecutor filed with the Gdańsk Regional Court a bill of indictment. However, the Regional Court returned it to the District Prosecutor instructing him to elaborate its reasoning. 13. On 10 November 1994 the Gdańsk Regional Court dismissed an application for release made by the applicant. The court noted, inter alia, that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which constituted a significant danger to society (znaczny stopień społecznego niebezpieczeństwa). It also observed that the applicant’s son was cared for by his cohabitee, who was assisted by her parents and the applicant’s mother. The applicant appealed that decision. 14. On 15 and 21 November 1994 the applicant applied to the Gdańsk Regional Court for release from detention. 15. On 28 November 1994 the Gdańsk District Prosecutor re-submitted a bill of indictment to the Gdańsk Regional Court. 16. On 5 December 1994 the applicant again applied to the Gdańsk Regional Court for release from detention but his application was dismissed on 6 December 1994. 17. On 14 December 1994 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 10 November 1994. 18. The applicant made a fresh application for release but it was on 17 January 1995 dismissed by the Gdańsk Regional Court. The court noted that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which caused the significant danger to society. It also rejected the applicant’s contention that he should be released because he had already spent a long period of time in detention waiting for a hearing and pointed out that a hearing in his case was fixed for 23 February 1995. 19. On 25 January 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 17 January 1995. The appellate court referred to several pieces of evidence collected in the case, which in its opinion pointed to the applicant’s guilt. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged and observed that, in view of the length of a sentence, which could be imposed on him for the commission of that offence, his detention was not excessively long. 20. On 23 February 1995 the Gdańsk Regional Court dismissed an application for release made by the applicant. On the same date the first hearing in the case was held. It was adjourned until 24 April 1995. 21. On 1 March 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 23 February 1995 rejecting his application for release from detention. The appellate court referred, inter alia, to the significant danger to society caused by the criminal offence with which the applicant was charged and the fact that it carried a penalty exceeding five years’ imprisonment. The court further noted that the applicant had not submitted any evidence showing that the situation of his family called for his release. It also pointed out that the length of the proceedings before the Regional Court was excessive. In that connection, the appellate court recalled that a period of three months had elapsed between the date on which the bill of indictment had been submitted to the trial court and the date of the first hearing. In addition, the first hearing had been adjourned for two months and only one day was reserved in the Regional Court’s calendar for the second hearing which, in the appellate court’s opinion, would result in a further adjournment as it would be impossible to take evidence from all four suspects in the case on a single day. The Gdańsk Court of Appeal finally recommended that the proceedings in the case be expedited. 22. On 24 April 1995 a hearing was held before the trial court. 23. On 19 May 1995 the Vice-President of the Gdańsk Court of Appeal replied to the applicant’s letter of 8 April 1995 in which he had complained, inter alia, about a delay in the proceedings. The Vice-President advised the applicant that he was not in position to interfere with the proceedings and that only an independent court was competent to decide whether his detention on remand was justified. Furthermore, the Vice-President observed that a hearing held on 23 February 1995 had been adjourned because of the absence of counsel. In addition, during a hearing held on 24 April 1995 evidence was taken from the defendants and eight witnesses. The inability to hold hearings at shorter intervals resulted from the heavy workload of judges and the lack of courtrooms. The Vice-President considered that, although the applicant’s case disclosed a certain delay, it was not significant. He also advised the applicant that the President of the Gdańsk Regional Court had been informed about the necessity to expedite proceedings in criminal cases. 24. The next hearings in the case took place on 25 May and 5 July 1995. The Government submitted that on the latter date the applicant’s cohabitee recanted her testimony and explained that she had been persuaded by the applicant to testify that he had been with her when the robbery had been committed. 25. On 25 July 1995 the Gdańsk Regional Court rejected as unsubstantiated the applicant’s challenge to one of the judges considering his case. 26. On 28 September and 16 November 1995 the Regional Court held hearings in the case. 27. On 16 November 1995 the Gdańsk Regional Court rejected an application for release made by the applicant. On 29 November 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court observed that the proceedings in the applicant’s case had been expedited and that they should end before 21 December 1995. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged. 28. On 7 and 21 December 1995 hearings in the case took place. 29. The applicant made a further application for release but it was dismissed on 4 January 1996 by the Gdańsk Regional Court. On 17 January 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court referred, inter alia, to the fact that the evidence collected in the course of the proceedings showed that charges laid against the applicant were sufficiently justified. In addition, the alleged criminal act was drastic and involved the theft of a significant sum of money. The court noted that the proceedings had been recently expedited and pointed out that a hearing scheduled for 24 January 1995 had been adjourned “for objective reasons”. Moreover, the next hearing was fixed for 24 January 1996. 30. The next hearings were held on 24 January and 2 February 1996. 31. On 2 February 1996 the Gdańsk Regional Court rejected an application for release lodged by the applicant. On 14 February 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. It considered that the evidence in the case pointed at the applicant and his co-defendants. Furthermore, the court agreed with the applicant’s submission that the proceedings in his case had already taken a significant period of time. However, it considered that, in view of the nature of the charges laid against the applicant, that period was not excessive. The appellate court further noted that only two witnesses remained to be heard in the case. 32. On 21 March, 9 and 26 April 1996 hearings were held before the Regional Court. 33. On 28 April 1996 the Gdańsk Regional Court rejected an application for release made by the applicant. On 15 May 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court recalled the significant danger to society caused by the criminal offence with which the applicant was charged. It also pointed out that although the detention had lasted already thirty months, the trial court had not failed to try to expedite the proceedings. In that connection, it observed that five hearings had been held since the beginning of 1996 and that the trial court was not responsible for the failure to conclude the proceedings. Furthermore, the Court of Appeal was of the opinion that the worsening financial situation of the applicant’s family did not constitute a ground for his release and observed that the applicant’s wife was helped by social services. 34. Between 30 April and 12 July 1996 six hearings took place before the trial court. 35. On 25 July 1996 the Gdańsk Regional Court rejected an application for release made by the applicant together with his counsel. On unspecified dates the applicant and his counsel lodged separately appeals against that decision. 36. On 7 August 1996 the Gdańsk Court of Appeal dismissed the appeal lodged by the applicant’s counsel against the Regional Court’s decision of 25 July 1996. The court pointed out that the applicant was charged with a criminal offence, which carried “a heavy load of social harmfulness” (wysoki ładunek społecznej szkodliwości), especially in view of the manner in which it had been committed. Moreover, a severe penalty, which could be imposed for the commission of such an offence, justified the detention. The court also stated that although the judicial proceedings in the case were substantially delayed, they would be probably concluded shortly. 37. On 28 August 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 25 July 1996. The appellate court referred to the grounds for its decision of 7 August 1996. In addition, it pointed out that the proceedings in the case had reached the final stage, as there had been a hearing fixed for 2 September 1996 and only two witnesses had been called to testify on that date. 38. On 7 November 1996 a hearing took place. 39. On 23 November 1996 the Gdańsk Regional Court rejected an application for release made by the applicant. 40. The next hearings were held on 26 November, 6 and 11 December 1996. 41. On 30 December 1996 the Gdańsk Regional Court transmitted the case-file to the Supreme Court (Sąd Najwyższy), together with a request that the applicant’s detention on remand be extended. 42. On 16 January 1997 the Supreme Court decided to extend the applicant’s detention until 30 April 1997. The court firstly observed that there existed in the applicant’s case general legal grounds for detaining him on remand. It considered that, although the question of guilt would be decided by the trial court, the evidence collected in the course of the proceedings pointed towards the applicant’s guilt. Moreover, the Supreme Court pointed out that although the proceedings in the case had lasted so far more than three years, they had reached the final stage already in 1995. However, thirteen out of twenty hearings scheduled in 1996 had been adjourned for reasons over which the trial court had no influence. In addition, the counsel acting in the case were responsible for eleven adjournments. The Supreme Court based its decision to extend the applicant’s detention on Article 222 § 4 of the Code of Criminal Procedure which provided for the prolongation of detention because of “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. It also pointed out that the proceedings could end in the near future after just a few additional hearings. Finally, the court recommended that additional defence lawyers be appointed in the case in order to avoid adjournments of hearings caused by the ill-health of counsel. 43. On 27 and 28 February 1997 hearings were held before the Regional Court. 44. On 3 March 1997 the Gdańsk Regional Court convicted the applicant of robbery and sentenced him to eight years’ imprisonment, a fine and disenfranchisement for a period of six years. The applicant appealed against that judgment to the Gdańsk Court of Appeal. 45. On 12 November 1997 a hearing took place before the appellate court. 46. The next hearing was held on 27 November 1997. The Government asserted that on that occasion one of the most important witnesses testified that the applicant’s mother had put on her pressure to submit false evidence. 47. On 28 November 1997 the applicant made a new application for release but it was on 3 December 1997 dismissed by the Gdańsk Court of Appeal. 48. On 5 January 1998 the court received an expert opinion. On 13 January 1998 the applicant’s legal aid counsel asked the court to exempt him from defending the applicant. 49. On 17 June 1998 the Gdańsk Court of Appeal quashed the judgment of the trial court and remitted the case to the prosecution service instructing it to carry out further investigation. On the same date the applicant was released from detention. 50. The Government submitted that on 3 December 1998 the victim of the robbery informed the Gdańsk Regional Court that he would not take part in the crime scene reconstruction because he had received threats to his life and family and was therefore afraid of the perpetrators of the crime. 51. On 17 March 1999 the Starogard Gdański District Prosecutor filed with the Gdańsk Regional Court a new bill of indictment against the applicant. 52. The hearing held on 30 July 1999 before the Gdańsk Regional Court was adjourned. The Government submitted that the adjournment resulted from the applicant’s failure to attend the hearing. 53. On 16 August 1999 the applicant withdrew a power of attorney from his counsel. 54. On 3 September, 8 October and 26 November 1999 hearings took place. On two latter occasions they were adjourned because of the absence of some of the accused. 55. The next hearings were held on 11 January, 25 February and 24 March 2000. The Government submitted that the first and the third of those hearings were adjourned because the applicant failed to appear before the court. The applicant averred that he attended all hearings except for two occasions, when he was prevented from appearing before the court by ill-health. 56. The proceedings are still pending. 57. At the material time, the Code of Criminal Procedure 1969 (“the Code”) listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code provides as follows: “Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 58. Furthermore, the Code allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provides as follows: “A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.” 59. Article 225 of the Code provides: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” 60. Article 217 of the Code, before it was amended on 1 January 1996, provided in so far as relevant: “Detention on remand may be imposed if: 1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or 2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or 3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or 4. the accused was charged with the commission of an act which constituted a significant danger to society.” 61. Article 218 provides: “If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when: (1) it may seriously jeopardise the life or health of the accused; or (2) it would entail hardship for the accused or his family.” 62. Until 4 August 1996, when the Code was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage. 63. Article 222 of the Code, as applicable after 4 August 1996, provides in so far as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” 64. Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. | 1 |
train | 001-23832 | ENG | SWE | ADMISSIBILITY | 2,004 | BJORKLUNDH v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Ms Siv Björklundh, is a Swedish national, who was born in 1934 and lives in Årsta. She was represented before the Court by Messrs G. Antal and U. Jacobson, lawyers practising in Stockholm. The facts of the case, as submitted by the applicant, may be summarised as follows. In December 1998 the applicant, assisted by legal counsel, applied for disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). She claimed that she was in need of assistance for about 20 minutes per day and had extra expenses in the amount of 18,460 Swedish kronor (SEK) per year following operations which had removed part of her intestines. She submitted certificates from a medical doctor and a dentist. By a decision of 23 February 1999 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm granted her a disability allowance as from December 1998. The Office found that she was in need of assistance for 2 hours and 20 minutes per week and accepted additional costs amounting to SEK 16,800 per year. Added together, these items corresponded to an allowance of 53% of a basic amount geared to the price index (basbelopp). The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, maintaining that she was entitled to an allowance of 69% of the basic amount. She submitted that she had further expenses due to her handicap which she had previously failed to state and that the total amount of the extra expenses was SEK 21,600. She further claimed that she should be given an allowance as from December 1996. On 1 December 1999 the County Administrative Court held an oral hearing in the case. At the hearing, the applicant claimed that her extra expenses amounted to SEK 23,430 and the Office stated that it accepted SEK 17,540 thereof. By a judgment of 13 December 1999 the court rejected the applicant's appeal in so far as it concerned the period from December 1998. It found that SEK 18,040 could be accepted as extra expenses for the applicant, but that these expenses and her need of assistance, taken together, did not make her eligible for an allowance with a higher amount than the one granted by the Office. As regards the period before December 1998, the court referred the matter back to the Office for a decision. It appears that no appeal was made against the court's judgment. On 23 February 2000 the Office granted the applicant a disability allowance of 36% of the basic amount for the period November 1996 – November 1998. In so doing, it accepted extra expenses for that period amounting to SEK 14,820 and thus considered that some of the extra expenses fixed by the County Administrative Court had not existed before December 1998. The applicant appealed against this decision and claimed an allowance of 69%, alternatively 53%, of the basic amount for the period November 1996 – November 1998. She also requested that the Office be ordered to explain its decision in several respects. On 17 July 2001 the County Administrative Court rejected the request for explanations from the Office. It noted that the applicant's appeal had been communicated to the Office which thus had been given an opportunity to submit comments. The court further ordered the applicant to complete her appeal by 14 August 2001. The applicant made submissions to the court on 6 August 2001. She further requested that the County Administrative Court hold an oral hearing in order to have clarified certain factual issues in the case. In this connection, she maintained that the Office had failed to give satisfactory answers to her questions. By a judgment of 27 February 2002 the County Administrative Court found partly in favour of the applicant and granted her a disability allowance of 53% of the basic amount for the period at issue, November 1996 – November 1998. The court considered that the circumstances relating to that period, in all important respects, were the same as for the period examined in the judgment of 13 December 1999. On the basis of a medical certificate submitted by the applicant, it further found that the extra expenses which the Office had not accepted for the period in question had in fact existed since 1979. As regards the applicant's claim that she was entitled to 69% of the basic amount, the court found no reason to change the assessment made in its earlier judgment. By the judgment the County Administrative Court further rejected the applicant's request for an oral hearing. It noted that it had ordered the applicant to make her final submissions in the case and that it had already held an oral hearing on 1 December 1999 in the case concerning benefits for the period starting in December 1998. As the circumstances in that case had been essentially the same and as the court had drawn the same conclusions with regard to the applicant's entitlement to benefits for the two periods in question, the court found a hearing unnecessary in the case at hand. The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm and complained about the County Administrative Court's decision not to hold an oral hearing. She further claimed that, if the appellate court were to examine the case on the merits, it should hold an oral hearing. On 17 May 2002 the appellate court refused the applicant leave to appeal. On 11 February 2003 the Supreme Administrative Court (Regeringsrätten) also refused her leave to appeal. According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to guidelines issued by the National Social Insurance Board (Riksförsäkringsverket), the total annual costs of all extra needs due to the disability should come to at least 28.5% of the basic amount in order to make the individual eligible for an allowance. If the total costs reach or exceed that level, the individual is, pursuant to chapter 9, section 3 of the 1962 Act, entitled to an annual allowance corresponding to 69, 53 or 36% of the basic amount, depending on the level of the total costs. In December 1998, when the applicant lodged her application with the Social Insurance office, the basic amount was SEK 36,400. A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”). Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. 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.” The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). It was further stated, in respect of the third paragraph of section 9, that a party's request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party's understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537). | 0 |
train | 001-61028 | ENG | ITA | CHAMBER | 2,003 | CASE OF Massimo ROSA v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant was born in 1965 and lives in Rome. 9. The applicant is the owner of a flat in Rome, which had been let to M.R. 10. In a writ served on the tenant on 16 September 1991, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 11. By a decision of 11 March 1992, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 July 1992. 12. On 22 September 1992, the applicant served notice on the tenant requiring him to vacate the premises. 13. On 22 October 1992, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 27 November 1992. 14. On 21 November 1992, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 15. Between 27 November 1992 and 11 March 1997, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 16. On 8 April 1997, the applicant repossessed the premises. 17. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 1 |
train | 001-96264 | ENG | TUR | CHAMBER | 2,009 | CASE OF AKYAZICI v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial | Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall | 4. The applicant, an anaesthesiologist, was born in 1968 and lives in Samsun. 5. The applicant was working at the Kars State Hospital when criminal proceedings were instigated against him for alleged involvement in the activities of an illegal organisation. He was accused together with other suspects of, inter alia, hanging posters and banners in various places in Ankara on behalf of that organisation. Throughout the proceedings the applicant maintained his innocence. In the meantime, Kars State Hospital suspended the applicant pending the criminal proceedings. 6. On 11 September 2001 the Ankara State Security Court, on the basis of the evidence contained in the case file, convicted the applicant under Article 7 § 1 of Law no. 3713 and sentenced him to two years and six months' imprisonment and to a fine. The applicant appealed. 7. On an unspecified date a written opinion of the principal public prosecutor at the Court of Cassation dated 10 December 2001 was submitted to that court. This opinion was not communicated to the applicant. 8. On 27 March 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in respect of the applicant. 9. The applicant's request for a rectification of the Court of Cassation's judgment was dismissed by the principal public prosecutor at that court. 10. The applicant submitted that he had been released from prison in July 2003. 11. By an additional judgment dated 4 May 2004, the Ankara State Security Court, taking into account the amendment to the definition of “terror acts” under section 7 of Law no. 3713 pursuant to Law no. 4928, acquitted the applicant, who had not taken part in any violent activities, and nullified his conviction, together with all its consequences. This judgment became final on 11 May 2004. 12. In the meantime, on 28 February 2002, the Supreme Disciplinary Commission of the Ministry of Health decided to dismiss the applicant from the civil service. The applicant's objection to this decision was dismissed by the administrative court who noted, inter alia, that, according to the disciplinary investigation, the applicant had taken fifteen days leave from 2 June 2000 in pursuit of his illegal activities. The court also noted that the applicant's conviction had become final. This decision was subsequently upheld by the Supreme Administrative Court on 27 December 2005. In his observations the applicant submitted that, despite his acquittal, his request for a retrial had been rejected by the administrative court. However, he did not submit any court decisions. 13. According to an attestation dated 10 September 2007 the applicant is currently employed at Atasam hospital in Samsun. 14. The relevant domestic law and practice in force at the material time and subsequent changes to domestic legislation are outlined in the following judgments; Göç v. Turkey, [GC], no. 36590/97, § 34, ECHR 2002-V, and Erdal Taş v. Turkey, no. 77650/01, §§ 18-19, 19 December 2006. | 1 |
train | 001-93579 | ENG | DEU | ADMISSIBILITY | 2,009 | KALETSCH v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Frank Kaletsch, is a German national who was born in 1966 and lives in Fernwald-Annerod. He was represented before the Court by Mr J. Pauly, a lawyer practising in Frankfurt/Main. In 1991 the applicant was convicted of drug trafficking and sentenced to four years’ imprisonment. On 16 June 1993 the remainder of the sentence was suspended and the applicant released on probation. As of 12 November 1993 the police investigated the applicant, suspecting a violation of the Narcotics Act (Betäubungsmittelgesetz) because of chemical purchases by the applicant on a large scale. On 16 November 1993 the Gieβen District Court issued a search warrant relating to the applicant’s parents’ house, where he was then living, and ordered telephone surveillance measures. The court based its decisions on the suspicion of a violation of the Narcotics Act on the ground that the chemicals purchased by the applicant could be used to manufacture narcotics covered by the Narcotics Act. In file notes dated 14 March 1994, 11 April 1994 and 26 May 1994 the investigators observed that it seemed that the applicant wanted to use the chemicals to manufacture new designer drugs not covered by the Narcotics Act. It was further observed that the new designer drugs might, however, fall within the scope of the Medicines Act (Arzneimittelgesetz) and its penal provisions. On 19 July 1994 the applicant was arrested and subsequently remanded into custody. On 19 and 20 July 1994 the house of the applicant’s parents was searched with the applicant’s consent on the basis of the search warrant issued on 16 November 1993. Chemicals found in the course of the search were seized with the applicant’s consent. The applicant was questioned on 19 July 1994 and accused of a violation of the Narcotics Act. He remained silent and instead referred to a protective letter (Schutzschrift) he was carrying with him at the time of his arrest, in which he claimed that the use of the chemicals was purely for scientific purposes. In this letter he stated inter alia: “2) Medicinal Products of the Medicines Act are o n l y those substances and preparations which are authorised as medicinal products or registered or are exempted from the need for authorisation or registration by ordinance (section 2 (4) Medicines Act) ...” On 20 July 1994, after having heard the applicant, the Gieβen District Court issued an arrest warrant. The applicant remained in pre-trial custody until 31 October 1994, when the enforcement of the arrest warrant was suspended. On 7 March 1995 the arrest warrant was rescinded. The pre-trial investigations were closed on 6 September 1994. On 6 February 1995 the applicant was charged with two violations of the Medicines Act and two violations of the Narcotics Act. On 23 February 1995 the indictment was served on the applicant’s defence lawyer. On 8 August 1995 the defence lawyer requested the Gieβen Regional Court not to open the main proceedings. On 2 January 1996 the Gieβen Regional Court declined to open the main proceedings. On 22 January 1996 the prosecution submitted grounds for its appeal against the decision of 2 January 1996 to the Frankfurt Court of Appeal. On 26 March 1996 and 9 April 1996 respectively the applicant himself and his defence lawyer filed submissions. On 22 May 1996 the Frankfurt Court of Appeal directed the Gieβen Regional Court to open the main proceedings with regard to the alleged violations of the Medicines Act. On 29 July 1996 the prosecution submitted a revised indictment, charging the applicant with the manufacture of medicinal products without authorisation in two cases, in one case in conjunction with placing on the market (Inverkehrbringen) unsafe medicinal products. On 4 September 1996 the Gieβen Regional Court fixed the date of the trial for 4 February 1997, after the defence lawyer had indicated that he was tied up with business on the Regional Court’s regular trial days from October to December 1996, and since another case had already been scheduled for January 1997. The trial on 4 February 1997 ended with the acquittal of the applicant. The Gieβen Regional Court argued that the manufactured substance, Methyl-Methaqualon, did not constitute a medicinal product as defined in section 2 § 1 no. 5 of the Medicines Act. With regard to the other substance, N-Methyl-3, 4-Mehylendioxyphenylbutanamin-2 (“MBDB”), the court reasoned that it could not be ruled out that it only constituted an intermediate (Zwischenprodukt) which did not fall within the scope of the Medicines Act. The prosecution appealed the judgment and on 2 April 1997 submitted grounds for its appeal on points of law. On 19 November 1997 the Federal Court of Justice held a hearing. On 3 December 1997 the Federal Court of Justice set aside the judgment of the Gieβen Regional Court. The Federal Court of Justice argued that the Regional Court had applied an incorrect definition of “medicinal product”; Methyl-Methaqualon did in fact constitute a medicinal product as defined in section 2 § 1 no. 5 of the Medicines Act. If, as in the case at hand, the purpose of the substance could not be derived from objective criteria, consumer expectation or scientific assessment, the point of reference had to be the purpose pursued by the manufacturer, which in this case was the applicant’s intention to develop substances with the same or similar effects as narcotic substances without falling within the scope of the Narcotics Act as described in his protective letter. With regard to the substance MBDB the Federal Court of Justice argued that the development of an intermediate product could suffice for the alleged offence under the Medicines Act. In January 1998 the files were referred back to the Gieβen Regional Court. On 17 April 2001 the trial was listed for 18 September 2001 and 25 September 2001. After the defence lawyer had indicated that he would not be able to attend the trial on 25 September 2001 the dates were changed to 21 September 2001 and 28 September 2001. During the trial on 21 September 2001 the defence lawyer, referring to the recent case-law of the Federal Constitutional Court, objected to the use of the evidence found during the search of the applicant’s parents’ house since the search warrant had been more than six months old at the time of its execution (see relevant domestic law and practice below). On 28 September 2001 the trial ended with the sentencing of the applicant to a cumulative prison sentence (Gesamtfreiheitsstrafe) of one year suspended on probation. The applicant gave notice of his intention to appeal on points of law and submitted his statement of the grounds of appeal on 4 December 2001. He raised the issue of the length of the proceedings and challenged the use of the evidence found during the search of his parents’ house. On 3 January 2002 the prosecution filed a counterstatement (Gegenerklärung). On 15 March 2002 the attorney general (Generalbundesanwalt) filed a motion to dismiss the appeal with regard to the verdict (Schuldspruch) but, because of the length of the proceedings, to set aside the sentence (Strafausspruch) and remit the case in this respect. On 2 April 2002 the applicant himself submitted another statement. On 26 April 2002 the Federal Court of Justice dismissed the appeal on points of law with regard to the verdict, set aside the sentence and remitted the case to the Gieβen Regional Court for sentencing. On 24 October 2002, following a trial hearing, the Gieβen Regional Court fixed two separate sentences of 7 months’ and 5 months’ imprisonment and imposed a cumulative suspended prison sentence of nine months for the manufacture of medicinal products without authorisation in two cases and a fine of EUR 1,000 as a condition of probation (Bewährungsauflage). In its reasoning regarding the sentence (Strafzumessung) the Regional Court expressly took into consideration the length of the proceedings. On 17 December 2002 the applicant himself and on 20 December 2002 his defence lawyer appealed on points of law against this judgment, arguing that the proceedings should be discontinued because of the excessive length of the proceedings violating Article 6 of the Convention. On 6 February 2003 the attorney general filed a motion to dismiss the appeal. On 27 February 2003 the applicant filed a reply. On 19 March 2003 the Federal Court of Justice set aside the sentence and once again remitted the case to the Gieβen Regional Court. The Federal Court of Justice argued that the judgment did not distinguish between the penalty which would have been adequate without considering the length of the proceedings and the sentence actually imposed, which had been reduced in view of the length of the proceedings. At the end of April 2003 the files were referred back to the Gieβen Regional Court. Because the schedule of responsibilities (Geschäftsverteilungsplan) of the Regional Court did not provide for a third remittal, another criminal division (Strafkammer) was established on 22 May 2003. On 18 June 2003 the main lay judges (Hauptschöffen) for the newly established criminal division were drawn by lot. On 25 June 2003 a trial date was set for 9 July 2003. On 4 July 2003 the defence lawyer complained about the composition of the court, arguing that the judges should have been drawn by lot. On 8 July 2003 the Regional Court dismissed the complaint. On 9 July 2003 the Regional Court imposed a cumulative suspended sentence of eight months for the manufacture of medicinal products without authorisation in two cases and a fine of EUR 1,000 as a condition of probation. In its reasoning regarding the sentence the Regional Court expressly acknowledged a violation of Article 6 § 1 of the Convention and in view of this reduced the adequate separate sentences of nine and six months’ imprisonment by one third to six and four months’ and the adequate cumulative sentence of one year’s imprisonment to eight months’ imprisonment. On 12 August 2003 the written judgment was put on file; on 13 August 2003 it was served on the defence lawyer. On 25 August 2003 the defence lawyer submitted grounds of appeal on points of law. He again raised the issue of the length of the proceedings. On 4 September 2003 the prosecution filed a counterstatement. On 12 September 2003 the applicant filed an appeal on points of law. Because of a signature mistake new executed copies of the judgment were issued on 16 September 2003 and served on the defence lawyer on 7 October 2003. On 6 November 2003 the applicant submitted further reasons for the appeal on points of law. On 2 December 2003 the attorney general filed a motion to dismiss the appeal. On 3 March 2004 the Federal Court of Justice dismissed the appeal without giving reasons. On 20 June 2002 the applicant lodged a first constitutional complaint with the Federal Constitutional Court against the judgment of the Federal Court of Justice of 3 December 1997, the judgment of the Gieβen Regional Court of 28 September 2001 and the decision of the Federal Court of Justice of 26 April 2002. In his constitutional complaint the applicant challenged the alleged lack of legal certainty of the penal provisions of the Medicines Act in connection with the definition of “medicinal product”, the search of his parents’ house on the basis of an eight-month-old search warrant and the subsequent use of the evidence obtained in the course of this search, and the length of the then still pending proceedings. On 8 May 2003 the applicant lodged a second constitutional complaint against the judgment of the Federal Court of Justice of 19 March 2003 and the judgment of the Gieβen Regional Court of 24 October 2002, again raising the issue of the length of the proceedings. On 14 April 2004 the applicant lodged a final constitutional complaint against the judgment of the Gieβen Regional Court of 9 July 2003 and the decision of the Federal Court of Justice of 3 March 2004, arguing that the reduction of the sentence was not sufficient compensation for the excessive length of the proceedings. On 16 March 2006 the Federal Constitutional Court refused to admit the applicant’s three constitutional complaints for examination on the ground that they were ill-founded (file no. 2 BvR 954/02). The Federal Constitutional Court denied a lack of legal certainty with regard to the penal provisions of the Medicines Act. The Federal Constitutional Court expressly acknowledged a violation of Article 13 of the Basic Law (inviolability of the home) by the execution of the search warrant eight months after its issue. However, the court argued that the judgment had not been based on this violation because in the case at hand the violation of Article 13 of the Basic Law did not entail the exclusion of the evidence obtained. The exclusion of evidence could only be considered if the procedural defects were severe, intentional or arbitrary. In the case at hand there was no intentional violation since it was only three years after the search that the Federal Constitutional Court had established a “date of expiry” for search warrants. The Federal Constitutional Court further argued that the overall length of the proceedings, while too long, was no reason for a discontinuation of the proceedings as submitted by the applicant. It rather had to be left to the lower courts to remedy an excessive length of the proceedings by reducing the sentence. On 13 April 2006 the Federal Constitutional Court’s decision was served on the applicant’s lawyer. Article 13 of the Basic Law (Grundgesetz), dealing with the inviolability of the home, prescribes in its paragraph 2 that a search of premises may - in principle - only be ordered by a judge. In its decision of 27 May 1997 (file no. 2 BvR 1992/92) the Federal Constitutional Court held that this requirement of a judicial order (Richtervorbehalt) implied that a search warrant must be executed within six months of its issue. After six months the judicial search warrant loses its vindicatory power and the search then constitutes a violation of Article 13 of the Basic Law. Section 2 “The term ‘medicinal product’ (1) Medicinal products are substances and preparations made from substances which, by application on or in the human or animal body, are intended (...) 5. to influence either the nature, the state or the functions of the body or mental health conditions. (...) (4) As long as a product is authorised or registered as a medicinal product pursuant to the present Act, or is exempted from the need for authorisation or registration by ordinance, such product shall be considered a medicinal product. A product shall not be considered a medicinal product if its authorisation or registration has been rejected by the competent Higher Federal Authority, on the ground that it is not a medicinal product.” Section 5 “Prohibition of unsafe medicinal products (1) The placing on the market of unsafe medicinal products shall be prohibited. (2) Medicinal products shall be considered unsafe if, according to the current level of scientific knowledge, there is reason to suspect that, when used in accordance with their intended purpose, they have harmful effects which exceed the limits considered tolerable in the light of current medical knowledge.” Section 13 “Manufacturing authorisation (1) Any person wishing to manufacture medicinal products within the meaning of section 2 sub-section 1 or sub-section 2 No. 1 ... on a commercial or professional basis for the purpose of dispensing to others, shall require an authorisation by the competent authority. ... Distribution to others, in the meaning of the first sentence, shall exist if the person manufacturing the medicinal product is not the same as the person using it. ...” Section 95 “Penal provisions (1) Any person who 1. contrary to section 5, ... , markets medicinal products suspected on reasonable grounds of being capable of causing harmful effects, ... shall be liable to imprisonment for a term not exceeding three years or to a fine.” Section 96 “Penal Provisions Any person who ... 4. in breach of Section 13 sub-section 1, manufactures medicinal products within the meaning of Section 2 sub-section 1 ... without authorisation, ..., shall be liable to imprisonment for a term not exceeding one year or to a fine.” | 0 |
train | 001-105445 | ENG | SVN | ADMISSIBILITY | 2,011 | GOLOB v. SLOVENIA | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre | The applicant, Mr Ivan Golob (“the applicant”), is a Slovenian national who was born in 1969 and lives in Solkan, Slovenia. The applicant lodged the application on his own and his daughter’s, A.’s, behalf. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mrs Verdir, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. Following the separation of the applicant and his daughter’s mother, the latter obtained custody of the daughter. Subsequently, on 17 November 2003, the applicant lodged a request for determination of contact arrangements with his daughter. The Ajdovščina Welfare Office issued a decision on those contact arrangements on 6 May 2004. It determined that the applicant and his daughter should have weekly contact and contact during holidays. As regards the latter, it stated that the applicant and his daughter should spend one week during the winter holidays and three weeks during the summer holidays together. The mother appealed. On 1 March 2005 the Ministry for Labour, Family and Social Matters (“the Ministry”) quashed the part of the Welfare Office’s decision that concerned contact arrangements during the holidays. It found that the decision had lacked an indication of the exact periods of contact to be put in place during the holidays. On 14 March 2005, the case was transferred to the Nova Gorica District Court, which, further to a reform in this field, had acquired jurisdiction in the matter. On 7 June 2005 a hearing was held before the court. At the hearing, the judge noted that the subject of the proceedings was restricted to contact arrangements during holidays. On the same date the applicant requested that an interim decision be issued regulating contact arrangements during holidays and stipulating a physical taking of his daughter from her mother in the case of her non-compliance with the decision. On 15 June 2005 the court rejected the applicant’s request for an interim decision. It relied on the Welfare Office’s report and a psychologist’s report indicating that the applicant’s daughter did not want to have weekly contact with the applicant, as a result of which no visits had been carried out at that time. The court found that provisional holiday contact arrangements might therefore not be in the child’s interests and that it was better to wait for evidence to be produced in the proceedings and a final decision reached on that basis. The applicant appealed. On 9 November 2005 the Koper Higher Court rejected the applicant’s appeal concerning the request for an interim decision, finding that the lower court had properly conducted the proceedings and had been led by the best interests of the child. In the meantime, the applicant and his daughter also lodged a request for contact arrangements between the daughter and relatives on the applicant’s side of the family. On 14 July 2005 the District Court joined the request for contact arrangements between the daughter and her relatives to the proceedings concerning contact during holidays. On 19 July 2005 the court declared inadmissible the request for contact arrangements with the aforementioned relatives, finding that neither the applicant nor his daughter, who was still a minor, had standing to pursue such proceedings. On 9 November 2005 the Koper Higher Court upheld that decision. On 18 August 2005 the applicant’s daughter’s mother lodged a request for new (reduced) weekly contact arrangements between the applicant and his daughter which would replace those set out in the Welfare Office’s decision of 6 May 2004. She also requested that an interim decision be issued in that regard. The latter request was rejected on 30 August 2008. On 7 February 2006 the District Court held a hearing. Both parties confirmed that the weekly contact arrangements as set out in the Welfare Office’s decision of 6 May 2004 had been complied with since July 2005. Moreover, the applicant and his daughter had also taken a holiday together in November and December 2005. At the hearing of 7 February 2006 the court decided the case and terminated the proceedings. Having regard to several Welfare Office reports, as well as expert reports and statements from the parties, it determined new weekly contact arrangements, which were similar to those set out in the Welfare Office’s decision. In also decided that the applicant and his daughter should spend the winter school holidays and four weeks during the summer holidays together and specified the way in which these arrangements should be implemented in practice. Both parties appealed. On 12 September 2006 the Koper Higher Court quashed the part of the lower court’s decision concerning the weekly contact arrangements and slightly modified the way in which the arrangements for the holidays should be implemented in practice. It found that there had been no basis for the lower court to replace the Welfare Office’s final decision of 6 May 2004 as regards the part of that decision concerning weekly contact arrangements, which therefore remained in force. The Higher Court’s decision was served on the applicant’s representative on 21 November 2006. As regards the relevant provisions of domestic family law see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 63-73, 1 December 2009. | 0 |
train | 001-114485 | ENG | DNK | CHAMBER | 2,012 | CASE OF J.M. v. DENMARK | 4 | No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born on 30 November 1991. On 13 September 2007, at the age of fifteen, the applicant was arrested in Qaqortoq, Greenland, charged with rape and homicide under section 216, subsection 2, and section 237 of the Danish Penal Code (Straffeloven) committed on 26 May 2007 against an eighty-five year-old lady, who lived in Aalborg, Denmark, where the applicant at the relevant time attended a youth school institution. The case received massive media coverage, both before and after the police investigation that led to the applicant being charged. 6. The applicant was brought before Qaqortoq County Court (Qaqortoq Kredsret) and pleaded guilty to both charges. He was ordered to be held in pre-trial detention for four weeks. A request by the lay representative (bisidder) that the applicant be placed in an institution in Greenland during the investigation was disregarded. 7. After a week, the applicant was transferred to Denmark and brought before the City Court in Aalborg (Retten i Aalborg) which on 20 September 2007, by virtue of section 762, subsection 2(i), of the Administration of Justice Act (Retsplejeloven), extended the detention on remand until 11 October 2007 and until his placement in an appropriate home or institution could be secured as set out in section 765, subsections 1 and 2(iii) of the Administration of Justice Act. It further decided that the applicant should undergo a forensic psychiatric examination. The latter was formally requested by the public prosecutor on 23 October 2007 and commenced at the Forensic Psychiatric Department at Aarhus University Hospital on 21 November 2007. 8. On 21 September 2007 the applicant was transferred to a closed young offender institution. On 10 October 2007 he was transferred to a secure residential institution called “Grenen” for young people aged between 12 and 17 who had committed a crime or otherwise displayed dangerous conduct. One of the objects of that particular institution was that the young people placed there were given such care, upbringing and help with development that they would be able to function in society later on. The young people had a well-structured daily routine with education, workshops and leisure-time activities, and with limit-setting adults with strong contact skills to support them. 9. The applicant’s detention in the institution was extended by four weeks by the City Court in Aalborg on 11 October, 8 November and 6 December 2007. 10. In a letter of 21 December 2007 the prosecution informed the applicant’s counsel that the investigation was by and large complete and awaited only a report from the forensic psychiatric examination. 11. The applicant’s detention was extended for four weeks on 3 January 2008. 12. On 22 January 2008 the forensic psychiatric report (retspsykiatrisk erklæring) was submitted. It concluded that the applicant was covered by Article 16, subsection 2, of the Penal Code concerning mentally ill persons and recommended that a judgment be passed to place the applicant in an appropriate institution for patients with a far-reaching mental handicap. 13. On 31 January 2008 the applicant’s detention was extended, inter alia, in order for the Medico-Legal Council (Retslægerådet) to be heard on the forensic psychiatric report. 14. The City Court in Aalborg extended the applicant’s detention by four weeks on 28 February, 27 March, 24 April, 22 May, 19 June, 17 July and 14 August 2008. On the latter two dates the domestic courts added that the conditions for extending the detention were fulfilled, also under section 768a of the Administration of Justice Act, which entered into force on 1 July 2008 (see below). 15. In the meantime, on 14 March 2008 the report from the MedicoLegal Council was submitted, which concluded that the applicant was considered to fall within section 16, subsection 2, of the Penal Code. Moreover, if the applicant were convicted, a sentence of placement in an institution for persons with extensive mental disabilities as provided by section 68, second sentence, was recommended as the most expedient measure to prevent further similar offences. 16. As a standard practice regarding persons falling within section 16, subsection 2, of the Penal Code, on 4 April 2008 the public prosecutor requested an opinion from the Joint Council for the Mentally Disabled (Samrådet for udviklingshæmmede) of Aalborg Municipality on the basis of the forensic psychiatric report and the recommendation of the Medico-Legal Council. 17. On 21 April 2008, an opinion was received from the Joint Council for the Mentally Disabled, which found that the documentation for considering the applicant to fall within section 16, subsection 2 of the Penal Code was inadequate. It therefore urged a further examination of the case before a decision was made. Accordingly, a new forensic psychiatric report was requested. 18. Originally, the trial was scheduled to commence on 11 September 2008, but it had to be re-scheduled for 13 and 14 November 2008 pending the completion of the second forensic psychiatric report. On the former date, for the first time the applicant objected to an extension of the pre-trial detention. He referred to the fact that section 768a of the Administration of Justice Act, which had entered into force on 1 July 2008, specifically limited pre-trial detention of persons under eighteen years to a period not exceeding eight months. 19. By decision of 11 September 2008, still by virtue of section 762, subsection 2(i), of the Administration of Justice Act, the City Court in Aalborg extended the applicant’s pre-trial detention until 9 October 2008 and stated: [The applicant] is charged with rape and homicide committed on 26 May 2007. The pre-trial detention is thus justified by a charge of a very serious crime which has also been admitted to by [the applicant], and according to the information available it must be concluded that the reason why the case has not yet come to trial is the need to clarify the most expedient sanction, both in consideration of society and in consideration of [the applicant] himself. Although the length of the pre-trial detention exceeds the period stated as the maximum period in section 768a of the Administration of Justice Act, the court therefore finds that such very particular circumstances (helt særlige omstændigheder) apply as to provide a reason for deviating from the maximum period in section 768a, and the request for extension is therefore allowed. 20. On appeal on 19 September 2008 the High Court of Western Denmark (Vestre Landsret), henceforth the High Court, upheld the decision. 21. The applicant did not apply for leave to appeal against the decision to the Supreme Court (Højesteret). 22. On 9 October 2008 the City Court in Aalborg extended the applicant’s detention in the closed youth institution by four weeks. 23. On 6 November 2008 the City Court in Aalborg extended the applicant’s detention by another four weeks. It noted that the second forensic psychiatric report had been submitted on 3 November 2008 and that it was of significant importance to hear the Medico-Legal Council in this respect. It repeated that such very particular circumstances applied as to provide a reason for deviating from the maximum period in section 768a of the Administration of Justice and that an extension could not be considered in breach of Article 5 § 3 of the Convention. Accordingly, the trial had to be rescheduled anew. 24. The applicant appealed against the decision to the High Court, which on 14 November 2008 upheld the decision. Leave to appeal to the Supreme Court was refused on 19 December 2008 by the Leave-toAppeal Board (Procesbevillingsnævnet). 25. In the meantime, on 10 December 2008 the second report from the Medico Legal Council was submitted. It concluded that the applicant’s case did not fall under section 16, subsection 2, of the Penal Code, as found in its first report, but under Section 69 of the Penal Code in that his actions had been conditioned by deficient development, reduction or disturbance of mental functions which, from a medical point of view, on the one hand could suggest a sentence to structured, controlled socio-psychiatric treatment, and on the other hand could not rule out ordinary imprisonment. The Medico-Legal Council was unable to point to any other measures under section 68, second sentence, of the Penal Code that were more expedient than ordinary punishment. The Medico-Legal Council did find it relevant though, from a purely medical point of view, to order the applicant to undergo a structured, supervised socio-pedagogical measure as provided for by section 74a of the Penal Code. If such sanction was not feasible, the imposition of ordinary punishment was recommended. 26. Moreover, in the meantime, on 4 and 17 December 2008, and subsequently on 13 January 2009 the City Court in Aalborg extended the applicant’s detention, stating expressly that an extension would not be contrary to Article 5 § 3 of the Convention. The trial had been scheduled to take place on 27 January 2009, and if necessary also on 2 and 4 February 2009. 27. By judgment of 27 January 2009 the City Court in Aalborg convicted the applicant in accordance with the indictment and his own confession. It was established as a fact that the applicant had gained access to the victim’s apartment because he wanted access to a telephone. Having raped the victim, he killed her by inflicting several blows, kicks and knife lesions to the head, neck and body. Thereafter he had left the scene of the crime, walked to town and called the youth school institution to be collected. He did not talk to anybody about the crime until he had been arrested. The applicant was sentenced to eight years’ imprisonment. The City Court refuted the applicant’s complaint about the length of the detention and the length of the trial and stated that even though the proceedings had taken more than sixteen months from the applicant’s deprivation of liberty, their length could not lead to a reduction of the sentence as the completion of the two mental status examinations of the applicant- and the submission of the case to the Medico-Legal Council had been of vital significance for determining the sanction to be imposed. Moreover, it found that the public prosecutor had conducted the proceedings with due diligence. 28. On appeal, on 4 June 2009 the High Court upheld the judgment in its entirety and stated, among other things: “For the reasons stated by the District Court and because the length of the proceedings cannot be attributed to ‘periods of inactivity’ of any importance for sentencing purposes in view of the nature of the case, [the High Court] agrees that the length of the proceedings has not been attributed importance as a mitigating factor. Accordingly, and in view of the very significant gravity of the offences, including the particular ruthlessness exhibited by [the applicant], the fact that the offences were committed in the victim’s own home, and the fact that the victim was a defenceless eighty-five year-old woman, the High Court upholds the sentence of eight years’ imprisonment despite the fact that [the applicant] was only fifteen years old at the time of the offence, see section 82, subsection 1(i), of the Penal Code”. On the same day, the High Court decided that the applicant should remain in alternative detention until the enforcement of the sentence could commence. 29. It appears that the applicant did not submit a request to the LeavetoAppeal Board for leave to appeal against the High Court judgment to the Supreme Court. 30. The rules on detention on remand are laid down in part 70 of the Administration of Justice Act (Retsplejeloven), which reads in so far as relevant: 1. A person charged (en sigtet) may be detained on remand when there is a reasonable suspicion that he has committed an offence which is subject to public prosecution, provided that under the law the offence may result in imprisonment for one year and six months or more, and (i) according to information received concerning the suspect’s situation, there are specific reasons for assuming that he will evade prosecution or execution of judgment, or (ii) according to information received concerning the suspect’s situation, there is specific reason to fear that, if at large, he will commit a new offence of the nature described above, or 2. A person charged may also be detained on remand when there are strong reasons for suspecting that he has committed: (i) an offence which is subject to public prosecution which, under the law, may result in imprisonment for six years or more, and it is deemed necessary for law enforcement reasons, according to the information obtained on the gravity of the offence, that the person is not at large (hensynet til retshåndhævelsen); or (ii) an offence in violation of section 119(1), section 123, section 134a, section 192a(2), section 218(1), section 222, section 224 or section 225 read with section 218(1) or section 222, section 235(1), sections 244-246, section 250 or section 252 of the Penal Code or violation of section 232 of the Penal Code committed against a child of less than 15 years, in case the offence may be expected, due to the particulars of the seriousness of the circumstances, to be punished with a non-suspended sentence of imprisonment for at least sixty days and due regard for enforcement of the law is found to require that the accused shall not be at large.” 3. Detention on remand may not be imposed if the offence can be expected to result in a fine or imprisonment for a period not exceeding thirty days, or if the deprivation of liberty would be disproportionate to the inconvenience so caused to the life of the person charged, the importance of the case and the legal consequence to be expected if the person charged is found guilty. 1. The court shall decide, upon request from the prosecution, if an accused person shall be detained on remand. A request for continued remand detention shall be submitted to the court in writing and the request shall state the detention provision(s) relied on by the prosecutor, the factual circumstances on which the request is based and the most significant investigative steps expected to be taken. ... 4. ... If detention on remand is continued beyond the time limits set out in section 768a, subsections 1 and 2, the [court] must state in its decision necessitate continued detention on remand ... 1. Where the conditions to apply detention on remand are met, but if the purpose of detention on remand may be obtained by less radical measures, the court decides on such measures in lieu thereof subject to the consent of the person charged. 2. The court may thus decide that the person charged shall ... (iii) be placed in an appropriate home or institution ... 1. Except for situations where the person charged is not present in Denmark, the court order must state a period for the pre-trial detention or the measure. The period must be as short as possible and may not exceed four weeks. The period may be extended but not by more than four weeks at a time. The extension is made by court order unless the defendant accepts the extension. Until judgment is rendered in the first instance, the rules of section 764 apply correspondingly to court hearings and court orders about extension of periods. A defendant who is held in pre-trial detention or is subject to another custodial measure does not, however, have to be brought in person before the court if he waives this or the court finds that such attendance will involve undue difficulties. Detention on remand or measures in lieu hereof, shall if necessary be terminated by a court order if prosecution is dropped or the conditions for instituting proceedings no longer exist. If the court order finds that the necessary speed has not been used to proceed with the matter and that detention on remand or other measures are not reasonable, the court shall terminate it. 1. Unless the court finds that there are special circumstances to the contrary, the maximum period of detention on remand must not be extended for a continuous period of (i) six months, when the accused is charged with an offence that cannot carry a sentence of imprisonment for six years or (ii) one year when the accused is charged with an offence that may carry a sentence of imprisonment for six years or more. 2. Unless the court finds that there are very special circumstances to the contrary, the maximum period of the detention on remand of a juvenile (less than 18 years old) must not be extended for a continuous period of (i) four months, when the accused is charged with an offence that cannot carry a sentence of imprisonment for six years or (ii) eight months when the accused is charged with an offence that may carry a sentence of imprisonment for six years or more. 3. The periods mentioned in subsections 1 and 2 comprise the period until the beginning of the trial at first instance. 31. Section 768a was inserted into the Administration of Justice Act by act no. 493 of 17 June 2008 and entered into force on 1 July 2008 with the aim of reducing lengthy criminal charges and detention on remand. The reasons for the proposal were explained in the general remarks to the Act, inter alia by a reference to a specific Committee Report, 1492/2007, pp. 136-38: “The Committee notes that detention on remand is a particularly serious interference in criminal procedure, and that this especially is the case for persons under 18 years of age. The strain that flows from detention on remand - in the view of the Committee - caused not only by the uncertainty that follows from the charge and the imprisonment, but also uncertainty with respect to the length of the detention and the consequent questions, inter alia, whether the detainee can resume his work or his education after the detention ends, relationships with family and friends, etc. The strain must normally be presumed to grow concurrently with the length of the interference and especially for this reason the length of detention should be limited as far as possible. Against this background, the Committee finds that there is a need for further measures to reduce the length of detention on remand. Considering the serious character of the interference, the Committee further notes that it must be incumbent on the police, the prosecution authorities and the courts that, in the organisation of their work, they pay special attention to expediting these cases in order for detention on remand to be of the shortest possible duration.” 32. As appears from the wording of section 768a, deviation from pre-trial detention periods of defendants under the age of eighteen is only possible if the court finds that “very special circumstances” apply. As explained in more detail in the preparatory notes (see the Official Report on Parliamentary Proceedings 2007-2008 (2nd sitting), Addendum A, p. 2952 (Bill No. L 78)), it depends on a specific assessment of all the circumstances of each case whether there is a basis for deviating from the maximum periods of pre-trial detention, as concerns both charged persons under and over the age of eighteen. When assessing this, the court must start from the reason for detention applied, that is, the reasons for pre-trial detention under section 762, subsection 1(i) (danger of absconding), section 762, subsection 1(ii) (danger of reoffending), or section 762, subsection 2 (public interest) of the Administration of Justice Act. The preparatory notes set out: In case of pre-trial detention pursuant to the said provisions, the requirement of particular circumstances implies that a total assessment must be made on the basis of a strict assessment, both of the circumstances mentioned in section 768 (that is, particularly whether the investigation is being conducted with the requisite expedition) and of the necessity of continuing the detention pursuant to the detention reason applied. The strict attention to the necessity of continuing the detention also implies that the court must pay special attention to the proportionality requirement under section 762(3) of the Administration of Justice Act and, particularly in connection with the detention reason stipulated in subsection (l)(i) (danger of absconding), to the possibility of using alternatives to detention as prescribed in section 765. Concerning the application of alternatives, it should be noted in that connection that the court, the public prosecutor as well as defence counsel should be aware at all times of the need to try to apply alternative detention in cases where that would be an adequate measure. ... In all cases, the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in serious criminal cases, that is, in cases of aggravated offences against the person and other cases of particular public interest in which the expected sanction will be several years of imprisonment. Thus, following an overall assessment, the court must make a critical assessment of the necessity of continued pre-trial detention in light of the length of the detention so far. ... In the assessment of the question of continuation of the detention in case of the most aggravated offences, for example in cases of homicide, the most aggravated drugs offences, etc., the nature of the actual aggravated offence will naturally be included in the assessment of whether detention may be continued in excess of the periods stated. Particularly in cases where prosecution has been instituted, and where there is a rather strong suspicion, the criminal nature of a very serious offence may, in addition to the specific reason for detention, be included as an essential factor resulting in a finding that particular circumstances exist in accordance with the provision proposed. 33. Particularly concerning continued pre-trial detention of charged persons under the age of 18 in excess of the maximum periods, the preparatory notes stated the following: Whether pre-trial detention of young people under the age of 18 may occur in excess of the normal periods stated in subsection (2) must normally depend on an assessment corresponding to the one to be made when determining whether there is any basis for deviating from the periods stated in subsection (1), see above. However, the condition for deviating from the periods stated in subsection (2) is qualified, as exceptional circumstances must apply. This pertains to both the circumstances referred to in section 768 of the Administration of Justice Act (that is, particularly whether the investigation is being conducted with the requisite expedition) and to the necessity of continued pre-trial detention in accordance with the reason for detention applied, see above for details. Also the nature of the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in very serious criminal cases (that is, in cases of severely aggravated offences against the person and other cases of particular public interest in which the expected sanction will be several years of imprisonment). 34. The Penal Code contains various provisions on the significance of the perpetrator’s mental status at the time of the offence, inter alia: (1) Persons who, at the time of the act, were irresponsible on account of mental illness or a state of affairs comparable to mental illness, or who are severely mentally defective, are not punishable. Provided that the perpetrator was temporarily in a condition of mental illness or a state of affairs comparable to mental illness on account of the consumption of alcohol or other intoxicants, he may in particular circumstances be punished. (2) Persons who, at the time of the act, were slightly mentally defective are not punishable, except in particular circumstances. The same shall apply to persons in a state of affairs comparable to mental deficiency. Where an accused is acquitted in accordance with section 16 of this Act, the court may decide on the use of other measures which it considers to be expedient for the prevention of further offences. If less extreme measures such as supervision, decisions on place of residence or work, addiction treatment, psychiatric treatment and so on are considered insufficient, the court may decide that the person in question must be taken to a hospital for the mentally ill or to an institution for severe mental defectives, or that he must be put into care suitable for the mentally deficient, or that he must be taken to a suitable home or to an institution where he can receive special nursing or care. Safe custody is possible under the conditions stated in section 70 of this Act. Where the offender was, at the time that the punishable act was committed, in a condition resultant upon inadequate development or an impairment or disturbance of his mental abilities, although not of the character referred to in section 16 of this Act, the court may, if considered expedient, decide upon the use of measures such as those referred to in the second sentence of Section 68 above, in lieu of punishment. 35. The Administration of Justice Act contains the following provision on mental status examinations of the perpetrator: 1. The defendant must be subjected to a mental status examination when this is found to be of importance for the decision of the case. If he does not explicitly consent to the examination, it can only take place pursuant to a court order. If the defendant is being detained, he cannot be examined without a decision of the court. 36. Mental status reports are prepared by consultants in psychiatry. The cases of forensic psychiatry that are submitted to the Medico-Legal Council (Retslægerådet) for an opinion concern the question of whether, at the time of the offence, the defendant was mentally ill or in a comparable state as stated in section 16 of the Penal Code and questions of determination of the most/more expedient measure, see sections 68 and 69 of the Penal Code. Approximately half of all mental status reports are submitted to the MedicoLegal Council. Cases not submitted to the MedicoLegal Council typically concern less serious crimes and where the examination gives no basis for recommending a special psychiatric measure. The detailed rules for the organisation and work routines of the Medico-Legal Council are laid down in the Rules of Procedure of the Council. Rule 7(1) of the Rules of Procedure provides that: If the written material submitted to the Council is deemed not to provide a sufficient basis for the Council’s assessment of the case, the Council shall inform the submitting authority of what further information will be of importance for such assessment. At the same time, the Council shall state whether it is deemed most expedient that such information is provided: ... through examination of the person in question by one or more of the Council members or experts at the request of the Council. 37. In cases where it is concluded, on the basis of the mental status examination of the perpetrator, that the perpetrator is slightly retarded (‘mentally disabled’), it is standard practice for the public prosecutor of the North Jutland Police, who conducted the criminal proceedings against the applicant before Aalborg District Court, to request an opinion from the Joint Council for the Mentally Disabled (Samrådet for Udviklingshæmmede) of Aalborg Municipality. The Joint Council for the Mentally Disabled, which includes a forensic psychiatrist and a psychologist as well as a representative of the Danish Prison and Probation Service, assesses the conclusion of the mental status report on the perpetrator’s mental status and recommends the sanction which should be imposed on the perpetrator, including the type of institution in which the perpetrator should be placed. | 0 |
train | 001-95071 | ENG | RUS | CHAMBER | 2,009 | CASE OF BUZHINAYEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1974 and lives in Barguzin, Republic of Buryatiya. 7. On 1 April 1998 the applicant was arrested on suspicion of robbery. On 3 April 1998 the Prosecutor's Office of the Oktyabrskiy District of Ulan-Ude authorised his pre-trial detention. The applicant remained in custody pending investigation and trial. 8. Upon completion of the investigation in December 1998, the prosecutor's office forwarded the case file in respect of the applicant and six other defendants to the Supreme Court of the Republic of Buryatiya. The Supreme Court found, however, that the case should be remitted to the prosecutor's office in view of the incomplete investigation. The relevant decision was issued on 26 January 1999. Subsequently the Supreme Court remitted the matter for additional investigation on 15 June 1999 and 31 March and 4 July 2000. 9. The opening of the trial was scheduled by the Supreme Court on 8 December 2000. 10. On 8 and 14 December 2000 the hearing was adjourned due to the absence of the interpreter. 11. Between 19 January and 17 April 2001 the Supreme Court scheduled and adjourned seventeen hearings. The Government submitted the information concerning the reasons for the adjournment as follows. On one occasion the applicant's lawyer failed to appear. On four occasions the court could not proceed due to the absence of one of the legal counsel representing other defendants. Three times the interpreter failed to appear due to his illness or business trips. Once the hearing was adjourned pending the completion of an additional forensic medical examination. The court also went into recess for two days on one occasion to prepare its ruling in response to the submissions made by the parties. 12. On 18 May 2001 the Supreme Court found the applicant guilty as charged and sentenced him to eight years' imprisonment. 13. On 5 December 2002 the Supreme Court of Russia upheld the applicant's conviction on appeal. The applicant's representative was present; the applicant participated in the hearing by video link. 14. From 6 April 1998 to 16 May 2002 the applicant was detained at remand prison IZ-4/1 in Ulan-Ude. According to the Government, from 6 April 1998 to 3 April 2001 the applicant was held in cell no. 170, which measured 45.6 sq. m and housed 14-16 inmates. From 3 April to 28 November 2001 the applicant was held in cell no. 117, which measured 46.02 sq. m and housed 7-9 inmates. From 28 November 2001 to 16 May 2002 the applicant was held in cell no. 44, which measured 57.76 sq. m and housed 16-19 inmates. 15. On 16 May 2002 the applicant was taken to Moscow and placed in remand prison no. IZ-77/3 where he was detained pending an appeal hearing until 21 December. According to the Government, the applicant was held in cell no. 212, which measured 28.5 sq. m and housed seven inmates. 16. On 23 January 2003 the applicant was returned to remand prison IZ-4/1, where he was placed in cell no. 48 which, according to the Government, measured 74.86 sq. m and housed 23-26 inmates. On 28 January 2003 the applicant was transferred to a penitentiary facility to serve his prison sentence. 17. Without disputing the information submitted by the Government concerning the size of the cells, the applicant claimed that all of them had been overcrowded. The number of bunk beds was insufficient and the inmates had to take turns to sleep. The cells did not have any ventilation and were stiflingly hot in summer. The cells were infested with cockroaches. The light was never switched off. There was little access to fresh air. The toilet offered no privacy. The meals were of poor quality. The inmates were allowed to take a shower once or twice a month. As a result of the poor hygiene the applicant contracted scabies and fungus infection. 18. According to the Government the conditions of the applicant's detention were satisfactory. The cells were ventilated and had central heating, water supply, sewage, natural and electric lighting and sanitary equipment. The toilet was separated by a partition from the living area of the cell. In remand prison IZ-1/4 that partition was 1.8 m high. In remand prison IZ-77/3 it was 1 m high. The average temperature in the cells was 220C in the winter and 18-260C in the summer. The electric lighting was constantly on for surveillance and safety reasons. At night lower-voltage bulbs were used. The cells were disinfected at least once a month. The applicant was provided with an individual bed, mattress, pillow and bed linen. No parasitic insects had ever been detected in the cells. 19. On 2 April 2001 the applicant was diagnosed with tuberculosis and transferred to a medical unit at the remand centre. He underwent medical treatment and was released from the medical unit on 31 August 2001. Upon discharge, his condition was described as “clinically curable tuberculosis pertaining to the third group for preventive monitoring” (“клинически излечимый туберкулез, III группа диспансерного учета»). According to the Government, the applicant received necessary and proper medical assistance. | 1 |
train | 001-88972 | ENG | FRA | CHAMBER | 2,008 | CASE OF RENOLDE v. FRANCE | 1 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect) | Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1962 and lives in Chatou. 6. The applicant is the sister of Joselito Renolde, who was born on 17 August 1964 and died on 20 July 2000 after hanging himself in a cell in Bois-d’Arcy Prison, where he was in pre-trial detention. They are members of a family of Travellers. 7. Joselito Renolde was separated from his former partner, with whom he had two children. 8. On 12 April 2000 he was placed under investigation by the investigating judge at the Meaux tribunal de grande instance for the armed assault on 8 April 2000 of his former partner and their thirteen-year-old daughter, occasioning total unfitness for work for more than eight days, and also for criminal damage and theft. 9. On the same day Joselito Renolde was placed in pre-trial detention in Meaux Prison. A medical and psychological report ordered by the investigating judge, submitted on 19 July 2000, found that he had retardations and deficits in the cognitive sphere; that, having a neurotic structure, he possessed immature and infantile defence mechanisms and several paranoid traits; and that, as he was incapable of mentalising, all his violence was expressed on a physical level. 10. On 30 June 2000 he was transferred to Bois-d’Arcy Prison to be closer to his family. His personal file described him as a normal person and mentioned sedative treatment. 11. On 2 July 2000 Joselito Renolde attempted to commit suicide by cutting his arm with a razor and was treated at the infirmary. The warder on duty found him to be somewhat “disturbed” and called in the Rapid Crisis Intervention Team (Équipe Rapide Intervention de Crise – “ERIC”) from the psychiatric unit at Charcot Hospital after Joselito Renolde had claimed to be hearing voices. The duty officer also observed three other cuts on his forearm and noted in the file that he had forced his way out of his cell. 12. The emergency report drawn up by the ERIC team stated: “Patient who made an SA [suicide attempt] by cutting his forearm with a razor. This act took place in the context of a hallucinatory delusional state observed since yesterday by the prison duty staff. On being interviewed, the patient displays incoherent, dissociative speech, a listening attitude, mentions verbal hallucinations, [illegible], persecutory delusional statements ... The patient mentions his psychiatric history, says that he has already been admitted to hospital and has already taken Tercian ... Conclusion: acute delirious episode.” 13. The ERIC team accordingly prescribed antipsychotic neuroleptic treatment, later adding an anxiolytic. The infirmary staff supplied the medicine to Joselito Renolde twice a week from 2 July 2000, without checking that he actually took it. 14. From 3 July 2000 onwards, Joselito Renolde was treated by the Regional Medical and Psychological Service (service medico-psychologique regional – “the SMPR”) and placed in a cell on his own under special supervision, which took the form of more frequent patrols. He was seen by the SMPR on 3, 4, 5, 7, 8, 10, 13, 18, 19 and 20 July 2000. 15. On 4 July 2000 a trainee warder reprimanded him for throwing a piece of bread out of the window. Joselito Renolde threatened her with a fork, saying: “I’ll see you outside and we’ll see who has the power.” He then threw a stool in her face. The warder was certified unfit for work for five days. 16. During the inquiry into that incident, Joselito Renolde made incoherent statements and denied what had happened. The inquiry report stated: “very disturbed prisoner who had already wanted to go to the SMPR at 7.50 a.m., received by the SMPR in the afternoon”. As to the action to be taken, the report stated: “Very disturbed prisoner, being monitored by the SMPR, will need to go before the disciplinary board.” 17. On 5 July 2000 Joselito Renolde was interviewed by the disciplinary board and spoke coherently. He stated that he had been asleep because of his medication but that the warder would not leave him alone; he denied that he had thrown a stool at her or threatened her with a fork but admitted having thrown a piece of bread outside. 18. The disciplinary board found it established that physical violence had been used, entailing disciplinary offences punishable under Article D. 2491 and Article D. 2492, paragraph 1, of the Code of Criminal Procedure. Joselito Renolde was given a penalty of 45 days in a punishment cell, which he began serving on 5 July 2000. 19. On 6 July 2000 he wrote a letter to his sister in which he compared his cell to his tomb and said that he was “at the limit” and taking tablets. He explained to her that he would be spending 45 days confined within four walls, with no television or music. In a drawing he depicted himself as crucified on a tomb bearing his name, next to the bed in his punishment cell, and ended his letter as follows: “Lito [his nickname] is a sad story, you know, I don’t know if my life is worth living, with all the troubles I have ... and yet I haven’t hurt anyone. You know, I’m alive and I don’t even know why. I believe in heaven, maybe it’s better up there. You know, I would like to sleep and never wake up again. What is keeping me going are the little ones at home, because I love them.” 20. The letter was sent on 10 July 2000 (date of the postmark). 21. In a letter of 12 July 2000, received at the investigating judge’s registry on 17 July 2000, Joselito Renolde’s lawyer asked the judge to order a psychiatric examination of her client in order to ascertain whether his mental state was compatible with detention in a punishment cell. The letter from the lawyer read as follows: “... I met Mr Joselito Renolde in Bois d’Arcy Prison, in a punishment cell where he has been placed for 45 days. Mr Joselito Renolde’s mental state prompted the present request. I asked Mr Joselito Renolde to describe the events that led to disciplinary proceedings being instituted against him. He stated, among other things: ‘I was hearing voices ... It was my family ... I wake up in the morning, I say it’s daylight ... They tell me it isn’t ...’ etc. ... I was unable to establish a coherent dialogue with Mr Joselito Renolde. Having regard to this state of affairs and the worsening of his condition (I would also point out that, unless I am mistaken, Mr Joselito Renolde has been admitted to a psychiatric institution in the past), I consider it essential that he should be seen as soon as possible by a psychiatric expert appointed by you. The purpose of the present request is therefore to obtain a psychiatric examination of Mr Joselito Renolde, the expert being instructed, in particular, to determine whether Mr Renolde’s mental or physical state is compatible with pre-trial detention as currently being served, in particular placement in a punishment cell, and whether he should undergo appropriate treatment in view of his condition.” 22. According to information supplied by the Government, the request for an examination was referred on 19 July 2000 by the investigating judge to the public prosecutor, who stated on the same day that he had no objection to such a measure. 23. Joselito Renolde was supplied with medication for the last time on 17 July 2000. He was handed several days’ medication, with no supervision of whether he actually took it. 24. During the night of 19 to 20 July 2000, an intervention report noted that at 4.25 a.m. Joselito Renolde was not asleep, was tapping at the bars of his cell and wanted to go out. 25. On 20 July 2000, between 11 a.m. and noon, a nurse from the psychiatric service met him and told him that someone from social services would be coming to see him later. On leaving his cell for exercise at 3 p.m., he asked to see a doctor. At 4 p.m. he returned to his cell. 26. At 4.25 p.m. the warder on patrol found him hanging from the bars of his cell with a bed sheet. A doctor and two nurses from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”) arrived at 4.30 p.m., followed by the ambulance service and fire brigade at 4.45 p.m. Despite efforts to revive him, Joselito Renolde was pronounced dead at 5 p.m. 27. After being called to the scene at 4.50 p.m., the police conducted initial inquiries and interviews. The Versailles public prosecutor visited the scene at 7 p.m. and a preliminary investigation was opened. 28. On 21 July 2000 a forensic medical examiner conducted an autopsy and reached a finding of suicide by hanging. 29. An expert toxicological report, ordered by the public prosecutor on 21 July 2000, found that no medicinal substances were present in Joselito Renolde’s body, other than paracetamol. 30. The warders who had been present on the scene, the medical staff and the prisoners placed in solitary confinement in neighbouring cells were questioned. 31. Mr R., a warder, stated that on the day of the incident Joselito Renolde had gone out for exercise without any trouble and that he had been seen that same morning by the medical and psychological service, who had not issued any instructions concerning him. Mr R. added: “Mr Renolde told us that he could hear his son speaking to him at night. He explained that people wanted to come into his cell.” 32. One of the prisoners in solitary confinement in a neighbouring cell, Mr N., stated: “During our discussions, he told me that he felt anxious and down as he was not used to being alone, and he would speak to God, asking him what he was doing here, and would start to cry ... I called out to him but he did not reply because he was crying.” 33. Mr R., a warder, mentioned that on 2 July he had had to call the ERIC team because Joselito Renolde had been making strange comments, saying that he could hear his son calling him and telling him that he wanted to kill him. Mr R. added: “Objectively, I believe that this person was not at ease with himself. I know that he was on medication because he was being monitored by the SMPR. It should be pointed out that Renolde was under special supervision because he was being monitored by the psychiatric service.” 34. Dr L., the psychiatrist in charge of the SMPR, confirmed that the SMPR had supplied Joselito Renolde with medication for several days in his cell twice a week, on Tuesdays and Fridays, without the nurses checking whether he actually took it. He pointed out that, where a prisoner’s mental state required regular attention, the doctor ordered the medication to be taken daily in the SMPR in the presence of the nurses. In Joselito Renolde’s case, he stated that the members of his service had not “at any time noted any factors suggesting that the medication should be taken at shorter intervals, or in the service itself”. He added that checking whether all medication prescribed by the SMPR was actually taken was impossible and “contrary to the principle of trust which underlies the therapeutic alliance in a hospital environment”. 35. Mr B., a psychiatric nurse, stated that Joselito Renolde had not displayed an attitude suggesting that he might not take his medication. 36. Ms H., the psychiatric nurse who had seen him the morning before his suicide, stated that he had not seemed particularly depressive to her and that no comments of a depressive nature had aroused her attention that day. 37. Joselito Renolde’s former girlfriend, who was likewise questioned, stated that he had been admitted to psychiatric institutions on several occasions. 38. On 8 September 2000 the public prosecutor applied for a judicial investigation to be opened in respect of a person or persons unknown for manslaughter, and an investigating judge of the Versailles tribunal de grande instance was appointed to that end. On 15 September 2000 Joselito Renolde’s brothers and sisters, including the applicant, applied to join the proceedings as civil parties. 39. On 16 October 2000 the investigating judge appointed two psychiatric experts, Dr G. and Dr P., instructing them to inspect Joselito Renolde’s medical records; to analyse their contents and to determine whether the condition from which he suffered was compatible with detention in a punishment block, whether the absence of medicinal substances in his blood was normal, whether it was to be concluded that he had deliberately refrained from taking his medication and whether such an interruption of treatment had influenced his behaviour, and in particular his suicide; to clarify the reason for the ERIC team’s intervention on 2 July 2000; to interview, if necessary, the SMPR psychiatrist and nurses and the members of the ERIC team; and to determine whether Joselito Renolde’s suicide had been foreseeable in view of his conduct and state of health. 40. The experts inspected the file on the criminal proceedings and Joselito Renolde’s medical records. On 29 March 2001 they submitted their report, concluding as follows: “The medical records as a whole and the interviews of those who came into contact with Mr Renolde indicate the following: – He had acute psychotic disorders at the time of his arrival in Bois d’Arcy, and those disorders seem to have receded fairly quickly as a result of the medication prescribed. In any event, there is little mention of these delusional factors in later observations, although a prison warder observed that Mr Renolde talked to himself at night (hallucinatory dialogue?). The SMPR team found his psychiatric condition to be compatible with detention, not requiring admission to a psychiatric institution. The letter which the prisoner sent his parents on 18 July shows that he retained a certain degree of coherence, although he may have been keeping his delirium or hallucinatory disorders to himself. – There is no evidence in the file indicating the presence of a depressive syndrome as such: no sign of carelessness, no expression of suicidal thoughts, no manifest sadness, apart from, of course, a legitimate gloom or sadness linked to incarceration, separation from his children, etc. ... Having regard to the context and to the information in our possession, we consider that his committing suicide was more the consequence of a psychotic disorder than of a depressive syndrome. The act may have taken place in a hallucinatory state (it appears that he sometimes heard voices telling him to kill himself), especially if the medication had not been correctly taken, as the toxicological examinations show. It is to be noted that the response of the ERIC team, which intervened from the outset following a suicide attempt, was to prescribe neuroleptics and not antidepressants, which confirms the psychotic nature. These disorders could perhaps have called for a discussion of the advisability of admission to a psychiatric unit if the hallucinatory, dissociative and delusional aspects had been prominent and hence incompatible with continued detention. However, seeing that the disorders rapidly improved, it may be felt that continued detention remained possible in so far as the SMPR kept the prisoner under very close observation, although supervision of his daily taking of medication would also have been helpful. Conclusions: (1) Mr Joselito Renolde was suffering from psychotic disorders at the time of his arrival in Bois d’Arcy Prison. His psychotic disorders were described as an acute delirious episode by the ERIC team and he made an initial suicide attempt on 2 July 2000 by phlebotomy. The suicide attempt may have taken the form of self-mutilation in a delusional state. It is also legitimate to wonder whether his assault on a warder, in the days that followed, was not likewise part of a pathological acting-out process. A course of neuroleptic treatment was immediately started, which seems to have been effective in that Mr Renolde’s speech became more coherent. At the same time, he was placed in the punishment block. If his state of health was compatible with detention, we do not consider that placement in the punishment block could actually have worsened his psychological condition, since the dominant disorders were not depressive but psychotic. It remains to be determined whether such disorders could have been treated satisfactorily in detention, bearing in mind that the medication was handed to the prisoner only twice a week and thus left at his disposal. In view of his lack of awareness of the disorders, it would perhaps have been preferable to have supplied him with the medication every day and to have supervised his taking it. (2) If no medicinal substance was found in the toxicological examinations, it can only be concluded that the prisoner refrained deliberately (or in a state of delirium) from taking his medication (anxiolytics and neuroleptics). It cannot therefore be ruled out that this poor medicine compliance might have contributed to the suicide, which may have been committed in a state of delirium. However, even if Mr Renolde was no longer under medication, none of the members of the team, including the nurse who met him on the day of his suicide, noted any resurgence of delirium, any incoherent behaviour or any major signs of dissociation. The suicide attempt cannot be solely ascribed to psychotic disorders. It may quite conceivably have taken place at a time of legitimate despair or sadness in a person who readily resorted to acting-out (suicide attempt on 2 July, assault on 5 July, suicide on 20 July). (3) On 2 July the ERIC team treated an injury which Mr Renolde had intentionally inflicted to his forearm with a razor blade in a moment of delirium. The practitioners attending to Mr Renolde did not observe any sign of depression but manifest psychotic disorders involving delirium, hallucination, the listening attitude, etc... (4) Having regard to the information in our possession, we did not consider it necessary to meet the SMPR staff and the members of the ERIC team. (5) This prisoner’s suicide was not foreseeable, at least in the short term, in so far as he did not display any suicidal intentions, no manifest depressive syndrome was present, and he was regularly monitored by the SMPR staff and had been seen that day by a nurse, who did not report anything abnormal in his behaviour.” 41. The civil parties were interviewed by the investigating judge on 23 May 2001. 42. On 23 July 2001 the judge notified the parties that the investigation was complete. In a letter of 9 August 2001 the civil parties’ lawyer asked for certain steps to be taken, namely for the persons responsible to be charged with the manslaughter of Joselito Renolde through a breach of their duties of care and safety, in the alternative with endangering his person by placing him in a punishment cell although he was known to be extremely fragile, and in the further alternative with failing to assist a person in danger. 43. In an order of 14 August 2001 the judge refused the request, giving the following reasons: “The persons who had ‘custody’ of Joselito Renolde were not qualified to assess his physical and mental condition or to intervene in the process of distributing and administering his medication. Mr Renolde was monitored on a very regular basis by the SMPR shortly after being transferred to Bois d’Arcy Prison. He was seen nearly ten times by that service between 3 and 20 July. His suicide attempt on 2 July prompted the ERIC team to intervene and to prescribe medication, which alleviated Mr Renolde’s psychotic disorders. The SMPR staff found his psychiatric condition to be compatible with detention, including in a punishment cell, since it did not decide to admit him to a psychiatric institution. The experts did not find any evidence in the subject’s psychiatric records suggesting the presence of a depressive syndrome. In their view, his suicide was more the consequence of a psychotic disorder than of a depressive syndrome. Accordingly, the constituent elements of manslaughter, endangering the person of another or failing to assist a person in danger have not been made out.” 44. In an order of 11 September 2001 the judge ruled that there was no case to answer, on the ground that the investigating authorities had found no basis on which anyone could be held criminally liable. 45. The civil parties appealed against the order to the Investigation Division of the Versailles Court of Appeal, asking for further inquiries to be made with a view to bringing charges against all those responsible for the offences of manslaughter, endangering the life of another and failing to assist a person in danger. In a memorial of 12 March 2002 they expressed doubts, in particular, about the 45-day disciplinary sanction imposed on Joselito Renolde, who was known to be a fragile person who had already attempted suicide and had displayed suicidal intentions in his letters. 46. In an interlocutory judgment of 29 March 2002 the Investigation Division ordered additional inquiries and appointed one of its judges to conduct them. 47. On 14 January 2003 the judge requested a copy of the file on the investigation in respect of Joselito Renolde. 48. On 19 May 2003 the judge interviewed Mr C., deputy governor of Bois-d’Arcy Prison and the person in charge of the “adult” wing, which included the “arrivals” block, the solitary-confinement block and the punishment block. Mr C. stated that Joselito Renolde had been included in the warders’ special register from 2 July, after slashing his arms, and that he had then been examined by the psychiatric emergency team. The psychiatrist had found that he was in a delusional state with acute psychotic decompensation. From that date on, he had been under special supervision and had been placed in a cell on his own. Mr C. explained that the taking of medication by prisoners was the responsibility of the SMPR staff and not the prison authorities. He also pointed out that the monitoring of correspondence could not entail reading every letter in detail. 49. On 29 September 2003 the investigating judge of the Court of Appeal ordered a further toxicological report on the basis of samples taken on 21 July 2000, with a view to determining the date on which Joselito Renolde might have stopped taking his prescribed medication. The report, submitted on 4 February 2004, concluded that at the time of his death, Joselito Renolde had not taken the prescribed anxiolytic medication for at least one to two days, and the neuroleptic medication for at least two to three days. 50. On 18 May 2004 the judge interviewed Dr L., the psychiatrist in charge of the Bois-d’Arcy SMPR. Dr L. considered that Joselito Renolde’s condition had not called for any particular precautions in terms of taking medication, and that there had been no clearly identified or suspected suicide risks, no serious behavioural disorders and no suspicion of incorrect use of medication. Nor, in the psychiatrist’s view, was there any incompatibility in prescribing neuroleptic medication to a prisoner in a punishment cell. 51. The submission of the findings of the additional inquiries was noted in a judgment of 11 June 2004. 52. A hearing before the Investigation Division was held on 12 January 2005. 53. In a judgment of 26 January 2005 the Investigation Division upheld the ruling that there was no case to answer, holding as follows: “Following the prescription of neuroleptic medication by the medical service, no further signs of aggression towards others or himself were observed on the part of Joselito Renolde after the incident of 4 July 2000 until the afternoon of 20 July. The medication prescribed was therefore effective during that period. It was decided by the medical authorities in the present case that Joselito Renolde should be allowed to administer his own treatment after being supplied with several days’ medication. There was a distribution on 17 July. The expert toxicological report established that the prisoner had not taken the medication supplied to him. Joselito Renolde’s medication was thus administered in accordance with the regulations set out in the circular of 8 December 1994 on the provision of health care for prisoners. Since the principle that medication is taken freely by the prisoner was observed in Joselito Renolde’s case, it cannot be concluded on the basis of the evidence available prior to the afternoon of 20 July 2000 that the failure to depart from this principle constituted negligence within the meaning of Article 1213, paragraph 4, of the Criminal Code on the part of any doctor or member of the medical staff of Bois-d’Arcy Prison. Since the time of Joselito Renolde’s placement in a punishment cell, no suicide risk or serious behavioural disorder had been identified; nor was there any suspicion of incorrect use of medication. Accordingly, as regards the actions of the prison staff, neither the investigation nor the additional inquiries have found any potential evidence of negligence within the meaning of Article 1213, paragraph 4, of the Criminal Code. Nor did the imposition of a disciplinary sanction on Joselito Renolde constitute a manifestly deliberate breach of a special statutory or regulatory duty of safety or care exposing the prisoner to an immediate risk of death or injury. The same applies to the fact of not checking that the medication was taken. No provision prohibited the imposition of a disciplinary sanction in Joselito Renolde’s case or [dictated] that he should be compelled to take his medication. Lastly, no evidence from the investigation or the additional inquiries supports the conclusion that anyone deliberately refrained from providing or ensuring the provision of assistance to Joselito Renolde, who had been prescribed medication and had not caused any particular incident for 15 days.” The civil parties did not appeal on points of law. 54. Since 1986, psychiatric treatment for prisoners has been provided by the public hospital service. Article 11 of the Decree of 14 March 1986, issued pursuant to the Psychiatric Sectorisation Act of 31 December 1985, provides: “Within each regional branch of the Prison Service, one or more prison-based psychiatric sectors shall be set up, each attached to a public hospital ... Each of these sectors shall include a regional medical and psychological service [SMPR], based in a prison facility ... The sector shall be placed under the authority of a hospital psychiatrist ... and assisted by a multidisciplinary team from the hospital to which the sector is attached ...” 55. Article 11, paragraph 3, of the Decree provides that the SMPRs’ duties, organisational structure and operating procedures are to be laid down in a set of model rules. The order of 14 December 1986 on the model rules states the following: “The regional medical and psychological service ... shall engage in activities for the prevention, diagnosis and treatment of mental disorders for the benefit of the prison population in the facility in which it is based ...” “The regional medical and psychological service shall, more specifically, perform the following tasks: – a general task of prevention of mental illness in the prison environment, in particular through systematic testing for mental disorders of all those entering the facility in which it is based; – provision of the necessary psychiatric treatment to both remand and convicted prisoners ...” 56. The Law of 18 January 1994 transferred responsibility for the provision of all treatment for prisoners to the public hospital service. Prisoners receive treatment from medical units – outpatient consultation and treatment units (UCSAs) – that are set up within prisons and are directly attached to the nearest public hospital (Article D. 368 of the Code of Criminal Procedure). 57. Article D. 373, paragraph 3, of the Code provides that the practical aspects of the SMPR’s intervention and its coordination with the UCSA are to be laid down in a protocol drawn up in accordance with the Decree of 14 March 1986. 58. Article D. 382 of the Code provides that, if the doctors from the SMPR or the UCSA consider that a prisoner’s health is not compatible with detention, they are to notify in writing the prison governor, who must immediately inform, where appropriate, the relevant judicial authority. 59. Article D. 398 provides: “Detainees suffering from the mental disorders referred to in Article L. 342 of the Public Health Code cannot be kept in a prison facility. On the basis of a detailed medical certificate and in accordance with the legislation in force, it shall be the duty of the prefect to ensure that they are compulsorily admitted as soon as possible to an approved health-care institution within the meaning of Article L. 331 of the Public Health Code. The rule in the second paragraph of Article D. 394 concerning supervision by a police or gendarmerie officer while in the institution shall not apply to them.” 60. Article D. 249 of the Code of Criminal Procedure divides disciplinary offences by prisoners into three degrees of severity. Article D. 249-1 provides that physical violence by a prisoner against a member of the prison staff constitutes a first-degree offence (the most serious). 61. Placement in a punishment cell is provided for in Article D. 251, point (5), of the Code. Article D. 251-3 of the Code lays down the terms of such placement: “Placement in a punishment cell under Article D. 251, point (5), consists in placing the prisoner in a cell equipped for that purpose, which he must occupy alone. The penalty shall throughout its duration entail the prohibition of purchases in the canteen in accordance with Article D. 251, point (3), and the prohibition of visits and all activities. However, prisoners in a punishment cell shall have one hour’s exercise per day in an individual yard. The penalty shall, moreover, entail no restrictions on their rights regarding written correspondence. The duration of the placement in a punishment cell shall not exceed forty-five days for a first-degree disciplinary offence, thirty days for a second-degree disciplinary offence and fifteen days for a third-degree disciplinary offence.” 62. Article 121-3 of the Criminal Code provides: “No serious crime (crime) or other major offence (délit) can be established in the absence of intention to commit it. However, where the law so provides, deliberately endangering the person of another shall constitute a major offence. A major offence shall also be established, where the law so provides, in cases of recklessness, negligence or a breach of a duty of care or safety laid down by statute or regulation where it is found that the person concerned failed to display normal diligence, regard being had where appropriate to the nature of his role or functions, his responsibilities and the power and means at his disposal. In the case referred to in the preceding paragraph, natural persons who did not directly cause the damage, but who created or contributed to creating the situation which allowed the damage to occur or failed to take steps enabling it to be avoided, shall be criminally liable where it is established that they have committed a manifestly deliberate breach of a particular duty of care or safety laid down by statute or regulation, or an act of gross negligence which exposed another person to a particularly serious risk of which they could not have been unaware ...” 63. Although the principle of State liability for the acts of the prison authorities, particular in relation to prisoner suicides, has been affirmed by the Conseil d’Etat since 1918, such liability has traditionally required the existence of gross negligence. In the Chabba judgment of 23 May 2003 (AJDA 2003, p. 157) the Conseil d’Etat departed from its previous position and acknowledged State liability for the suicide of a remand prisoner, on account of a series of acts of ordinary negligence attributable to the prison service. That position has since been reaffirmed (see, for example, Nancy Administrative Court of Appeal, Tahar Sidhoun, 17 March 2005, Petites affiches no. 102, 23 May 2006, p. 6, note by P. Combeau, and Marseilles Administrative Court, 9 February 2006, Plein Droit no. 71, December 2006, Jurisprudence p. V, concerning a suicide in an administrative detention centre). 64. The relevant parts of Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison read as follows, as regards prisoners suffering from mental disturbance: “... D. Psychiatric symptoms, mental disturbance and major personality disorders, risk of suicide ... 55. Prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. The decision to admit an inmate to a public hospital should be made by a psychiatrist, subject to authorisation by the competent authorities. 56. In those cases where the use of close confinement of mental patients cannot be avoided, it should be reduced to an absolute minimum and be replaced with one-to-one continuous nursing care as soon as possible. 57. Under exceptional circumstances, physical restraint for a brief period in cases of severely mentally ill patients may be envisaged, while the calming action of appropriate medication begins to take effect. 58. The risk of suicide should be constantly assessed both by medical and custodial staff. Physical methods designed to avoid self-harm, close and constant observation, dialogue and reassurance, as appropriate, should be used in moments of crisis. ... F. Violence in prison: disciplinary procedures and sanctions, disciplinary confinement, physical restraint, top security regime ... 66. In the case of a sanction of disciplinary confinement, any other disciplinary punishment or security measure which might have an adverse effect on the physical or mental health of the prisoner, health care staff should provide medical assistance or treatment on request by the prisoner or by prison staff. ...” 65. The relevant parts of Recommendation Rec(2006)2 read as follows: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ... Recommends that governments of member states: – be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules; ... Appendix to Recommendation Rec(2006)2 ... 12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose. 12.2 If such persons are nevertheless exceptionally held in prison there shall be special regulations that take account of their status and needs. ... 39. Prison authorities shall safeguard the health of all prisoners in their care. ... 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. ... 42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ... b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ... h. noting physical or mental defects that might impede resettlement after release; ... j. making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release, if prisoners give their consent to such arrangements. 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ... 43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement. ...” | 1 |
train | 001-57716 | ENG | AUT | CHAMBER | 1,991 | CASE OF OBERSCHLICK v. AUSTRIA | 2 | Preliminary objection rejected (six month period);Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;N. Valticos | 10. Mr Oberschlick, an Austrian journalist residing in Vienna, was at the relevant time the editor of the review Forum. 11. On 29 March 1983 - during the parliamentary election campaign - it was reported in a television programme that Mr Walter Grabher-Meyer, then Secretary General of one of the political parties which participated in the governing coalition, the Austrian Liberal Party (FPÖ), had suggested that the family allowances for Austrian women should be increased by 50% in order to obviate their seeking abortions for financial reasons, whilst those paid to immigrant mothers should be reduced to 50% of their current levels. He had justified his statement by saying that immigrant families were placed in a discriminatory position in other European countries as well. 12. On 20 April 1983 the applicant and several other persons laid a criminal information (Strafanzeige) against Mr Grabher-Meyer. However, the Vienna public prosecutor’s office decided on 1 June 1983 not to prosecute him. 13. On the day it was laid, the full text of the criminal information was published by the applicant in Forum. The cover page of the relevant issue contained a summary of its contents, including the title : "Criminal information against the Liberal Party Secretary General (Strafanzeige gegen FPÖ-Generalsekretär)". The following text appeared at page 9: (Translation) "CRIMINAL INFORMATION against WALTER GRABHER-MEYER Date of birth unknown, occupation: Secretary General, c/o FPÖ (Liberal Party), Federal Central Office, Kärntnerstrasse 28, 1010 Vienna ON SUSPICION OF 1. the misdemeanour (Vergehen) of incitement to hatred, contrary to Article 283 of the Criminal Code, 2. the misdemeanour (Vergehen) of incitement to commit criminal offences and expressing approval of criminal offences, contrary to Article 282 of the Criminal Code, and 3. the offence (Verbrechen) of activities within the meaning of sections 3 and 3d of the Constitutional Law of 8 May 1945 (StGBl. no. 13) on the prohibition of the National Socialist Party (NSDAP) ("Prohibition Act"). THE FACTS ‘The Secretary General of the Liberal Party, Mr Walter Grabher-Meyer today proposed raising family allowances for Austrian women by 50%, the aim of this measure being to deter Austrian women from having abortions for financial reasons. At the same time Walter Grabher-Meyer demanded that family allowances from the Austrian State for mothers of migrant workers’ families (Gastarbeitermütter) should be reduced to half the present level. Grabher-Meyer stated that migrant worker families are placed in a less favourable position in other European countries too.’ ORF (Austrian Broadcasting Corporation), Television programmes 1 + 2 Late News 29.3.1983 Count 1: Walter Grabher-Meyer’s public statement was made in a way which offends human dignity and is directed against a group of persons defined by their membership of a people, ethnic group or State; in the present case, by the fact that they do not have Austrian citizenship. The contrasting treatment of Austrian women, who are to be spared the need for abortions by being placed in a better financial position, and mothers of migrant workers’ families who are not only not to be treated in the same way, but who are moreover, according to Walter Grabher-Meyer’s suggestion, to have their family allowances halved (allowances which in his opinion are too low to prevent abortion for financial reasons), gives the impression, which must in all likelihood have been intended by him, that mothers of migrant workers’ families and their unborn children are an inferior, worthless or less valuable sector of the population as a whole, and that it is in the interests of the Austrian people for such mothers to have abortions. Walter Grabher-Meyer has thereby presented migrant workers as being undeserving or unworthy of the respect of their fellow human beings; the authors of this information regard this as a tendentious incitement to hatred of and contempt for migrant workers in Austria, object thereto and lay this information. Count 2: Walter Grabher-Meyer is publicly proposing - and thereby calling in particular on the Austrian Parliament and the Federal Government to introduce - measures which constitute the substance of the offence of activities within the meaning of sections 3 and 3d of the Prohibition Act (see below). Count 3: Under section 3 of the Prohibition Act, activities of any sort on behalf of the NSDAP or its aims are prohibited, even if such activities are carried out outside that organisation. Section 3d of the Prohibition Act says that "A person who in public or in the presence of several persons ... instigates, incites or seeks to induce conduct prohibited by section 1 or section 3, in particular any person who for this purpose glorifies or extols the aims, organs or actions of the NSDAP, shall, unless a more serious offence appears therein, be punished by a term of imprisonment of from 10 to 20 years and confiscation of his entire property". The authors of this information refer in this connection to the 25 points of the NSDAP Manifesto of 24.2.1920. They note that, until the passing of the NSDAP Prohibition Act of 8 May 1945 by the Provisional Government, this manifesto remained the party’s sole programme and that it therefore contains in authentic and complete form the aims of the NSDAP’s programme. It says inter alia that: ‘5. A person who does not have German nationality is to be able to live in Germany only as a visitor and must be subject to aliens legislation. 7. We demand that the State undertake, first and foremost, to provide opportunities for employment and the subsistence of its citizens. If it is not possible to feed the entire population of the State, citizens of foreign nations (non-citizens) must be expelled from the Reich. 8. All further immigration of non-Germans is to be prevented. We demand that all non-Germans who have immigrated to Germany since 2 August 1914 be compelled to leave the Reich immediately.’ Creating a hostile attitude to citizens of foreign nations (non-citizens), and placing them in a less favourable position, to such an extent that it became difficult for them to live in the Reich and they were forced to leave, were essential aims of the NSDAP and its policy. Walter Grabher-Meyer’s proposal to increase family allowances for Austrian women by 50% in order to stop them having abortions for financial reasons, and at the same time to reduce family allowances for mothers of migrant workers’ families to half the present level, represents a cynical means of driving citizens of foreign nations out of the Republic of Austria and indeed forcing those who stay in the Republic of Austria to have abortions; being entirely consistent with and corresponding to the philosophy and aims of the NSDAP that ‘the State must first and foremost provide opportunities for employment and the subsistence of its citizens’, these proposals are aimed, amongst other things, at improving the living conditions of citizens (Austrian mothers) by worsening those of migrant workers and, at the same time, at preventing all further immigration of non-Austrians (see above, NSDAP points 7 and 8). From this it is apparent that Walter Grabher-Meyer has undertaken activities which correspond to the aims of the NSDAP, or at the very least has extolled its measures against citizens of foreign nations by proposing that such measures be applied in Austria. As to the accuracy of these allegations, the authors of this information rely on their own statements, the ORF newsreaders’ scripts for the Late News on television programmes 1 and 2 on 29.3.1983 and the NSDAP manifesto of 24.2.1920. This criminal information is therefore laid against Walter Grabher-Meyer etc. (Signed):..., Gerhard Oberschlick" 14. On 22 April 1983 Mr Grabher-Meyer brought a private prosecution for defamation (üble Nachrede, Article 111 of the Criminal Code - see paragraph 25 below) against the applicant and the other signatories of the criminal information. He also sought the immediate seizure of the relevant issue of Forum (sections 33 and 36 of the Media Act - Mediengesetz) and compensation from its owners (section 6 of the Media Act - see paragraph 26 below). 15. The Review Chamber (Ratskammer) of the Vienna Regional Criminal Court (Landesgericht für Strafsachen - "the Regional Court") decided on the same day to order the discontinuance of the proceedings under Article 485 para. 1 (4) of the Code of Criminal Procedure (see paragraph 28 below). It found that the publication did not constitute the criminal offence defined in Article 111 of the Criminal Code, since the case did not concern the wrongful attribution of a certain (dishonest) behaviour, but only value-judgments (Bewertung) on behaviour which, as such, had been correctly described. 16. On appeal by Mr Grabher-Meyer the Vienna Court of Appeal (Oberlandesgericht), composed of Mr Cortella, as President, and Mr Schmidt and Mr Hagen, quashed the above decision on 31 May 1983. It held that for the average reader the publication must have created the impression that a contemptible attitude (verächtliche Gesinnung) was ascribed to Mr Grabher-Meyer. The authors had disregarded the standards of fair journalism by going beyond a comparative and critical analysis of his statements and insinuating motives which he had not himself expressed, in particular by alleging that he had been guided by National Socialist attitudes. Accordingly, the case was referred back to the Regional Court. 17. On 20 July 1983 the defamation proceedings against the signatories of the criminal information other than Mr Oberschlick were severed from the main proceedings by the Regional Court and referred for decision to the Vienna District Court for Criminal Matters (Strafbezirksgericht), on the ground that those persons had not been associated with the publication in Forum. On 9 April 1984 the former proceedings were discontinued. 18. On 25 July 1983 the Regional Court ordered the publication in Forum of information about the defamation proceedings against the applicant (section 37 of the Media Act - see paragraph 26 below). This decision was confirmed by the Court of Appeal on 7 September 1983. 19. The Regional Court held a hearing on 11 May 1984, during which it heard evidence from Mr Grabher-Meyer and the applicant. The latter offered evidence that what he had written was true (Wahrheitsbeweis), claiming that in this respect it was sufficient to establish that a criminal information had actually been laid in the terms published in Forum. He argued that by reporting his suspicions he had been fulfilling a legal duty and that he was therefore exculpated under Article 114 of the Criminal Code (see paragraph 25 below). The fact that the legal qualification of Mr Grabher-Meyer’s statements might have been erroneous could not be held against him because he was not a lawyer. 20. On the same day the applicant was convicted of defamation (Article 111 paras.1 and 2) and sentenced to a fine of 4,000 Austrian schillings or, in default, to 25 days’ imprisonment. The Regional Court also made the following orders against the owners (Medieninhaber) of Forum - the Association of Editors and Employees of Forum (Verein der Redakteure und Angestellten des Forum): the seizure of the relevant issue of Forum, the publication of its judgment (sections 33 and 34 of the Media Act), and the award to Mr Grabher-Meyer of compensation of 5,000 schillings (section 6 of the Media Act). In addition, they were declared to be jointly and severally liable for the payment of the fine (section 35 para. 1 of the Media Act - see paragraph 26 below). In its judgment of 11 May 1984, the Regional Court held that it was bound by the opinion expressed by the Court of Appeal in its decision of 31 May 1983 (see paragraph 16 above). Therefore the objective conditions for the offence of defamation were satisfied. Mr Oberschlick also fulfilled the subjective requirements because he had acknowledged that he had intended to draw attention to what, in his opinion, was the National Socialist way of thinking of Mr Grabher-Meyer. Mr Oberschlick had, however, not established the truth of his allegations nor justified them. In the Regional Court’s view, it was not sufficient that this politician had made the criticised statements and that a criminal information regarding it had been laid in the terms published in Forum. The statements in question did not necessarily show the intentions Mr Oberschlick had inferred therefrom. It could also be understood as a proposal to reallocate the notoriously limited resources of the Family Compensation Fund in favour of Austrians in order to stem the influx of migrant workers. This admittedly revealed a xenophobic way of thinking, but did not yet amount to a National Socialist attitude or to a criminal offence. The fact that the publication involved only a reprint of the criminal information did not exculpate the applicant. Whilst everyone was free to report to the police facts which he considered constituted a criminal offence, it went far beyond the mere reporting of a criminal suspicion to publish the text of the information in a periodical and thus to make it accessible to the general public. There was no justification for doing so. In this respect, the applicant could not invoke a legal duty under Article 114 of the Criminal Code, namely to draw the public’s attention to the (allegedly) Nazi mentality of a high-ranking official of a governing party. That allegation came under the general rule that a person who had made an attack of this kind through the media had to prove that it was true. 21. Mr Oberschlick subsequently requested on several occasions to be supplied with a copy of the record of the hearing, but without success. It seems that it was not until after the communication of the written judgment on 24 August 1984 that the record reached the applicant. On 6 September he applied for a rectification of the trial record which, according to him, failed to mention certain statements by Mr Grabher-Meyer which were of importance for assessing the evidence concerning the truth of the applicant’s allegations. He had allegedly stated at the trial, inter alia, that he was opposed to excessive immigration of foreigners (Überfremdung) and that for tactical reasons he approved the "stop foreigners" campaign ("Ausländer Halt") which had been conducted by a right-wing political party and had subsequently been prohibited. He had also allegedly admitted having considered social-policy measures directed against the children of foreign workers in Austrian schools. On 4 October 1984 the Regional Court rejected this application, after having consulted the transcriber, on the ground that after five months the judge had no recollection of the detailed statements. It nevertheless pointed out that although the latter did not appear in the transcriber’s notes, similar statements did. 22. On 17 December 1984 the Vienna Court of Appeal, composed of the same judges and again presided over by Mr Cortella (see paragraph 16 above), dismissed the applicant’s appeal (Berufung). In relation to a complaint concerning the Regional Court’s decision of 4 October 1984 (see paragraph 21 above), the Court of Appeal observed that this decision was final. Furthermore, it did not appear that the Regional Court had failed to determine any requests made during the trial concerning the record. In any event, the statements in question were irrelevant for the judgment on the merits of the matter. 23. The Court of Appeal then dealt with the substantive issues. In its view, the Regional Court had not been legally bound by the Court of Appeal’s earlier decision concerning the qualification of the offence. The Court of Appeal, however, saw no reason to depart from that decision. What was decisive was that Mr Grabher-Meyer was alleged to have had motives which he himself had not expressed. The case therefore did not concern the (possibly incorrect) legal qualification of his statements, but allegations putting a stain on his character which objectively could not be inferred from those statements. According to the Court of Appeal, the Regional Court had rightly held that what had to be proved was the truth of the critical inferences as to Mr Grabher-Meyer’s character made in the article and had rightly found that the applicant had failed to bring this proof. The fact that a short report on the criminal information against this politician would not have been punishable did not justify the conclusion that a full reprint of it was not punishable either. The publication in the form of a criminal information was intended to ensure that the accusation as to his character made therein would have a particularly telling effect on the average reader. Neither the right to report a criminal suspicion (Article 86 para. 1 of the Code of Criminal Procedure - see paragraph 27 below) nor the exception provided for in Article 114 para. 2 of the Criminal Code (see paragraph 25 below) justified the publication because it was not appropriate (mangels Anlassadäquanz): it had been insinuated, without a sufficient basis in the facts, that Mr Grabher-Meyer held National Socialist attitudes. 24. The written text of the judgment was served upon the applicant on 7 January 1985. On 25 September 1985 he requested the Attorney-General (Generalprokurator) to file a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), but he was informed on 9 January 1986 that the Attorney-General did not intend to take any action. 25. Article 111 of the Criminal Code provides: "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 ...". Under Article 114 para. 1 "conduct of the kind mentioned in Article 111 ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right". Under paragraph 2 of the same provision "a person who is forced for special reasons to make an allegation within the meaning of Article 111 ... in the particular form and manner in which it was made, is not to be punished, unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care". 26. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim compensation from him. Furthermore, the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings (section 35). The person defamed may request the forfeiture of the publication by which a media offence has been committed (section 33). Under section 36 he may also request the immediate seizure of such a publication if section 33 is likely to be applied subsequently, unless the adverse consequences of seizure would be disproportionate to the legal interest to be protected by this measure. Seizure shall not be ordered if that interest can instead be protected by the publication of information that criminal proceedings have been instituted (section 37). Finally, the victim may request the publication of the judgment in so far as this appears necessary for the information of the public (section 34). 27. The first sentence of Article 86 para. 1 of the Code of Criminal Procedure reads as follows: "Anybody who acquires knowledge of criminal conduct such as automatically attracts public prosecution shall have the right to report it." Furthermore, section 3 (g) para. 2 of the Prohibition Act imposes a duty to denounce offences under this Act in certain circumstances. Failure to fulfil this duty may be punished by imprisonment for between five and ten years. 28. Under the special simplified procedure - which was followed in this instance -, if a single judge of the Regional Court is of the opinion that the facts of the case do not constitute a criminal offence, he shall seek a decision by the Review Chamber of the Regional Court (Article 485 para. 1 (4) of the Code of Criminal Procedure), which shall order the discontinuance of the proceedings if it shares his view (Article 486 para. 3). The prosecution may appeal against such an order (Article 486 para. 4). If the Court of Appeal upholds the appeal and refers the case back to the Regional Court, the following special rules apply: "The trial court shall not be bound by decisions of the Review Chamber or of the court of second instance which confirm ... that the facts constitute a criminal offence ..." "Those members of the court of second instance who participated at a previous stage in the decision of the Review Chamber to discontinue the proceedings or in the determination of an appeal against such a decision (Article 486) shall be disqualified from hearing or determining an appeal." 29. Disqualification of a judge (Ausschliessung) is governed by the following provisions of the Code of Criminal Procedure: "A judge is obliged to bring circumstances which disqualify him to the immediate attention of the president of the court of which he is a member ..." "From the moment when grounds for his disqualification come to his knowledge, every judicial officer (Gerichtsperson) shall refrain from any judicial acts, on pain of nullity. The judicial officer concerned may carry out judicial acts which are urgent, but only where there is danger in delay and if another judge or registrar cannot be appointed immediately. ..." 30. Furthermore, under Article 72 the parties to the proceedings may challenge (ablehnen) a judge if they can show that there are reasons for doubting his complete impartiality. Although Article 72 refers expressly to grounds "other than disqualification", it is the practice of the courts to apply Article 72 also in cases where a party raises an issue relating to a judge’s disqualification. In fact, the disqualification of a first-instance judge cannot subsequently be pleaded in nullity proceedings unless he was challenged before or at the trial or immediately after the ground for disqualification became known to the party (Article 281 para. 1 (1) of the Code of Criminal Procedure). The procedure applicable in this respect is the following: "Where a party seeks to challenge a judge, he may make an application in writing to the court of which the judge is a member or make an oral declaration to this effect before the registrar. He may do this at any time, except that, where the challenge concerns a member of the trial court, it must be made not later than 24 hours before the beginning of the hearing and, where it is directed against the whole court, not later than three days after service of the summons to attend the hearing. The application must specify and, as far as possible, justify the reasons for the challenge." "(1) As a rule it is for the president of the court of which the challenged judicial officer is a member to decide on the admissibility of the challenge. (2) ... (3) No appeal lies against such a decision ..." 31. Records of hearings before criminal courts in Austria are usually drawn up in summary form unless, for special reasons, the court orders the preparation of a shorthand transcript. A shorthand transcript must be prepared if this is requested by a party who advances the costs thereof (Article 271 para. 4). In other cases the record is limited to a note of all essential formalities of the proceedings. The parties are free to request the recording of specific points in order to preserve their rights (Article 271 para. 1, applicable to single-judge proceedings by virtue of Article 488). 32. Where the establishment of a verbatim version is important, the judge shall, upon the request of a party, order that particular passages be read out at once (Article 271 para. 2). The answers of the defendant and the depositions of the witnesses and experts shall be mentioned only if they contain deviations from, alterations of or additions to the statements recorded in the files or if the witnesses or experts are heard for the first time at the trial (Article 271 para. 3). 33. The parties are free to inspect the completed record and its appendices and to make copies thereof (Article 271 para. 5). Case-law has established that they are entitled to request additions or corrections to the record at the trial or afterwards, as long as an appeal is pending (Evidenzblatt, "EvBl", 1948, p. 32 and Sammlungstrafsachen, 32/108). The court’s decision on such a request is final and is not open to appeal (Richterzeitung, 1967, p. 88, EvBl. 1948/243). It is only total failure to prepare a trial record that is a ground of nullity (Article 281 para. 1 (3)). Other deficiencies in the record cannot be pleaded in nullity proceedings, except failure to decide on motions concerning the record which were made during the trial (Article 281 para. 1 (4)). | 1 |
train | 001-98128 | ENG | RUS | CHAMBER | 2,010 | CASE OF SINICHKIN v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 6-1+6-3-c | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1970 and is serving a prison sentence in correctional colony YuK-25/8 in the Orenburg Region. 6. On 24 June 2002 the applicant was arrested on suspicion of aggravated concerted robbery and taken to the Leninskiy District police station of the Orsk town police department. He refused legal assistance, signed a record confirming his refusal and denied the accusations made. He was released on the same day. 7. On 22 July 2002 the applicant was again remanded in custody. He was charged with aggravated robbery and questioned after he had refused legal assistance. Police officers allegedly threatened and humiliated him with a view to extracting a confession from him. The applicant did not confess. Two days later he was released on a written undertaking not to leave the town. 8. On 23 July 2002 the local bar association appointed counsel M. to represent the applicant in the criminal proceedings. It appears that M. was appointed to represent the applicant as legal-aid counsel. 9. On 31 October 2002 the Leninskiy District Court of Orsk started examining the applicant's criminal case. On the same day the applicant lodged a written request with the trial court, by which he declined the services of M. and sought leave to represent himself. He explained that it was a voluntary decision and had not been caused by financial difficulties. M. submitted to the court that he agreed with the applicant's request. Having discussed the issue, the court allowed the applicant's request and granted him leave to represent himself. 10. By a judgment of 10 November 2002, the District Court found the applicant guilty as charged and sentenced him to thirteen years' imprisonment. It established that the applicant, together with his two co-defendants, had attacked, robbed and severely beaten up the victim. The applicant's role, previously agreed upon by the co-defendants, consisted, among other things, in threatening the victim with a knife. The court based its findings on partial confessions by the applicant's co-defendants, statements by victims and witnesses and material evidence. It was finally stated in the judgment that it could be appealed against to the Orenburg Regional Court within ten days of its pronouncement or, for the detained defendants, within the same period after receipt of its copy. It was also stated that if the remanded convicts were submitting an appeal statement, they had a “right to request to participate in the examination of the criminal case by the appellate court”. 11. On 21 November 2002 the applicant appealed against his conviction to the Orenburg Regional Court (“the Regional Court”). He did not dispute that he had taken the money from the victim but disagreed with the way the trial court had established the relevant facts, the distribution of roles between him and his co-defendants and the classification of his own acts. He submitted, in particular, that the trial court had disregarded his testimony and statements by witnesses which supported it, in particular, regarding the trial court's findings about the distribution of responsibility between him and his co-defendants and the classification of his acts as a premeditated robbery. In his appeal statement the applicant neither requested the Regional Court to secure his presence at the appeal hearing nor sought legal representation. According to the Government, the applicant's co-defendants who also appealed against the conviction expressly requested the appellate court to secure their presence at the appeal hearing. 12. According to the Government, on 25 November 2002 a notification about the appeal hearing was sent to the remand centre where the applicant was being held. 13. On 19 December 2002 the Regional Court examined the appeals lodged by the applicant and his co-defendants and upheld the judgment. The applicant was absent from the appeal hearing and was not represented before it, while his co-defendants, as well as the prosecutor, attended the hearing and made submissions. 14. By a judgment of 19 December 2002, the Regional Court dismissed the applicant's appeal and upheld the conviction. 15. Under Article 360 of the Code of Criminal Procedure, which entered into force on 1 July 2002 (“the CCP”), the appeal court verifies the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or to apply the law of a lesser offence. It has no power to impose a more severe penalty, apply a law on a more serious offence or quash an acquittal, unless it considers that the conviction was unfair or that the interests of the parties to the proceedings were violated. 16. A conviction is deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe A conviction may be reversed when it is necessary to impose a more severe penalty where the penalty imposed by the trial court is deemed unfair as being disproportionately lenient - only when it is requested by the pubic prosecutor, the victim or the private prosecution (Article 383). 17. Under Article 377 §§ 4 and 5 of the CCP, the appeal instance may directly examine evidence, including additional material submitted by parties. 18. Under Article 375 § 2, if a convicted person wishes to participate in an appeal hearing he or she should indicate that wish in the statement of appeal. 19. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court. A defendant who has appeared before the court shall always be entitled to take part in the hearing. The failure of persons timely notified about the date, time and venue of the hearing to appear does not preclude the court from taking on the examination of the case. 20. Under Article 377, the presiding judge opens the hearing by announcing which criminal case is to be examined and on whose appeal. He then announces the composition of the court, the names of persons who are parties to the proceedings and are present at the hearing and hears the statements of those who had lodged the appeals and of the opposing parties. The appeal court is entitled, at the party's request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party. 21. The CCP provides as follows: “1. Participation of legal counsel in the criminal proceedings is mandatory if: 1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; 2) the suspect or the accused is a minor; 3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; 3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; 4) the suspect or the accused does not speak the language in which the proceedings are conducted; 5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; 6) the criminal case falls to be examined by a jury trial; 7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.” “1. The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the own initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. ...” 22. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict's right to legal assistance in such proceedings may be restricted.” 23. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings. 24. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. | 1 |
train | 001-60457 | ENG | IRL | CHAMBER | 2,002 | CASE OF D.G. v. IRELAND | 1 | Violation of Art. 5-1;Violation of Art. 5-5;No violation of Art. 3;No separate issue under Art. 8 in respect of lawfulness of detention;No violation of Art. 8 in respect of other complaints;No separate issue under Art. 14+5-1 in respect of situation vis-à-vis other minors;No violation of Art. 14+5-1 in respect of other complaints;Non-pecuniary damage - financial award | Georg Ress | 10. The applicant was in the care of the Eastern Health Board (“the Board”) from when he was 2 years of age until the age of majority (18 years). From 1984 to 1986 he was placed in children's homes and thereafter with a foster family. In 1991 the foster placement broke down and the subsequent placement with a “carer” family also broke down due to the applicant's behaviour. Between 1993 and May 1996 he was detained at Oberstown Boys' Centre on foot of assault charges. Subsequent placements failed again due to the applicant's behaviour and in August 1996 the Board placed him in a private and specialised residential unit in the United Kingdom, which placement also failed. 11. In November 1996 the applicant was convicted in the United Kingdom of criminal damage, burglary, arson and aggravated theft (offences committed during his stay in the above-mentioned residential unit) and sentenced to nine months in prison. In February 1997, and at the request of the Board, the Irish High Court granted a warrant (pursuant to the Transfer of Sentenced Persons Act 1995) allowing the applicant to serve the balance of his nine-month sentence in St Patrick's Institution (“St Patrick's”) in Ireland. The applicant was released on 7 March 1997. 12. He slept rough the first night of his release and subsequently resided on a temporary basis in a homeless boys' hostel run on a voluntary basis by a priest. From then until the judicial review proceedings (described below) issued, the applicant's solicitor wrote to the Board five times requesting that proper accommodation be made available to the applicant. A case conference was held on 14 March 1997 where it was agreed that his needs would be met in a high-support therapeutic unit for 16- to 18-year-olds but that no such unit existed in Ireland and could not be put in place in time for the applicant's needs. It was decided that the Board would look into placements outside Ireland and into interim options in Ireland. 13. On 28 April 1997 the High Court appointed a guardian ad litem and gave the applicant leave to apply for judicial review (citing, inter alia, the Board and the Attorney-General as respondents) for (a) a declaration that, in failing to provide suitable care and accommodation for the applicant and in discriminating against him as compared with other children, the respondents deprived the applicant of his constitutional rights under, in particular, Articles 40 § 1, 40 § 3 (1), 40 § 3 (2) and 42 § 5 of the Irish Constitution. The applicant referred in this context to his being a child at risk, namely dangerous to himself and potentially to others, and pointed out that the lack of appropriate care meant that his rights had not been vindicated; (b) an order of mandamus and an injunction directing the respondents to provide suitable care and accommodation for the applicant were also requested. The grounds submitted by the applicant related to the Board's failure to comply with its statutory duties to provide such accommodation under sections 4, 5, 16 and 38 the Child Care Act 1991; and (c) damages, although the applicant had submitted that he would suffer irreparable loss and damage for which monetary compensation would not suffice (hence the application for an order of mandamus and an injunction). 14. The application for interlocutory relief (namely for relief until the making of a final order following the hearing of the case) came before the High Court on 6, 12, 21 and 30 May 1997. However, on 4 June 1997 the applicant was assaulted by another resident with an iron bar and taken to hospital with a fractured skull. He was operated on and subsequently discharged on 12 June 1997 and spent that night in bed-and-breakfast accommodation. On 13 June 1997 the application was adjourned on the basis that the applicant would reside in the hostel (run by the priest) under continuous 24-hour supervision of childcare workers of the Board. The Board was to continue its enquiries for a suitable facility. On 17 June 1997 the High Court ordered that the applicant reside in Kilnacrot Abbey, another hostel, under the care of social workers of the Board. 15. The interlocutory matter was again considered by the High Court on 26 and 27 June 1997. Evidence was presented to the effect that the applicant's continued residence in that hostel was no longer feasible. Evidence was also heard from the Board's leader responsible for the applicant's case who stated that the Board's facilities could no longer cater for the applicant. A consultant psychiatrist at the Central Mental Hospital in Dublin gave evidence to the effect, inter alia, that he knew of no services in the State that could even start to address the problems the applicant represented. A report was presented detailing a number of serious incidents, including threats of assault made by the applicant, and the court heard the legal submissions of the parties. 16. The High Court delivered its judgment on 27 June 1997. The High Court judge commented at the outset as follows: “This is yet another case in which the Court is called upon to exercise an original Constitutional jurisdiction with a view to protecting the interests and promoting the welfare of a minor. The application arises because of the failure of the State to provide an appropriate facility to cater for the particular needs of this applicant and others like him. It is common case that what is required to deal with his problem is a secure unit where he can be detained and looked after. No such unit exists in this State and even if one did, there is no statutory power given to the Court to direct the applicant's detention there. Such being the case, and in the absence of either legislation to deal with the matter or the facilities to cater for the applicant, I have in the short-term to do the best that I can with what is available to me.” 17. The judgment described the applicant's history and family situation as “quite appalling”. He was one of a family of five children. His father was serving a life sentence for murder and serious sexual offences. His mother lived a “chaotic lifestyle”, refusing to settle in any type of permanent accommodation. Of his siblings, only one led a normal life. The others were in care, in detention or were drug users. 18. On the evidence before it, the High Court accepted that the applicant was not mentally ill but that he had a serious personality disorder; that he was a danger to himself and to others; that he had a history of criminal activity, violence and arson; that he had absconded from non-secure institutions; that he had failed to cooperate with the Board and its staff; and that he had failed to cooperate in the carrying out of a psychiatric assessment of him in the past. It was “common case” that the applicant required a “secure unit where he can be detained and looked after” and that no such unit existed in Ireland. The High Court judge considered the welfare of the child to be paramount, noted the conflicting constitutional right to liberty of the applicant and observed that the evidence before him as to the child's needs and the facilities available would resolve the conflict. The court considered that there were four possible options. 19. In the first place, the High Court could order the applicant's release from the custody of the Board. However, given the real risk of serious self-injury possibly resulting in death, this option was excluded. Secondly, the applicant could be sent back to Kilnacrot Abbey. However, given the danger he posed to himself and to others and his previous lack of cooperation, the Court ruled out this possibility. The third option was the Central Mental Hospital but the evidence before the High Court and the applicant's own preference ruled out this option. 20. The fourth option was the applicant's detention in St Patrick's, which option was adopted with “considerable reluctance” by the court as the only manner of vindicating the applicant's constitutional rights. The High Court acknowledged that it was a penal institution. However, having noted the conflicting constitutional rights of the applicant, the applicant's needs, the constitutional obligations of the State to the applicant and the relevant jurisprudence of the High and Supreme Courts in similar cases, the High Court judge was satisfied that the evidence supported his findings that, in the absence of any other facility within the State, the place most suitable to ensure the applicant's welfare was St Patrick's, and that the High Court could exercise its “inherent jurisdiction” developed by the jurisprudence (to which the judgment referred) in making an order for the applicant's detention there. It was noted that the applicant had been in that institution previously and seemed to have done well there. Accordingly, he ordered that the applicant be brought to St Patrick's by the police and be detained there for three weeks (until 18 July 1997), all parties agreeing that detention for longer was not appropriate. The High Court judge pointed out in conclusion that he was “extremely unhappy at having to make this order ... but of the four options available to [him] it is the one which, in [his] view, is best suited to the welfare and needs of this applicant in the short term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to [him] that from the welfare of this applicant it is the least offensive and in [his] view his welfare will be best served by being committed there as [he has] ordered”. 21. Certain conditions were attached to the order by the High Court. The applicant was to be subject to the “normal discipline” of that institution and was to have a full psychiatric assessment. The “fullest cooperation” was requested by the High Court between the Board and the authorities of the institution as regards access by the staff of the Board to the applicant to allow the professionals who had been dealing with the applicant to have input into his welfare whilst in St Patrick's, provided that that did not create insuperable difficulties from the point of view of the management of the institution. In particular, the High Court recommended that the normal visiting restrictions applicable be waived as much as possible in the vital twenty-four hours after the applicant's detention. 22. Moreover, the High Court's concerns about the suicide risks presented by the applicant were to be notified to the Governor of St Patrick's and the appropriate facilities were to be put in place in this respect. The High Court was to receive a report by the psychiatric staff of St Patrick's and by the Board on the applicant's progress, if any, and on his general well-being by 16 July 1997. There was to be liaison between the Board and the guardian ad litem, the latter of whom was to obtain the reports to be prepared for the court on the applicant. In the meantime, the Board was to continue to try to find a suitable place for the applicant's needs outside the jurisdiction and the matter was to be reviewed by the High Court on 18 July 1997. 23. On the same day (27 June 1997) the applicant was brought to St Patrick's and placed in a padded cell overnight. 24. The following day, the Chief Officer informed the applicant of the rules and regulations, the daily routine and of the services that were on offer (educational, welfare, spiritual, library, gym, work and recreation), which latter matters were detailed in a booklet given to the applicant. The applicant was asked if he wished to attend educational classes. He made no such request and did not participate in the institution's educational programme. 25. The applicant appealed to the Supreme Court. He referred to the Board's failure to fulfil its statutory duties under sections 36 and 38 of the Child Care Act 1991 and to respond to his constitutional rights under Article 42 § 5. He also submitted that detention in a penal institution did not appropriately harmonise his conflicting rights under Article 42 § 5 and Article 40 § 4 (1). He also dealt, in his submissions, with the place of detention proposed by the High Court arguing that, if detention was necessary and lawful to protect and vindicate a child's rights, detention in a penal institution was not. A penal institution is a place of punishment, the effect of detention there, with or without conviction, constituted punishment and it was completely different to a high-security unit staffed by qualified childcare workers and operated in a manner consistent with Article 42 of the Constitution. His placement in a suitable high security environment would be more appropriate to his needs and the effect of such an order would be to oblige the Board to comply with its statutory duties and the State to comply with its constitutional duties through the Board. He also relied on Article 5 § 1 (d) of the Convention. 26. On 7 July 1997 the Governor prepared a short conduct report for the Supreme Court in which he noted that the applicant was well behaved, mixed freely with other inmates and had not come under any adverse attention. 27. The Supreme Court heard the applicant's appeal on 9 July 1997 and reserved judgment. Judgment was delivered on 16 July 1997 and, by four votes to one, rejected the appeal. The Chief Justice gave the main judgment of the Supreme Court (two judges concurring) and described the issues before him as being whether the High Court had jurisdiction to order the detention of the applicant and, if so, whether that jurisdiction extended to making an order directing the applicant's detention in a penal institution and, if so, whether the jurisdiction was properly exercised in the applicant's case. 28. The Chief Justice noted that (apart from the particular jurisdiction assigned by the Constitution and by the Statute) the High Court has an inherent jurisdiction “as ample as the defence of the Constitution requires”. The Chief Justice noted the conflicting constitutional rights of the applicant at issue in the case: on the one hand, he had the right to liberty (Article 40) and, on the other hand, he had the unenumerated right “to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her personality and dignity as a human being”. The Chief Justice accepted that the High Court could be called upon to establish a priority of such rights as the case demanded. He noted that all parties agreed that the applicant's welfare (which was of paramount importance) required his detention in a “safe and secure unit”, but he regretted that the High Court judge was forced, by reason of the lack of any suitable facility, to order the applicant's detention in a penal institution. 29. In conclusion, the Chief Justice was satisfied that the High Court had jurisdiction to make the order it did, that it did so in a lawful manner consistent with the requirements of the welfare of the applicant and that the High Court was correct in exercising such jurisdiction for a short period of time. He added, however, that the exercise by the courts of their jurisdiction in the case should not be considered by the respondents in the proceedings to relieve them of their statutory obligations regarding the applicant and that they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant. 30. A fourth judge considered that the High Court's jurisdiction had not been directly disputed by the parties, and went on to agree with the option chosen by the High Court. The fifth and dissenting judge in the Supreme Court considered that it was not for the courts to conjure up the necessary accommodation but to protect and vindicate the child's rights and for the Board to address its statutory duties and obligations. It was, in that judge's view, a step too far to order the child's detention in a penal institution having regard to his moral, intellectual, physical and social welfare and his rights to liberty, equality and bodily integrity. 31. The High Court heard further expert evidence on 18 July 1997 and apparently the applicant had been cooperative in St Patrick's. The High Court continued his detention in St Patrick's until 23 July 1997 on the conditions previously applicable, the Board being required to inform the court on the return date of the full details and efforts made to provide facilities for the applicant. 32. On 23 July 1997 the Board submitted that it had identified a property which would take a short time to equip and staff to enable it to receive the applicant and it was indicated that it would be ready by 28 July 1997. The Board also indicated that the applicant was to travel to the United Kingdom to be assessed with a view to possible placement there. While the applicant wanted to be immediately released, his guardian ad litem considered that he should not be left on the street. The High Court directed his continued detention in St Patrick's until 28 July 1997 and that every effort should be made by the Board to ensure that the relevant property be ready to receive the applicant by 28 July 1997. 33. On 28 July 1997 the applicant was released from St Patrick's by order of the High Court. Apart from basic personal details and the relevant court orders constituting authority for detention, the applicant's file from that institution contains few entries and his “prisoner's profile” forms were mainly not filled in. There was a note to the effect that he had been placed in a padded cell in June 1997 and a copy of the Governor's report of 7 July 1997. 34. On the same day (28 July 1997) the applicant was placed in the accommodation prepared by the Board under 24-hour supervision. He was allowed to leave the premises occasionally for limited periods. Leave was also given to take the applicant to the United Kingdom for assessment on 31 July 1997. 35. The applicant then absconded from that property and a warrant for his arrest was issued by the High Court on 6 August 1997. He was arrested and brought before the High Court on 8 August 1997. On the same day, and having heard submissions from counsel for the applicant and the Board together with the evidence on behalf of the Board and of the applicant, the High Court ordered the applicant's detention in St Patrick's until 26 August 1997. 36. Conditions were again applied by the High Court to this detention. He was to be subject to the discipline of St Patrick's. A full assessment of the applicant's drug dependency was to be made, the assessment to include any outpatient assessment and/or treatment consistent with the requirements of St Patrick's. There was to be liaison between the authorities of St Patrick's and the Board. By 26 August 1997 the High Court was to be in possession of a report in relation to the applicant's drug-addiction problem prepared by the Board and the staff of St Patrick's. The guardian ad litem was to have liberty to liaise with the authorities of St Patrick's and with the Board. The Governor was requested by the High Court to dispense with the visiting restrictions during the first twenty-four hours of the applicant's detention in so far as possible and consistent with the good running of the institution, to allow the officials of the Board to have full access to the applicant. The matter was adjourned until 26 August 1997. 37. On 26 August 1997 the High Court ordered the applicant's release to the custody of the Board on the same terms as the order of 28 July 1997. 38. On 3 November 1997 the applicant re-entered his judicial-review proceedings. On 10 November 1997 evidence was heard from the Social Work Team Leader, Ms F., on the applicant's case and the applicant was placed in the care of the Board, subject to his attendance at City Motor Sports for practical and vocational education. The case was adjourned to 24 November 1997, on which date it was adjourned to 15 December 1997 to await a progress report from City Motor Sports. On 15 December 1997 the case was adjourned to the following day. On 16 December 1997 the case was adjourned to 19 December 1997 to allow proposals to be made by the Board. 39. On 19 December 1997 the High Court heard evidence from Ms F. in relation to possible long-term accommodation and the case was listed for mention on 22 December 1997, on which date it was listed for mention on 5 January 1998 to allow the Board more time to find appropriate long-term accommodation. On 5 January 1998 evidence was heard from Ms F. and the case was listed for mention on 9 January 1998 in order to give the Board further time. On 9 January 1998 the Board informed the High Court that suitable temporary accommodation was to be ready by February 1998 and the case was adjourned for further discussion to 12 January 1998, on which date the High Court heard evidence from Ms F. It was decided to maintain the care order in force and to adjourn the case until 16 February 1998. 40. On 16 February 1998 the High Court was advised that the applicant had been moved to new short-term accommodation of the Board under 24-hour supervision. The report from City Motor Sports on the applicant was presented and the case was adjourned until 2 March 1998 to allow for his progress to be assessed. On 2 March 1998 the case was adjourned to 23 March 1998 to allow the Board time to prepare recommendations for the reduction of the supervision of the applicant. On 23 March 1998 the High Court ordered that the Board's recommendations be put in place. The recommendations referred to the proposed timing of the withdrawal of supervision, assisting the applicant to obtain his own accommodation and social welfare benefits, the continuation of all necessary social work support after the official care order expired and the informing of the Board's senior management and legal agent of the recommendations given the danger the applicant continued to pose to himself and to others. 41. The applicant remained in the Board's accommodation until April 1998 when he returned to live in the same hostel in which he had stayed in March 1997. On 30 April 1998 his judicial review proceedings were adjourned to 1999. The applicant's eighteenth birthday was on 9 July 1998. He stayed on in the hostel until October 1998 when he was removed to hospital after causing injury to himself. 42. After discharge from the hospital he lived rough on the streets. Having been charged with minor offences he was then charged with more serious offences, was arrested and charged with, inter alia, threatening his uncle with a knife. He was remanded for trial and detained on remand in Mountjoy Prison. The outcome of those proceedings is not known. 43. In his report dated 20 August 1999 addressed to the Department of Justice, St Patrick's medical officer reported that the applicant had been seen by a medical officer on arrival and on several occasions in the following two weeks. The applicant had complained of feeling depressed, especially at night, and was prescribed sleeping tablets. He was referred to a consultant psychiatrist, Mr McC., who kept the applicant on his medication and considered that he was a troubled youth “who felt it difficult to deal with prison life”. The reporting medical officer himself saw the applicant on 7 July 1997, when he treated the applicant for a sprained ankle sustained while playing football. That officer again saw the applicant on 25 July 1997, when he was “becoming frustrated and angry at his situation”. That officer found him “quite well” and prescribed a mild sedative and night-time sedation and asked the visiting psychiatrist to review him. A consultant forensic psychiatrist had also seen the applicant. The report goes on to mention that that medical officer had no record of any input from the resident psychologist: the latter's records were retained confidentially, it could not be assumed that the latter had had no input and the latter should be contacted for information concerning any proactive treatment carried out with the applicant of which that medical officer was not aware. 44. Mr McC. completed a report on the applicant in November 1999. He mentioned that he had seen the applicant twice: on 30 June and 22 August 1997. During the interviews the applicant did not present any signs of “major psychiatric illness either of a schizophrenic or depressive nature”. There was no mention of how the applicant's detention in St Patrick's impacted on him. 45. The relevant provisions of the Constitution are: Article 40 § 1 “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” Article 40 § 3 (1) “The State guarantees in its laws to respect, and in as far as practicable, by its law to defend and vindicate the personal rights of its citizens.” Article 40 § 3 (2) “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property of every citizen.” Article 40 § 4 (1) “No citizen shall be deprived of his personal liberty save in accordance with law.” Article 42 § 4 “The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.” Article 42 § 5 “In exceptional cases, where parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of parents, but always with due regard for the natural and imprescriptable rights of the child.” 46. The 1991 Act sets out the duties of a health board in relation to the care and protection of children residing in its administrative area. Section 2(1) defines a child as “a person under the age of 18 years other than a person who is or has been married”. 47. Section 3 provides, inter alia, as follows: “1. It should be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection. 2. In the performance of this function, a health board shall – (a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and coordinate information from all relevant sources relating to children in its area; (b) having regard to the rights and duties of parents, whether under the Constitution or otherwise – (i) regard the welfare of the child as the first and paramount consideration, and (ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and (c) have regard to the principle that it is generally in the best interests of a child to be brought up in a family.” 48. The relevant parts of section 4(3)(a) provide as follows: “Where a health board has taken a child into its care under this section, it shall be the duty of the board – (a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child ...” 49. Section 5 provides as follows: “Where it appears to a health board that a child in its area is homeless, the board shall enquire into the child's circumstances, and if the board is satisfied that there is no accommodation available to him which he can reasonably occupy, then, unless the child is received into care of the board under the provisions of this Act, the board shall take such steps as are reasonable to make available suitable accommodation for him.” 50. The relevant parts of section 36 provide as follows: “(1) Where a child is in the care of a health board, the health board shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests – ... (b) by placing him in residential care (whether in a children's residential centre registered under Part VIII [of the 1991 Act], in a registered home maintained by the health board or in a school or other suitable place of residence), or ... (d) by making such other suitable arrangements (which may include placing the child with a relative) as the health board thinks proper. ... (3) Nothing in this section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability.” 51. The relevant parts of section 38 provide as follows: “1. A health board shall make arrangements with the registered proprietors of children's residential centres or with other suitable persons to ensure the provision of an adequate number of residential places for children in its care; 2. A health board may, with the approval of the Minister, provide and maintain a residential centre or other premises for the provision of residential care for children in care.” 52. In 1997 the Board had two high-support units in existence for children with serious behavioural and emotional problems between the ages of 12 and 18 years. A unit in Wicklow had eight places and a unit in Dublin had four places. In that year, approval was given by the Department of Health to the Board to plan and develop a 24-place special-care unit both in Ballydowd and in Portrane. Subsequently, the matter was reviewed to allow consideration of the costs of these units and to assess the need for them. An expert consultant was appointed to consider such needs in April 1998. 53. The unit in Ballydowd (special-care unit) was completed in January 2001. Construction of the Portrane unit (a high-support unit) was planned to commence in early 2000 and its completion envisaged by September 2001. A special-care unit operates to a high standard of security whereas a high-support unit, while of similar design, operates to a lower standard of physical security. 54. In July 1998 the High Court gave judgment in a case concerning the care of a minor with special needs (minor suing through his mother and next friend S.B. – D.B. v. the Minister for Justice, the Minister for Health, the Minister for Education, Ireland, the Attorney General and the Eastern Health Board (1999) 1 Irish Law Reports Monthly 93). That judgment pointed out as follows: “First, the High Court has already granted declaratory relief concerning the obligations of the State towards minors of the type with which I am dealing. In so doing it observed the Constitutional proprieties owed by the Court to the administrative branch of government. It went no further than making a declaration thereby affording an opportunity to the Minister to take the necessary steps to put matters right. But it expected those steps to be taken as soon as reasonably practicable. Secondly, if the declaration was to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it has to be taken expeditiously. Otherwise the minors, most of whom are of the age of 12 to 14 years, would have achieved majority within a few years of the declarations being granted without any benefit being gained from them. Thirdly, the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of these minors and certainly put them at risk of harm up to and including the loss of their very lives. Finally, due regard should be had to the efforts made on the part of the Minister to address the difficulties to date. If the Court were to take the view that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the Minister's response was proportionate to the rights which fell to be protected, then normally no order of the type sought ought to be made.” [The court orders] the Minister for Health to make available to the Eastern Health Board sufficient funding to allow the Eastern Health Board to build, open and maintain a secure 24-bed High Security Unit at Portrane, Co. Dublin, and the Minister for Health to take all steps necessary and to do all things necessary to facilitate the building, opening and maintenance of a secure 24-bed High Security Unit at Portrane, Co. Dublin. The said Unit to be in operation not later than 1 October 2001.” 55. St Patrick's came into being pursuant to section 13 of the Criminal Justice Act 1960. Section 13(3) of that Act foresaw the making of regulations providing for the management of that institution. 56. These regulations deal with the management and functioning of the institution. Section 4 provides that an inmate shall, in so far as the length of his sentence permits, be given such training and instruction and be subjected to such disciplinary and moral influences as will conduce to his reformation and the prevention of crime. Section 5 provides that, subject to the inmate not being declared unfit by the medical officer, an inmate is to be allowed regular physical recreation and exercise and is to be given such regular physical exercise as may be necessary to promote his health and physical well-being. Section 7 provides that, if the Governor is of the opinion that the receipt of letters and visits and the writing of letters by the inmates in addition to those already permitted outside of these regulations will promote the social rehabilitation of the prisoner, then he may permit the inmate to receive so many letters and visits and to write so many letters in addition to those already permitted other than by these regulations as the Governor thinks proper. Section 10 of those regulations provides that: “So much of the Rules for the Government of Prisons 1947 ... and the Rules for the Government of Prisons 1955 ... as are made under the Prisons' Acts 1826 and 1856 shall, in so far as they are not inconsistent with these Regulations, apply and have effect in relation to inmates and the Institution in like manner as they apply and have effect in relation to prisoners and prisons.” 57. Male offenders aged between 16 and 21 may be committed to St Patrick's either while on remand or after sentencing as it is considered to provide a more suitable environment for young offenders. The majority of male offenders aged between 16 and 17 are held in St Patrick's. As at 16 May 2001, approximately one third of the detainees were 16 or 17 years of age. The regime is as liberal and relaxed as possible within the confines of a secure institution. 58. Cells are unlocked at 8.15 a.m. when the inmates may collect breakfast and then return to their cells; at 9.15 a.m. these are unlocked to permit the inmates to attend a place of employment or school; at 12.15 p.m. they come back, collect lunch and return to their cells; at 2.15 p.m. the inmates may attend a place of employment or school; at 4.10 p.m. they come back, collect their evening meal and return to their cells; at 5.15 p.m. the cells are unlocked for evening recreation; at 7.30 p.m. the inmates come back, collect supper and return to their cells; at 8 p.m. the cells are locked; and at 10 p.m. the lights are switched off. 59. All sentenced prisoners are required to work, although the workshops do not operate on a commercial basis as they are only for training purposes. The emphasis is on training in skilled or semi-skilled work. 60. The Education Unit is open five days a week and has eight full-time staff and approximately seventy to eighty full- and part-time students at any one time on the education register. Along with work training, education comprises one of the two main activities for the inmates. A broad programme of education is emphasising literary and basic education, with classes on health and social education. The unit is equipped with computers, available for learning or for recreational purposes. Students may sit for State school examinations. Upon their arrival all inmates are asked if they wish to attend education classes. Attendance and level of participation is voluntary. Any special requests or particular needs would be regularly discussed by the teaching staff. 61. Inmates are free to recreate during unlocked periods at weekends, on bank holidays, in the evenings of week days and when not attending work or education classes. Facilities include television, table games, a library, a gym and other games (including football, pool and table football) and a reading room. There are certain organised activities (including gym, pool, football, quizzes and chess). Daily newspapers, magazines and other publications are also available to inmates together with sports kits and board games. 62. In general, every prisoner is entitled to at least one visit per week, but in practice visits are allowed more frequently where circumstances permit. Visits in open centres are unsupervised and may be granted on demand. Telephone calls are frequently demanded and permitted. Inmates serving sentences are generally allowed to send two letters per week. Extra letters to family or to legal representatives may be allowed on request. An inmate awaiting trial may send out as many letters as he likes and there is no limit to the number of letters that he may receive. 63. Particular emphasis is placed on the rehabilitation of young offenders in custody and, accordingly, a wide range of services are available. An education service is provided in conjunction with vocational education committees and teachers work in the prison on a full or part-time basis. Training in various vocational skills is available to offenders, including juveniles, with some inmates going on to take city and guilds examinations. Library facilities are provided in conjunction with the public library service and a range of publications including newspapers and magazines are available for recreational purposes. A range of sports and other recreational facilities are available. The prison psychology service together with the probation and welfare services participate in the positive management of sentences and provide counselling to help offenders to cope during custody. A medical service is available including a drug-detoxification programme together with addiction counselling, the latter of which is provided in conjunction with and by various outside agencies such as Alcoholics Anonymous and Narcotics Anonymous. 64. Approximately forty to fifty staff members are employed to facilitate and provide these educational and recreational services to inmates. | 1 |
train | 001-107185 | ENG | UKR | CHAMBER | 2,011 | CASE OF BALITSKIY v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 6-1 and 6-3-c;Non-pecuniary damage - finding of violation sufficient | Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1979 and lives in Kharkiv. 6. On 9 May 1998 the Frunzenskiy District Prosecutor’s Office instituted criminal proceedings in connection with the murder of Mr T. 7. On the same day the applicant was arrested by the police for hooliganism and taken to the police station. According to the applicant, the police severely beat him in order to force him to confess to the murder of Mr T. who had lived with him in the same apartment block. 8. On 11 May 1998 the applicant was brought before the Frunzenskiy District Court. The court found him guilty of an administrative offence (hooliganism), committed on 9 May 1998 at 1 p.m., and ordered his administrative arrest for fifteen days. The applicant was then returned to the police station, where, according to him, the police ill-treated him again. On the same day he was questioned as a witness in connection with the murder of Mr T. 9. On 12 May 1998 the applicant confessed to the murder and theft. He was questioned from 6.45 p.m. to 8 p.m. on suspicion of the murder of Mr T. At 9 p.m. he was formally arrested as a suspect. The applicant also signed a waiver from a lawyer indicating that he did not need legal representation at that point and would decide on his representation later. 10. On 13 May 1998 the applicant underwent a medical examination. In his opinion of 14 May 1998, the forensic expert noted that the applicant had abrasions on his wrists that could have been caused by handcuffs. He further had three abrasions on his left elbow, one abrasion on the lower part of the abdomen and one abrasion on his leg. According to the expert opinion, the applicant had maintained that the police had not applied force to him and that the abrasion on his abdomen had been caused by falling in his garage two weeks prior to the examination. The expert concluded that the abrasions on the wrists could have been caused by handcuffs one to three days prior to the examination and the other injuries had no relevance to the events indicated in the referral for the medical examination. 11. On 15 May 1998 the applicant was charged with murder. During the questioning he refused the assistance of lawyer T., who had been engaged by his father, and was questioned as an accused without a lawyer. 12. On 1 June 1998 the criminal case against the applicant was transferred to the Kharkiv City Prosecutor’s Office for further investigation. Shortly afterwards, the applicant received assistance from lawyer G. 13. On 22 June 1998 the applicant was examined by a forensic expert who established that the applicant had a broken rib, a scar on his head and three scars on his left arm, two scars on his right arm and a broken tooth. On some later date another X-ray examination was carried out which found that the applicant’s rib was not broken. 14. On 26 June 1998 the applicant was examined by a dentist who established that the applicant’s tooth had split into two as a result of tooth decay. 15. On 27 July 1998 the investigator reclassified the applicant’s offence as murder for profit, which was punishable by life imprisonment and required the obligatory legal representation of the applicant. 16. On 10 January 1999 the investigation was completed and the case against the applicant was referred to the Kharkiv Regional Court. 17. On 9 September 1999 the Kharkiv Regional Court referred the case for further investigation. In so deciding, the court noted, in particular, that the applicant’s allegations of ill-treatment had not been properly investigated and the time of death of Mr T. mentioned in the medical forensic report did not correspond to the police version of the events. It also noted that, although the official time of the applicant’s arrest as a suspect was 9 p.m. on 12 May 1998, the applicant had been arrested on 9 May 1998 by the police officers who were investigating the murder of Mr T. Furthermore, according to the testimony of the witnesses, the arrest had taken place at around 8 a.m., while the police had recorded that the applicant had been arrested for hooliganism at 1 p.m. 18. On 2 November 1999 the Supreme Court upheld the decision of 9 September 1999 with minor amendments. 19. On 8 February 2000 a board of forensic experts conducted an additional forensic examination. The board established that the applicant had minor bodily injuries that might have been caused by handcuffs and a truncheon and it could not be excluded that they might have been inflicted during the period 10 to 13 May 1998. They further noted that following the conflicting findings of the previous X-ray examinations, the latest one had been conducted in the presence of testifying witnesses and the result showed no fractures in the applicant’s ribs. 20. Between February 2000 and July 2001 the criminal case against the applicant was referred to the Kharkiv Regional Court several times for examination and remitted by that court for further investigation. 21. On 10 July 2001 the case was referred to the Sumy Regional Court, which assumed jurisdiction over the case. 22. During the examination of the case the court rendered a separate ruling ordering the prosecutor to look into the applicant’s allegations of ill-treatment. On 14 December 2001 the Frunzenskiy Prosecutor’s Office refused to institute criminal proceedings against the police for lack of proof of a crime. The prosecutor referred to the testimony of the police officers, who had denied any ill-treatment of the applicant. The applicant did not appeal against that decision to the court but raised the issue of ill-treatment in the ensuing criminal proceedings against him. 23. On 20 June 2002 the Sumy Regional Court found the applicant guilty of murder and robbery and sentenced him to fifteen years’ imprisonment. The court based its findings on the confessions of the applicant made between 12 and 15 May 1998 and other pieces of evidence, including the testimony of Mr Sh. and Mr To., who had seen the applicant shortly after the murder. The court rejected the applicant’s allegations of illtreatment as unsubstantiated and noted that the applicant had voluntarily waived his right to legal representation at the initial stage of the proceedings. 24. The applicant and his lawyers appealed. In their appeals they complained, among other things, that the court had based its finding on the applicant’s self-incriminatory statements, that the applicant’s right to defence had been violated, and that the court had assessed the evidence selectively. They further complained that the court refused to question a number of witnesses who could have proved an alibi for the applicant, or whose testimony needed clarification as to the exact time they had seen the applicant and the victim on the day of murder. In particular number of witnesses saw the victim until 8 p.m. and they had not been questioned by the court or their testimonies had not been included in the criminal case-file. Furthermore, several witnesses saw the applicant near the house or at home for some time between 7 p.m. and 8 p.m. when the applicant was coming and leaving. 25. On 22 October 2002 the Supreme Court upheld the judgment of 20 June 2002. The court rejected the applicant’s complaints. It noted that the time the witnesses had last seen the victim alive had been approximate and the murder, according to the applicant’s confessions, had happened quickly, in a matter of minutes. In the court’s opinion, the fact that the witnesses indicated by the applicant had not been summoned and questioned by the lower court did not require the quashing of the judgment, given that their testimony did not refute that the murder had been committed by the applicant. As to the confessions made by the applicant while under administrative arrest, the court noted that this fact did not render his confessions inadmissible and that not all of them had been made during the administrative arrest. As to unlawfulness of the actions of the police during the applicant’s initial arrest, the court noted that it was for the prosecutor to look into the matter. 26. The relevant domestic law is summarised in the cases of Yaremenko v. Ukraine (no. 32092/02, §§ 45-53, 12 June 2008) and Zhoglo v. Ukraine (no. 17988/02, § 21, 24 April 2008). | 1 |
train | 001-59722 | ENG | GBR | CHAMBER | 2,001 | CASE OF BRENNAN v. THE UNITED KINGDOM | 1 | No violation of Art. 6-1 and 6-3-c as regards deferral of access to lawyer;No violation of Art. 6-1 and 6-3-c as regards police interviews;Violation of Art. 6-3-c+6-1 as regards presence of police officer during interviews;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | Nicolas Bratza | 8. The applicant was arrested in the early morning of 21 October 1990 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 in Strabane by police officers of the Royal Ulster Constabulary (“the RUC”) investigating the murder of a former member of the Ulster Defence Regiment. The applicant was transported to the special holding centre for terrorist investigations at Castlereagh, Belfast. 9. The applicant was interviewed for thirty-five hours on consecutive days by RUC police officers, beginning at 11.01 a.m. on 21 October until 25 October. 10. At the time when the applicant was arrested (1.50 a.m. on 21 October), there was an initial decision made to defer the applicant’s access to a solicitor by Superintendent M., the police officer in charge of the investigation. He communicated this decision to Castlereagh police station by telephone and confirmed this in writing when he arrived in Castlereagh. The applicant had by this time arrived in Castlereagh and had requested a solicitor. At a review at 9.15 p.m. on 21 October 1990, the applicant was informed that his right to see a solicitor had been delayed for twenty-four hours. The deferral was therefore effective until the morning of 22 October. His solicitor, Mr Fahy, was informed of the deferral but did not attend until 12.10 p.m. on 23 October. There was a period of time from early morning on 22 October when the applicant was not being denied access to his solicitor. He made relevant admissions that afternoon. 11. The applicant did not see his solicitor until the next day, namely 23 October. The applicant’s first interview with his solicitor lasted forty minutes until 12.50 p.m. and the applicant made no complaint of ill-treatment during that visit. The applicant saw his solicitor again at 3.15 p.m. on 25 October and again no complaint of ill-treatment was made in that interview, which lasted until 4.00 p.m. During the first interview with his solicitor, a policeman was present. The consultation took place within sight and hearing of the police officer who was in close proximity to the applicant and his solicitor. At the beginning of the interview, the police inspector told the solicitor in the presence of the applicant that no names were to be discussed or information conveyed which could assist other suspects and that the interview should be purely on legal advice. 12. The applicant was seen by doctors on a total of eight occasions during his stay in Castlereagh, beginning with an examination following his arrival in Castlereagh in the early morning of 21 October 1990. He made no complaint of ill-treatment to any of the doctors who examined him. The doctors found no evidence to indicate any ill-treatment or mental handicap. 13. The police alleged that the applicant admitted his involvement in the murder during an interview in the afternoon of 22 October. They further stated that in a later interview the applicant signed a statement to this effect and that thereafter he freely and voluntarily admitted additional terrorist activity and signed further statements. 14. The applicant alleged that he had not volunteered the statements freely but, instead, that all the verbal and written statements had been extracted by ill-treatment, threats of ill-treatment, threats to his family and other oppressive conduct. The allegations of ill-treatment were denied by the RUC. 15. All of the verbal and written statements made by the applicant had been obtained by the police officers after the administration by them of cautions pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, in the following terms: “You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.” 16. The applicant’s solicitor was never permitted to be present at any of the applicant’s interviews, nor was any independent person; nor were the interviews recorded on video or audiotape. 17. On 25 October 1990, at 7.30 p.m., the applicant was transferred from Castlereagh to Strandtown RUC station, where he was charged. 18. On 14 October 1993 the applicant was tried by a single judge, McCollum J, sitting without a jury, for a total of eighteen serious offences including, inter alia, murder, attempted murder, possession of firearms and ammunition with intent, possession of explosives with intent, false imprisonment, hijacking a motor vehicle, and membership of a proscribed organisation, namely the Provisional Irish Republican Army (the “IRA”). He was found guilty on all counts. 19. The disputed verbal and written statements by the applicant constituted the only evidence connecting the applicant to the charges brought. The admissibility of the statements was challenged by the applicant on the basis that they had been obtained by torture and inhuman or degrading treatment or, alternatively, should be excluded in exercise of the judge’s discretion. A voir dire (submission on a point of law in the absence of the jury) commenced and the applicant gave evidence over ten days which consisted of a highly detailed account of ill-treatment which he alleged he had experienced from the police. The officers denied ill-treating the applicant. 20. The events in the interviews had been filmed by television camera and the pictures relayed to a monitor screen in a special room at Castlereagh police station. At all times, an officer of the rank of inspector was on duty for the purpose of viewing the monitor screens. A number of officers gave evidence and all of them told the court that they had seen no evidence of impropriety of any kind occurring during the interviews with the applicant. Indeed, none of them had ever witnessed an example of bad behaviour by an interviewing officer. 21. The doctors, who examined the applicant a number of times in Castlereagh, gave evidence that the applicant had been cooperative and composed, that there were no signs of recent injuries and that the applicant did not complain of ill-treatment. Treatment had been given to the applicant in respect of his history of duodenal ulceration. 22. The applicant’s account of the interrogation was rejected by the trial judge, who said: “Having heard the officers concerned who impressed me as being honest and conscientious officers, I am absolutely convinced that all of [the applicant’s] allegations of ill-treatment at this stage are completely unfounded ... In my view if there had been any truth in the account of ill-treatment given by [the applicant] his distress would have been obvious to the doctors ... None of the medical evidence therefore gave any credence to the account given by [the applicant] in the witness box and all of that evidence is consistent with his being treated with absolute propriety ... ... I am satisfied ... that in no respect was [the applicant] subjected to any treatment which could be described as torture or inhuman or degrading treatment, violence or oppression in order to induce a confession from him. I am satisfied that he was not threatened in any way.” 23. At the trial, there was unchallenged independent medical evidence to the effect that: 1. The applicant had a full-scale intelligence quotient of 72. 2. The applicant was on the borderline of mental retardation. 3. The applicant had a reading ability equivalent to that of an average 10-year-old child. 4. His suggestibility was average but he had a high level of compliance. 24. Evidence was given later in the trial by a psychologist that “[the applicant] is a psychologically vulnerable man and in my view would have required appropriate support in the context of police interviews. [The applicant’s] psychological vulnerabilities taken together with the lack of support from either the Solicitor or an appropriate adult during the police interviews and the prolonged and intensive nature of the interviews would in my opinion be of relevance to the reliability of his admissions”. 25. In convicting the applicant, the judge rejected this evidence, finding that the applicant had not needed any form of independent support during the interviews and the police had been entitled to treat him as an ordinary member of society. He noted that the applicant’s earliest admissions did not follow particularly prolonged or intensive questioning and that during those interviews he persisted with a consistent story told with an air of conviction. He also noted that no one thought to have the applicant’s mental capacity investigated prior to the commencement of the trial. The trial judge stated: “... I am satisfied that [the applicant] was not suffering from such a degree of mental handicap that would have required the police to exercise any special consideration for him and that his memory, understanding and intellect were quite adequate to enable him to resist making any false confession under questioning in Castlereagh and that the questioning was, therefore, not in any respect unfair to him. If he was an easier subject than others or more manageable I do not consider that that would be a matter which throws any doubt on the admissibility of any statements of confessions made by him”. 26. The police questioning which led to his confessions was therefore not unfair and the judge had no doubt about the reliability of the admissions made by the applicant. 27. In relation to the question of access to a solicitor, the judge observed that the deferral of twenty-four hours was effective until the morning of 22 October 1990. However, the applicant’s solicitor did not arrive until 12.10 p.m. on 23 October. The trial judge noted that there had been a suggestion that the solicitor may have been unintentionally misled as to the length of time of the deferral but found, having heard the solicitor and police officers concerned, that he was satisfied that the solicitor was accurately informed that the deferral was for twenty-four hours. He further noted that it might well have been convenient for the solicitor to delay his visit to Castlereagh until the next day because a number of other prisoners had had access deferred until then. In any event, it was not the deferral which prevented the applicant from seeing his solicitor after sometime early in the morning of 22 October but the fact that his solicitor did not arrive until 23 October. Incriminating admissions were made by the applicant at a time when he was no longer being denied access to a solicitor. The judge concluded that there was nothing improper in the decision to deny access for twenty-four hours, having regard to the police fears that messages might be passed through the solicitor with a view to alerting others implicated in offences. 28. The trial judge stated, inter alia: “Having considered the extent of the strength of character of the accused, his intellectual shortcomings and his nature I am quite satisfied that he was not a person for whom the regime of questioning in Castlereagh would of itself be oppressive ... I am further satisfied that nothing was said or done during his questioning the effect of which upon him would justify the exercise of a discretion to exclude the statement ... I am satisfied that ... his admissions were made freely, and accept the police evidence that what triggered the making of admissions by this accused was the fact that the police were able to demonstrate to him that they had information available to them which discredited the alibi that he had given them ... In my view the particular circumstances of this case provided ample grounds for the belief that other persons could be alerted if a solicitor had seen this accused within 24 hours. In any case [the applicant] made no admission during the 24 hours for which the solicitor had been deferred. I am satisfied that the deferral was right and proper in this case and that in any case it was not the deferral that resulted in the accused not seeing his solicitor during the early part of 22 October.” 29. The judge further considered the applicant’s complaints that a police officer had been present during the first legal consultation with his solicitor and whether this had prevented him getting the full benefit of his solicitor’s advice. Evidence had been heard from the police inspector concerned who had stated that the purpose of sitting in to observe the interview was primarily to prevent information from being passed from the prisoner to the solicitor which might assist others suspected of involvement in the offence who had not yet been arrested. Under cross-examination, he stated that he had not been told of any codes that might be used and that it would be hard to identify such a code if it was used. The judge found, on the evidence of the applicant, his solicitor and the police officer, that the solicitor had not been in the least inhibited by the presence of the police officers and, according to the applicant, had been quite prepared to raise the crucial evidential issues with him. He was satisfied that an objective state of affairs existed justifying both the initial deferral of access and the supervision of the interview, namely, two other suspects were still at large whom the police wished to interview. 30. The judge concluded that he was satisfied beyond reasonable doubt that the confessions were made freely and voluntarily. There was no ground for exercising his discretion to exclude any of the oral or written statements made by the applicant. The judge was accordingly satisfied that the applicant knew that he was playing a part in a murder plot and was therefore, inter alia, guilty of murder. 31. The applicant appealed against conviction and sentence to the Court of Appeal of Northern Ireland. The Court of Appeal noted that the inspector had authorised the postponement of access to a solicitor before the applicant had made a request for a solicitor, which was in technical breach of the statutory provision. The Court of Appeal noted that there was no express sanction for breach of that provision. However, there was nothing unfair to the applicant as the deferral ran from the time of the arrest whenever the authorisation was given. The Court of Appeal was satisfied that substantial reasons existed for the police to postpone access to a solicitor in this particular case pursuant to section 45(8)(b) and (e) of the Northern Ireland (Emergency Provisions) Act 1991. In a judgment of 24 September 1996, the court dismissed the applicant’s appeal stating, inter alia: “We have no doubt that the learned trial judge was at all times aware of the need to bear the psychological evidence very much in mind when forming his conclusions both at the direction stage and when finally deciding if the Crown had established [the applicant’s] guilt beyond reasonable doubt ... We are entirely satisfied that the learned trial judge was entitled to refuse the application for a direction [regarding inadmissibility] and to rule the various statements to be admissible ... Equally our perusal of the evidence does not suggest that the learned judge should, in the exercise of his discretion have excluded the statements, or any of them, from evidence ... This is an appeal in which the evidence was lengthy and detailed. We have carefully considered all the evidence and [the applicant’s counsel’s] closely reasoned submission. We have finally stood back from all the detail and looked at the case ‘in the round’ as [the applicant’s counsel] invited us to do. We are satisfied that [the applicant’s] guilt was fully established by his admission and that his convictions are neither unsafe nor unsatisfactory.” 32. On 28 July 1997 the applicant’s petition seeking leave to appeal to the House of Lords was dismissed. 33. Section 5 of the Northern Ireland (Emergency Provisions) Act 1987 provides in its relevant parts: “(1) In any criminal proceedings for a scheduled offence, ... a statement made by the accused may be given in evidence by the prosecution in so far as: (a) It is relevant to any matter in issue in the proceedings and (b) It is not excluded by the court in pursuance of subsection (2) below or in the exercise of discretion referred to in subsection (3) below ... (2) Where in any such proceedings: (a) the prosecution proposes to give, or has given ... in evidence a statement made by the accused, and (b) prima facie evidence is adduced that the accused was subjected to torture, inhuman or degrading treatment, or to any violence or threat of violence ... in order to induce him to make the statement then, unless the prosecution satisfies the court that the statement was not obtained by so subjecting the accused, ... the court shall do one of the following things, namely: (i) ... exclude the statement; (ii) ... continue the trial disregarding the statement; or (iii) in either case direct that the trial shall be restarted before a differently constituted court (before which the statement in question shall be inadmissible). (3) ... in the case of any statement made by the accused and not obtained by subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion to do one of the things mentioned in subsection (2)(i) to (iii) above if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice ...” 34. The Criminal Evidence (Northern Ireland) Order 1988 includes the following provisions: “(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2) ... (7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.” “Circumstances in which inferences may be drawn from the accused’s failure to mention particular facts when questioned, charged, ... (1) Where, in any proceedings against a person for an offence, evidence is given that the accused (a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies. (2) Where this paragraph applies (a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, ... (c) the court or jury, in determining whether the accused is guilty of the offence charged, may (i) draw such inferences from the failure as appear proper; (ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention ...” 35. Section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (formerly section 15 of the 1987 Act) deals with the right of access to legal advice and provides in its relevant parts: “(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately. (2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies. (3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence. (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by this section ... ... (8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it – ... (b) will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it; or ... (d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or (e) by alerting any person, will make it more difficult - i. to prevent an act of terrorism, or ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ...” 36. The delay must be authorised by a police officer of at least the rank of superintendent and the detained person must be told the reason for the delay. The maximum delay is forty-eight hours. The officer may also give a direction that a person may only exercise his right to see a solicitor in the presence of a uniformed police officer, where he has reasonable grounds for believing that otherwise the consequences specified in section 45(8) might arise (see section 45(11)). 37. It was the practice of the police in Northern Ireland at the relevant time to refuse to permit the questioning of interviewees at Castlereagh holding centre to be: 1. witnessed by the interviewee’s lawyer; 2. independently witnessed and verified by any independent person; or 3. to be recorded and verified by video- or audio-recording. 38. The relevant parts of Article 8 provide: “2. Every person accused of a criminal offence ... is entitled, with full equality, to the following minimum guarantees: ... (d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel.” 39. Article 93 provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 40. Article 3 § 2 (c) of this Agreement, currently ratified by twenty-two Contracting States provides in its relevant parts: “2. As regards persons under detention, the exercise of this right shall in particular imply that: ... (c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Court, or any proceedings resulting therefrom.” | 1 |
train | 001-79812 | ENG | POL | CHAMBER | 2,007 | CASE OF TYSIĄC v. POLAND | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Giovanni Bonello;Javier Borrego Borrego;Kristaq Traja;Lech Garlicki;Matti Pellonpää;Nicolas Bratza | 7. The applicant was born in 1971 and lives in Warsaw. 8. Since 1977 the applicant has suffered from severe myopia, the degree of which was established at -0.2 in the left eye and -0.8 in the right eye. Before her pregnancy, she was assessed by a State medical panel, for social-insurance purposes, as suffering from a disability of medium severity. 9. The applicant became pregnant in February 2000. She had previously had two children, both born by Caesarean section. As the applicant was worried about the possible impact of the delivery on her health, she decided to consult her doctors. She was examined by three ophthalmologists (Dr M.S., Dr N.S.-B., Dr K.W.). It transpired from the documents submitted by the applicant that Dr M.S. had recommended that the applicant have frequent check-ups and avoid physical exertion. Dr N.S.-B. stated that the applicant should consider sterilisation after the birth. All of them concluded that, due to pathological changes in the applicant’s retina, the pregnancy and delivery constituted a risk to her eyesight. However, they refused to issue a certificate for the pregnancy to be terminated, despite the applicant’s requests, on the ground that the retina might detach itself as a result of pregnancy, but that it was not certain. 10. Subsequently, the applicant sought further medical advice. On 20 April 2000 Dr O.R.G., a general practitioner (GP), issued a certificate stating that her third pregnancy constituted a threat to the applicant’s health as there was a risk of rupture of the uterus, given her two previous deliveries by Caesarean section. She further referred to the applicant’s short-sightedness and to significant pathological changes in her retina. These considerations, according to the GP, also required that the applicant should avoid physical strain which in any case would hardly be possible as at that time the applicant was raising two small children on her own. The applicant understood that on the basis of this certificate she would be able to terminate her pregnancy lawfully. 11. On 14 April 2000, in the second month of the pregnancy, the applicant’s eyesight was examined. It was established that she needed glasses to correct her vision in both eyes by 24 dioptres. 12. Subsequently, the applicant contacted a State hospital, the Clinic of Gynaecology and Obstetrics in Warsaw, in the area to which she was assigned on the basis of her residence, with a view to obtaining the termination of her pregnancy. On 26 April 2000 she had an appointment with Dr R.D., Head of the Gynaecology and Obstetrics Department of the clinic. 13. Dr R.D. examined the applicant visually and for a period of less than five minutes, but did not examine her ophthalmological records. Afterwards he made a note on the back of the certificate issued by Dr O.R.G. that neither her shortsightedness nor her two previous deliveries by Caesarean section constituted grounds for therapeutic termination of the pregnancy. He was of the view that, in these circumstances, the applicant should give birth by Caesarean section. During the applicant’s visit Dr R.D. consulted an endocrinologist, Dr B., whispering to her in the presence of the applicant. The endocrinologist co-signed the note written by Dr R.D., but did not talk to the applicant. 14. The applicant’s examination was carried out in a room with the door open to the corridor, which, in the applicant’s submission, did not provide a comfortable environment for a medical examination. At the end of the appointment, Dr R.D. told the applicant that she could have as many as eight children if they were delivered by Caesarean section. 15. As a result, the applicant’s pregnancy was not terminated. The applicant gave birth to the child by Caesarean section in November 2000. 16. After the delivery, her eyesight deteriorated badly. On 2 January 2001, approximately six weeks after the delivery, she was taken to the emergency unit of the Ophthalmological Clinic in Warsaw. While doing a counting-fingers test, she was only able to see from a distance of three metres with her left eye and five metres with her right eye, whereas before the pregnancy she had been able to see objects from a distance of six metres. A reabsorbing vascular occlusion was found in her right eye and further degeneration of the retinal spot was established in the left eye. 17. According to a medical certificate issued on 14 March 2001 by an ophthalmologist, the deterioration of the applicant’s eyesight had been caused by recent haemorrhages in the retina. As a result, the applicant is currently facing a risk of going blind. Dr M.S., the ophthalmologist who examined the applicant, suggested that she should be learning braille. She also informed the applicant that, as the changes to her retina were at a very advanced stage, there were no prospects of having them corrected by surgical intervention. 18. On 13 September 2001 the disability panel declared the applicant to be significantly disabled, while previously she had been recognised as suffering from a disability of medium severity. It further held that she needed constant care and assistance in her everyday life. 19. On 29 March 2001 the applicant lodged a criminal complaint against Dr R.D., alleging that he had prevented her from having her pregnancy terminated as recommended by the GP on a medical ground which constituted one of the exceptions to a general ban on abortion. She complained that, following the pregnancy and delivery, she had sustained severe bodily harm by way of almost complete loss of her eyesight. She relied on Article 156 § 1 of the Criminal Code, which lays down the penalty for the offence of causing grievous bodily harm, and also submitted that, under the applicable provisions of social-insurance law, she was not entitled to a disability pension as she had not worked the requisite number of years before the disability developed because she had been raising her children. 20. The investigation of the applicant’s complaint was carried out by the Warsaw-Śródmieście district prosecutor. The prosecutor heard evidence from the ophthalmologists who had examined the applicant during her pregnancy. They stated that a safe delivery by Caesarean section had been possible. 21. The prosecutor further requested the preparation of an expert report by a panel of three medical experts (ophthalmologist, gynaecologist and specialist in forensic medicine) from the Białystok Medical Academy. According to the report, the applicant’s pregnancies and deliveries had not affected the deterioration of her eyesight. Given the serious nature of the applicant’s sight impairment, the risk of retinal detachment had always been present and continued to exist, and the pregnancy and delivery had not contributed to increasing that risk. Furthermore, the experts found that in the applicant’s case there had been no factors militating against the applicant’s carrying her baby to term and delivering it. 22. During the investigations neither Dr R.D. nor Dr B., who had cosigned the certificate of 26 April 2000, were interviewed. 23. On 31 December 2001 the district prosecutor discontinued the investigations, considering that Dr R.D. had no case to answer. Having regard to the expert report, the prosecutor found that there was no causal link between his actions and the deterioration of the applicant’s vision. He observed that this deterioration “had not been caused by the gynaecologist’s actions, or by any other human action”. 24. The applicant appealed against that decision to the Warsaw regional prosecutor. She challenged the report drawn up by the experts from the Białystok Medical Academy. In particular, she submitted that she had in fact been examined by only one of the experts, namely the ophthalmologist, whereas the report was signed by all of them. During that examination use had not been made of all the specialised ophthalmological equipment that would normally be used to test the applicant’s eyesight. Moreover, the examination had lasted only ten minutes. The other two experts who had signed the report, including a gynaecologist, had not examined her at all. 25. She further emphasised inconsistencies in the report. She also submitted that, before the second and third deliveries, the doctors had recommended that she be sterilised during the Caesarean section to avoid any further pregnancies. She argued that, although the deterioration of her eyesight was related to her condition, she felt that the process of deterioration had accelerated during the third pregnancy. She submitted that there had been a causal link between the refusal to terminate her pregnancy and the deterioration of her vision. The applicant also complained that the prosecuting authorities had failed to give any consideration to the certificate issued by her GP. 26. She further pointed out that she had been unable to familiarise herself with the case file because the summaries of witnesses’ testimonies and other documents were written in a highly illegible manner. The prosecutor, when asked for assistance in reading the file, had repeatedly refused to assist, even though he had been aware that the applicant was suffering from very severe myopia. The applicant had been unable to read the documents in the case file, which had affected her ability to exercise her procedural rights in the course of the investigation. 27. On 21 March 2002 the Warsaw regional prosecutor, in a one-paragraph decision, upheld the decision of the district prosecutor, finding that the latter’s conclusions had been based on the expert report. The regional prosecutor countered the applicant’s argument that she had not been examined by all three experts, stating that the other two experts had relied on an examination of her medical records. He did not address the procedural issue raised by the applicant in her appeal. 28. Subsequently, the decision not to prosecute was transmitted to the Warsaw-Śródmieście District Court for judicial review. 29. In a final decision of 2 August 2002, not subject to a further appeal and numbering twenty-three lines, the District Court upheld the decision to discontinue the case. Having regard to the medical expert report, the court considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant’s vision. Furthermore, the court found that the haemorrhage in the applicant’s eyes had in any event been likely to occur, given the degree and nature of the applicant’s condition. The court did not address the procedural complaint which the applicant had made in her appeal against the decision of the district prosecutor. 30. The applicant also attempted to bring disciplinary proceedings against Dr R.D. and Dr B. However, those proceedings were finally discontinued on 19 June 2002, the competent authorities of the Chamber of Physicians finding that there had been no professional negligence. 31. Currently, the applicant can see objects only from a distance of approximately 1.5 metres and is afraid of going blind. On 11 January 2001 the social-welfare centre issued a certificate to the effect that the applicant was unable to take care of her children as she could not see from a distance of more than 1.5 metres. On 28 May 2001 a medical panel gave a decision certifying that she suffered from a significant disability. She is at present unemployed and in receipt of a monthly disability pension of 560 Polish zlotys. She is raising her three children alone. 32. Article 38 of the Constitution reads as follows: “The Republic of Poland shall ensure the legal protection of the life of every human being.” 33. Article 47 of the Constitution reads: “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.” 34. The Law on family planning (protection of the human foetus and conditions permitting pregnancy termination) (“the 1993 Act”), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”. 35. This Act provided that legal abortion was possible only until the twelfth week of pregnancy where the pregnancy endangered the mother’s life or health; or prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there were strong grounds for believing that the pregnancy was a result of rape or incest. 36. On 4 January 1997 an amended text of the 1993 Act, passed on 30 June 1996, came into force. Section 1(2) provided that “the right to life, including the prenatal stage thereof, shall be protected to the extent laid down by law”. This amendment provided that pregnancy could also be terminated during the first twelve weeks where the mother either suffered from material hardship or was in a difficult personal situation. 37. In December 1997 further amendments were made to the text of the 1993 Act, following a judgment of the Constitutional Court given in May 1997. In that judgment the court held that the provision legalising abortion on grounds of material or personal hardship was incompatible with the Constitution as it stood at that time. 38. Section 4a of the 1993 Act, as it stands at present, reads, in its relevant part: “(1) An abortion can be carried out only by a physician where 1. pregnancy endangers the mother’s life or health; 2. prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease; 3. there are strong grounds for believing that the pregnancy is a result of a criminal act. (2) In the cases listed above under sub-paragraph 2, an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; in cases listed under sub-paragraph 3 above, until the end of the twelfth week of pregnancy. (3) In the cases listed under sub-paragraphs 1 and 2 above the abortion shall be carried out by a physician working in a hospital. ... (5) Circumstances in which abortion is permitted under subsection (1), sub-paragraphs 1 and 2, above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life.” 39. An Ordinance issued by the Minister of Health on 22 January 1997 on qualifications of doctors authorised to perform abortions contains two substantive sections. In its section 1, the requisite qualifications of doctors who can perform legal abortions in the circumstances specified in the 1993 Act are stipulated. Section 2 of that Ordinance reads: “The circumstances indicating that pregnancy constitutes a threat to the woman’s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman’s condition.” 40. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts a doctor may, on his or her own initiative or upon a patient’s request and if he or she finds it reasonable in the light of requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors. 41. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists in such a termination may be sentenced to up to three years’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act. 42. A person accused in criminal proceedings, if he or she cannot afford lawyers’ fees, may request legal aid under Article 78 § 1 of the Code of Criminal Procedure. Under Articles 87 § 1 and 88 § 1 of that Code, a victim of an alleged criminal offence is similarly entitled to request that legal aid be granted to him or her for the purpose of legal representation in the course of criminal investigations and proceedings. 43. Article 156 § 1 of the Criminal Code of 1997 provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years’ imprisonment. 44. Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it. 45. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom. 46. In a judgment of 21 November 2003 (V CK 167/03), the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, namely in circumstances provided for by section 4a(1)3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal. 47. In a judgment of 13 October 2005 (IV CJ 161/05), the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, namely in circumstances set out by section 4a(1)2 of the 1993 Act, gave rise to a compensation claim. 48. The Committee, having considered in 1999 the fourth periodic report on the observance of the United Nations International Covenant on Civil and Political Rights submitted by Poland, adopted the following conclusions (Document CCPR/C/SR.1779): “11. The Committee notes with concern: (a) strict laws on abortion which lead to high numbers of clandestine abortions with attendant risks to life and health of women; (b) limited accessibility for women to contraceptives due to high prices and restricted access to suitable prescriptions; (c) the elimination of sexual education from the school curriculum; and (d) the insufficiency of public family planning programmes. (Arts. 3, 6, 9 and 26) The State Party should introduce policies and programmes promoting full and non-discriminatory access to all methods of family planning and reintroduce sexual education at public schools.” 49. The Polish government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated: “106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Non-governmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts from 80,000 to 200,000 annually. 107. It follows from the Government’s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations that the Law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health-care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions.” 50. The Committee, having considered Poland’s fifth periodic report at its meetings held on 27 and 28 October and 4 November 2004, adopted in its concluding observations (Document CCPR/C/SR.2251) the following relevant comments: “8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned. ... The State Party should liberalise its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on parental awareness is discussed in Parliament.” 51. In a report prepared by ASTRA Network on Reproductive Health and Rights in Central and Eastern Europe for the European Population Forum, Geneva, held on 12 to 14 January 2004, it is stated that: “The anti-abortion law which was in force in Poland since 1993 resulted in many negative consequences for women’s reproductive health, such as: – many women who are entitled to legal abortions are often denied this right in their local hospitals; – abortions on social grounds are not stopped but simply pushed ‘underground’, as women seeking abortions can find a doctor who would perform it illegally or go abroad; – the effects of the law are felt primarily on the poorest and uneducated members of the society, as illegal abortions are expensive. Lack of knowledge about family planning lowers women’s quality of life. Their sexuality is endangered either by constant fear of unwanted pregnancies or by seeking unsafe abortion[s]. There is a strong disapproval and obstruction toward[s] those who choose abortions under the few conditions that still allow for it to occur. Doctors and hospitals frequently misguide or misinform women, who are legally entitled to terminate pregnancies, thereby placing the health of the women at serious risk. Doctors (and even whole hospitals, even though they have no right to do so) often refuse [to perform] abortion[s] in hospitals they work in, [invoking the] so-called clause of conscience – the right to refuse [to perform] abortion[s] due to one’s religious beliefs or moral objections – or even giving no justifications, creating problems as long ... as it is needed to make performing [an] abortion impossible under the law. There exists however a well organised abortion underground – terminations are performed illegally in private [clinics], very often by the same doctors who refuse [to perform] abortions in hospitals. The average cost of [an] abortion is ca 2000 [Polish zlotys] (equivalent [to the] country’s average gross salary). [The] Federation for Women and Family Planning estimates that the real number of abortions in Poland amounts to 80,000 to 200,000 each year.” 52. In its report entitled “Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2004” dated 15 April 2005, the Network stated, inter alia: “While acknowledging that there is [as] yet no settled case-law in international or European human rights law concerning where the adequate balance must be struck between the right of the [woman] to interrupt her pregnancy on the one hand, as a particular manifestation of the general right to the autonomy of the person underlying the right to respect for private life, and the protection of the potentiality of human life on the other hand, the Network nevertheless expresses its concern at a number of situations which, in the view of the independent experts, are questionable in the present state of the international law of human rights. A woman seeking abortion should not be obliged to travel abroad to obtain it, because of the lack of available services in her home country even where it would be legal for her to seek abortion, or because, although legal when performed abroad, abortion in identical circumstances is prohibited in the country of residence. This may be the source of discrimination between women who may travel abroad and those who, because of a disability, their state of health, the lack of resources, their administrative situation, or even the lack of adequate information ... may not do so. A [woman] should not be seeking abortion because of the insufficiency of support services, for example for young mothers, because of lack of information about support which would be available, or because of the fear that this might lead to the loss of employment: this requires, at the very least, a close monitoring of the pattern of abortions performed in the jurisdictions where abortion is legal, in order to identify the needs of the persons resorting to abortion and the circumstances which ought to be created in order to better respond to these needs. ... Referring to the Concluding Observations adopted on 5 November 2004 by the Human Rights Committee upon the examination of the report submitted by Poland under the International Covenant on Civil and Political Rights (CCPR/CO/82/POL/Rev. 1, para. 8), the Network notes that a prohibition on non-therapeutic abortion or the practical unavailability of abortion may in fact have the effect of raising the number of clandestine abortions which are practised, as the women concerned may be tempted to resort to clandestine abortion in the absence of adequate counselling services who may inform them about the different alternatives opened to them. ... Where a State does choose to prohibit abortion, it should at least closely monitor the impact of this prohibition on the practice of abortion, and provide this information in order to feed into an informed public debate. Finally, in the circumstances where abortion is legal, women should have effective access to abortion services without any discrimination.” | 1 |
train | 001-75604 | ENG | SVN | CHAMBER | 2,006 | CASE OF VRBANEC v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 6. The applicant was born in 1964 and lives in Nedelišče. 7. On 29 November 1981 the applicant was injured in a car accident which was caused by V.D. 8. On 16 May 1988 the applicant instituted civil proceedings against V.D. in the Celje Basic Court, Velenje Unit (Temeljno sodišče v Celju, Enota v Velenju), seeking damages for the injuries sustained. On 24 March 1994 the court upheld the applicant’s claim in part. On 28 June 1994 the Convention entered into force with respect to Slovenia. On 29 June 1994, forward to the applicant’s appeal of 20 April 1994, the Celje Higher Court (Višje sodišče v Celju) quashed the first-instance decision and remitted the case for re-examination. The decision was served on the applicant on 17 August 1994. 9. Further to the reorganisation of the Slovenian judicial system, the case was transferred to the Celje District Court (Okrajno sodišče v Celju) on 30 December 1994. On 13 February 1997 the judge to whom the case had been assigned was promoted and the case was consequently reassigned to a new judge. Between 6 September 1994 and 2 June 1999 the applicant lodged three preliminary written submissions and/or adduced evidence. A hearing was held on 3 June 1999. On 30 June 1999 the court delivered a judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 7 December 1999. 10. On 22 December 1999 V.D. appealed to the Celje Higher Court (Višje sodišče v Celju). On 4 July 2001 the court dismissed the appeal. The judgment was served on the applicant on 29 August 2001. | 1 |
train | 001-61931 | ENG | HUN | CHAMBER | 2,004 | CASE OF BALOGH v. HUNGARY | 2 | Préliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;No violation of Art. 13;No violation of Art. 6-1;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 8. The applicant was born in 1958 and lives in Miskolc, Hungary. He is of Roma ethnic origin. 9. On 9 August 1995 the applicant, accompanied by Ms B. and Mr S., was selling coal from a truck on a door-to-door basis in Orosháza. After an aborted transaction, some would-be purchasers reported to the local police that the three had left their yard without having returned their fuel vouchers. At about 5.45 p.m. two local police officers halted the applicant’s truck and instructed the applicant and his companions to report to the Orosháza Police Station. The applicant was interrogated there by police officers S. and K. 10. The applicant stated that during the interrogation one of the police officers repeatedly slapped him across the face and left ear while the other punched him on the shoulder. The officers demanded that he reveal where the stolen vouchers had been hidden. 11. On being released after two hours of interrogation, the applicant was met on the ground floor of the police station by Ms B. and Mr S., as well as by Mr B. and Mr M., both of whom were acquaintances of the applicant and his companions. The applicant stated that when he and his companions were leaving the police station, a police officer issued the following warning to them: “Tell the Miskolc gypsies that they had better not set foot in Orosháza”. 12. Having returned to his home in Miskolc on 11 August 1995, the applicant consulted Dr V., the local doctor, who advised him to report to the Ear, Nose and Throat Department of Diósgyőr Hospital. On 14 August 1995 Dr C. carried out an operation to reconstruct the applicant’s ear drum which had been damaged as a result of a traumatic perforation. On 16 August 1995 Dr C. reported the case to the police. 13. On 28 August 1995 the applicant was discharged from hospital. His medical report stated, without reference to any precise date, that he had sustained a traumatic perforation of the left tympanic membrane. This conclusion also figured in two further medical reports issued later by Dr C. on 25 August 1995 and by Dr V. on 29 September 1995. The applicant’s injury was described in a follow-up medical report dated 10 September 1997 as “low-to-medium-grade loss of sound perception” in the left ear. 14. On 25 September 1995 the Szeged Investigation Office informed the applicant that criminal proceedings had been opened against the police officers involved on the basis of information submitted by Dr C. on 16 August. The police officers were charged with the offences of “forced interrogation” and “ill-treatment committed in the course of official proceedings”. 15. The Investigation Office heard the applicant and several witnesses. Four persons were heard from the applicant’s side. Mr S. stated as follows: “[In the building of the police station] I met [the applicant] [...] whose face had a bluish colour in the area under his left ear and was somewhat swollen. I then asked him if they had hurt him. He answered that they had hurt him a little and pointed to the left side of his face saying that it was hurting there. He said that he had no hearing on that side.” Ms B. stated as follows: “[When the applicant was escorted down to the ground floor], it struck me that the left side of his face and his left ear were swollen. I thought that he had been beaten. I asked him about it, to which he only answered that he had been beaten a little. [...] I remember well that the left side of his face was red and I even saw the traces of fingers on it.” Mr M. stated as follows: “[When at last the applicant came down to the ground floor], it struck me immediately that his skin was reddish-bluish around his left ear and even underneath his neck. I had no doubt that his face was swollen as a result of a blow. I then asked him if they had hurt him, [...], he only answered: ‘A little’.” Mr B. stated as follows: [When the applicant was escorted down to the ground floor], it was apparent at once that the left side of his face and his left ear were red. It was obvious that he had been hit. Ms. B. even asked him if he had been hurt. He first answered in the negative. Then I asked him the same question. Then he answered: ‘A little’.” The Investigation Office also heard Dr V. and four police officers who had been on duty at the police station at the time of the applicant’s interrogation. The police witnesses denied any knowledge of ill-treatment having been inflicted on the applicant. The suspected police officers S. and K. consistently denied the applicant’s accusations when questioned on 15 November 1995. Police officer S. stated, inter alia, as follows: “I remember [the applicant] having said something of the sort that he was working for those persons as a lorry-driver [...] to set off debts incurred by his wife. [...] He was blaming [his companions] for forcing him to work a lot more than if he had been working for money; and he even mentioned to one of my colleagues that they would either leave him behind or beat him up on the way home because of this.” Police officer K. stated, inter alia, as follows: “After the interrogation police officer S. told me that [the persons interrogated] had also quarrelled amongst themselves, maybe they had not properly paid [the applicant], they had a dispute about money or something of the sort [...]” 16. On 16 November 1995 a medical expert appointed by the Investigation Office expressed the opinion that it could not be excluded that the applicant’s injury had been caused as alleged. However, in the expert’s opinion it could not be determined whether the injury in question had been caused to his ear before, during or after the applicant’s interrogation. 17. On 30 November 1995 the Investigation Office discontinued the criminal proceedings against police officers K. and S. for lack of any conclusive evidence. On 12 December 1995 the applicant filed a complaint against the discontinuation order. 18. On 24 January 1996 the Orosháza District Public Prosecutor’s Office ordered the investigation to be resumed and that confrontations be organised between the applicant and the police officers concerned and between various witnesses. It also ordered that further witnesses be heard. 19. In the framework of the resumed proceedings, the Csongrád County Investigation Office, on 1 March 1996, confronted the applicant with the suspected police officers as well as a third police officer who had been heard as a new witness. 20. On 6 March 1996 the Investigation Office discontinued the investigation. Relying on the testimonies given, on the one hand, by the applicant – who had consistently maintained his assertions during the proceedings – and by his companions and, on the other hand, by the police officers concerned, as well as on a confrontation involving all three of them, the Investigation Office found that although the applicant’s injuries might have been inflicted as alleged, it could not be excluded beyond all doubt that the injuries had been sustained before or after his interrogation. Since there was no direct witness to the alleged incident and the medical opinion in the case was not conclusive as to the time when the applicant’s injury had been inflicted, the Investigation Office was obliged to dismiss the applicant’s accusations as unsubstantiated and to discontinue the proceedings. The order drew the applicant’s attention to his right to file a complaint with the Public Prosecutor’s Office under section 148 §§ 1 and 4 of the Code of Criminal Procedure if he wished to challenge the decision to discontinue the case. This order was served on the applicant on 11 March 1996. The applicant did not file a complaint against this order. As of 1 August 1996 the applicant’s working capacity was declared to have diminished by 50% on account of asthma bronchiale and impaired hearing; the respective significance of these two factors was not specified. As a consequence, he was unable to have his lorry driver’s licence renewed or to obtain employment as a driver. 21. On 30 March 1998 the applicant claimed damages from the Ministry of the Interior. In reply, on 16 April 1998 he was informed by the competent Békés County Police Department that he was not eligible for compensation because he had failed to file a complaint against the discontinuation order of 6 March 1996 and thus to avail himself of an ordinary legal remedy, which was a precondition for establishing official liability. 22. On 22 April 1998 the applicant appointed the NEKI to take his case. A further medical opinion obtained by the NEKI on 19 August 1998 stated that a traumatic perforation of the tympanic membrane was usually caused by a slap on the ear. Although he did not have the earlier medical expert’s opinion at hand, the expert went on to qualify the applicant’s version of how he had sustained his injury as plausible. 23. Relying on this new evidence, the NEKI lodged on 25 August 1998 a complaint against the decision of 6 March 1996 with the Attorney General’s Office requesting that the criminal proceedings be re-opened in accordance with section 141 of the Code of Criminal Procedure. 24. On 5 October 1998 the Csongrád County Public Prosecutor’s Office finally dismissed this complaint. In its reasoned decision, the Public Prosecutor’s Office stated that: “[it] had thoroughly examined all the documents in the case file.” The decision mentioned that in the absence of coherent testimonies or a conclusive medical expert opinion it was impossible to prove either that the applicant’s injury had been caused during his police detention or that it had been inflicted by the suspected police officers. The Public Prosecutor’s Office noted the delay between the applicant’s interrogation on 9 August and his decision to seek medical help only on 11 August 1995. The decision stated that the new expert opinion did not contain any new facts which warranted the continuation of the investigation or the laying of charges against the suspects. The Public Prosecutor’s Office concluded that the case should be discontinued since it was impossible to prove the applicant’s allegations. The decision was served on the NEKI on 14 October 1998. 25. Section 55 § 1 of Act no. 1 of 1973 on the Code of Criminal Procedure (now repealed), as in force in the relevant period, provided: “A civil party is a victim who lays a civil-law claim for determination in criminal proceedings.” Section 141 of the Code of Criminal Procedure provided: “(1) The discontinuation of an investigation does not preclude that criminal proceedings in the same case may be later continued.” Section 148 of the Code of Criminal Procedure provided: “Remedy during investigation (1) Anyone aggrieved by the authority’s decision, measure or omission, is entitled to file a complaint. (...) (4) Such a complaint may be lodged with the authority within a period of eight days from the date of the notification of the decision or from the date on which the complainant becomes aware of the measure or omission. (5) If the authority itself does not accept the complaint, it shall transfer the case file and its own statement concerning the complaint to the competent public prosecutor within twenty-four hours. The public prosecutor shall decide on the complaint within eight days. (6) A complaint may be rejected if it has been lodged outside the [above] time-limit or by an unauthorised person.” 26. Section 339 § 1 of Act no. 4 of 1959 on the Civil Code, as amended, provides: “Anyone who unlawfully causes damage to another person shall be obliged to pay compensation. He shall be exculpated if he proves that he proceeded in such manner as can generally be expected in the given situation.” Section 349 of the Civil Code provides: “(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage. (...) (3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.” 27. Section 3 § 5 of Act no. 3 of 1952 on the Code of Civil Procedure, as amended, provides: “Unless the law provides otherwise, in the civil procedure, the court shall not be bound, when taking evidence, by any formal rule or given method or application of specific means; it may freely use the parties’ submissions and may use any other evidence which is suitable for establishing the facts (...)” Section 4 § 1 of the Code of Civil Procedure provides: “When taking its decision, the court shall not be bound by a decision of another authority or by a disciplinary resolution, or the findings of fact contained therein.” Section 152 § 1 of the Code of Civil Procedure provides: “If the adjudication of a case depends on a preliminary matter on which a criminal court ... must decide, the [civil] court may suspend its proceedings until that procedure has been finally concluded (...)” | 1 |
train | 001-58921 | ENG | BGR | GRANDCHAMBER | 2,000 | CASE OF HASAN AND CHAUSH v. BULGARIA | 1 | Preliminary objection rejected (estoppel);Violation of Art. 9;Violation of Art. 13;No violation of Art. 6;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Not necessary to examine Art. 11 | Luzius Wildhaber | 9. Mr Fikri Sali Hasan (“the first applicant”) was Chief Mufti of the Bulgarian Muslims from 1992 until the events complained of. Mr Ismail Ahmed Chaush (“the second applicant”) was formerly a teacher at the Islamic Institute in Sofia. In his submissions to the Court the second applicant stated that from February 1995 he had also worked on a part-time basis as secretary to the Chief Mufti's Office (Главно мюфтийство), the national leadership of the Muslim religious organisation, and editor of Musulmanin, its newspaper. The Government disputed these assertions. 10. At the end of 1989 a process of democratisation commenced in Bulgaria. Soon thereafter some Muslim believers and activists of the Muslim religion in the country sought to replace the leadership of their religious organisation. They considered that Mr Gendzhev, who was the Chief Mufti at that time, and the members of the Supreme Holy Council (Висш духовен съвет) had collaborated with the communist regime. The old leadership, with Mr Gendzhev as Chief Mufti of the Bulgarian Muslims, also had supporters. This situation caused divisions and internal conflict within the Muslim community in Bulgaria. 11. Following general elections held in Bulgaria in October 1991 a new government, formed by the Union of Democratic Forces (СДС) and the Movement for Rights and Freedoms (ДПС), took office towards the end of 1991. On 10 February 1992 the Directorate of Religious Denominations (Дирекция по вероизповеданията), a governmental agency attached to the Council of Ministers, declared the election of Mr Gendzhev in 1988 as Chief Mufti of the Bulgarian Muslims null and void and proclaimed his removal from that position. On 21 February 1992 the Directorate registered a threemember Interim Holy Council as a temporary governing body of the Muslims' religious organisation, pending the election of a new permanent leadership by a national conference of all Muslims. 12. Following these events Mr Gendzhev, who claimed that he remained Chief Mufti of the Bulgarian Muslims, challenged the decision of 10 February 1992 before the Supreme Court. On 28 April 1992 the Supreme Court rejected his appeal. The court found that the decision of the Directorate of Religious Denominations was not subject to judicial appeal. The ensuing petition for review, submitted by Mr Gendzhev against the Supreme Court's decision, was examined by a five-member Chamber of the Supreme Court. On 7 April 1993 the Chamber dismissed the petition. While confirming the rejection of Mr Gendzhev's appeal, the Chamber also discussed the merits of the appeal. It found, inter alia, that the Directorate's decision to declare Mr Gendzhev's election null and void had been within its competence. In so far as the impugned decision had also proclaimed “the removal” of Mr Gendzhev from his position of Chief Mufti, this had been ultra vires. However, it was unnecessary to annul this part of the Directorate's decision as in any event it had no legal consequences. 13. The National Conference of Muslims, organised by the interim leadership, took place on 19 September 1992. It elected Mr Fikri Sali Hasan (the first applicant) as Chief Mufti of the Bulgarian Muslims and also approved a new Statute of the Religious Organisation of Muslims in Bulgaria (Устав за духовното устройство и управление на мюсюлманите в България). On 1 October 1992 the Directorate of Religious Denominations registered the statute and the new leadership in accordance with sections 6 and 16 of the Religious Denominations Act. 14. While the leadership dispute between Mr Gendzhev and Mr Hasan continued, the official position of the Directorate of Religious Denominations, throughout 1993 and at least the first half of 1994, remained that the first applicant was the legitimate Chief Mufti of the Bulgarian Muslims. 15. On 29 July 1994 the Directorate of Religious Denominations wrote a letter to Mr Hasan urging him to organise a national conference of all Muslims to solve certain problems arising from irregularities in the election of local religious leaders. The irregularities in question apparently concerned alleged inconsistencies with the internal statute of the Muslim religious organisation, and not breaches of the law. 16. On 2 November 1994 the supporters of Mr Gendzhev held a national conference. The conference proclaimed itself the legitimate representative of Muslim believers, elected an alternative leadership and adopted a statute. Mr Gendzhev was elected President of the Supreme Holy Council. After the conference the newly elected leaders applied to the Directorate of Religious Denominations for registration as the legitimate leadership of the Bulgarian Muslims. 17. On 3 January 1995 the Supreme Holy Council presided over by the first applicant decided to convene a national conference on 28 January 1995. 18. At the end of 1994, parliamentary elections took place in Bulgaria. The Bulgarian Socialist Party (БСП) obtained a majority in Parliament and formed a new government, which took office in January 1995. 19. On 16 January 1995 the Directorate of Religious Denominations wrote a letter to the first applicant in his capacity of Chief Mufti urging him to postpone the conference. The letter stated, inter alia : “As the Directorate of Religious Denominations was concerned with [the] irregularities [as regards the election of local muftis] as early as the middle of 1994, it repeatedly ... urged the rapid resolution of the problems ... Unfortunately no specific measures were undertaken ... As a result the conflicts in the religious community deepened, and discontent among Muslims increased, leading to the holding of an extraordinary national conference on 2 November 1994. This brought to light a new problem, related to the shortcomings of the statute of the Muslim religious community... [The statute] does not clarify the procedure for convening a national conference ... Issues concerning the participants, and the manner in which they are chosen ..., are not regulated. Therefore, for the executive branch of the State it becomes legally impossible to decide whether the national conference is in conformity with the statute [of the Muslim religion] and, accordingly, whether its decisions are valid. These decisions, quite understandably, could be challenged by some of the Muslims in Bulgaria. Any other national conference, except one organised by a joint committee [of the rival leaderships], would raise the same problem. Moreover, the decision of 3 January 1995 of the Supreme Holy Council to hold an extraordinary national conference on 28 January 1995 is signed only by six legitimate members of the Holy Council... [and] ... cannot be regarded as being in conformity with the statute. The Directorate of Religious Denominations cannot disregard the findings of the [Chamber of the] Supreme Court in its decision of 7 [April] 1993. It is mentioned therein that the Directorate had acted ultra vires when removing Mr Gendzhev from his position of Chief Mufti and that the decision of the Directorate of 10 February 1992 could not have legal consequences. Extremely worried as regards the current situation and deeply concerned over the well-being of the Muslims in Bulgaria, the Directorate of Religious Denominations supports the opinion of the Chief Mufti [the first applicant] that it is not advisable to rush ahead with the holding of an extraordinary conference before overcoming the conflicts in the religious community ... Firmly convinced that the disputed questions in the religious community should not be decided by administrative means by the executive branch of the State ... the Directorate appeals to you to show good will and reach a consensus for the holding of a united conference ...” 20. On 27 January 1995 the Supreme Holy Council presided over by Mr Hasan announced that it had postponed the national conference until 6 March 1995. 21. On 22 February 1995 Mr Shivarov, Deputy Prime Minister of Bulgaria, issued Decree R-12, which reads as follows: “In accordance with Decree KV-15 of 6 February 1995 of the Council of Ministers read in conjunction with section 6 of the Religious Denominations Act, I approve the statute of the Muslim religion in Bulgaria, based in Sofia.” 22. The statute of the Muslim religion in Bulgaria mentioned in the decree was apparently the one adopted at the rival national conference, organised by Mr Gendzhev and held on 2 November 1994. Decree KV-15, referred to in Decree R-12, determined that Deputy Prime Minister Shivarov should be in charge of supervising the activity of the Directorate of Religious Denominations. 23. On 23 February 1995 the Directorate of Religious Denominations of the Council of Ministers issued a decision which stated that, in accordance with sections 6, 9 and 16 of the Religious Denominations Act and Decree R12 of the Deputy Prime Minister, it had registered a new leadership of the Bulgarian Muslim community. The leadership thus registered included Mr Gendzhev as President of the Supreme Holy Council and, apparently, those elected at the conference of 2 November 1994. 24. Neither Decree R-12 nor the decision of the Directorate of Religious Denominations gave any reasons or any explanation regarding the procedure followed. The decisions were not formally served on Mr Hasan, who learned about them from the press. 25. On 27 February 1995 the newly registered leadership of the Muslim community accompanied by private security guards entered the premises of the Chief Mufti's Office in Sofia, forcibly evicted the staff working there, and occupied the building. The applicants submit that the police, who arrived after the surprise action, immediately stepped in to protect the new occupants of the building. Following the action of 27 February 1995 the new leadership took over all documents and assets belonging to the religious organisation of Bulgarian Muslims in Sofia and, in the months which followed, in various other towns in the country. The Directorate of Religious Denominations allegedly sent letters to the banks where the Muslim religious organisation had its accounts, informing them of the change of leadership. In the following weeks several municipalities, allegedly upon the instructions of the Directorate, registered new regional muftis. Also, the staff of the Chief Mufti's Office and ten Islamic teachers, the second applicant among them, were allegedly dismissed de facto as they were prevented from continuing their work. 26. On 27 February 1995, immediately after the take-over, the first applicant submitted to the Chief Public Prosecutor's Office (Главна прокуратура) a request for assistance, stating that there had been an unlawful mob action and that the persons who had occupied the building of the Chief Mufti's Office were squatters who had to be evicted. By decisions of 8 and 28 March 1995 the prosecuting authorities refused to take action. They found, inter alia, that the new occupants of the building had legal grounds to stay there as they were duly registered by the Directorate of Religious Denominations and represented the religious leadership of the Muslim community in the country. 27. On 23 March 1995, apparently in reply to a request from the first applicant, the Directorate of Religious Denominations sent him, in his capacity as a private person, a letter which stated, inter alia: “The Muslim religious community in Bulgaria ... has, in 1888, 1891, 1919, 1949, 1986, 1992 and 1995, repeatedly changed its statute as concerns its organisational structure ..., but never as regards its religious foundation. Decree R-12 of 22 February 1995 ... sanctions an [organisational] change, which the religious community itself wished to undertake ...” This letter was apparently the first document originating from the competent State bodies which implied clearly that the statute of the Muslim religious community approved by Decree R-12 had replaced the previous statute and that the new registered leadership had replaced the first applicant. 28. On 18 April 1995 the first applicant, acting on behalf of the Chief Mufti's Office which he headed, lodged an appeal against Decree R-12 with the Supreme Court. He stated that, on the face of it, Decree R-12 stipulated nothing more than the registration of a new religious organisation. However, from the decisions and the letter of the Directorate of Religious Denominations which had followed, it had become clear that what had taken place was the replacement of the statute and the leadership of an existing religious denomination. Furthermore, it transpired that the motivation behind this act had been the understanding that the Muslim religion in Bulgaria could have only one leadership and one statute. The State did not have the right to impose such a view on Muslims, multiple religious organisations of one and the same religion being normal in other countries, as in Bulgaria. Therefore the Council of Ministers had acted beyond its powers. The resulting interference in the internal disputes of the Muslim religious community was unlawful. At the oral hearing held by the Supreme Court the first applicant also stated that there had been an unlawful interference with Muslims' religious liberties, as enshrined in the Constitution. 29. The first applicant also submitted that the conference of 2 November 1994 had been organised by people outside the Muslim religious organisation over which he presided. Accordingly, they could register their own religious organisation but could not claim to replace the leadership of another. The second applicant asked the Supreme Court either to declare Decree R-12 null and void as being against the law, or to declare that it constituted the registration of a new religious community, the existing Muslim organisation being unaffected. 30. On 27 July 1995 the Supreme Court dismissed the appeal. The court stated that under the Religious Denominations Act the Council of Ministers enjoyed full discretion in its decision as to whether or not to register the statute of a given religion. The Supreme Court's jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with. In that respect Decree R-12 was lawful. As regards the request for interpretation of Decree R-12, it was not open to the Supreme Court, in the framework of those particular proceedings, to state its opinion as to whether it had the effect of creating a new legal person, or introducing changes, and whether after this decision there existed two parallel Muslim religious organisations. 31. The national conference of Muslims in Bulgaria organised by Mr Hasan took place as planned on 6 March 1995. The minutes of the conference establish that it was attended by 1,553 persons, of whom 1,188 were official delegates with voting rights. These were representatives of eleven local chapters and of the central leadership. The conference adopted some amendments of the statute of the Muslim community and elected its leadership. The first applicant was re-elected Chief Mufti. 32. On 5 June 1995 the first applicant, acting as Chief Mufti, submitted a petition to the Council of Ministers requesting the registration of the new statute and leadership of Muslims in Bulgaria, as adopted by the conference of 6 March 1995. On 6 October 1995 he repeated the request. However, there was no response from the Council of Ministers. 33. On an unspecified date the first applicant appealed to the Supreme Court against the tacit refusal of the Council of Ministers to register the decisions of the March 1995 conference. 34. On 14 October 1996 the Supreme Court delivered its judgment. It noted that in 1992 the Chief Mufti's Office as represented by Mr Hasan had been duly registered as a religious denomination under section 6 of the Religious Denominations Act and had thus obtained legal personality of which it had not been subsequently deprived. Therefore the Council of Ministers was under an obligation, pursuant to sections 6 and 16 of the Act, to examine a request for registration of a new statute or of changes in the leadership in the existing religious denomination. Accordingly, the Supreme Court ruled that the tacit refusal of the Council of Ministers had been unlawful and ordered the transmission of the file to the Council of Ministers, which was required to examine it. 35. On 19 November 1996 Deputy Prime Minister Shivarov refused to register the 1995 statute and leadership of the Chief Mufti's Office as represented by Mr Hasan. He sent him a letter stating, inter alia, that the Council of Ministers had already registered a leadership of the Muslim community in Bulgaria, which was that elected by the November 1994 conference with Mr Gendzhev as President of the Supreme Holy Council. The Deputy Prime Minister concluded that the first applicant's request “[could not] be granted as it [was] clearly contrary to the provisions of the Religious Denominations Act”. 36. On 5 December 1996 the first applicant, acting as Chief Mufti, appealed to the Supreme Court against the refusal of the Deputy Prime Minister. 37. On 13 March 1997 the Supreme Court quashed that refusal on the ground that it was unlawful and contrary to Article 13 of the Constitution. The refusal constituted “an unlawful administrative intervention into the internal organisation of [a] religious community”. The Supreme Court again ordered the transmission of the file to the Council of Ministers for registration. 38. Despite these Supreme Court judgments the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan. 39. In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. At the general elections which followed in April 1997 the Union of Democratic Forces obtained a majority in Parliament and formed a new government. 40. On 24 March 1997 the first applicant again requested the Council of Ministers to register the 1995 statute and leadership. There followed informal contacts between the Muslim leadership of Mr Hasan and representatives of the government. The applicants were allegedly told that the government would only agree to register a new leadership of the Muslims if it was elected at a unification conference. 41. The Directorate of Religious Denominations urged the two rival leaderships of Mr Hasan and of Mr Gendzhev to negotiate a solution. On 12 September 1997 the leadership headed by Mr Hasan decided to accept the holding of a unification conference under certain conditions. A five-member contact group was appointed to hold negotiations. On 30 September 1997 representatives of the two rival leaderships signed an agreement to convene a national conference of all Muslim believers on 23 October 1997. The agreement, which was also signed by Deputy Prime Minister Metodiev and the Director of Religious Denominations, provided, inter alia, that the parties would not obstruct the unification process, failing which the Directorate would take appropriate administrative measures. In addition, the leadership of Mr Gendzhev undertook not to dispose of any Muslim property or assets before the conference. 42. The Directorate of Religious Denominations took an active part in organising the national conference. The mayors in many localities distributed to the local chapters forms bearing the seal of the Directorate. These forms were filled out at the meetings of the local chapters which elected delegates to the national conference and were certified by the mayors' signatures. 43. On 23 October 1997, 1,384 delegates attended the conference. Only delegates whose election had been certified by the mayors were allowed to participate. The conference adopted a new statute of the Muslim denomination in Bulgaria and elected a new leadership comprising members of the leadership of Mr Hasan and others. Mr Hasan apparently attended the conference and approved of the new leadership. Six leaders of the group led by him were elected to the new Supreme Holy Council. Mr Hasan was not among them. On 28 October 1997 the government registered the newly elected leadership. 44. Although the religious community which accepted Mr Gendzhev's authority was involved in the unification process, Mr Gendzhev himself and some of his supporters did not sign the agreement of 30 September 1997 and did not attend the conference, considering that it was manipulated by the State. The conference voted a resolution authorising the new leadership to conduct an audit and seek the prosecution of Mr Gendzhev for alleged unlawful transactions. 45. Mr Gendzhev, who claimed that he remained the Chief Mufti, appealed to the Supreme Administrative Court (Върховен административен съд) against the government's decision to register the new leadership. By a judgment of 16 July 1998 the Supreme Administrative Court rejected the appeal as being inadmissible. It found that the Chief Mufti's Office of Mr Gendzhev had no locus standi to lodge an appeal as it had never been validly registered. Decree R-12 of 22 February 1995 had been signed by Deputy Prime Minister Shivarov, who had not been duly authorised by the Council of Ministers. Decree KV-15 did not contain an express authorisation for the Deputy Prime Minister to approve the statutes of religious denominations. As a result the Chief Mufti's Office of Mr Gendzhev had never legally existed and all its acts between 1995 and 1997 were null and void. 46. The relevant provisions of the 1991 Constitution read as follows: Article 13 “(1) Religions shall be free. (2) Religious institutions shall be separate from the State. (3) Eastern Orthodox Christianity shall be considered the traditional religion in the Republic of Bulgaria. (4) Religious institutions and communities, and religious beliefs shall not be used for political ends.” Article 37 “(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers. (2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.” 47. The Constitutional Court's judgment no. 5 of 11 June 1992 provides a legally binding interpretation of the above provisions. It states, inter alia, that the State must not interfere with the internal organisation of religious communities and institutions, which must be regulated by their own statutes and rules. The State may interfere with the activity of a religious community or institution only in the cases contemplated in Articles 13 § 4 and 37 § 2 of the Constitution. An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution. 48. The Religious Denominations Act came into force in 1949 and has been amended several times since then. The relevant provisions of the Act, as in force at the time of the events at issue, read as follows. Section 6 “(1) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by the Council of Ministers, or by a Deputy Prime Minister authorised for this purpose. (2) The Council of Ministers, or a Deputy Prime Minister authorised for this purpose, shall revoke the recognition, by a reasoned decision, if the activities of the religious denomination breach the law, public order or morals.” Section 9 “(1) Every religious denomination shall have a leadership accountable to the State. (2) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment ...” Section 16 “(1) The national governing bodies of the religious denominations shall register with the Directorate of Religious Denominations of the Council of Ministers, and local governing bodies with the local municipalities, and they shall submit a list of the names of all members of these governing bodies.” 49. The Act also lays down rules regarding the activities of a religious denomination, imposes requirements as regards its clergy and gives the Directorate of Religious Denominations certain supervisory functions. In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act were clearly unconstitutional, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable. 50. The applicants contended that as a consequence of the provisions of section 6 of the Act, and since there is no public register for recognised religious denominations, in practice a religious community can establish its existence as a legal entity only by producing a copy of a letter or a decision to that effect issued by the Directorate of Religious Denominations. The same applies to the leader of a religious denomination when he needs to provide accreditation. 51. Under Decree no. 125 of the Council of Ministers of 6 December 1990, as amended, the competence of the Directorate of Religious Denominations includes “contacts between the State and religions denominations”, assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications. 52. There are no procedural provisions under Bulgarian law specifically applicable to the examination by the Council of Ministers, or by a deputy prime minister, of a petition for authorisation of a religious denomination. Section 3 of the Administrative Procedure Act (Закон за административното производство), which contains a general legal regime on the procedure for the issuing of and appeal against administrative decisions, provides that the Act is not applicable as regards decisions of the Council of Ministers. | 1 |
train | 001-76005 | ENG | TUR | ADMISSIBILITY | 2,006 | BULUT v. TURKEY | 4 | Inadmissible | null | The applicant, Beko Bulut, is a Turkish national who was born in 1946 and lives in Tunceli. He is represented before the Court by Mr O. Kılıç, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. Until October 1994 the applicant lived in the Halitpınar village in the Ovacık district of the Tunceli province. In October 1994 the applicant’s village was forcibly evacuated by security forces on account of intense terrorist activities in the region. Subsequently, the applicant’s house was burned down along with the other houses in the village. He is still living in Elazığ with his family. On 2 April 1998 the applicant filed a petition with the Office of the Ovacık Governor, requesting compensation for his losses and permission to return to his village. On 25 May 1998 the Office of the Ovacık County Governor replied to the applicant’s petition, stating that the operations in the applicant’s village were still continuing and that he would be resettled when public order in the region was re-established. There was no explanation in the context of the reply as regards the applicant’s claim for compensation of his loss. The applicant did not challenge this reply. The applicant was residing in Elazığ. According to his statement of 12 October 1994, given before the Public Prosecutor, he had only a summer house in Halitpınar village. On 19 October 1994 the Public Prosecutor asked the District Gendarme Commander for information concerning the applicant’s allegations concerning the destruction and eviction of the Halitpınar village. On 1 October 1994 the District Gendarme Commander informed the Public Prosecutor that according to the witnesses’ statements the houses in Halitpınar village were burned down by the terrorist, dressed as security forces. On 9 December 1994 the Public Prosecutor gave a decision of nonjurisdiction and referred the file to the office of the Governor. On 25 October 1995 the Ovacık Governor gave a decision of nonprosecution as the alleged offences were not attributable to the security officers. On 2 April 1998 the applicant filed a petition with the Office of the Ovacık Governor, requesting compensation for his losses and permission to return to his village. On 25 May 1998 the Office of the Ovacık County Governor replied to the applicant’s petition, stating that the operations in the applicant’s village were still continuing and that he would be resettled when public order in the region was re-established. There was no explanation in the context of the reply as regards the applicant’s claim for compensation of his loss. The applicant did not challenge this reply. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...). | 0 |
train | 001-82113 | ENG | SWE | ADMISSIBILITY | 2,007 | ACHMADOV AND BAGUROVA v. SWEDEN | 4 | Inadmissible | David Thór Björgvinsson | The first applicant, Mr Imran Achmadov, was born in 1938 and the second applicant, Mrs Natalia Bagurova, was born in 1948. They are Azerbaijani citizens, currently residing in Sweden. Before the Court they were granted legal aid and were represented by Mr Mathias Blomberg and Mrs Camilla Dahlberg, lawyers practising in Umeå. The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants married in 1982. The first applicant is ethnic Azerbaijani. The second applicant’s father was Armenian and her mother was Russian. In a passport issued in 1982 her ethnicity was stated as “Russian”. In January 2002 the second applicant and her son, born in 1980, entered Germany via Italy and requested asylum. Their request was rejected with reference to the Dublin Convention and the German authorities returned them to Italy, where they had obtained a visa. From there, in April 2002, having renounced their application for asylum, they returned to Azerbaijan. On 8 December 2002, the applicants entered Sweden, together with the second applicant’s son and applied for asylum. At the relevant time the second applicant had a black eye, which the first applicant explained was due to her being assaulted by a man at the train station in Baku on account of her ethnicity. The Migration Board (Migrationsverket) held an initial short interview with the applicants on 16 February 2003 and a more extensive one on 17 September 2003. In support of their request for asylum, the first applicant submitted inter alia that over a long period of time, primarily due to the second applicant’s Armenian ethnicity, but also because she was a member of Jehovah’s Witnesses, whose ideas he sympathised with, they had been subjected to physical and psychological harassment, mostly by Azerbaijanis who had fled Armenia. Among other things he was told to kill his wife, called a traitor because of the conflict in Nagorno-Karabakh, forced to close his shop, and beaten up. He had also been beaten up in connection with a political demonstration in October 2000. His wife had been forced to live in hiding since 1990 and consequently for a long period of time they had only had sporadic contact. Despite being in hiding, his wife had been subjected to assaults, most recently outside a shop in Baku in November 2002. The harassment was supported by the State and the police ignored his reports of the incidents. His son and stepson also encountered problems due to his wife’s ethnicity. Their son was not able to finish his studies at the university because the professors and fellow students refused to accept people with Armenian ethnicity. His stepson had been beaten up and his flat occupied by Azerbaijani refugees from Armenia who claimed to be entitled to live there. The second applicant submitted before the Migration Board inter alia that due to her Armenian ethnicity she had been subjected to physical and psychological harassment for years. Since 1990 she had been forced to live in hiding. She had become a member of Jehovah’s Witnesses six years ago. The meetings of Jehovah’s Witnesses were always held secretly because otherwise the police would turn up and ill-treat the participants. In connection with a meeting in September 2002 in one member’s home, the second applicant had been arrested and taken to a police station and raped by a policeman. Moreover, in November 2002, outside a shop in Baku, she had been severely beaten up by two persons who had referred to her ethnicity. As a result of the assault she had cracked a dental plate and had a swelling or tumour on her back. She had never reported the assaults to the police because people of Armenian ethnicity were considered secondrate citizens in Azerbaijan and it would thus have been to no avail. The second applicant originally declared that she had not travelled abroad before or applied for asylum in any other country. On 30 January 2004 the Migration Board refused to grant the applicants asylum. In its decision, the Board first referred to the general situation in Azerbaijan and the information contained in a report by UNHCR, International Protection Considerations Regarding Azerbaijani Asylum-Seekers and Refugees, 2003. As to the latter, the Board noted in particular that while discrimination against ethnic Armenians was not proclaimed official policy in Azerbaijan, clearly there was a certain amount of discrimination in everyday life against them, which was tolerated by the authorities. However, the said discrimination was not such as to amount to persecution per se, although in individual cases it was possible that the cumulative effects amounted to it. Moreover, as to Jehovah’s Witnesses, only high profile people within the religious community had a well-founded fear of persecution. The Migration Board furthermore noted that the assaults to which the first applicant had been subjected had been committed by private individuals in violation of Azerbaijani legislation. Moreover, adding that the fact that the police had not arrested any perpetrators did not necessarily mean that the police were unwilling to help him, the Board found unsubstantiated the first applicant’s allegation that the harassment was supported by the State. In conclusion, as to the first applicant, the Board found that the described incidents failed to amount to persecution constituting a ground for asylum within the meaning of the Swedish Aliens Act. With regard to the second applicant, the Migration Board observed anew that the assaults had been committed by private individuals and a policeman in violation of Azerbaijani legislation and without support from the Azerbaijani Government. Moreover, the second applicant did not have a high position within Jehovah’s Witnesses. Finally, having obtained information from foreign immigration authorities, the Migration Board found that the fact that the second applicant, in April 2002, had renounced her application for asylum in Italy and chosen to return to Azerbaijan, reflected that she had not felt a particular need for protection. In conclusion, the Board found that the second applicant did not fulfil the legislation requirements for enjoying refugee status. The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden) and submitted, among other things, that it was impossible for Armenians to report ethnic persecution to the police and that both the second applicant and her children had been maltreated by the police several times. They repeated that the second applicant had been living in hiding since 1990, mostly in summer houses in the countryside. She had been forced to move because she was hunted for and her life was in danger. Her life was at risk, should she be forced to return to Azerbaijan. At the very least they would be arrested at the airport and imprisoned. Moreover, the applicants submitted a letter of 18 May 2004 from the Ministry for Foreign Affairs in Armenia, signed by its head, Mr Mkrtumjan, to the Swedish Ambassador to Yerevan, stating that hatred against the Armenian population of Azerbaijan had not been decreasing over time, that the anti-Armenian propaganda was organised and proliferated on a State level, that since 1988 not one single Armenian had been able to return to Azerbaijan, and finally that upon return to Azerbaijan there was a serious risk that the applicants would become victims of persecution on ethnic grounds. On 6 July 2005 the Aliens Appeals Board upheld the decision to refuse to grant the applicants asylum, subscribing to the reasons given by the Migration Board. On 22 March 2006, the Migration Board, examining the applicants’ cases on its own initiative, in accordance with a temporary provision of the Aliens Act, found that the applicants could not be granted residence permits under the temporary wording of Chapter 2, section 5 b of the Aliens Act. The applicants lodged their application on 20 September 2005 and following an indication given by the Court on 26 September 2005 under Rule 39 of the Rules of Court, the applicants’ deportation was stayed until further notice. Subsequently, before the Court the applicants submitted that their problems started in 1989 when the persecution of ethnic Armenians commenced. The second applicant tried to hide her ethnicity by keeping her Azerbaijani surname, but through state archives it became known, nevertheless, that she was Armenian. It came to the applicants’ knowledge that the police had lists of people of Armenian ethnicity and that they went to these people’s homes to ill-treat them. Therefore, fearing for her life, the second applicant and her son left Baku and went to live in summer houses in the countryside. Sooner or later their ethnicity was discovered, so they always had to keep moving in order to escape persecution. During short periods she hid in the first applicant’s flat in Baku, but the neighbours always found out and persecuted her in the street or in the house. During all the years that the second applicant had to hide, the police came to the first applicant’s flat about once a month, looking for her because they wanted to detain her and use her in an exchange of prisoners with Armenia. The police often ordered the first applicant to divorce the second applicant or get rid of her. Otherwise the police said they would deal with her themselves. The harassment got worse in 2001, with assaults by the police and neighbours, which the first applicant reported in vain to the police. In December 2001 the applicants decided that the second applicant and her son had to flee. They were returned from Germany to Italy under the Dublin Convention. In Italy the second applicant was told that there was no possibility whatsoever for them to stay there. The only possibility was to return to Azerbaijan. When they arrived at the airport in Baku they were immediately arrested by the border police. Their passports were taken and never returned and they were interrogated. The police told them that they would be sent to prison as spies. However, after the first applicant negotiated with the police and paid a large sum of money, the second applicant and the son were released. They stayed in the first applicant’s flat for a few days and then resumed moving around from one place to another. The whole time the first applicant was in contact with the authorities or the police to ask for help, but this was constantly refused. Some police reports were written, which the police would let him sign, but then tore to pieces. However, as to the rape to which his wife was subjected in September 2002, the first applicant was not informed thereof until the asylum proceedings in Sweden. The first applicant ran a factory with ten employees in Baku, but had to close it down in 2002 due to the increased persecution. There were always meaningless inspections, with completely unfounded complaints about his book-keeping and the hygiene in the factory. Thereafter, he had no means of providing for his family. The last time he was assaulted was in October 2002 when the police asked about his wife’s whereabouts. Since he refused to answer, he was beaten up, resulting in fractured ribs. In November 2002 the second applicant was dragged out of a shop in Baku and beaten up in public. The perpetrators told the bystanders that they did not care about the consequences because the woman was Armenian. She was hit and kicked in the kidneys and the head. Her jaw was broken. The first applicant managed to intervene and stop the assault with the help of two Russian bystanders. The police left without taking any action against the two men, despite the first applicant’s efforts to make them draw up a report. The second applicant consulted a private doctor and then went to a hideout. The first applicant filed a report with the police but to no avail. In the light of the constant lack of success that the first applicant had had, being Azerbaijani, whenever he reported incidents to the police, the second applicant abstained completely from making use of this remedy. The Government submitted that some of the applicants’ statements before the Court were new to them and did not correspond to the information provided during the domestic proceedings. For example, as to the second applicant’s claim that she and her son kept moving around in the countryside because they continuously were beaten up and threatened, according to the second interview with the Migration Board, the second applicant stated that the reason she moved around was that she did not wish to be a nuisance to her friends, but that she never experienced any problems while staying in the countryside. Moreover, as to the first applicant’s claim that his ribs were fractured in October 2002 when the police beat him up because he refused to reveal his wife’s whereabouts, according to the second interview with the Migration Board, the first applicant stated that his ribs were fractured “after 2000” when he took part in a demonstration organised by the opposition. Also, the Government pointed out, according to the minutes from the second interview with the Migration Board, in reply to a question from his counsel, the first applicant replied that he did receive receipts of the police reports. When asked whether he brought such receipts to Sweden, he replied in the negative. A new Aliens Act (SFS 2005:716), replacing the 1989 Aliens Act, entered into force on 31 March 2006. The Act established a new system for examining and determining applications for asylum and residence permits. While the Migration Board continued to carry out the initial examination, an appeal against the Board’s decision was determined by one of the three new migration courts. The Migration Court of Appeal was the court of final instance. It examined appeals against the decisions of the migration courts, provided leave to appeal was granted. Upon the entry into force of the new Act, the Aliens Appeals Board ceased to exist. The Migration Board acted as the alien’s opposing party in proceedings before the courts. The provisions mainly applied in the present case were to be found in the 1989 Aliens Act, now repealed. In accordance with the Act, an alien staying in Sweden for more than three months had to, as a rule, have a residence permit (chapter 1, section 4). A residence permit could be issued, inter alia, to an alien who, for humanitarian reasons, was to be allowed to settle in Sweden (chapter 2, section 4). Serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit. An alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to a residence permit in Sweden (chapter 3, section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself of the protection of that country. This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals (chapter 3, section 2). An “alien otherwise in need of protection” denoted, inter alia, a person who had left the country of his nationality because he had a well-founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 3, section 3, subsection 1). By making that a separate ground for granting a residence permit, the legislature had highlighted the importance of such considerations. The correspondence between national legislation and Article 3 of the Convention had been emphasised as a result. In enforcing a decision on refusal of entry or expulsion, the risk of torture and other inhuman or degrading treatment or punishment was taken into account. In accordance with a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 8, section 1). In addition, he could not, in principle, be sent to a country where he risked persecution (chapter 8, section 2). Until 15 November 2005 an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so-called “new application” with the Aliens Appeals Board based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion. A residence permit could then be granted if the alien was entitled to a residence permit under chapter 3, section 4, of the Act or if it would be contrary to the requirements of humanity to enforce the refusal-of-entry or expulsion decision (chapter 2, section 5 b, in its wording before 15 November 2005). Amendments to chapter 2, section 5 b, of the 1989 Aliens Act entered into force on 15 November 2005, whereby a new legal remedy of a temporary nature was introduced. The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter 2, section 5 b, in its previous wording. Furthermore, the amendments to the 1989 Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined. C. Relevant background material Council of Europe Azerbaijan became a member of the Council of Europe on 25 January 2001 and ratified the European Convention on Human Rights on 15 April 2002. UNHCR, “International Protection Considerations Regarding Azerbaijani Asylum-Seekers and Refugees”, September 2003, stated, inter alia as to “Groups at Risk”: 2. Ethnic Minorities 115. The claims for union of Nagorno-Karabakh with Armenia led to acts of violence of serious intensity against Armenians in Baku and in Sumgait in 1988 and 1989. Interethnic tensions extended also to other parts of the country. Because of interethnic violence and with the escalation of the conflict in Nagorno-Karabakh in early 1992, the overwhelming majority of the ethnic Armenian population of Azerbaijan left the country. 116. To the knowledge of UNHCR, none of these ethnic Armenians displaced in 1992 has actually returned to Azerbaijan and therefore a detailed assessment of the risk remaining in the case of such return, if permitted at all by the Azerbaijani authorities, is difficult to make. While a number of these refugees of the 1992 caseload have been naturalized and others enjoy secure refugee status in Armenia, a number of ethnic Armenian refugees who went to other parts of the former USSR have not received or no longer enjoy a secure status. A durable solution for them is yet to be resolved. In the case of secondary movement of such refugees, an assessment of the remaining protection needs, as well as on safely found elsewhere, would require a careful analysis of the individual case. 117. According to a survey conducted in 2003 by a UNHCR Implementing Partner, up to 30,000 Armenians may still reside in Azerbaijani, mostly women with ethnic Azerbaijani or Russian husbands. The treatment of ethnic Armenians varies from community to community. However, discrimination instances against ethnic Armenians are regularly reported. Discrimination includes access to governmental jobs, payment of pensions and other social benefits, and more generally problems with the authorities when claiming one’s right. A pattern of discrimination in the workplace is common. Access to public post might indeed be obstructed to persons with Armenian family names or with Armenian family members. As far as private employers are concerned, it is entirely their choice to hire or dismiss employees. 118. Ethnic Armenians residing in Azerbaijan prefer to conceal their names and keep a low profile. ... 124. To sum up, while discrimination against ethnic Armenians is not proclaimed official policy in Azerbaijan, clearly there is a certain amount of discrimination in everyday life against them, which is tolerated by the authorities. Such discrimination is not such as to to amount to persecution per se, however, in individual cases it is possible that the cumulative effects amount to it. ... 2. Religious Minorities 137. Azerbaijan’s population is traditionally Muslim, the majority being Shiite, but after the long years of Soviet atheistic rule, the society is largely secular. Militant Islamic fundamentalism is not tolerated and the general policy and attitude towards other religious groups, including Christians and Jews, is generally tolerant. ... 142. In November 1999, President Aliyev announced that the Government henceforth would abide by OSCE standards concerning freedom of religion. Apparently, in conformity with his directives, government officials subsequently took steps to rectify some past violations of these standards, including the registration of a number of religious organisations that previously had been denied it. In October 2002, the OSCE/ODIHR and the Government jointly sponsored a conference on religious freedom and combating terrorism. 143. As a side note, some Government officials share a common popular prejudice against ethnic Azerbaijanis, who have converted to Christianity and other religions. 144. New religious groups with no history in Azerbaijan are not always socially acknowledged. However, following the statement by President Aliyev, instances of harassment of and discrimination against members of such non traditional religious denominations have been reduced considerably. While each case will have to be considered in its own merit, the mere fact that an Azeri asylum seeker is merely a member of one of the above-mentioned non traditional religious denominations would not in itself suffice to substantiate his/her claim for refugee status. However, claims by leaders or high profile activists of non traditional religious groups would warrant careful consideration. ... Azerbaijan acceded to the International Convention on the Elimination of All Forms of Racial Discrimination in 1996. In 2005, the Committee on the Elimination of Racial Discrimination (CERD) noted with satisfaction that Azerbaijan had made the optional declaration recognising the Committee’s competence to receive communications under Article 14 of the Convention (CERD/C/AZE/CO/4). Moreover, in its reports from 2005 on the sixty-sixth and sixty-seventh sessions, it stated inter alia as to Azerbaijan: 58. The Committee notes the position of the State party that, despite the negative effects of the conflict in the NagornyKarabakh region, persons of Armenian origin do not experience discrimination in Azerbaijan. However, the Committee is concerned that, according to reports, incidents of racial discrimination against Armenians occur, and that a majority of the Armenians residing in Azerbaijan prefer to conceal their ethnic identity in order to avoid being discriminated against (Convention, art. 2). The Committee encourages the State party to continue to monitor all tendencies that give rise to racist and xenophobic behaviour and to combat the negative consequences of such tendencies. In particular, the Committee recommends to the State party that it conduct studies with a view to effectively assessing and evaluating occurrences of racial discrimination, in particular against ethnic Armenians. In its second report on Azerbaijan, of 24 May 2007, the European Commission against Racism and Intolerance (ECRI) stated inter alia: Persistence of the negative climate against Armenians 106. In its first report, ECRI recommended that the Azerbaijani authorities ensure an adequate response to all instances of discrimination and hate-speech against Armenians, including through the use of the relevant legal provisions. It also encouraged the Azerbaijani authorities to contribute more actively to generating a climate where Armenians do not feel threatened when exposing their identity publicly. 107. ECRI deeply regrets that since the adoption of its first report in 2002, the situation as concerns ethnic Armenians living in Azerbaijan (hereafter: Armenians) has not improved at all. While ECRI continues to receive alarming information concerning racism and racial discrimination against this group of persons, the Azerbaijani authorities have not demonstrated their will to tackle this problem. On the contrary, the general attitude among national and local authorities is rather to purely and simply deny that Armenians are confronted with problems in Azerbaijan. ECRI is surprised by this position which comes in stark contrast to information from numerous national and international non-governmental sources. Armenians are often referred to as the most vulnerable group in Azerbaijan in the field of racism and racial discrimination. The issue is sufficiently serious for Armenians to sometimes be described as “second-class citizens” in Azerbaijan. This situation is generally said to be a consequence of the overall negative climate in Azerbaijan generated by the conflict over Nagorno-Karabakh. 108. According to official sources the number of Armenians living on Azerbaijani territory outside Nagorno-Karabakh and the occupied zones amounts to 30 000, Non-official sources estimate that the real number is probably lower, around 20 000. These persons are almost exclusively persons married to Azerbaijanis or of mixed Armenian-Azerbaijani descent. 109. A first problem is apparently the discrimination with which Armenians are confronted in their daily lives, particularly in access to public services. Allegedly, some officials merely refuse to proceed with request from Armenians when they discover their ethnic origin. The discrimination amounts sometimes to harassment which prevents the persons concerned from exercising their basic rights such as the right to pension allowance or the right to work. Judicial proceedings opened by Armenians trying to secure their rights are said to systematically fail due to the general negative climate against Armenians. As mentioned in another part of this report, some refugees and IDPs have been occupying properties belonging to Armenians who are still unable to regain their property. 110. Another problem is the oral and written inflammatory speech on the conflict over Nagorno-Karabakh. These statements do not only target Armenia and Armenian citizens. It also often portrays Armenians living in Azerbaijan as enemies and traitors. ECRI is concerned to learn that some media, and particularly certain TV channels, some members of the general public, some politicians and even some authorities at local and national levels apparently fuel negative feelings among society towards Armenians in general, and ethnic Armenians living on Azerbaijani territory in particular. At present, ECRI notes that no steps have been taken to use the relevant criminal law provisions to prohibit material inciting to racial hatred against Armenians. As already described in ECRI’s first report, the mere attribution of Armenian ethnic origin to an ethnic Azerbaijani may be perceived as an insult. Thus, there have continued to be trials for slander and insult opened by public figures against persons who had publicly and falsely alleged their Armenian ancestry. 111. One of the consequences of discrimination and inflammatory speech against Armenians is that many Armenians keep a low profile in Azerbaijan, trying as much as possible to avoid drawing attention to themselves. They often seek to hide their ethnic identity, for instance through changing their names. 112. This negative climate mainly resulting from the conflict over Nagorno-Karabakh does not only have an impact on Armenians living in Azerbaijan. It also allegedly affects Azerbaijani individuals or NGOs assisting Armenians when they try to exercise their basic rights. They are reportedly victims of anonymous threats, defamation campaigns in some media and harassment by some authorities. They are often publicly and falsely accused of “having Armenian roots” and of treason to Azerbaijan. Another consequence of this negative climate is that Azerbaijani individuals travelling to Armenia or to the occupied territories of Azerbaijan are victims of threats, harassment and attacks on their goods or persons on the grounds that they “betray their country”. ECRI notes that so far, the Azerbaijani authorities have not taken adequate steps to protect the relevant persons from these acts. In its first report, ECRI already expressed its concern at the lack of opportunities available for members of civil society to resume dialogue in order to favour the full reconciliation of all people living in the region and the restoration of mutual confidence among members of the different communities. Apparently, the situation has not evolved much in this field. 113. ECRI reiterates that a fair and peaceful solution of the conflict over Nagorno-Karabakh would have a positive impact on the general sentiments of the Azerbaijani population towards Armenians, including those living at present on the territory of Azerbaijan under the effective control of the Azerbaijani authorities. Recommendations: 114. ECRI strongly recommends that the Azerbaijani authorities contribute more actively to generating a climate where Armenians do not feel threatened when exposing their identity publicly. 115. ECRI once more urges the Azerbaijani authorities to ensure an adequate response to all instances of discrimination and hate-speech against Armenians, including through the use of the relevant legal provisions. They should also ensure an adequate response to harassment and hate-speech against persons trying to defend Armenians’ basic human rights or travelling to Armenia or to the occupied territories of Azerbaijan. US Department of State, Azerbaijan, Country Reports on Human Rights Practices – 2005, stated, inter alia: ... c. Freedom of Religion The law provides for freedom of religion; however, there were some abuses and restrictions in practice. Although the law expressly prohibits the government from interfering in the religious activities of any individual or group, there are exceptions, including cases where the activity of a religious group "threatens public order and stability." A number of legal provisions enable the government to regulate religious groups, including a requirement that religious organizations, including individual congregations of a denomination, be registered by the government ... Although unregistered religious groups continued to function, some, such as Seventh-day Adventists, Jehovah’s Witnesses, and Baptists, reported official harassment, including disruption of religious services and police intimidation, fines, and occasional beatings of worshippers by police. Some non traditional religious groups operated in an atmosphere of fear ... Jehovah’s Witnesses reported that authorities regularly interfered with their ability to rent public halls for religious assemblies and on occasion fined or detained and beat individuals for meeting in private homes. On June 12, police raided a gathering of approximately 200 Jehovah’s Witnesses in Baku, detaining 29 members of the group and then releasing them after several hours in police custody. Local television stations also aired "raids" of religious meetings for "exposes" of religious groups. The law expressly prohibits religious proselytizing by foreigners, and this was enforced strictly. On April 24, police authorities seized Jehovah’s Witnesses religious literature in Baku on these grounds. Societal Abuses and Discrimination There were an estimated 30 thousand Jews in the country. There were few cases of prejudice and discrimination against Jews, and in the few instances of anti-Semitic activity the government responded quickly. There was popular prejudice against Muslims who convert to non-Islamic faiths and hostility toward groups that proselytize, particularly evangelical Christian and missionary groups. The government appeared to encourage such social stigmatization through orchestrated exposes and raids of non traditional groups. US Department of State, Azerbaijan, Country Reports on Human Rights Practices – 2006, stated, inter alia: ... The government’s human rights record remained poor, and it continued to commit numerous abuses. The public’s right to peacefully change the national legislature was restricted in the November 2005 parliamentary elections, although there were some improvements in the period leading up to the elections and in the May 13 parliamentary election reruns that took place in ten parliamentary constituencies. Torture and beating of persons in police custody resulted in three deaths, and police officials acted with impunity. Prison conditions--despite improvements in infrastructure--were generally harsh and life threatening. Arbitrary arrest and detention, particularly of individuals considered by the government to be political opponents, and lengthy pre-trial detention continued. The government continued to imprison persons for politically motivated reasons. Pervasive corruption in the judiciary and in law enforcement continued. Restrictions on media freedom, freedom of assembly, and political participation worsened. ... Role of the Police and Security Apparatus ... Police officers acted with impunity, and in most cases the government took little or no disciplinary action. During the year, however, the government reported that it took action against 104 police officers for human rights violations, seven of whom were disciplined for inflicting bodily harm. The government reported that it dismissed 28 officers from the ministry of internal affairs police forces, removed six officers from their position and administratively disciplined 11 others. The government did not state whether it criminally charged any officers for violating human rights and civil liberties during the year. Freedom of Religion ...Jehovah’s Witnesses reported that authorities regularly interfered with their ability to rent public halls for religious assemblies and on occasion fined or detained and beat individuals for meeting in private homes. Local television stations also aired "raids" of religious meetings for "exposes" of religious groups. On December 24, police accompanied by a television crew raided a gathering of Jehovah’s Witnesses in Baku. Police detained and released most participants, but held six foreigners in immigration detention pending deportation proceedings. These individuals remained in immigration detention at the end of the year. Societal Abuses and Discrimination There were an estimated 15,000 Jews in the country, the vast majority located in Baku. Incidences of prejudice and discrimination against Jews were rare, and in the few instances of anti-Semitic activity the government responded quickly. There was popular prejudice against Muslims who converted to non-Islamic faiths and hostility toward groups that proselytized, particularly evangelical Christian and missionary groups. The government appeared to encourage such social stigmatization through orchestrated exposes and raids of non traditional groups. The government actively undertook programs to encourage religious tolerance. For example, on November 15, the SCWRA [State Committee on Work with Religious Associations], foreign affairs ministry, and Caucasus Muslim board co-hosted an interfaith tolerance conference. ... National/Racial/Ethnic Minorities Some of the approximately 20,000 citizens of Armenian descent living in the country historically have complained of discrimination in employment, schooling, housing, the provision of social services, and other areas. Azerbaijani citizens who were ethnically Armenian often concealed their ethnicity by legally changing the ethnic designation in their passports. Some groups complained that authorities restricted their ability to teach or print materials in their native languages. Specifically, Farsi-speaking Tallish in the south, Caucasian Lezghins in the north, displaced Meskhetian Turks from Central Asia, and displaced Kurds from the Armenian-occupied Lachin region reported sporadic incidents of discrimination, restrictions on the ability to teach in their native languages, and harassment by local authorities. ... US Department of State, Azerbaijan, International Religious Freedom Reports, 2005 and 2006, stated, inter alia: The Constitution provides that persons of all faiths may choose and practice their religion without restrictions; however, there were some abuses and restrictions. There was no change in the status of respect for religious freedom during the period covered by this report. Some religious groups reported delays in and denials of registration and limitations upon their ability to import religious literature. Others have indicated that they either received or expect to receive their registration, they are able to import religious literature, and they meet without government interference. However, local authorities occasionally monitor religious services, and officials at times harassed non traditional religious groups. The generally amicable relationship among religions in society contributed to religious freedom; however, there is popular prejudice against Muslims who convert to non-Islamic faiths and hostility towards groups that proselytize, particularly evangelical Christian and missionary groups. ... There are no reliable statistics on memberships in various faiths; however, according to official figures approximately 96 percent of the population is Muslim ... Shi’a, Sunni, Russian Orthodoxy, and Jews are considered traditional religious groups. There also have been small congregations of Evangelical Lutherans, Roman Catholics, Baptists, Molokans (Russian Orthodox Old-Believers), Seventh-day Adventists, and Baha’is in the country for more than 100 years. In the last 10 years, a number of new religious groups considered foreign or non traditional have been established, including "Wahhabi" Muslims, Pentecostal and evangelical Christians, Jehovah’s Witnesses, and Hare Krishnas ... Jehovah’s Witnesses reported that authorities occasionally fined or detained and beat individuals for meeting in private homes. Societal Attitudes The generally amicable relationship among religions in society contributed to religious freedom; however, there is popular prejudice against Muslims who convert to non-Islamic faiths and hostility towards groups that proselytize, particularly evangelical Christian and missionary groups. This has been accentuated by the unresolved conflict with Armenia over Nagorno-Karabakh. ... Hostility between Armenians and Azeris, intensified by the unresolved conflict over Nagorno-Karabakh, remains strong. In those portions of the country controlled by Armenians, all ethnic Azeris have fled and those mosques that have not been destroyed are not functioning. Animosity toward ethnic Armenians elsewhere in the country forced most of them to depart between 1988 and 1990, and all Armenian churches, many of which were damaged in ethnic riots that took place more than a decade ago, remain closed. As a consequence, the estimated 10,000 to 30,000 ethnic Armenians who remained are unable to attend services in their traditional places of worship. ... The International Helsinki Federation for Human Rights (IHF), stated among other things, in their 2006 report “Azerbaijan. Extract from the IHF report Human Rights in the OSCE Region”: “Azerbaijan has been led by the authoritarian regime of the Aliyev family since 1993. After the death of Heydar Aliyev in 2003, his son Ilham Aliyev took over as president. The change in leadership provoked internal competition within ruling circles, which was apparent during the campaign leading up to the parliamentary elections of 6 November 2005. ...there were numerous crackdowns on opposition rallies, where participants were beaten and arbitrarily arrested. Journalists covering opposition activities were also targets of police violence. Although the elections were characterized by irregularities, no large-scale protests followed in their aftermath. The opposition, however, refused to participate in the work of the new parliament, where it won 10 out of 125 seats. There was a visible gap between the country’s legal framework and its implementation. Courts demonstrated dependence on the executive branch, especially in property cases and politically sensitive cases. The authorities failed to take effective measures to combat the use of torture and ill-treatment by law enforcement officials and there were reports of officials being promoted after resorting to abusive practices. A series of prison riots in February were quashed through the use of excessive force. The dismissal of incompetent high-ranking officials within the penitentiary system as well as improved access of human rights defenders to prison facilities, however, represented positive steps toward improving prison conditions. ... The human rights situation in Azerbaijan was discussed by the Parliamentary Assembly of the Council of Europe (PACE) in June. PACE reiterated its concern that some of Azerbaijan’s obligations before the Council of Europe remained unimplemented well after the deadline given to Azerbaijan upon its accession to the Council of Europe. For example, new legislation on national minorities was yet to be adopted, the right to alternative civil service to military service was not observed, and many political prisoners remained detained – despite a series of releases. ... Torture, Ill-treatment and Police Misconduct ... In November, a police officer of the Ganja city police directorate was arrested on charges of exceeding authority (article 309.2) of the criminal code) He had reportedly beaten and raped a man suspected of theft as well the mother of this man. At the end of the year, the case was still pending. ...” Amnesty International Annual Reports from 2003, 2004, 2005 and 2006 do not contain any specific information as to Armenians or Jehovah’s Witnesses living in Azerbaijan. However, in a report by Amnesty International, Swedish Section, of 18 October 2005, on asylum seekers from Azerbaijan, it is stated, inter alia, “Amnesty International also wishes to draw the Swedish Immigration authorities’ attention to the situation for ethnic Armenians in Azerbaijan which is very critical. Persons of Armenian ethnicity are exposed to violence from individuals, both from authorities and civilians, they are refused access to public employment, pension payments and other social benefits. All this creates a general sense of fear, uncertainty and anxiety, which leads to ethnic Armenians hiding their ethnicity and keeping a low profile. When taken together these factors may very well be assessed as persecution. There is no doubt that the discrimination is of frequent occurrence and to a large extent tolerated by the authorities. ... In Amnesty International’s view anti-Armenian feelings are increasing in Azerbaijan, as a result of the fact that Azerbaijani authorities have not opposed or intervened sufficiently against this atmosphere. Last year at a NATO training camp an Azerbaijani officer killed an Armenian officer in revenge for a crime committed during the Nagorno-Karabakh war. Despite it being condemned by public authorities in Azerbaijan, nevertheless a large part of the population supported the Azerbaijani officer. ...” | 0 |
train | 001-89508 | ENG | UKR | CHAMBER | 2,008 | CASE OF KUSHNARENKO v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 4. The applicant was born in 1950 and lives in the village of Rozdolne, the Crimea. 5. On 4 July 2000 the applicant lodged complaint with the Rozdolne District Court against two private agricultural companies “Chernyshevsky” (C.) and “Prymorsky” (P.), seeking to recover salary arrears. 6. The first hearing was fixed for 12 October 2000. 7. Between October 2000 and October 2003 eight out of fifteen hearings were postponed due to the respondents’ representatives’ failure to appear before the court. 8. In May 2001 the proceedings were suspended as the term of office of the presiding judge had expired. 9. The proceedings were resumed in March 2003. 10. On 7 October 2003 the applicant’s claims were allowed in full. 11. The judgment was not appealed against and became final on 7 November 2003. 12. The applicant was provided with a written copy of the judgment on 18 November 2003. 13. In the course of 2004 the amount awarded to the applicant against C. was paid in full. 14. The enforcement proceedings against P. were suspended on an unspecified date as the company was insolvent and this part of the judgment of 7 October 2003 remains unenforced. | 1 |
train | 001-69202 | ENG | TUR | CHAMBER | 2,005 | CASE OF CELIKBILEK v. TURKEY | 3 | Violation of Art. 2;No violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Feyyaz Gölcüklü | 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1951 and lives in Diyarbakır. 10. The facts surrounding the killing of the applicant’s brother, Abdulkadir Çelikbilek, are disputed by the parties. 11. The facts as presented by the applicant are set out in Section B below (see paragraphs 12-23). The Government’s submissions concerning the facts are summarised in Section C below (see paragraphs 24-28). Documentary evidence submitted by the Government is summarised in Part D (see paragraphs 29-46 below). 12. On 9 June 1994, the applicant’s brother, Abdulkadir Çelikbilek, gave a statement to the Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”). He stated that he had heard that a certain Ms Amber Yılmaz had fallen from the roof of a three-storey house in the course of a military operation conducted at about 9.30 p.m. on 8 June 1994. He had further heard that Ms Yılmaz’ husband, Fethi Yaşar, had been a PKK member and that Mr Yaşar was currently serving a 36 year prison sentence for PKK membership. He finally stated that he was not aware of any links between Ms Yılmaz and the PKK (see paragraph 30 below). 13. After having given this statement, Abdulkadir was followed on a number of occasions. In November 1994 Aynur Çelikbilek, the wife of Abdulkadir Çelikbilek, was visited by two policemen who asked her questions about her husband’s whereabouts. 14. At about 11.00 a.m. on 14 December 1994, Abdulkadir went to the Esnaflar Café in the centre of Diyarbakır. About ten minutes after his arrival, a white Renault car with four plain-clothes policemen stopped in front of the café. It is common knowledge in south-east Turkey that this kind of car is used by plain-clothes police officers. Two policemen stayed in the car while the other two entered the café. The latter two policemen were the same as the ones who had previously questioned Aynur Çelikbilek about her husband’s whereabouts. It was obvious that the two persons were policemen, as they were armed. Only members of the security forces could have entered a café in Diyarbakır carrying firearms. When the applicant’s brother was leaving the café, the two policemen also left the café. Outside the café the two policemen took Abdulkadir by the arms and forced him into the waiting white Renault. This was seen by all the persons present in the café. The car left in the direction of the Diyarbakır Police Headquarters. Two persons, who were present in the café when the plain-clothes police officers took Abdulkadir away, told the applicant at a later stage about this incident and added that the persons who had abducted his brother were certainly police officers. 15. On 15 December 1994, the applicant went to the Diyarbakır Branch of the Human Rights Association in order to inform them of the incident. He was advised to file a petition with the office of the Prosecutor at the Diyarbakır Court. The applicant then went to the Diyarbakır Court to file a petition. However, the police at the door of the Court building told him that his brother’s name was not on their list. The applicant returned to the Diyarbakır Court several times in the course of the following days and unsuccessfully tried to obtain information about his brother. 16. At around 7.30 a.m. on 21 December 1994, three police officers came to the applicant’s home and told him that his brother had been wounded and admitted to the hospital. When the police officers took the applicant to their car, they told him that his brother’s body had been found outside the Mardinkapı cemetery in Diyarbakır. The applicant went with the police officers to the place where his brother’s body had been found. There, the police searched him. They took his petition which was addressed to the Prosecutor at the Diyarbakır Court from the pocket of his jacket. Despite his request, the police officers refused to give it back to him. The applicant is of the opinion that the police refused to return his petition in order to weaken any case he might bring against the Turkish authorities. 17. The body of the applicant’s brother was lying on top of a rubbish heap near the Mardinkapı cemetery. Marks of torture could be seen all over his body. It looked as if the skin on the soles of his feet had been pulled off with pincers. His arms, legs and head looked as if they had been skewered on a thick skewer. His whole body was black and blue and there were marks on his throat. 18. After the police had shown the applicant the body of his brother, they took him in their car to his brother’s house, where the police conducted a house search. During this search, the applicant heard on the police radio that the Prosecutor was about to go and see the body of his brother. The police interrupted their search in order to join the Prosecutor. They took the applicant with them. The Prosecutor did not put any questions to the applicant. The police recorded the location of the body and subsequently took the body to the State Hospital morgue. The applicant was also taken to the morgue in a police car. On the way to the morgue, a police officer in the car told the applicant that all the villagers of Tepecik would die on the streets in the same manner. 19. In the morgue, some other police officers told the applicant that village guards had burned the village of Tepecik and that these same village guards had probably killed his brother. The applicant replied that he did not believe that village guards had killed his brother and added that, if village guards had killed his brother, they must have been helped by the police. The police officers replied that Leyla, the daughter of the applicant’s deceased brother, was of the opinion that the police had killed her father. When the applicant was asked whether he shared Leyla’s opinion, he said that he did. 20. In the morgue, an autopsy of the body of the applicant’s brother was conducted. The applicant asked the doctor about the marks around his brother’s throat. The doctor told him that something must have been passed around his brother’s neck after his death and that his body must have been dragged along by it. After the autopsy, the body was released for burial. 21. While the applicant was at the morgue, another group of police officers had returned to the house of the applicant’s brother in order to finish the house search. These policemen told Leyla that her father had told the police that he had a package, which was likely to contain a firearm, and they asked her to give this package to them. According to the applicant, this question indicated that the security forces had in fact apprehended his brother and that they had interrogated, tortured and killed him. On the same day, a statement was taken from the applicant at the Mardinkapı Police Station (see paragraph 37 below). 22. Some time before the events at issue, the applicant’s oldest son Fesih had joined the PKK. The applicant had managed to keep this a secret. However, ten days after the death of his brother, a person, who introduced himself as Cevat from the anti-terrorism branch of the police, came to the applicant’s home. Cevat told the applicant that his son had joined the PKK and asked the applicant to inform the security forces when his son came home. The applicant thus became convinced that his brother must have told the security forces about Fesih while he was under torture. 23. In June 1996 the applicant was himself abducted by State agents while walking in the street in Diyarbakır. He was put in a car and prevented from seeing and speaking. He was taken into the countryside where State agents wanted to shoot him but they then changed their minds and took the applicant to the rapid response force building in Diyarbakır where he was detained for a period of 31 days before being jailed for 14 months. While in detention he was threatened a number of times. The content of the threats was, “Do not follow your son’s or your brother’s way. If you do, we will kill you too”. These threats made the applicant all the more convinced that the Government were directly responsible for the abduction and killing of his brother. 24. At around 7.30 a.m. on 21 December 1994, the Mardin Kapı Police Station was informed by passers-by that a person was lying near the Mardinkapı cemetery in Diyarbakır. Acting on that information, police officers found a body, with its hands tied behind its back. It was lying on top of a rubbish heap near the cemetery. The police found an identity card on the body in the name of Abdulkadir Çelikbilek. 25. After being informed by the police, the Prosecutor in charge, Mr Mehmet Tiftikçi, and Dr Lokman Yavuz arrived at the scene. Footprints were found which could not be analysed as they were indistinguishable. There were no traces of any fight. Wheel traces were examined but were found to have been made after the discovery of the body. After an incident report had been compiled and a sketch map had been drawn up showing the location of the body, the corpse was taken to the morgue. 26. On the basis of the identity card found on the body, the victim’s family was contacted. The victim’s brother, Abdurrahman Çelikbilek, was brought to the morgue where he identified the body as that of his brother Abdulkadir. Subsequently an autopsy was carried out. 27. According to their statements taken on 21 December 1994, the applicant and the victim’s wife, Aynur, did not know who might have killed Abdulkadir. They stated that they had no enemies at all. The applicant further declared that, in so far as he knew, his brother had been detained for firearms trafficking after the coup d’Etat of 12 September 1980. The victim’s widow also stated that she wished to file a complaint against the person or persons who had killed her husband. Her criminal complaint was formally registered on 28 December 1994. 28. The Prosecutor opened an investigation under file no. 1994/9249, which is currently still pending. The Prosecutor has requested the police authorities to keep him informed on a regular basis about this investigation. 29. The following information appears from the documents submitted by the Government. 30. On 9 June 1994 a statement was taken from Abdulkadir Çelikbilek, the applicant’s brother, by the Prosecutor at the Diyarbakır Court. Mr Çelikbilek stated that he had heard that a female by the name of Amber Yılmaz had fallen from the top of a three-storey building during a military operation which had taken place at 9.30 p.m. the previous day. He further stated that he had heard that Anbara’s husband was serving a 36-year prison sentence because of his PKK membership. As far as he knew, Anbara was not a PKK member. 31. At 7.45 a.m. on 21 December 1994, a deputy police chief and a police officer drew up an on-site report. According to this report, a number of persons had informed the police at 7.30 a.m. the same morning that they had seen a person lying on the side of the road, near the Mardinkapı cemetery. When the police arrived at the scene, they found the frozen body of a male, lying on its right side between the road and the wall of the cemetery. It was lying at an approximate distance of 150-200 metres from the entrance to the cemetery. Its hands had been tied at the back with the belt of the coat the deceased was wearing. According to the identity card found on the body, the deceased was Abdulkadir Çelikbilek. No evidence was found at the scene. 32. It was recorded in a sketch, drawn up by a police officer at 9 a.m. the same day to show the location of the body, that the cause of death was strangulation. 33. According to another on-site report drawn up the same day, the duty Prosecutor and a pathologist attended to the body of the person, “who had been strangled by a length of wire”. They observed a large number of footprints near the body. However, casts of these footprints were not made because there were too many of them and also because they were all mixed up. Similarly, no casts of the tyre marks observed near the body were made because it was concluded that these marks had been made by vehicles “which had nothing to do with the incident”. There was no sign of a struggle at the scene and there was also no evidence capable of providing clues about the perpetrator(s) of the killing. It was also noted in this report that the body had already been photographed by the police. The Prosecutor ordered the transfer of the body to the morgue at the Diyarbakır State Hospital for an autopsy. 34. According to the autopsy report, the body was taken to the hospital at around 9.30 a.m. the same morning. The applicant was already at the hospital when his brother’s body arrived. He identified his brother and stated that he had been missing for eight days, during which time the family had been unsuccessfully searching for him. He added that he did not know who might have killed his brother. 35. It was observed by the Prosecutor that rigor mortis had already set in. Also, a very large number of injuries and ecchymoses were observed on the face and on the trunk of the body. The doctor concluded that some of these injuries had been caused three days previously and some of them between six to twelve days previously. 36. According to a full autopsy carried out by the doctor, the cause of death was established as mechanical asphyxiation and it was concluded that the killing had been intentional. Taking into account the fact that rigor mortis had already set in, the doctor concluded that the death had occurred approximately 10-15 hours earlier. At the end of the autopsy, the body was photographed once more. The Prosecutor issued a burial licence and instructed the police officers to carry out a comprehensive investigation. 37. Also on 21 December 1994, at 3.30 p.m., a statement was taken from the applicant by the police chief at the Mardinkapı police station. The applicant stated that his brother had not returned to his house in the evening of 14 December 1994. The following day he had gone to the café which his brother used to frequent and asked the people there whether they had seen him. He was told by the people there that four persons had come into the café the previous day and gone straight up to Abdulkadir who had been sitting in the café. The four men and Abdulkadir had then left the café together and got into a white Renault estate car and driven away. The number plate of the car had not been “obvious”. The applicant stated that he did not know to what extent this sequence of events, which had been relayed to him by the people in the café, represented the truth. He also stated that he had tried to submit a petition to the Prosecutor at the Diyarbakır Court but that it was not accepted. He added that he did not suspect anyone in particular and that the family did not have any enemies. He finally stated that his brother had served a prison sentence after 1980 for an arms dealing offence. 38. On the same day, the police chief at the Mardinkapı police station took a statement from Aynur Çelikbilek, the widow of the applicant’s deceased brother Abdulkadir. Mrs Çelikbilek stated that her husband had left their family home at around 11 a.m. on 14 December 1994. When he had failed to return home in the evening, she had informed her brother-in-law, the applicant, and asked him to make the necessary enquiries in order to find her husband. Despite all their efforts, they had not been able to find her husband. She did not suspect anyone in particular and the family did not have any enemies. She had been told by the applicant that her husband had been taken away from the café in a white Renault car. She asked the Prosecutor to prosecute the persons who killed her husband. 39. Finally, on 21 December 1994 the police chief of the Mardinkapı police station forwarded to the Diyarbakır Police Headquarters his report in which he informed the latter about the body found in his area. He also appended to his report the two statements (see paragraph 37-38 above), the on-site reports and the sketch prepared the same morning (see paragraphs 31-33 above). 40. It appears that this report and its appendices were transferred to the Prosecutor’s office in Diyarbakır who opened an investigation into the killing the same day. The investigation was given the number 1994/9249. 41. On 23 December 1994 the Prosecutor instructed the Diyarbakır Police Headquarters to search for the perpetrator(s) of the killing. 42. On 6 January 1995 the Prosecutor repeated his instructions to the Diyarbakır Police Headquarters and asked to be kept informed every three months of any possible developments until the expiry of the statutory limitation period on 20 December 2014. The Prosecutor repeated his instructions to the Diyarbakır Police Headquarters on 1 January 1996, 28 February 1996 and 29 March 1996. 43. On 20 June 1996 the General Security Headquarters in Ankara sent a letter to the Ministry of Foreign Affairs in an apparent response to a request made by the latter on 10 June 1996, pursuant to which the former had been asked to “forward to the Ministry of Foreign Affairs the criminal records showing that the deceased brother of Abdurrahman Çelikbilek, who had made an application to the European Commission of Human Rights, had been involved in counterfeit and drugs dealing”. According to the letter sent to the Ministry of Foreign Affairs, Abdulkadir Çelikbilek had been prosecuted in 1985 and 1986 for drug dealing and counterfeit offences and imprisoned. 44. On 1 December 1996 the Diyarbakır Prosecutor’s office was informed by the chief of the Mardinkapı police station that they had been searching for the perpetrators of the killing but had not yet managed to find them. 45. On 6 December 1996 a police officer reported to the Mardinkapı police station that he had searched for the perpetrators of the killing but could not find them. 46. The Prosecutor in Diyarbakır repeated his instructions to the Diyarbakır Police Headquarters on 6 December 1996, 6 January 1997, 13 August 1997 and, finally, on 15 March 1999. 47. The relevant domestic law and practice are set out in the judgment of Tepe v. Turkey (no. 27244/95, §§115-122, 9 May 2003). | 1 |
train | 001-67141 | ENG | AUT;BEL;DNK;ESP;FIN;FRA;DEU;GRC;IRL;ITA;LUX;NLD;PRT;SWE;GBR | ADMISSIBILITY | 2,002 | SEGI AND OTHERS & GESTORAS PRO-AMNISTIA AND OTHERS v. 15 STATES OF THE EUROPEAN UNION | 1 | Inadmissible | null | The applicants are – in the case of application no. 6422/02: Segi, an association based in Bayonne (France) and San Sebastián (Spain), and the association’s two spokespersons, Ms Araitz Zubimendi Izaga, a Spanish national, member of the Basque autonomous parliament, who lives in Hernani (Guipuzcoa province), and Mr Aritza Galarraga, a French national living in Senpere (département of Pyrénées-Atlantiques); – in the case of application no. 9916/02: Gestoras Pro-Amnistía, an association based in Hernani (Guipuzcoa province), and the association’s two spokespersons, Mr Juan Mari Olano Olano, a Spanish national, currently detained in Gradignan remand prison (département of Gironde), and Mr Julen Zelarain Errasti, a Spanish national, currently a prisoner in Soto del Real Prison (Madrid province). The applicants were represented before the Court by Mr D. Rouget, a lawyer practising in Bayonne. (a) Segi (meaning “Continue”) was set up on 16 June 2001. At the constituent general meeting on that date it appointed as its spokespersons Ms Araitz Zubimendi Izaga and Mr Aritza Galarraga. They are authorised to act on the association’s behalf and to represent it. Segi describes itself as the movement of Basque youth. It has members in all the provinces of the Basque lands in France and in Spain. Its aims are to campaign on youth issues and protect the Basque identity, Basque culture and the Basque language. It asserts that it works through democratic channels to ensure respect for fundamental rights, both collective and individual. It campaigns for the right to self-determination and a negotiated political solution to the Basque conflict. It fights for a fairer, more mutually supportive society by combating inequality and discrimination, racism, sexism and homophobia. It combats the oppression of youth, drug trafficking, social insecurity, poverty and violence against young people. It promotes the social, cultural and political expression of young people by organising events, rallies, festivals and concerts. In a decision of 5 February 2002, central investigating judge no. 5 at the Audiencia Nacional in Madrid ordered the suspension of the association’s activities as a preventive measure on the ground that it was “an integral part of the Basque terrorist organisation ETA-EKIN”. In a decision of 11 March 2002 he further ordered the detention pending trial of eleven of the association’s leaders, including the applicant Aritza Galarraga, charged with terrorism-related activities punishable under the Spanish Criminal Code; he referred to Common Position 2001/931/CFSP of the Council of the European Union. (b) Gestoras Pro-Amnistía is a non-governmental organisation for the protection of human rights in the Basque lands, particularly those of political prisoners and exiles. Mr Juan Mari Olano Olano and Mr Julen Zelarain Errasti have been appointed as its spokesmen. In a decision of 19 December 2001, central investigating judge no. 5 at the Audiencia Nacional in Madrid ordered the suspension of the association’s activities as a preventive measure on the ground that it was “an integral part of the Basque separatist organisation ETA”. The association appealed. Common Positions 2001/930/CFSP and 2001/931/CFSP of 27 December 2001 On 27 December 2001 the representatives of the fifteen member States, meeting as the Council of the European Union, adopted in the context of the Common Foreign and Security Policy (CFSP) the following two common positions: – Common Position 2001/930/CFSP “on combating terrorism”. This contains measures of principle to be taken by the European Union and its member States to combat terrorism. Article 14 of Common Position 2001/930/CFSP recommends that member States become parties as soon as possible to the international conventions and protocols relating to terrorism listed in an annex. These include the Council of Europe’s European Convention on the Suppression of Terrorism of 27 January 1977, which came into force on 4 August 1978; – Common Position 2001/931/CFSP “on the application of specific measures to combat terrorism”. These two common positions took effect on the date of their adoption. They were published in the Official Journal of the European Communities (OJEC) on 28 December 2001. Common Position 2001/931/CFSP is addressed to both the European Community (Articles 2 and 3, relating to the freezing of funds, which affects the free movement of capital, a Community matter) and the member States (Article 4, relating to police and judicial cooperation in criminal matters, which is not a question for the Community). Article 1 states that the common position applies to “persons, groups and entities involved in terrorist acts” who are listed in its annex. The names of both the applicant associations appear on the annexed list. However, according to the list, they are subject to Article 4 of the position only. Article 4 of Common Position 2001/931/CFSP provides: “Member States shall, through police and judicial cooperation in criminal matters within the framework of Title VI of the Treaty on European Union, afford each other the widest possible assistance in preventing and combating terrorist acts. To that end they shall, with respect to enquiries and proceedings conducted by their authorities in respect of any of the persons, groups and entities listed in the Annex, fully exploit, upon request, their existing powers in accordance with acts of the European Union and other international agreements, arrangements and conventions which are binding upon member States.” Council Regulation (EC) no. 2580/2001 of 27 December 2001 “on specific measures directed against certain persons and entities with a view to combating terrorism” implemented Articles 2 and 3 of the common position as regards their provisions on the freezing of funds. The provisions concerning a Common Foreign and Security Policy (CFSP), designated as the second pillar of the European Union, were introduced by the Treaty on European Union of 7 February 1992, known as the Maastricht Treaty (“the EU Treaty”). They were modified on 2 October 1997 when the member States adopted the Amsterdam Treaty, which came into force on 1 May 1999. The CFSP is therefore at present provided for in Title V of the EU Treaty. Under the CFSP the Council, which consists of a representative of each member State at ministerial level, authorised to commit the government of that member State (Article 203 § 1 of the Treaty establishing the European Community), takes various types of decision, particularly joint actions (Article 14 of the EU Treaty) and common positions (Article 15 of the EU Treaty). These common positions define the approach of the Union to a particular matter of a geographical or thematic nature. Member States must ensure that their national policies conform to the common positions. Article 23 of the EU Treaty provides that decisions under the CFSP are to be taken by the representatives of the member States, either unanimously, under paragraph 1, or by a qualified majority, under paragraph 2. Where a member State declares that, for important and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by a qualified majority, no vote is taken. The Council, acting by a qualified majority, may request that the matter be referred to the European Council, for decision by unanimous vote. In both cases, whether unanimity or qualified majority, the opposition of a single State prevents the taking of a decision under the CFSP. CFSP decisions are therefore intergovernmental in nature. By taking part in their preparation and adoption each State engages its responsibility. That responsibility is assumed jointly by the States when they adopt a CFSP decision. Police and judicial cooperation in criminal matters (known as Justice and Home Affairs Policy – “JHA” or the third pillar) is now provided for by Title VI of the EU Treaty, as modified by the Amsterdam Treaty. In the context of such cooperation the Council can take common positions and promote cooperation contributing to the pursuit of the objectives of the Union, using the appropriate form and procedures. The Union’s actions in the field of the CFSP and JHA have a strongly intergovernmental character. The instruments through which the CFSP is mediated are joint actions and common positions. Common positions are intended to strengthen and improve the coordination of cooperation between the member States, which are supposed to apply and defend them. Adopted by the Council of the Union, they are Community acts which require member States to conduct national policies consistent with the approach laid down by the Union in a particular field. They are therefore not directly applicable, as such, in the member States, and their implementation requires the adoption by each member State of concrete domestic provisions in the appropriate legal form. Decisions taken by the States’ representatives under the CFSP are not subject to judicial review within the European Union, since by virtue of Article 46 of the EU Treaty the Court of Justice of the European Communities is not empowered to review the lawfulness of decisions taken in the field of the CFSP. A Justice and Home Affairs issue may not be referred to the Court of Justice except in the form of a request for a preliminary ruling under the conditions laid down in Article 35 of the EU Treaty. | 0 |
train | 001-57901 | ENG | GBR | CHAMBER | 1,994 | CASE OF MAXWELL v. THE UNITED KINGDOM | 3 | Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient | John Freeland | 7. The applicant, Mr Peter Maxwell, is a British citizen born in 1944. He lives in Perth, Scotland. On 14 or 15 February 1990 two masked men broke into a private house, situated in Stevenston, Scotland. They assaulted the occupant causing him severe injury and permanent disfigurement. On 19 February 1990 Mr Maxwell was arrested together with another man. They were indicted on a charge of assault. They were both held in custody until trial started on 28 May 1990 in the High Court of Justiciary at Kilmarnock, Scotland. 8. On 29 May 1990 the jury found the applicant guilty of the charge. Taking account of his bad criminal record, the judge sentenced him to five years’ imprisonment. Legal aid had been made available to the applicant for the preparation of his defence and for his representation by counsel at the trial. 9. After conviction, Mr Maxwell instructed a new firm of solicitors, who then asked counsel who had represented him at the trial to advise on the prospects of an appeal. Having received counsel’s advice, the solicitors informed the applicant that they could not identify any basis for an appeal and accordingly could not act for him. Their advice to the applicant was in accordance with proper professional practice (see paragraph 20 below). The applicant then sought to instruct another firm of solicitors but they were also unwilling to act for him. 10. On 31 July 1990, notwithstanding the advice which had been given to him, the applicant lodged with the court a note of appeal setting out grounds which he formulated himself. The grounds of appeal can be summarised as follows: (a) the applicant had not been able to substantiate his contention that a crucial witness was giving false evidence against him because to do so would have involved revealing to the jury a previous conviction; (b) a number of witnesses had not been called by the Crown or by the Defence; (c) crucial evidence had been entirely fabricated; (d) the verdict of the jury was not supported by the evidence; (e) his legal advisers had disregarded instructions which he had given them and had not defended him in accordance with his instructions; (f) there had been insufficient evidence to establish that the assault had resulted in the victim’s permanent disfigurement. 11. The applicant subsequently instructed another firm of solicitors and obtained an adjournment of the hearing of his appeal. However, shortly before the adjourned hearing, those solicitors informed the applicant that they could no longer act for him in his appeal and that they were unable to find any counsel who was willing to present the appeal. Such refusal by counsel was in accordance with the relevant rule of professional practice (see paragraph 20 below). The applicant was granted a further adjournment of the hearing of his appeal. 12. Mr Maxwell instructed yet another firm of solicitors. On 17 December 1990 they lodged an application for legal aid to pay for representation at the hearing of the appeal with the Scottish Legal Aid Board ("the Board"). At the Board’s request, they sought the advice of a new counsel on the prospects of success of the appeal. In an opinion dated 10 January 1991 in which he considered the grounds of appeal formulated by the applicant, counsel concluded that there was "no ground of appeal against conviction and no prospects of appealing successfully against sentence". Mr Maxwell’s solicitors submitted to the Board that their client should nonetheless be granted legal aid in view of the lengthy sentence which he had received. 13. On 25 January 1991, the Board informed Mr Maxwell that his application had been refused as the Board was not satisfied, as it was required to be under the relevant legislation (see paragraph 23 below), that there were substantial grounds for making an appeal and that it was reasonable that legal aid should be made available. His solicitors advised him that he should abandon his appeal but he chose not to accept their advice. Following the refusal of legal aid, the solicitors declined to continue to act for the applicant. A further adjournment of the hearing was then granted. The applicant decided to proceed with his appeal personally. 14. On 21 March 1991, the applicant addressed the High Court of Justiciary on his grounds of appeal. The Crown was represented by counsel but there is no indication that he intervened at the hearing. Presiding over the three-judge bench was the Lord Justice Clerk, one of the two most senior judges in Scotland. On the same date the court dismissed the appeal. In his judgment the Lord Justice Clerk noted that detailed grounds of appeal had been put forward and that the applicant had addressed the court at some length upon those grounds. The judgment gave full consideration to each of the grounds of appeal, but was satisfied that they had no substance and that there had been no miscarriage of justice. 15. The following details relate solely to the "solemn procedure", under which trial proceeds upon an indictment before a judge sitting with a jury. 16. A person convicted of a criminal charge in Scotland has an automatic right of appeal granted by statute (section 228 of the Criminal Procedure (Scotland) Act 1975 - "the 1975 Act"). No leave to appeal is required. 17. In an appeal, the appellant may ask the court to review any alleged miscarriage of justice in the proceedings in which he was convicted (section 228(2) of the 1975 Act). What is a miscarriage of justice is not defined by statute, but the term covers such matters as misdirections by the trial judge or wrong decisions on the admissibility of evidence, as well as breaches of natural justice. In any appeal, the nature of the alleged miscarriage of justice must be specified in the grounds of appeal contained in a written note of appeal, lodged within eight weeks of the date when sentence was imposed upon the appellant (section 233(1) and (2) of the 1975 Act). An appellant may not, at the appeal hearing, found any aspect of his appeal on a ground which is not contained in the note of appeal unless, exceptionally and on cause shown, he obtains the leave of the court to do so (section 233(3) of the 1975 Act). 18. An appeal is heard by a bench of not less than three judges. At the hearing of the appeal the appellant or his counsel, if he is represented, makes submissions to the court in support of the grounds of appeal. Appellants who do not have legal representation are not required to make an oral presentation: they are allowed, however, to read any material that they may have prepared or collected. The Crown is always represented by counsel at the hearing of criminal appeals. Their duty is to act solely in the public interest and not to seek to uphold a wrongful decision. Accordingly, they will only address the court if requested to do so or if it is necessary to bring to the attention of the court some matter relevant to the appeal, whether or not favourable to the prosecution. 19. In disposing of an appeal against conviction the court may dismiss it and affirm the verdict of the trial court; set aside the verdict of the trial court either by quashing the conviction or by substituting an amended verdict of guilty; or set aside the verdict of the trial court and authorise a new prosecution (section 254 of the 1975 Act). 20. Counsel in Scotland are vested with the public office of advocate, which imposes a number of duties upon them, among which is the duty not to accept instructions to act in circumstances where, in their professional opinion, a case is manifestly unfounded, even if the client is able to pay for such representation. The basis of this rule of professional conduct is that counsel cannot properly occupy the time of the court in advancing arguments which he knows to be without foundation. 21. The administration of legal aid in Scotland is the responsibility of the Scottish Legal Aid Board, an independent body whose members are appointed by the Secretary of State for Scotland from among counsel, solicitors and other persons with experience of the courts. 22. Legal aid which has been made available for a trial on indictment extends, in the case of conviction, to include consideration and advice by a solicitor on the question of appeal. An opinion on the prospect of the appeal can also be obtained from the counsel who acted at the trial. Under special provisions legal aid is also available to enable the solicitor to prepare and lodge the statutory intimation of intention to appeal and, where appropriate, arrange for the opinion of counsel to be obtained as to the prospects of the appeal, and for the drafting and lodging of a note of appeal setting out the grounds of appeal. 23. To extend the legal aid beyond this point a further application by the solicitor to the Legal Aid Board is required. This should include confirmation that the applicant’s solicitor is willing to act in the appeal as well as a statement of the arguments in support of the grounds of appeal and a note of the solicitor’s reasons for believing that the grounds of appeal are substantial and that legal aid should be made available. 24. The Board takes its decisions on the basis of the documents before it, which normally include copies of the Note of Appeal, the trial judge’s charge to the jury and the trial judge’s report on the case. The views expressed by the applicant’s solicitor and counsel will also be taken into account. 25. Although the legislation does not provide for a formal review, the Board will, as a matter of practice, when requested to do so, reconsider an application which has been refused. Such reconsideration involves the application being referred to an external reporter, who was not involved in the Board’s earlier decision and who reports to the Board on the merits of the application. Otherwise, Board decisions are subject to ordinary judicial review. 26. If the appellant proceeds with his appeal without legal aid and the court considers that, prima facie, he may have substantial grounds for taking the appeal and it is in the interests of justice that he should have legal representation in arguing these grounds, then the court must immediately adjourn the hearing and make a recommendation that the Board’s decision be reviewed. 27. The practice of the court in this regard was formalised following the judgment of the European Court of Human Rights in Granger v. the United Kingdom of 28 March 1990 (Series A no. 174) by a Practice Note to this effect issued on 4 December 1990 by the Lord Justice General to all Appeal Court Chairmen and Clerks: "In any appeal where legal aid has been refused and the court considers that prima facie an appellant may have substantial grounds for taking the appeal and it is in the interests of justice that the appellant should have legal representation in arguing his grounds, the court shall forthwith adjourn the hearing and make a recommendation that the decision to refuse legal aid should be reviewed." 28. Where such a recommendation is made, legal aid is automatically granted. To this end, the Manual of Procedure of the Scottish Legal Aid Board provides in paragraph 6.12 that: "In these circumstances the Board will receive a letter from the High Court of Justiciary giving the details of the case where they are recommending a re-consideration of the decision to refuse. If we are asked to re-consider a decision in these circumstances, then the application should be granted automatically. The case need not be seen by a reporter or Board solicitor, but ought to be referred to the Assistant Manager for the appropriate action." | 1 |
train | 001-70824 | ENG | DEU | CHAMBER | 2,005 | CASE OF KELES v. GERMANY | 4 | Violation of Art. 8 | David Thór Björgvinsson | 4. The applicant was born in 1961. At the time the application was lodged he lived in Lörrach in Germany. He is currently residing in Turkey. 5. In 1972 the applicant, aged ten years, entered German territory in order to live there with his parents and his brother. He attended secondary school until 1977. In 1984 the applicant married a Turkish national in Turkey. In 1986 a son was born to the couple. On 14 March 1988 the competent authorities granted the applicant a permanent residence permit. In 1989 the applicant’s wife and son followed him to Germany. In 1990, 1991 and 1993 three further sons were born to the couple. One of the children has a learning handicap. The applicant’s wife is in possession of a permanent residence permit; all family members are Turkish nationals. 6. In 1983 the applicant – in view of previous convictions – was warned and informed that he would face expulsion if he committed further criminal offences (ausländerrechtliche Verwarnung). 7. On 14 February 1989 the Lörrach District Court (Amtsgericht) convicted the applicant of insulting behaviour and ordered him to pay fifteen daily rates of DEM 50. 8. On 3 June 1991 the District Court convicted the applicant of negligent drunken driving (fahrlässige Trunkenheit im Verkehr) and ordered him to pay thirty daily rates of DEM 60. 9. On 17 August 1992 the District Court convicted the applicant of inflicting bodily harm and of obstructing public officers in the execution of their duties and ordered him to pay forty daily rates of DEM 30. 10. On 27 October 1993 the District Court convicted the applicant of reckless driving (Gefährdung des Straßenverkehrs) and sentenced him to four months’ imprisonment, suspended on probation. 11. On 25 September 1995 the District Court convicted the applicant of inflicting bodily harm and ordered him to pay thirty daily rates of DEM 15. 12. On 22 October 1996 the District Court convicted the applicant of negligent drunken driving and sentenced him to five months’ imprisonment, suspended on probation. 13. On 11 February 1998 the District Court convicted the applicant of drunken driving in conjunction with driving without a driving license and sentenced him to six months’ imprisonment. 14. On 6 May 1998 the Freiburg Regional Court (Landgericht) rejected the applicant’s appeal in which he had asked that the execution of his sentence be suspended on probation. According to the Regional Court, the applicant’s numerous convictions did not seem to have served as warnings not to commit further criminal offences, having particular regard to the fact that the applicant had committed his last offence only three months after his previous conviction had acquired legal effect. 15. On 17 September 1998 the applicant was arrested and imprisoned. As his last offence had been committed while he was still on probation after the decision of the District Court of 22 October 1996, the suspension on probation was revoked and the applicant was imprisoned for four further months. 16. On 9 November 1998 the Lörrach District Court convicted the applicant of recklessly placing himself in a state of total intoxication (fahrlässiger Vollrausch) and sentenced him to a fine of forty daily rates. 17. On 22 January 1999 the Freiburg Regional Government (Regierungspräsidium) ordered the applicant’s expulsion to Turkey or to another State willing to accept him. Applying sections 47 § 2 and 48 § 1 of the Aliens Act (Ausländergesetz, see relevant domestic law below), it noted the applicant’s repeated criminal convictions, in particular those for traffic offences. The Regional Government found that the applicant’s criminal conduct had caused a serious threat for public safety. It further considered that there was a risk that he would commit similar offences in the future, as neither his previous convictions nor several warnings by the aliens’ authorities had deterred him from committing further offences. Moreover, the applicant had not solved his alcohol problem, but had dropped out of therapy. The Regional Government further argued that the applicant, on account of his age, would manage his integration in Turkey. His family could be reasonably expected to follow him as his children could be assumed to have sufficient knowledge of the Turkish culture and language. Exercising its discretion and with regard to Article 8 of the Convention, the Government found that the public interest in the applicant’s expulsion outweighed his own and his family’s interests, given the seriousness of the threat which he posed to public road traffic. 18. On 11 February 1999 the Regional Government rejected the applicant’s objection. 19. On 20 April 1999 the Freiburg Administrative Court (Verwaltungsgericht) refused to grant the applicant an interim order against his expulsion and confirmed the reasoning of the Regional Government. It found that the Regional Government’s decision was likely to be upheld in the main proceedings. The four traffic offences committed by the applicant since 1989, taken together with his further criminal convictions, constituted a serious reason justifying expulsion. The Administrative Court found, in particular, that the applicant’s offences could not be regarded as being of a minor nature, taking into account the high importance of the safety of road traffic within society. The court further confirmed that there was a danger of recidivism, because the applicant had not proved that he had overcome his alcohol problem. It finally found that the Regional Government duly considered the applicant’s family situation. Having regard to the considerable danger the applicant posed for other road users and to the fact that his family could live with him in Turkey, the expulsion did not violate the applicant’s right to the enjoyment of his family life as guaranteed by Article 6 of the Basic Law and by Article 8 of the Convention. 20. On 2 November 1999 the Freiburg Administrative Court confirmed the expulsion order, referring mainly to its reasoning in the decision of 20 April 1999. 21. On 8 December 1999 the applicant requested to be granted leave to appeal, arguing, in particular, that the expulsion violated his rights under Article 8 of the Convention. 22. On 28 May 2001 the Baden-Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof) refused to grant the applicant leave to appeal, confirming that there was no apparent violation of Article 8 of the Convention. The Court of Appeal found, in particular, that the applicant’s family could be reasonably expected to follow him to Turkey, as they could be assumed to have sufficient knowledge of the Turkish language. This decision was served on the applicant’s counsel on 6 June 2001. 23. By letter and fax dated 4 July 2001 the applicant, represented by counsel, lodged a constitutional complaint, in which he gave a complete account of the proceedings before the domestic authorities and complained that his expulsion would violate his right to respect for his family life as guaranteed by Article 6 of the Basic Law. 24. By letter of 13 July 2001 the Federal Constitutional Court acknowledged receipt of the applicant’s complaint and attachments on 5 July 2001 by fax and on 7 July 2001 by mail. 25. On 15 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for adjudication, without giving any further reasons. This decision was served on the applicant’s counsel on 28 February 2002. 26. On 3 May 1999 the applicant was deported to Turkey. On 21 May 1999 he re-entered German territory and filed a request to be granted asylum. 27. According to the Government’s submissions, by penal order of 11 May 2001 the Lörrach District Court sentenced the applicant to a fine of twenty daily rates for having driven without a license on 23 March 2001. 28. On 16 May 2002 the applicant filed a request to set a time-limit on the effects of his expulsion. 29. On 23 August 2002 the Freiburg Regional Government informed him that the proceedings had been suspended pending proceedings on his asylum request. 30. On 15 May 2003, his asylum request having been rejected, an attempt to deport the applicant failed because the latter had gone into hiding. On 4 July 2003 the applicant was arrested and placed in detention pending his deportation. He was once again deported to Turkey on 12 August 2003. 31. On 19 December 2003 the applicant filed a second request to set a time-limit on the effects of his deportation of 12 August 2003. On 30 January 2004 the Freiburg Regional Government requested the applicant to submit a confirmation of registration with the Turkish authorities and an extract from the Turkish criminal records register. He was further informed about the costs of the two deportations (approximately EUR 8,000). No decision has so far been given on the applicant’s request. 32. The relevant provisions of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) read as follows: “Applications for the institution of proceedings must be submitted in writing to the Federal Constitutional Court. The reasons must be stated...” “(1) Any person who claims that one of his basic rights...has been violated by public authority may lodge a constitutional complaint with the Federal Constitutional Court.” “The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.” “A constitutional complaint shall be lodged and substantiated within one month. This time-limit shall commence with the service or informal notification of the complete decision...” “(1) A constitutional complaint shall require acceptance for adjudication. It shall be accepted (a) insofar as it is of fundamental constitutional significance, (b) if this is necessary in order to assert the right referred to in Section 90 § 1...” 33. According to the case-law of the Federal Constitutional Court, an applicant has not only to name the right which has allegedly been violated, but also to present the proceedings which led to this violation in a substantiated and conclusive way (schlüssig und substantiiert), in order to comply with the above-mentioned provisions. This means that the applicant has to establish a link between the impugned decision and the alleged violation of his rights under the Basic Law. 34. The rights of entry and residence for foreigners were, at the relevant time, governed by the Aliens Act (Ausländergesetz), the relevant provision of which reads as follows: “An alien shall generally (in der Regel) be expelled if he has been sentenced...to imprisonment in respect of one or more intentionally committed criminal offences and the execution of the sentence has not been suspended on probation...” 35. If the alien entered the German territory as a minor and was in possession of a permanent residence permit, he may only be expelled if serious reasons of public safety and order justify his expulsion (section 48 § 1 No. 2). 36. Section 45 provides that the domestic authorities, when deciding on an alien’s expulsion, shall, inter alia, accord due consideration to the duration of the person’s lawful residence, his personal, economic and other ties to the German territory and to the consequences of the expulsion for the alien’s family members who are legally residing with him. 37. According to section 8 § 2, an alien who has been expelled is not permitted to re-enter German territory. This effect shall usually (in der Regel) be limited in time upon application. The time-limit shall commence with the alien’s departure from German territory. | 1 |
train | 001-57967 | ENG | PRT | CHAMBER | 1,995 | CASE OF VELOSA BARRETO v. PORTUGAL | 2 | No violation of Art. 8;No violation of P1-1 | null | 8. Mr Francisco Velosa Barreto, a Portuguese national born in 1954, is an office worker. He married in April 1979 and he and his wife have one child, born on 7 June 1980. 9. When the applicant was still single he lived with his parents. Since his marriage he has lived in a house rented by his parents-in-law. One of his wife's brothers and two of her aunts have also lived there at various times in that period. The house, in Funchal (Madeira), has four bedrooms, a kitchen, a living-cum-dining room and a basement. 10. In November 1982 Mr Velosa Barreto inherited from his parents a house also situated in Funchal. This house, which has been let for residential use to E.R. since 23 June 1964, has three bedrooms, a kitchen and a bathroom. The rent, which had initially been fixed at 1,200 escudos (PTE), was PTE 1,500 at the time when the proceedings began. 11. On 6 April 1983 the applicant and his wife brought proceedings against E.R. and his wife in the Funchal Court of First Instance. Relying on Articles 1096 and 1098 of the Civil Code, they asked the court to terminate the lease on the ground that they needed to occupy the property as their own home. 12. The Funchal Court of First Instance found against the applicant and his wife on 13 March 1989. It held that one of the statutory requirements for termination had not been satisfied, since the applicant had not established facts which proved a real need to occupy the house himself. The reasons given by the judge included the following considerations: "A landlord's need to terminate a lease must be assessed mainly in the light of his family circumstances, his living conditions and/or his occupational status at the time when the action is brought or foreseeable in the immediate future. In that connection, the following facts have already been established: that 'since his marriage, in April 1979, Mr Velosa Barreto has lived with his parents-in-law in the Travessa do Caetano, [Funchal]'; that 'Mrs Velosa Barreto's parents, Mr and Mrs Velosa Barreto and their son, one of Mrs Velosa Barreto's brothers and two of her aunts ... lived in the house'; that 'the plaintiffs' house has three bedrooms, a kitchen and a bathroom'; that 'the house where the plaintiffs live has four bedrooms on the first floor, a kitchen and a living-cum-dining room on the ground floor and a basement'; that 'Mr Velosa Barreto's parents-in-law, who are at present the sole occupants, with Mr and Mrs Velosa Barreto and their son, of the house in the Travessa do Caetano, are resigned to the presence in their house of the plaintiffs and their son, since they have nowhere else to live'; and that 'the plaintiffs both work in Funchal'. It should be noted that Mrs Velosa Barreto's two aunts and her brother no longer live in the house where the plaintiffs are now living and that this has increased the available living space and privacy that all human beings need. The plaintiffs' living conditions are better now than they were when the action was brought, since they even have a bedroom for their son. Moreover, the plaintiffs did not succeed in proving, as the onus was on them to do, that the relations between themselves and Mrs Velosa Barreto's parents were permanently strained and conflictual. What is certain, however, is that no link whatsoever has been established between their son's illness and their living conditions in that house. It might be said - and after all it has been proved that the plaintiffs live with Mrs Velosa Barreto's parents, 'who are resigned to the presence in their house of the plaintiffs and their son, since they have nowhere else to live' - that in view of the adage 'When a man marries he needs a house', cited by Mr Velosa Barreto in his first application, the existence of a marriage should be sufficient to establish a need to recover possession of the rented property in order to live there. ... However, each case is unique. Regard being had to the facts found to have been established and those asserted by the plaintiffs in support of their claims, but not established, and given that the concept of the need to occupy must be interpreted as a state of necessity, to be objectively assessed on the basis of a reasonable criterion, in the light of everyday experience, it cannot be denied that the facts as a whole do not support the conclusion that the plaintiffs need the property in question in order to live there. Their living conditions would certainly be better and more comfortable in the house let to the defendants, but the real need required by case-law does not exist, nor is this a case where it is absolutely necessary or essential for the plaintiffs to recover possession of the accommodation. It follows that, although the other conditions in Article 1098 of the Civil Code have been satisfied, the plaintiffs' application must be considered inadmissible, since they have not established that they are entitled to terminate the lease under Article 1096 para. 1 (a). In conclusion, without finding it necessary to add any further considerations, I declare unfounded, for lack of evidence, the present action for termination of the lease and eviction of the tenant (processo especial de despejo), and find against the plaintiffs ..." 13. On 6 April 1989 Mr Velosa Barreto appealed against this judgment to the Lisbon Court of Appeal. Referring to the underlying intention of the legislation concerning the right to terminate a lease, he argued that he and his family had the right to live in a home they did not have to share with anyone. 14. On 11 October 1990 the Court of Appeal upheld the impugned judgment. It held that the house of the applicant's parents-in-law was large enough for all the people who lived in it, including the applicant, his wife and his son. There was therefore no real need for Mr Velosa Barreto to live in the house he owned. The Court of Appeal gave the following reasons for its decision: "In order to establish need, plaintiffs must cite specific facts which, once proved, establish the existence of a real, serious and present need, adducing weighty rather than purely hypothetical arguments. It is not sufficient to desire, to wish or to claim. ... In order to be able to exercise their right [to terminate the lease], the applicants must adduce evidence of those facts (Article 342 para. 1 of the Civil Code). ... ... it is established that: (a) the house where the plaintiffs live has four bedrooms on the first floor, a kitchen and a living-cum-dining room on the ground floor and a basement; (b) at present that house is occupied by Mr Velosa Barreto's parents-in-law, the plaintiffs and their son, that is five people altogether; and (c) Mr Velosa Barreto's parents-in-law are resigned to the presence in the house of the plaintiffs and their son. As the house has four bedrooms, the plaintiffs can occupy one room and their son another. The house has enough bedrooms for all the members of the family to be able to live there. Each couple has a bedroom and the plaintiffs' son has his. And there is still one bedroom left over. The judgment must reflect the situation at the conclusion of the evidence and argument (Article 663 para. 1 of the Code of Civil Procedure). Since it has not been proved that the plaintiffs are in a precarious situation, the fact that they live with Mrs Velosa Barreto's parents, albeit by their favour, is manifestly insufficient to prove the need required by Article 1096 of the Civil Code ... Moreover, the plaintiffs have not proved that there was tension which made it intolerable for them all to live in the same house. Derogation from the general principle and eviction of the tenant for the benefit of the landlord are possible only where it appears to be absolutely necessary, for weighty reasons, for the landlord to live in the property (Article 1095 of the Civil Code). In the light of the foregoing considerations, and because the plaintiffs have not proved need as set out above and as this court interprets it, the appeal is inadmissible and the judgment is upheld." 15. No appeal lay against the above judgment. 16. The following is a translation of the main provisions of the Civil Code applicable at the material time to the termination of tenancy contracts on residential property: ... A landlord shall not have the right to terminate a [tenancy] contract, which shall be tacitly renewed unless terminated by the tenant in accordance with Article 1055." 1. A landlord may seek termination of a [tenancy] contract on its expiry in the following cases: (a) when he needs (necessite) the property in order to live there or to build his home there. ..." 1. The right of a landlord to seek the termination of a [tenancy] contract in order to occupy the property as his home shall be subject to the following conditions: (a) he must have owned ... the property for more than five years or have acquired it by inheritance, in which case this qualifying period shall not apply; (b) he must not have been in occupation of another residence in the area where the property covered by the [tenancy] contract is situated, either as owner or tenant, for more than one year; and (c) he must not previously have sought to terminate the contract. ..." 17. According to established case-law (Supreme Court judgments of 15 December 1981 and 12 July 1983), a landlord's right to terminate a lease in order to occupy the property as his home may be exercised only when, in addition to the conditions laid down in Article 1098 of the Civil Code, the condition laid down in Article 1096 para. 1 (a), namely the landlord's real need to live in the property, has been satisfied. 18. These rules were amended by the legislative decree of 15 October 1990, but this did not introduce any fundamental change regarding the possibility of termination. | 0 |
train | 001-60967 | ENG | RUS | CHAMBER | 2,003 | CASE OF POSOKHOV v. RUSSIA | 1 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | Gaukur Jörundsson | 8. The applicant was born in 1966 and lives in Taganrog. 9. The applicant worked for the Taganrog Customs Board, supervising the clearance of imported goods at a seaport customs post. In 1996 criminal proceedings were instituted against him and certain others for the alleged smuggling of considerable amounts of vodka. 10. On 22 May 2000 the Neklinovskiy District Court of the Rostov Region, composed of Judge Kink and two lay judges (народные заседатели), Ms Streblyanskaya and Ms Khovyakova, found the applicant guilty of being an accessory in the avoidance of customs duties and of abuse of office. 11. Immediately upon his conviction, the applicant was dispensed from serving the sentence partly because of the expiry of a statutory limitation period and partly because of a 1997 amnesty law. 12. On 26 and 29 May and 16 June 2000 the applicant and his counsel filed appeals against the judgment. 13. On 17 August 2000 the applicant requested from the President of the Neklinovskiy District Court a list of lay judges currently serving in the court and a copy of the President’s decision selecting those lay judges who were to sit in cases under the presidency of Judge Kink between January and May 2000. 14. On 29 August 2000 the applicant supplemented his appeal with new points. He challenged the bench that had delivered the judgment of 22 May, alleging a breach of the rules on the appointment of lay judges. In particular, the applicant submitted that, whereas the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction (“the Lay Judges Act”) allowed lay judges to be called once a year for a maximum period of fourteen days, or for as long as a specific case lasted, the lay judges Ms Streblyanskaya and Ms Khovyakova had been engaged earlier in the course of 2000 in several other trials. In addition, it was claimed that Ms Streblyanskaya’s statutory term of office had expired before the day of the applicant’s trial. 15. On 29 August 2000 the Criminal Division of the Rostov Regional Court dismissed the applicant’s appeals. The court also refused an application by the applicant and his counsel for access to copies of earlier judgments delivered by the Neklinovskiy District Court under the presidency of Judge Kink. The court held that the applicant had been informed of his right to challenge the bench at the outset of his trial, but he had failed to do so. No breach of the rules for the appointment of lay judges had been established. 16. On 16 November 2000 the President of the Rostov Regional Court refused an application for supervisory review (принесение протеста в порядке надзора) of the applicant’s case. In his application to the President, the applicant had raised a new argument in support of his allegation that the judges had not been appointed according to the applicable rules: it was claimed that there was nothing to indicate that the judges had been drawn at random by lot as required by the Lay Judges Act. The President rejected the applicant’s earlier argument as to the expiry of the judges’ term, referring to the Presidential Decree of 25 January 2000, whereby the terms of lay judges already in office had been extended pending the appointment of new ones. The President noted that the list of lay judges for the Rostov Region had been drawn up on 18 October 2000, after the applicant’s conviction. No answer was given to the applicant’s allegation that the judges had not been drawn by lot. 17. On 20 February 2001 the President of the Rostov Regional Court refused another application by the applicant for a supervisory review. 18. In August and October 2001 the applicant requested the President of the Legislature of the Neklinovskiy District to provide information concerning the lay judges who had been authorised to sit in cases during the period between 10 and 22 May 2000. 19. On 2 October 2001 the Neklinovskiy District Authority informed the applicant that the pertinent list of lay judges for the Neklinovskiy District had been compiled on 4 February 2000 and confirmed by the Legislature of the Rostov Region on 15 June 2000. 20. On an unspecified date following communication of the present application to the Government, the President of the Rostov Regional Court lodged an application for a supervisory review of the case on the ground that the judgment of 22 May 2000 had not described in sufficient detail the offence committed by the applicant and his accomplices. 21. On 3 May 2001 the Presidium of the Rostov Regional Court granted the application, partly quashed the judgment of 22 May 2000 and the appeal judgment of 29 August 2000, and ordered a fresh examination of the case. 22. On 2 July 2001 the Neklinovskiy District Court found the applicant guilty of the same offences but dispensed him from serving the sentence because the case was time-barred. 23. An appeal by the applicant was dismissed by the Rostov Regional Court on 2 October 2001 and the judgment became final. 24. Following another application for supervisory review lodged by the President of the Rostov Regional Court on an unspecified date, the Presidium of the Rostov Regional Court on 31 January 2002 quashed the decisions given on 2 July and 2 October 2001. It found that the courts were not in a position to decide on the applicant’s guilt because the whole case was time-barred. 25. Following the request of the applicant’s lawyer, on 28 August 2002 the Neklinovskiy District Authority informed the applicant that the list of lay judges serving in the district had been adopted by a decision of the District Legislature on 4 February 2000 and confirmed by a decision of the Rostov Regional Legislature on 15 June 2000. 26. On 4 October 2002, the Neklinovskiy District Authority informed the applicant that there was no record of any adoption of lay judges’ lists before 4 February 2000 [The original letter indicated the date as “4 February 2002”, apparently a typographical error]. 27. Article 15 of the Code of Criminal Procedure provides that hearings in first-instance courts dealing with criminal cases should, subject to certain exceptions, be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoy the same rights as the professional judge. 28. On 10 January 2000, the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into force. By section 1(2) of the Act, lay judges are persons authorised to sit in civil and criminal cases as non-professional judges. Section 2 of the Act provides that lists of lay judges should be compiled for every district court by local self-governing representative authorities, such lists being subject to confirmation by the legislature of the respective Federation entity. Section 5 of the Act, which determines the procedure for the selection of lay judges, provides that the president of a district court should draw lots at random from a list of names of a certain number of lay judges to be assigned to the competent district court. The number of lay judges assigned to every professional judge should be at least three times greater than that needed for a hearing. Since most criminal cases in Russia are examined by a court composed of one professional judge and two lay persons, it appears that every judge must have at least six lay judges attached to him or her. Out of these six, a judge picks two at random to sit in a particular case. By section 9, lay judges should be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay judges may not be called more than once a year. Under the Decree of the Acting President of Russia issued on 25 January 2000, lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges, as confirmed by the legislatures of the Federation’s entities. | 1 |
train | 001-59884 | ENG | POL | CHAMBER | 2,001 | CASE OF IWÁNCZUK v. POLAND | 3 | Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Georg Ress | 8. The applicant, Krzysztof Iwańczuk, is a Polish national, who was born in 1962. He lives in Brzeg, Poland. 9. On 12 September 1991 the Wrocław-Krzyki District Prosecutor charged the applicant with forgery of various documents and use of counterfeit documents. On 14 May 1992 the Wrocław-Krzyki District Prosecutor issued a warrant of arrest against the applicant on suspicion of theft. On 22 May 1992 the Wrocław Regional Court dismissed the applicant’s appeal against the warrant of arrest. 10. On 24 July 1992 the Wrocław Regional Court decided to prolong the applicant’s detention until 15 November 1992. On 21 August 1992 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision. 11. On 12 September 1992 the Prosecutor charged the applicant with fraud. On 6 November 1992 the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1992. On 18 December 1992 the Wrocław Regional Prosecutor changed the charges laid against the applicant into misappropriation. On 23 December 1992 the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1993. 12. On 23 February 1993 the Wrocław Regional Court prolonged the applicant’s detention until 15 April 1993. On 18 March 1993 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision. 13. On 8 April 1993 the bill of indictment against the applicant was submitted to the Wrocław Regional Court. On 30 April 1993 that court prolonged the applicant’s detention for another three months. On 12 May 1993 the applicant appealed against that decision, and on 25 May 1993 completed his appeal by a request to be present at the court’s hearing concerning a further prolongation of his detention. 14. On 1 July 1993 the applicant requested the court to fix the date for a first hearing. On the same day the Wrocław Court of Appeal dismissed the applicant’s appeal against the prolongation of detention of 30 April 1993. 15. On 19 September 1993 at 9.30 p.m the applicant requested the prison authorities to allow him to vote in the parliamentary elections, as there were voting facilities for detainees in the Wrocław prison. The prison guard took him to the guards’ room. The applicant was then told by a group of four guards that in order to be allowed to vote he must get undressed and undergo a body search. The applicant took off his clothes except his underwear, whereupon the prison guards allegedly ridiculed him, exchanged humiliating remarks about his body and abused him verbally. The applicant was ordered to strip naked. He refused to do so and repeatedly requested permission to vote without a body search. As this was refused, the applicant was taken back to his cell without being allowed to vote. 16. A group of other prisoners who requested permission to go to the voting room at approximately 9 p.m. on that day, were also ordered to undergo the body search. 17. On 20 and 22 September 1993 the first hearing on the merits was held before the Wrocław Regional Court. 18. On 23 September 1993 the applicant brought an action before the Supreme Court, complaining that his right to vote had been breached in that he had been prevented from voting. He submitted that the requirement to undergo a body search was unjustified as there had not been any indications in his behaviour during the entire period of his detention that he might threaten the safety of other voting prisoners or guards. He complained of humiliation by the prison guards by vulgar comments and verbal abuse in the course of the events complained of. He submitted that there were about ten further guards present in the voting room. It was untenable to claim that he could present any danger to anyone when taken thereto, in particular as it had been ascertained that he could not have had any arms on him. 19. On 27 October 1993 the Supreme Court dismissed the applicant’s action. The court referred to a note concerning a conversation between the principal prison guard on duty on the material date and the president of the election committee in the prison, relating to the events. This note had been prepared upon a request of the Wrocław Regional Court, following the relevant enquiry of the Supreme Court for assistance in establishing the facts of the case. The Supreme Court noted that, according to the note, the prison guards had stated that the applicant could have a razor hidden on him and threaten the members of the election committee therewith. The court considered that the prison guards had been acting in conformity with the Rules of Detention on Remand of 1989, which provided that "if such a need arose, a detainee should undergo a search" and with the 1974 unpublished Ordinance on Prison Security, concerning, inter alia, body search of detainees. It was not certain, noted the court, whether at the material time this regulation had still remained in force, but it could not be held against the guards that they had acted according thereto. Thus it could not be established that on the part of the guards there had been intent to commit an offence, or to abuse their position. The Supreme Court concluded that the events complained of did not violate the applicant’s voting rights. 20. On 21 December 1993 the Wrocław Regional Court decided to release the applicant on bail of 2,000,000,000 (old) zlotys. Upon the applicant’s appeal, the Wrocław Court of Appeal upheld that decision on 5 January 1994, considering that there was no impediment to the bail being deposited in bonds or as a mortgage. 21. On 18 January 1994 the Wrocław Regional Court reduced the bail to 1,500,000,000 (old) zlotys. On 28 January 1994 the applicant requested that bail be accepted in the form of a mortgage on his property, and enclosed an estimate of his property made by an expert and an extract from the land register to the effect that he was the owner of the property concerned. 22. On 17 February 1994 the applicant complained that the Regional Court had failed to take any steps toward implementing its decision of 18 January 1994. He submitted that his detention after this date was unlawful, given that it should have been replaced by bail. He pointed out that he had submitted relevant documents relating to his property. 23. On 23 February 1994 the Wrocław Regional Court ordered that the bail must be deposited in cash or in State obligations. On 7 March 1994 the Wrocław Regional Court upheld this decision. On 31 April 1994 the Wrocław Court of Appeal quashed the decision relating to the sum of bail. On 19 April 1994 the Wrocław Regional Court lowered the sum of bail to 100,000,000 (old) zlotys in cash and mortgage of 750,000,000 (old) zlotys. On 5 May 1994 the applicant was released. 24. Hearings fixed for 30 May 1994, 28 July, 15 September, 1 December 1994 and 22 February 1995 were adjourned for unknown reasons. On 15 and 16 March 1995 the accused were heard by the court. 25. Subsequently, hearings fixed for 6 April, 16 May, 29 June, 7 September and 25 October 1995 were adjourned, also for unknown reasons. Next hearing was held on 14 November 1995 when the court completed the questioning of the accused. Next hearing, fixed for 5 December 1995, was also adjourned. On 16 and 17 January 1996 a hearing was held and certain witnesses were questioned. Hearing fixed for 2 February 1995 was adjourned. At the hearings on 22 February and 13 March 1996 the court questioned further witnesses. Subsequently, further hearings scheduled for 26 March, 11 and 25 April 1996 were adjourned. At the hearing on 20 May 1996 further witnesses were heard. The hearing fixed for 16 July 1996 was adjourned. 26. At the hearings held on 20 September, 24 October and 7 November 1996 further witnesses gave evidence. Hearings scheduled for 28 November, 19 December 1996, 30 January and 20 February 1997 were adjourned. On 13 March 1997 the court took evidence from further witnesses. Hearing fixed for 3 April 1997 was adjourned. 27. In 1997 hearings were held on the following dates: 24 April, 15 May, 4 and 19 June, 15 July, 2 September. 28. In 1998 hearings were held on 17 March, 7 April, 6 May, 10 June, 3 September, 27 October, 24 November and 22 December. 29. The next hearing was held on 12 January 1999. 30. During the hearings held in 1997 and 1998 the court heard eleven witnesses. 31. On 17 November 1999, at the 71st hearing held during the proceedings, the composition of the court changed, and, consequently, hearings in the case had to be recommenced. On 22 December 1999 and 16 February 2000 the court read out the bill of indictment. The date of the next hearing was fixed for 20 March 2000. The proceedings are still pending. 32. Pursuant to Section 11 of Rules of Detention on Remand of 1989, in force at the material time, body search of detained persons could be ordered at any time if such a need arose. Their clothes, underwear and shoes, as well as their cells, could be searched. This provision allowed for body search in particular when detainees left their cell and upon their return thereto, in particular during the night. 33. This issue was further governed by provisions of the unpublished Ordinance of the Minister of Justice of 6 March 1974 on Prison Security which provided in its Section 59 that detainees were subject to body search when they left their ward and upon their return. The body search was to be carried out in a separate room. A detainee undergoing the search should undress, their clothes, underwear and shoes should be carefully checked. 34. At the relevant time, the authorities competent to decide on detention on remand were set by Articles 210 and 212 of the Code of Criminal Procedure of 1969, which read as follows: Article 210: "1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)." 35. Article 212: "1. A decision concerning preventive measures may be appealed [to a higher court] ... 2. A prosecutor’s order on detention on remand may be appealed to the court competent to deal with the merits of the case...." 36. Article 225 of the Code of Criminal Procedure provided that detention on remand should be imposed only when it was mandatory; this measure should not be imposed if bail or police supervision, or both of these measures, were considered adequate. 37. Pursuant to Article 226 of the Code, bail, in form of cash, securities or mortgage, could be deposited by the accused, or by another person. Determination of the sum, form and all relevant modalities of the bail should be made, regard being had to the financial situation of the accused and, as the case may be, another person depositing bail, as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence. | 1 |
train | 001-109895 | ENG | RUS | ADMISSIBILITY | 2,012 | SHEFER v. RUSSIA | 3 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant, Ms Nina Vasilyevna Shefer, is a Russian national who was born in 1969 and lives in Barnaul, Altay Region. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. By the judgment of 16 March 2004 the justice of peace of the 4th Court Circuit of the Zheleznodorozhniy District of Barnaul awarded the applicant damages in the total amount of 1,193.60 Russian roubles (RUB) against Mr K. The writ of execution for the abovementioned amount was issued on 31 May 2004. 4. On 10 June 2004 the Zheleznodorozhniy District Bailiffs’ Service returned the unenforced writ of execution to the applicant because the document did not contain the information on the date and place of birth of the debtor and his place of work. 5. The applicant complained about the bailiff’s actions to court. On 27 July 2004 the Zheleznodorozhniy District Court of Barnaul allowed the complaint in part. The court ruled the bailiff’s actions unlawful, annulled the decision to return the writ of execution and ordered the bailiff to institute enforcement proceedings. On 15 September 2004 the Altay Regional Court, acting on appeal, found that the writ of execution had indeed been defective and that the bailiff could have returned it for correction to the court, but not to the applicant. The appeal court removed the order to institute enforcement proceedings upholding the rest of the judgment. The applicant did not re-submit the writ of execution to the bailiffs’ service as it was prescribed by the domestic law. 6. On 9 March 2011 the justice of peace of the 4th Court Circuit of the Zheleznodorozhniy District of Barnaul, acting on the applicant’s claim, ordered indexation of the recovered amount to RUB 2,417.60 (61 euros (EUR)). 7. It appears that the judgment has not been enforced to date. | 0 |
train | 001-120071 | ENG | RUS | CHAMBER | 2,013 | CASE OF AVILKINA AND OTHERS v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant organisation is a religious organisation, the Administrative Centre of Jehovah’s Witnesses in Russia, located in St Petersburg. The second applicant, Ms Yekaterina Sergeyevna Avilkina, was born in 2006 and lives in Nalchik. The third applicant, Ms Nina Nikolayevna Dubinina, was born in 1959 and lives in Murmansk. The fourth applicant is Ms Valentina Alekseyevna Zhukova, was born in 1956 and lives in the Leningrad region. 6. On 23 September 2004 the Committee for Salvation of Youth from Destructive Cults (“the Committee”) wrote to the Russian President targeting primarily the beliefs and practices of the applicant organisation and accusing it of extremism. The letter also contained a request for an inquiry into the applicant organisation’s activities. 7. On 16 November 2004 the Committee’s letter was forwarded by the President’s Administration to the St Petersburg City Prosecutor’s Office. The ensuing inquiry disclosed no unlawfulness in the applicant organisation’s activities. 8. On 28 March 2005 the Committee lodged another complaint against the applicant organisation. It was rejected on 4 April 2005. Subsequently the Committee introduced six more complaints. All of them were rejected following an inquiry. 9. During the period between 7 March 2005 and 3 May 2007 the applicant organisation addressed five letters to the authorities asking about the results of their inquiries. The prosecutor’s office responded that the applicant organisation’s activities had revealed no violations. The applicant organisation’s request to review the relevant file was refused. 10. According to the applicant organisation, within the framework of the inquiries the City Prosecutor’s Office interacted with other State agencies, submitted religious literature for expert examination, studied medical files of members of the applicant organisation, intervened in a school matter without parental consent and examined repeated complaints from organisations and individuals. 11. On 1 June 2007 a St Petersburg Deputy City Prosecutor asked the St Petersburg Public Health Committee to instruct all the city’s medical institutions to report every refusal of transfusion of blood or its components by Jehovah’s Witnesses. The prosecutor’s letter read as follows: “In response to the order of the Russian Federation Prosecutor General’s Office, the city prosecutor’s office is investigating the lawfulness of the activity of the religious organisation known as the Administrative Centre of Jehovah’s Witnesses in Russia. The ideology of the said organisation forbids its adherents to accept transfusions of blood or blood components. An investigation has established that in a series of cases refusals of blood transfusions hindered the administration of qualified medical care and aggravated the illness. In view of the above, I request that you instruct all medical institutions in St Petersburg to inform the committee, without delay, of any incidents of refusal of transfusion of blood or its components by individuals who are members of the said religious organisation.” 12. On 4 June 2007 the City Prosecutor’s Office dismissed the applicant organisation’s request for access to the materials compiled by it in the course of the inquiries. 13. From 2 February to 5 April 2006 the fourth applicant underwent surgical treatment in a state hospital without the use of foreign blood or blood components. On 25 January 2007 the Kurortnyy District Prosecutor’s Office asked the hospital to submit her medical record. 14. On 26 July 2007 the fourth applicant learnt that the District Prosecutor’s Office had reviewed her medical documents and information on the treatment methods and their results. 15. On 26 March 2007 the third applicant was admitted to a public hospital. She chose to have non-blood management treatment for her condition which the hospital did not agree to provide. On 18 April 2007 she was discharged from hospital. She was then admitted to a private hospital for a surgical intervention. The public hospital did not report her case to the prosecutor’s office. 16. On unspecified dates the second applicant underwent chemotherapy in a public hospital, following a non-blood management treatment plan. In response to the Deputy City Prosecutor’s request (see paragraph 11 above), the doctors informed the Public Health Committee and the prosecutor’s office of her case. 17. On an unspecified date the applicant organisation and several of its members, including the second, third and fourth applicants, lodged a complaint against the prosecutor’s office whereby they asked the court (1) to declare unlawful the inquiries carried out by the prosecutor’s office in connection with the applicant organisation’s activities; (2) to instruct the authorities to cease their interference with the rights and lawful interests of the applicant organisation and to discontinue the investigation into its activities; (3) to declare unlawful the decision of the prosecutor’s office of 4 June 2007 refusing access to the investigative materials; (4) to order the prosecutor’s office to return the medical documents to their respective owners and to require the destruction of the relevant materials, if any, held by the authorities; (5) to order the prosecutor’s office to return the religious literature to the applicant organisation in its entirety and undamaged; (6) to oblige the prosecutor’s office to provide the applicant organisation with the findings of the expert study of the applicant organisation’s religious literature; (7) to instruct the prosecutor’s office to restrain the Committee and other similar organisations from their attacks against the applicant organisation; (8) to instruct the prosecutor’s office to take appropriate measures regarding malicious and unfounded allegations against the applicant organisation in the event that any such allegations contained slander, defamatory statements, or signs of extremism or were untrustworthy. 18. On 27 March 2008 the Oktyabrskiy District Court of St Petersburg granted the applicants’ claims in part. It pronounced unlawful the prosecutor’s office’s decision of 4 June 2007 and instructed it to grant the applicant organisation’s representatives access to the materials from the inquires. The remainder of the application was dismissed. 19. As regards the third applicant’s allegedly premature discharge from the public hospital, the court noted that this issue was beyond the scope of the applicants’ complaint against the prosecutor’s office. 20. The court noted as follows in respect of the disclosure of the second and fourth applicants’ medical files: “According to Article 61 of the Basic Principles of Public Health Law, information concerning medical consultation, an individual’s health, his or her diagnosis and other data obtained in the course of examination or treatment shall be considered confidential (medical secret). A patient is guaranteed confidentiality of the data he or she provides. Accordingly ... it should be acknowledged that information on blood transfusion and the method of treatment of a patient, is considered confidential, and the disclosure of such [information], in the absence of [the patient’s] consent, by a person privy to it as a result of their studies or professional duties is permissible only in the instances provided for in part four of Article 61 of the Basic Principles of Public Health Law. It is true that, in the letter dated 1 June 2007 ... the St Petersburg Deputy Prosecutor advised the chairman of the St Petersburg Public Health Committee to order all medical institutions in St Petersburg to inform the said committee of each refusal of transfusion of blood or its components by members of the Jehovah’s Witnesses, and to forward such information received by the committee to the St Petersburg Prosecutor’s Office ... . ... According to part 4 § 3 of Article 61 of the Basic Principles of Public Health Law, as in force before the amendments were introduced ... on 24 July 2007, the prosecutor, in connection with an investigation, had a right to apply to a medical institution with a request to disclose confidential medical information. The court finds incorrect the argument of the representative [of the applicant organisation] and of [the second applicant] that the prosecutor had the power indicated above only when conducting a criminal investigation and not when conducting an investigation concerning compliance with laws, inasmuch as [the wording of Article 61] did not refer to such a restriction. The letter of the St Petersburg Deputy Prosecutor of 1 June 2007 ... was sent to the chairman of the St Petersburg Public Health Committee before [Article 61] was amended and cannot be considered to be in contravention of the law. ... The request of the Kurortnyy District Prosecutor’s Office of St Petersburg of 25 January 2007 ... sent to [the oncology centre where the fourth applicant underwent treatment] requesting [her] medical history file concerned only the information regarding the possibility of blood transfusion for [the fourth applicant], the reasons for her refusal of such treatment and the consequences of her refusal ... .” 21. On 2 July 2008 the St Petersburg City Court upheld the judgment of 27 March 2008 on appeal. 22. According to the applicant organisation, the prosecutor’s office failed to comply with the judgment of 27 March 2008 ordering the latter to allow the applicant organisation to review the materials of the inquiry. The applicant organisation’s representatives were allowed to review only ten per cent of the materials in question. 23. The Basic Principles of Public Health Law of the Russian Federation (in force at the relevant time) provided as follows: Article 61. Confidential medical information (medical secret) “Information concerning medical consultation, an individual’s health, his or her diagnosis and other data obtained in the course of examination or treatment shall be considered confidential (medical secret). ... Confidential medical information cannot be disclosed by a person privy to it as a result of their studies or their professional, employment-related or other duties, except as provided for in parts three and four of this Article. A person or his legal representative may consent to the disclosure of confidential medical information to other persons, including officials, for the patient’s examination and treatment, scientific research, publications, training and other purposes. Confidential medical information may be disclosed without the consent of the individual or his legal representative: ... 3) At the request of investigating bodies, a prosecutor or a court in connection with an investigation or judicial proceedings.” Article 69. The individual’s right to appeal against actions of state bodies or officers infringing the individual’s rights and liberties in the public health sphere “Actions of State bodies or officers which infringe the individual’s rights and liberties set forth in the present Basic Principles in the sphere of public health may be appealed against to higher State bodies or officials or to a court in accordance with the applicable legislation.” 24. The Federal Law on the Prosecutor’s Office in force since 1992, as amended, provides as follows: Article 22. The prosecutor’s power [as regards legal compliance] “1. When carrying out the duties incumbent on him or her, the prosecutor may: ... ..., conduct inquiries in respect of materials and requests received by the prosecutor’s office ... ; Summon State officials and private parties in order to obtain their explanations as regards violations of the law.” Article 27. The prosecutor’s power [as regards protection of human rights and freedoms] “1. In performing his or her functions, the prosecutor shall: Examine and consider reports, complaints and other statements concerning [alleged] infringements of human rights and liberties; Explain to the persons concerned the procedure to follow to protect their rights and liberties; Take measures to prevent and to stop violations of human rights and liberties, prosecute individuals who break the law, and have any damage repaired; ... .” | 1 |
train | 001-104859 | ENG | BGR | CHAMBER | 2,011 | CASE OF ANNA TODOROVA v. BULGARIA | 3 | Violation of Art. 2 (susbtantive aspect);Non-pecuniary damage - award | Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 8. The applicant was born in 1949 and lives in Seraing, Belgium. 9. On 24 October 1994 her son, Mr Zhivko Todorov Todorov, who was born in 1972 and lived in Plovdiv, Bulgaria, was involved in a road traffic accident. On 2 November 1994 he died from his injuries. 10. In the autumn of 1994 Mr Todorov befriended S.N. On the morning of 24 October 1994 the two travelled from Plovdiv to Varna. They were travelling by car, a BMW 5 Series belonging to a company owned by S.N.’s family. In the afternoon they left Varna and headed back to Plovdiv. On their way back, they passed through the town of Chirpan at about 10 p.m., where they met S.N.’s brother and two friends of his, I.M. and I.I. According to later statements of S.N. and a friend of his, S.S. (see paragraphs 27 and 28 below), shortly after that on the road to Plovdiv they saw S.S., whose car was stopped at the side of the road because he had a flat tyre. They lent him the BMW’s spare tyre and continued on their way. 11. When, some time after 11 p.m., they were passing through the village of Plodovitovo, where the speed limit was fifty kilometres per hour, they started overtaking a lorry with a trailer. The lorry, driven by P.P., reached a crossroad and started turning left. The BMW was moving behind it at about one hundred kilometres per hour. It did not slow down and collided headon with the lorry’s trailer. Immediately after the crash the BMW caught fire. P.P., who had not sustained any injuries, got out of the lorry and, with the help of the driver of a Lada Niva with registration plates from the town of Yambol, took Mr Todorov and S.N. out of the burning BMW. 12. At about midnight Mr Todorov and S.N. were taken to a hospital in Chirpan. Mr Todorov was in a very bad condition and unconscious. S.N.’s injuries, although serious, were not as critical. Some time later a police officer came to the hospital. He was unable to interview Mr Todorov or S.N., the former being unconscious and the latter apparently being in a state of shock and incapable of making coherent statements. After that the officer visited the scene of the accident and took notes and pictures. 13. On 28 October 1994 Mr Todorov was transferred to a hospital in Plovdiv. He did not regain consciousness and died on 2 November 1994. 14. On 3 November 1994 a doctor from the forensic medicine department of the Plovdiv Medical University performed an autopsy on Mr Todorov’s body. He found numerous traumatic injuries to his head, limbs and internal organs. The doctor’s conclusion was that he had died from his brain injuries. In his opinion, these injuries had been caused by the impact of the collision. 15. On the night of the accident the police opened an inquiry into the actions of S.N. on suspicion that, by breaching road traffic regulations, he had caused the accident and had thus negligently inflicted bodily injury on Mr Todorov. 16. On 25 October 1994 the police interviewed P.P. He described the accident and said that he had taken the two injured men out of the BMW with the help of other drivers who had stopped nearby. The same day he gave a blood sample. The sample was analysed on 1 November 1994 and it was determined that his blood had no alcohol content. 17. On 16 December 1994 the officer investigating the case asked an expert to determine whether Mr Todorov’s death had been a result of the accident. 18. On 3 January 1995 the police sent the case to the Chirpan District Prosecutor’s Office, proposing to convert the inquiry into a fully fledged homicide investigation. The case was then forwarded to the Stara Zagora Regional Prosecutor’s Office, which on 20 January 1995 opened a criminal investigation. 19. On 9 February 1995 the investigator to whom the case had been assigned asked an expert to determine whether P.P. had manoeuvred properly. In his report, filed on 5 March 1995, the expert said that P.P. had carried out the left turn correctly and that the accident had occurred because of the BMW’s high speed, well above the maximum allowed on that part of the road. 20. On 1 March 1995 the investigator interviewed P.P. again. 21. On 7 March 1995 the investigator asked an expert to determine (a) the exact spot where the BMW and the lorry’s trailer had collided; (b) the BMW’s and the lorry’s exact speed before the accident; (c) the distance between the BMW and the lorry at the time the lorry began its left turn; and (d) whether it had been possible for the BMW’s driver to avoid the accident. In his report, filed on 13 March 1995, the expert said that (a) the collision had taken place on the road; (b) the lorry had been travelling at thirteen kilometres per hour and the BMW at about one hundred kilometres per hour; (c) the BMW had been eightythree metres behind the lorry at the time the lorry had started to turn; and that (d) the BMW’s driver could have stopped before the collision point. 22. It seems that no procedural steps were taken during the following months. 23. On 6 September 1995 the investigator sent the file to the Stara Zagora Regional Prosecutor’s Office with a recommendation to discontinue the proceedings. On 26 September 1995 that Office referred the case back, noting that, although more than half a year had passed following the opening of the proceedings, the inquiries had not been comprehensive and thorough. No steps had been carried out with the participation of S.N. and various other pieces of evidence had not been gathered. 24. In the meantime, on 14 September 1995 the applicant and her husband, who later passed away, brought a civil party claim against S.N. 25. On 23 October 1995 the investigator interviewed S.N. He described the events of 24 October 1994 and asserted that, although the BMW had belonged to his and his brother’s company, Mr Todorov had been the one driving it at the time of the accident. He also said that he would be able to find witnesses who could confirm that assertion. 26. On 17 November 1995 the investigator interviewed P.P. once again. He mentioned the driver of the Lada Niva (see paragraph 11 above), but said that he did not remember his name or the exact number of his registration plates. He described how the two of them had taken the two injured men out of the BMW, and said that the one behind the wheel had been S.N. After that the investigator organised an identity parade at which P.P. identified S.N. as the BMW’s driver. 27. On 22 November 1995 the investigator interviewed S.S. He said that he knew S.N. well, but had not known Mr Todorov at all. He also said that when S.N. and Mr Todorov had stopped to help him with the flat tyre, the one driving the BMW had been Mr Todorov. 28. On 24 November 1995 the investigator charged S.N. and interviewed him. S.N. asserted that the person driving the BMW at the time of the accident had been Mr Todorov. On the way from Varna they had switched several times, but at the time of the accident the one behind the wheel had been Mr Todorov. This had been witnessed by several people in Chirpan. It had also been witnessed by his friend, S.S., on the road between Chirpan and the place of the accident. 29. The same day the investigator interviewed I.M. and I.I., who said that they had been having dinner with S.N.’s brother in Chirpan when they had met S.N. and Mr Todorov. They also said that they were acquainted with S.N., but had known Mr Todorov only by sight. Both of them stated that the one driving the BMW at the time of their meeting had been Mr Todorov. 30. On 7 December 1995 the investigator sent the case to the Stara Zagora Regional Prosecutor’s Office, recommending that the proceedings be discontinued. He noted that the technical expert report and the inspection of the site of the accident showed that the accident had been the fault of the BMW’s driver. The only contentious issue was whether this had been S.N. or Mr Todorov. P.P. had stated that the one behind the wheel had been S.N. However, the latter had disputed this assertion and had provided three witnesses – I.M., I.I. and S.S. – who had all asserted that the one driving the BMW had been Mr Todorov. It could therefore be concluded that the BMW had been driven by Mr Todorov. 31. On 10 January 1996 the Stara Zagora Regional Prosecutor’s Office referred the case back to the investigator for additional investigation. 32. On 18 January 1996 the investigator interviewed the police officer who had started the inquiry. He said that he had first gone to the hospital and then to the scene of the accident, but was unable to say which of the two persons in the BMW had been the driver. 33. On 4 April 1996 the investigator asked two medical experts to assess the extent of S.N.’s injuries and to express an opinion on whether he had indeed been unable to make coherent statements after the accident. In their report, filed on 9 May 1996, the experts said that it was impossible to determine this solely from the materials in the file because shortly before the accident S.N. had been involved in another road traffic accident. It was necessary to examine him personally. 34. On 11 July 1996 the investigator asked five experts to express their opinion on whether Mr Todorov or S.N. had been driving the BMW at the time of the accident. However, the experts were unable to examine S.N., who had gone missing, and the report could not be completed. On 30 December 1996 the experts sent the file back to the investigator and asked him to order that S.N. be compelled to appear. 35. On 11 April 1997 the Stara Zagora Regional Prosecutor’s Office, to which the file had been sent, returned it for further investigation. It ordered that S.N. be compelled to submit to an examination by the experts. 36. On 24 April 1997 the investigator requested the police to trace S.N. with a view to summoning him. The police supplied information about his address on 2 May 1997. On 13 May 1997 he was summoned for 20 May 1997, but failed to appear. Accordingly, on 9 July 1997 the investigator ordered that he be brought by force. On 23 July 1997 the Stara Zagora Regional Prosecutor’s Office decided to place him in custody. On 21 November 1997 instructions were given for him to be found. 37. On 30 March 1998 S.N. appeared before the investigator. He was charged, interviewed and allowed to examine the file with his counsel. He said that he stood by his previous statements. 38. On 13 October 1998 the investigator sent the case to the Chirpan District Prosecutor’s Office, recommending that S.N. be brought to trial. 39. On 26 January 1999 the Stara Zagora Regional Prosecutor’s Office sent the case back to the investigator, noting, among other things, that he had not properly worded the charge, that no information had been gathered on any previous road traffic offences committed by S.N., and that the medical expert report ordered on 11 July 1996 had not been finalised. It instructed the investigator to examine whether P.P. had made the left turn in line with road traffic rules and, if he found that this was not the case, to charge him as well. 40. On 9 February 1999 the investigator asked an expert to determine whether P.P. had turned left properly. In his report, filed on 5 March 1999, the expert stated that P.P. had not breached any road traffic rules. 41. On 11 March 1999 the investigator asked five experts to determine, on the basis of the injuries sustained by Mr Todorov and S.N., which of the two had been driving the BMW at the time of the accident. The experts studied the documents in the file, including the medical report drawn up when Mr Todorov had been admitted to the hospital in Chirpan, his autopsy report, and a medical report on S.N.’s condition on the day after the accident. On 8 June 1999 they examined S.N. and on 11 June 1999 subjected him to an X-ray and a CAT scan. However, they were not able to inspect the BMW, as it had apparently disappeared. 42. On 14 July 1999 the investigator interviewed S.N. in relation to the BMW’s whereabouts. He said that he had left it on a street in the village of Gradina. Somebody had later removed it from there and he had no idea where it was. 43. In their report the experts said that, without inspecting the BMW and on the basis of the medical data alone, they could not reach a definite conclusion as to which of the two had been driving it at the time of the accident. 44. On 23 August 1999 the investigator charged S.N. anew and interviewed him, and on 7 September 1999 ordered that the applicant be allowed to participate in the proceedings as a civil claimant. 45. On 15 September 1999 the investigator sent the case to the Stara Zagora Regional Prosecutor’s Office, proposing that S.N. be brought to trial. 46. However, on 27 September 1999 the Stara Zagora Regional Prosecutor’s Office decided to discontinue the proceedings, reasoning that it had not been conclusively established who had been driving the BMW at the time of the accident. According to I.M., I.I. and S.S., it had been Mr Todorov, whereas P.P. maintained that it had been S.N. The experts had been unable to arrive at a categorical conclusion on this point. It was also unclear whether the line in the middle of the carriageway had been continuous or dotted. Therefore, the accusation had not been proved. On 19 May 2001 the prosecutor’s office sent the case of its own motion to the Stara Zagora Regional Court. 47. In a decision of 6 June 2001 the Stara Zagora Regional Court, noting that in accordance with an intervening legislative amendment the decision to discontinue an investigation was no longer subject to automatic review by the courts, but could only be reviewed pursuant to an application by those concerned, referred the case back to the prosecution authorities with instructions to inform the applicant of the discontinuance. 48. On 27 June 2001 a prosecutor of the Stara Zagora Regional Prosecutor’s Office again discontinued the investigation. He described the circumstances of the accident and said that it was clear that the BMW’s driver had breached road traffic regulations, whereas P.P. had properly made a left turn. However, despite taking all the necessary steps, the investigation had been unable to ascertain who had been driving the BMW at the time of the accident. Three witnesses – I.M., I.I. and S.S. – were categorical that the BMW had been driven by Mr Todorov. The experts were unable to arrive at a definite conclusion on this point. The police officer who had inspected the scene could not say who had been driving the BMW either. On the other hand, P.P., when interviewed, had stated that the BMW had been driven by S.N., and had identified him as the driver during an identity parade. It was also unclear whether the line in the middle of the carriageway had been continuous or dotted. Therefore, the accusation had not been proved. 49. This decision was sent to the applicant on 2 January 2003. 50. On 10 January 2003 the applicant sought judicial review by the Stara Zagora Regional Court. She argued that the conclusion that it could not be determined whether S.N. had been behind the wheel at the time of the accident was based on incomplete evidence. The authorities’ preference for the testimony of I.M., I.I. and S.S., who had not witnessed the accident, over the testimony of P.P., who had taken the victims out of the burning BMW, was unwarranted. The discrepancy between their versions should have been elucidated through a confrontation. She further pointed out that it would not have been very hard to establish the identity of the Lada Niva’s driver and then interview him, which had not been done. 51. On 24 January 2003 the court, observing that the prosecution authorities had failed to serve a copy of the application on S.N., referred the case back to them with instructions to do so. They apparently complied with these instructions and re-sent the file to the court. 52. After holding a hearing on 7 May 2003, in a decision of 23 May 2003 the court upheld the decision to discontinue the proceedings. It held that when hearing a challenge against a decision discontinuing a criminal investigation it could not scrutinise the manner in which the prosecution authorities had assessed the evidence, nor take their place and fill in the gaps in their reasoning. It was not competent to gather fresh evidence either; its assessment had to be based on the available material. Accordingly, even if it were to find gaps in it, it could not set aside the discontinuance decision on that ground. 53. The applicant appealed, but, following a legislative amendment effective from 3 June 2003 and providing that firstinstance court decisions reviewing prosecutor’s decisions to discontinue criminal investigations were final, the court terminated the proceedings on 23 June 2003. 54. Throughout the proceedings the applicant wrote many letters to the prosecuting authorities, urging them to expedite the processing of the case. On some of those occasions the Chief Prosecutor’s Office sent letters to the lower prosecutor’s offices, instructing them to finalise the case promptly. 55. On 7 December 1998 the applicant brought a tort claim against S.N. in the Plovdiv Regional Court. After holding a hearing on 5 February 1999, on 16 March 1999 the court stayed the proceedings pending the outcome of the criminal investigation. On several occasions between 2001 and 2003 it enquired about the investigation’s progress. On 22 December 2003, following the upholding of the investigation’s discontinuance, it resumed the examination of the claim. 56. The court then held two hearings, on 11 February and 9 April 2004. The applicant could not be found and summoned for the first of those at her home, and was regarded as summoned under a rule allowing constructive summoning where a party failed to inform the court of a change of address. The court summoned the applicant for the second hearing through the counsel who represented her before the proceedings were stayed. However, neither the applicant nor the lawyer appeared. The court admitted in evidence the prosecutor’s decision to discontinue the criminal proceedings and the decision whereby the Stara Zagora Regional Court had upheld the discontinuance (see paragraphs 48 and 52 above). 57. The Plovdiv Regional Court dismissed the applicant’s claim on 10 May 2004. It held as follows: “[The] prosecutor’s decision [of 27 September 1999 – see paragraph 46 above] and [the] Stara Zagora Regional Court’s decision [of 23 May 2003 – see paragraph 52 above] were admitted in evidence without being challenged. The prosecutor’s decision shows that the criminal proceedings against [S.N.] under Article 343 § 1 (c), read in conjunction with Article 342 § 1 of the Criminal Code [see paragraph 60 below] have been discontinued for lack of evidence. The reasons for the discontinuance are that it was not established in a categorical manner who had driven the car at the time of the road traffic accident, and that there was a lack of categorical findings as to whether the line in the middle of the carriageway at the area of the accident had been continuous or dotted. In those circumstances, the [court] finds that the claims under section 45(1) of the Obligations and Contracts Act [see paragraph 61 below] are unfounded and should not be allowed. ...” 58. Notice of the court’s judgment was sent to the applicant’s address in Bulgaria, but could not be delivered because she no longer lived there. Another notice was sent to the abovementioned lawyer; it was received by a colleague of his on 8 June 2004. 59. There is no indication that the applicant appealed against the judgment. 60. Article 343 § 1 (c), read in conjunction with Article 342 § 1 of the Criminal Code 1968, makes it an offence to cause the death of another by driving in reckless disregard of road traffic regulations. The penalty on conviction is up to six years’ imprisonment. 61. The civillaw consequences of road traffic accidents are governed by the general law of torts. The relevant provisions are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (Закон за задълженията и договорите). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. In all cases of tortious conduct, fault is presumed unless proved otherwise (section 45(2)). Compensation is due for all damage that is a direct and proximate result of the tortious act (section 51(1)). The amount of compensation in respect of nonpecuniary damage is to be determined by the court in equity (section 52). 62. The law concerning civilparty claims in criminal proceedings and separate civil claims is set out in the Court’s admissibility decision in the case of Tonchev v. Bulgaria ((dec.), no. 18527/02, 14 October 2008) and in paragraphs 29 and 30 of the Court’s judgment in the case of Dinchev v. Bulgaria (no. 23057/03, 22 January 2009). 63. The provisions governing discontinuance of criminal proceedings before trial are set out in the Court’s decision in the case of Nenkov v. Bulgaria ((dec.), no. 24128/02, 7 October 2008). 64. The rules governing stays of civil proceedings and the effects of a decision to discontinue a criminal investigation on the examination of a separate civil claim arising out of the same events were at the relevant time contained in Articles 182, 183 and 222 the Code of Civil Procedure 1952. They provided as follows: “The court shall stay the proceedings: ... (d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings.” “Proceedings which have been stayed shall be resumed on the court’s own motion or upon a party’s request after the respective obstacles have been removed...” “The final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated, whether it was unlawful, and whether the perpetrator was guilty of it.” 65. The former Supreme Court has given a number of rulings as to the effect of the above provisions. 66. In a decision of 1 December 1966 (тълк. реш. № 142 от 1 декември 1966, ОСГК на ВС), the General Meeting of the Civil Chambers of the former Supreme Court, in giving a binding interpretation of Articles 182 § 1 (e) and 222 of the Code, held that a prosecutorial decision discontinuing a criminal prosecution on the ground that the accused has not committed the impugned act is, unlike a judgment of conviction or acquittal, not binding on the civil court that rules on the civil consequences of that act. 67. In a judgment of 18 January 1980 (реш. № 3421 от 18 януари 1980 г. по гр. д. № 1366/1979 г., ВС, I г. о.), the First Civil Division of the Supreme Court held: “In principle, the fact that a criminal offence [has been committed] may be established only in proceedings under the Code of Criminal Procedure. That is why, by Article 182 [§ 1] (d) of the Code of Civil Procedure [1952], where an alleged civil right derives from a fact which amounts to an offence under the Criminal Code, the civil court is bound to stay the civil proceedings. That is necessary in order to follow the judgment of the criminal court. This is mandatory for the civil courts in all cases, regardless of the criminal offence to which [the proceedings] relate. The binding force of the judgments of criminal courts is set out in Article 222 of the Code of Civil Procedure [1952]. Under [that provision], the final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated, whether it was unlawful, and whether the perpetrator was guilty of it. The law does not allow the [civil] court freely to assess the evidence and requires that court, in order to abide by the criminal judgment, to regard as established the facts that that judgment has found to have occurred or otherwise. The criminal court’s judgment is res judicata in relation to the matters mentioned in Article 222. That res judicata effect has to be taken into account by all courts and State authorities. It cannot be challenged when the criminal court’s judgment has taken effect. It presupposes that the act that forms the subject matter of the criminal judgment and the act that needs to be established in the civil proceedings coincide. It does not matter whether the act has been perpetrated by the defendant to the civil action or is an act by a third party that has an effect on the defendant’s liability. [The court] must treat as binding not only convictions, but also acquittals, in cases where they have established the lack of elements of the tort [in question]: for instance, the lack of an tortious act, [or] the lack of a causal link between the act and the damage [suffered by the claimant]. However, a criminal court’s judgment does not need to be treated as binding where it has acquitted the defendant on the ground that his or her act was not criminal – an act, although not amounting to a criminal offence, may still be a tort. The binding effect of the criminal court’s judgment relates to all elements of the criminal offence. When the amount of the damage is an element of the offence, the criminal court’s findings as to that amount are binding on the court which rules on the civil claim. When the criminal court has made findings in relation to the amount of the damage caused because it was an element of the criminal offence of which a person has been accused, those findings are binding on the court determining the civil claim. [For instance,] in the case of a theft, where the sum of money stolen is an element of the criminal offence, the criminal court’s findings as to that sum are binding in the civil case. [Similarly, in] the case of the offence of wilful mismanagement ..., the amount of damage caused is an element of the offence; in order for the impugned act to have constituted an offence, it must have caused significant damage. In order to determine whether the damage is significant, the criminal court must make findings as to its amount. That is why the amount of the damage featuring in the criminal court’s judgment is binding [on the civil court].” 68. In a judgment of 13 December 1988 (реш. № 817 от 13 декември 1988 г. по гр. д. № 725/1988 г., ВС, IV г. о.), concerning a claim for damages arising out of a road traffic accident, the Fourth Civil Division of the former Supreme Court held: “In dismissing the claim, the [lower] court found that the only party responsible for the accident was the claimant, who, at a distance of about ten metres, suddenly jumped in front of the car in order to cross the street and that therefore, despite the steps taken by the driver, the collision was not avoided. That conclusion was based on the fact that the criminal investigation against the driver had been discontinued on the grounds of lack of evidence, lack of some of the elements rendering the act a criminal offence, and lack of guilt. By basing its findings on the discontinuance of the criminal investigation, the [lower court] acted in breach of Article 222 of the Code of Civil Procedure, which provides that only the final judgment of a criminal court is binding on the civil court which deals with the civil consequences of the impugned act ... The prosecutor’s decision to discontinue the investigation has no evidential value and his or her findings are not binding on the court dealing with the civil consequences of the act. Where there is no judgment of a criminal court finding the accused not guilty of causing the claimant’s injuries, the civil court must establish whether or not the defendant has committed the alleged act on the basis of all types of evidence admissible under the Code of Civil Procedure. The prosecutor’s decision to discontinue the investigation has no evidential value and does not show that the defendant is not responsible for the road traffic accident.” | 1 |
train | 001-61802 | ENG | SVK | CHAMBER | 2,004 | CASE OF VALOVA, SLEZAK AND SLEZAK v. SLOVAKIA | 3 | Violation of P1-1;No violation of Art. 6-1;Just satisfaction reserved | Nicolas Bratza | 8. On 10 February 1992 the Topoľčany Land Office (Pozemkový úrad) delivered two decisions granting the applicants’ claims for restitution of real property under the Land Ownership Act. The defendants appealed. 9. On 16 December 1993 the Nitra branch office of the Bratislava Regional Court (Krajský súd Bratislava, pobočka v Nitre) quashed these decisions on the ground that at the moment of the expropriation the land in question had been formally owned by a private company established by the members of the applicants’ family. However, the Land Ownership Act provided exclusively for restitution of property taken away from individuals. The Regional Court therefore sent the case back to the administrative authority. Prior to deciding on the case the Regional Court held a hearing with reference to Section 250q of the Code of Civil Procedure. 10. In the meantime, on 13 November 1992, the applicants and another member of their family concluded an agreement with the Western Slovakia Forest Administration. Under the agreement the Western Slovakia Forest Administration undertook to restore, in accordance with the Land Ownership Act, different real property expropriated from the applicants’ family. On 26 November 1992 the Topoľčany Land Office approved the agreement pursuant to Section 9 of the Land Ownership Act. Its decision became final on 18 December 1992. 11. On 17 June 1994 the Topoľčany Land Office decided to reopen the proceedings leading to its decision of 26 November 1992 pursuant to Section 62 (1) (a) and (b) of the Administrative Proceedings Act of 1967. The decision referred to the above finding of the Nitra branch office of the Bratislava Regional Court of 16 December 1993 according to which the land taken away from the applicants’ relatives could not be restored under the Land Ownership Act as it had been formally owned by a legal person. 12. On 4 July 1997 the applicants appealed through the intermediary of their lawyer. They argued that no relevant new facts had been established and that the decision to reopen the proceedings was not justified by the public interest. The applicants concluded that there existed no legal entitlement for having the proceedings reopened. 13. On 22 May 1995 the Ministry of Agriculture upheld the Land Office’s decision of 17 June 1994. The decision stated that no reasons for quashing or modifying the Land Office’s decision had been found. 14. The applicants sought a judicial review of the decision of the Ministry of Agriculture. On 29 September 1995 the Supreme Court (Najvyšší súd) discontinued the proceedings for lack of jurisdiction to review administrative decisions of a procedural nature. Reference was made to Article 248 (2) (e) of the Code of Civil Procedure. 15. By a decision of 8 June 1995 the Topoľčany Land Office disapproved the agreement concluded on 13 November 1992 on the ground that the property in question had been taken away from a legal person and that under the Land Ownership Act only property originally owned by individuals could be restored. 16. The applicants appealed and argued that there existed no reason for reopening the proceedings and that the land had been taken away from the members of their family. 17. On 30 January 1998 the Nitra Regional Court upheld the Land Office’s decision of 8 June 1995. The judgment stated that the only point to be determined was a question of law, namely whether the plaintiffs were entitled, within the meaning of Section 4 of the Land Ownership Act, to acquire the property. The court noted that in the judgment of 16 December 1993 it had found that the property had been taken away from a private company of which the applicants’ predecessors had been members and which had been a legal person. The Regional Court concluded that the applicants lacked standing to claim restitution under the Land Ownership Act. 18. The Regional Court further noted that a decision on reopening of proceedings before an administrative authority could not be reviewed by a court. It decided on the case without a hearing with reference to Article 250f of the Code of Civil Procedure. 19. Section 4 of Act No. 229/91 on Adjustment of Ownership Rights to Land And Other Agricultural Property (“the Land Ownership Act”) provides for restitution of real property to individuals from whom it was transferred to State ownership between 25 February 1948 and 1 January 1990 by means specified in Section 6. Where such persons are no longer alive, their successors are entitled to restitution under conditions specified in paragraph 2 of Section 4. 20. Section 9 (1) provides that a person entitled to restitution must lodge his or her claim with the appropriate land office and, at the same time, must request restitution from the person or entity possessing the real property at issue. The latter is required to conclude, within sixty days, an agreement on transfer of the property with the claimant. 21. Under Section 9 (2), such agreements are subject to approval by the competent land office. 22. The proceedings before land offices are governed by Act No. 71/1967 on Administrative Proceedings. 23. Under Section 3 (1), (3) and (4), administrative authorities are required to proceed in accordance with the law and they are obliged to protect the interests of the State as well as the rights and interests of the citizens. Administrative authorities are further obliged to thoroughly examine each case and to use all means available with a view to resolving it in the correct manner. Facts on which their decisions are based must be reliably established. 24. Section 18 provides that administrative proceedings can be brought either upon a request of a party or upon the initiative of the administrative authority. 25. Pursuant to Section 32 (1) and (2), administrative authorities are obliged to establish the relevant facts in an exact and comprehensive manner; in doing so they are not bound by the submissions of the parties. The scope and manner in which the facts are to be established are to be determined by the administrative authority. 26. Section 46 provides, inter alia, that an administrative authority’s decision has to be in accordance with the law and it has to be based on facts which are reliably established. 27. Under Section 59 (1), an appellate administrative authority is required to review the administrative decision appealed against as a whole. If need be, the appellate authority shall take further action and eliminate shortcomings in the earlier procedure which it has established. 28. Section 62 (1) (a) provides that administrative proceedings in which a final decision has been taken may be reopened at a party’s request when there are new facts or evidence which could substantially affect the decision and which could not be considered in the original proceedings for reasons that cannot be imputed to the party concerned. 29. Under Section 62 (1) (b), administrative proceedings in which a final decision has been taken may also be reopened when the decision depended on the examination of a preliminary issue on which the competent authority decided differently. 30. Section 62 (2) entitles administrative authorities to reopen proceedings for reasons set out in paragraph 1 provided that the review of a final decision is in the general interest. 31. Pursuant to Section 62 (3), administrative proceedings cannot be reopened when the effect of the decision in question was to entitle a party, inter alia, to exercise civil rights, provided that the party concerned acquired the rights in question in good faith. 32. Under Section 63 (3) and (4), re-opening of administrative proceedings can be initiated by a party or ordered by an administrative authority not later than three years from the final effect of a decision. After expiry of that three years’ period proceedings can only be re-opened where a decision was obtained as a result of a criminal offence. 33. The lawfulness of certain decisions of administrative bodies can be reviewed by courts in accordance with Part 5 of the Code of Civil Procedure which governs proceedings before the administrative courts. 34. Under Article 248 (2) (e), administrative authorities’ decisions of, inter alia, a preliminary and procedural nature cannot be reviewed by courts. 35. Article 249 (2) provides that a plaintiff must indicate which part of the administrative decision he or she challenges, state the reasons for which he or she considers such a decision to be unlawful and specify the decision he or she seeks to obtain. 36. Section 250f entitled the courts to deliver a judgment without prior oral hearing in simple cases, in particular when there was no doubt as to whether the administrative authority established the facts correctly, and the point at issue was a question of law. In its finding No. PL.ÚS 14/98 of 22 June 1998 the Constitutional Court found that Section 250f of the Code of Civil Procedure was contrary to the Constitution and also to Article 6 § 1 of the Convention. As a result, this provision ceased to be effective. 37. Pursuant to Articles 250q and 250r, a court examining an administrative decision can either uphold or quash it. When the decision was not taken pursuant to Section 250f or when the administrative authority did not take a new decision satisfying the plaintiff’s claim, the court may take such evidence as it deems necessary. When the court quashes a decision, the case is sent back to the administrative authority. The latter is bound by the legal opinion expressed by the court. 38. As a general rule, administrative courts acting under Part 5 of the Code of Civil Procedure are not obliged to examine of their own initiative whether or not an administrative decision conforms to the law. They are rather required to review administrative decisions in the light of the plaintiff’s arguments. In its judgment No. 4 Sž 88/95 delivered on 27 July 1995 the Supreme Court held that the situation is different and that the administrative court is entitled to quash an administrative decision even in the absence of the plaintiff’s submissions to that effect when the decision in question is absolutely void, e.g. when the administrative authority proceeded with a person who lacked standing in the case. 39. In accordance with academic opinion, the effect of an administrative decision approving an agreement on restitution of property pursuant to Section 9 of the Land Ownership Act is to entitle the party concerned to exercise civil rights within the meaning of Section 62 (3) of the Administrative Proceedings Act. The proceedings leading to such a decision cannot, therefore, be reopened provided that the party concerned acquired the rights in question in good faith (see Základy pozemkového práva, Komentár a vykonávacie predpisy, JUDr. J. Gaisbacher, JUDr. P. Peceň and Others, Heuréka, 1998, p. 89). | 0 |
train | 001-92137 | ENG | NOR | CHAMBER | 2,009 | CASE OF A. v. NORWAY | 3 | Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1957 and lives in Kristiansand. 6. On 19 May 2000, two girls of eight and ten years of age were raped and stabbed to death in Baneheia, a recreation area in the city of Kristiansand. Two young men were later convicted of the crimes and sentenced to 21 and 19 years of imprisonment respectively for rape and murder committed in particularly aggravating circumstances. The case received intense and extensive coverage in the national media. 7. In 1988 the applicant had been convicted of murder, attempted murder and eight instances of assault, all committed by the use of knife in June 1987 in Kristiansand. He had been sentenced to 11 years’ imprisonment and to five years’ security measures (sikring) (which under the relevant law at the time, could be imposed where it was established that the person concerned was not mentally ill (and thus criminally liable) but had an underdeveloped and permanently impaired mental capacity and that, because of this condition, there was a clear risk of his or her committing further criminal offences). Shortly before the expiry of the security measures on 20 September 1999, the public prosecutor had requested a prolongation, which a first instance court had granted in March 2000 for a period of three years (but which an appellate court refused in January 2001). In May 1999 the applicant had been released from security detention (lukket sikring) and had been placed under supervision at liberty (fri sikring). Thereafter he had lived in Kristiansand, partly in a camping cabin and partly in his family’s cabin by the river and had been working at a protected workplace for persons on rehabilitation scheme. He was a substance abuser and was connected to a group which used to gather at the so-called “Acid Knoll”, a place in the recreation area where the murders had taken place. 8. During the early stages of the murder investigation, the applicant and a number of other previously convicted persons were interrogated as witnesses. The police’s interest in the applicant attracted considerable media attention. 9. Two days after the murder, the police collected the applicant from his workplace and brought him to the police station. The police interrogated him for 10 hours until 00.30 am on 24 May 2000, and then brought him to his home. The interrogation became known to the press and was presented in the national media on 23 and 24 May 2000 together with information about his criminal trial in 1988 and the imposition of security measures in his case. In their issues published on those dates, three national newspapers, Aftenposten, Dagbladet and Verdens Gang, reported on the applicant but without stating his identity. 10. Also a national television channel, the TV2, gave extensive reports. In a news broadcast on 23 May 2000, at 9 pm (while the applicant was being interrogated), it stated: “Possibly the most special candidate of these persons (former convicted, Court’s addition) is precisely this 42-year-old because of his past and because he has been seen in the area where the murder occurred, at the time when it occurred, but so far there are no suspects, and it is precisely that which now is a little exciting in this case. Habitually, this type of investigation takes a long time, but when one carries out this type of alibi checkups, the case may soon take a new and special turn.” 11. In a news broadcast on 24 May 2000, 6.30 pm, TV2 reported that members of the press had followed a 42 year old murderer from Kristiansand in his footsteps. Then ensued an interview with the applicant, during which he was filmed from behind and partly from the side, on his way to the so-called “Acid Knoll” in the Baneheia area. 12. On 25 May 2000 Dagbladet published information about the applicant’s place of residence, in a report which also contained an interview with him. 13. On 24 May 2000, the newspaper Fædrelandsvennen, which is mainly a subscription newspaper (45,000 subscribers) and the principal district newspaper on the southern coast of Norway, published a report on the Baneheia case. The front page carried the following headline and introduction: “Convicted Murderer: I am completely innocent AT WORK: At 7.10 this morning, a 42-year-old convicted murderer from Kristiansand toddled off to the bus to return to work. Last night, he had been driven home by the police, after having been interrogated for approximately 10 hours concerning his movements on Friday, the day when C and D were killed. ALIBI: - I am completely innocent, said the 42-year-old to Fædrelandsvennen in the early hours of today. The man says he has an alibi for Friday night. The 42-year-old, who was seen by several witnesses in Baneheia on Friday, is probably the most interesting of several criminally convicted persons whose movements are now being checked by the police. SENTENCE TO SECURITY MEASURES: In 1988, the 42-year-old was sentenced to 11 years imprisonment and five years security measures [sikring] for one murder by knife, one attempted murder and several other acts of violence, with knife. The term of security measures [sikringstid] imposed on him expired on 20 September last year, but as late as in March this year, he was sentenced to another three years of security measures. The judgment has been appealed against.” Inside the newspaper at page 4 appeared an article entitled “Murder convict returns to work today” With the subtitle: “I am completely innocent” 14. The article contained a brief interview with the applicant, in which he stated that he had nothing to do with the matter and that he had witnesses. Next to the article appeared a large photograph showing the applicant from the side while entering a bus, not showing his head and the upper part of his bust inside the bus. A caption stated that the 42 year old was on his way to work at 7 am and: “‘I am completely innocent`”, says the previously murder convicted man who yesterday was interrogated for 10 hours.” 15. Underneath on the same page, the paper reproduced another article entitled: “Sent home after 10 hours’ interrogation” The introduction stated: “At 2 pm yesterday a 42 year old murder convict was fetched by the police at his workplace. 11 hours later he was brought to his home” 16. The article was accompanied by a large photograph of “the 42-year-old”, with his head blurred, accompanied by two police officers. 17. The article stated that the police had collected him at his workplace in the afternoon of 23 May 2000 for a 10 hour long interrogation. It described inter alia the background for the police’s interest in the applicant, reiterating that he had purportedly been seen by several witnesses in Baneheia on Friday night when the two girls had disappeared. Furthermore, reference was made to the factual background of his conviction in 1988. The following sub-titles were used: “Seen by the police”, “Released for one year”, “Berserk with a knife”, and “Victims at random”. 18. The article further quoted statements by a Chief Constable, Mr A. Pedersen, underlining that there “were still no suspects in the case” and that all of the people summoned for questioning had “formal status as witnesses in the case.” This point was further elaborated on in an interview with the Chief Constable on the same page, entitled “No one imprisoned today.” 19. In yet another article appearing under the heading “Have got the murderer in the papers”, the Chief Constable was quoted to have said to Verdens Gang that “the police have received so much information of substance that they have the answer in their documents to the question who had murdered the two young girls.” 20. The Baneheia case was also the main item on the front page of Fædrelandsvennen on 25 May 2000, with the heading “DNA traces found at murder place”. The article reiterated that according to the preliminary autopsy report, both of the girls had been sexually abused, that they had been murdered with a pointed and sharp penetrating arm, most probably with a knife. Page 6 of the paper contained an interview with some neighbours of the 42 year old, entitled “Neighbours fear prejudgment”, published together with a photograph of a residential development site. The article named a specific residential development area, Q, and its precise location, Z, stating that it was the “nearest neighbour to the 42-year-old convicted of murder.” 21. In a further article on the same page, under the heading “They want to know where I am”, the paper mentioned the name of the street where the applicant lived (Y), that of his neighbourhood (Z), and that of the company where he worked. The article rendered a statement by the applicant maintaining his innocence and informing that the police had wanted to know his whereabouts but had let him in peace. Next to the article appeared a photograph of the applicant seen from behind, at a relatively long distance, on his way down towards the Z-river, with the caption: “The 42 year old murder convict on his way home yesterday”. 22. On the same page appeared an article headed “Searching for a locally known murderer”, which quoted Chief Constable Pedersen as stating inter alia that the main emphasis of their investigation had been based on the belief that the murderer(s) had been locally known but that a wider Nordic focus had also been discussed. He had added that it was dangerous to concentrate the investigation on a specific milieu. 23. At the material time, Fædrelandsvennen was published in the afternoon, whereas Dagbladet, Verdens Gang and Aftenposten were published in the morning. 24. In October 2000, after the arrest of the actual perpetrators in the Baneheia case, the applicant, represented by a lawyer, demanded that Fædrelandsvennen apologise for its coverage and compensate him for pecuniary and non-pecuniary damage he had sustained. As the newspaper refused, in December 2000 the applicant’s lawyer brought on his behalf defamation proceedings before the Kristiansand City Court (tingrett) against Fædrelandsvennen, its editor-in-chief, Mr F. Holmer-Hoven and journalist B. The applicant claimed compensation for pecuniary and non-pecuniary damage. 25. By a judgment of 16 April 2003 the City Court rejected the applicant’s action. 26. The applicant then appealed to Agder High Court (lagmannsrett). He waived his claim for pecuniary damage, which matter was formally discontinued (hevet), but maintained his claim for non-pecuniary damage. 27. By a judgment of 23 December 2004, the High Court, sitting with three judges, found that an ordinary reader could perceive the impugned press reports published by the Fædrelandsvennen on 24 and 25 May 2005 as pointing to the applicant as a possible perpetrator of the murders of the two girls in Baneheia. The High Court observed that, although the paper had not mentioned the applicant by name, it ought to have been possible for those who knew him in advance to recognise him, in particular from the photograph taken of him from behind and from the information about his residence- and work places contained in the 25 May 2000 issue. It was hard to derive anything specific about the strength of the suspicion. Although it was true that formally speaking the applicant had only been given witness status, seen as a whole the report was capable of giving the ordinary reader the impression that the paper regarded the applicant as a person who already at an early stage of the investigation had stood out as the most probable perpetrator among those who had been in the police’s search light. The High Court moreover noted a number of other aspects of the publications confirming this impression. It concluded that the impugned publications were defamatory in the sense of Article 247 of the Penal Code. 28. As to the question whether the publications were unlawful (rettstridig), the High Court was of the view that it generally should fall within the State’s margin of appreciation to strike a fair balance between the interests in protection of freedom of speech under Article 10 of the Convention and the interests in protection of reputation under Article 8, bearing in mind also the presumption of innocence under Article 6 § 2. On the particular facts of this case, the High Court considered that there was undoubtedly a great public interest in the investigation of the murders and in the pursuit of the culpable persons. However, with two votes to one, the High Court found that, on balance, the interests in allowing the publications weighed more heavily than those against and that the impugned news coverage had therefore not been unlawful. 29. The dissenting member found that the “identification” of the applicant and its extensive press coverage by Fædrelandsvennen had been unlawful and that he should be awarded compensation under section 3-6 of the Damage Compensation Act 1969, namely NOK 150,000 by the newspaper and NOK 25,000 each from the editor-in-chief and from the journalist. The applicant appealed against the High Court’s application of the law to the Supreme Court, alleging that it entailed a violation of Articles 6 § 2 and 8 of the Convention. He maintained that in its coverage on 24 and 25 May 2000 the Fædrelandsvennen had portrayed him as the perpetrator of the most aggravated offences seen in modern times in Norway. He had not consented to the media coverage which had been a great burden to him. He had lost his job and home and suffered from serious psychological problems. 30. By a judgment of 14 December 2004 the Supreme Court, by three votes to two, found in favour of the respondents and rejected the applicant’s claim. 31. Mr Justice Stang Lund, whose reasoning was endorsed in the main by the other judges in the majority, inter alia concurred with the High Court’s finding that, the Fædrelandsvennen’s focus on the applicant as a previously convicted knife killer, his presence in Baneheia on the day when the criminal acts had been committed and the investigation of the applicant, for an ordinary reader must have been perceived as if he could be suspected of having committed the murders. It had already been publicly known that the perpetrators of the murders had used pointed penetrating weapons against the girls. This information together with the rendering of parts of the judgment by which the applicant had been convicted in 1988 and the security measures case, were likely to harm his good name and reputation and to expose him to hatred and contempt, thus fulfilling the objective constitutive elements in Article 247 of the Penal Code. On these points Mr Justice Stang Lund stated: “(56) Taking as a starting point the wording, typography, the internal context and the use of photographs it must be ascertained how the report and articles were likely to be understood by the ordinary reader.... The statements must be considered in the context of the whole report they are part of. (57) The High Court unanimously found that the factual information had to be considered in the context of the other content of the reports and the articles published on 24 and 25 May 2000, and concluded: ‘In the High Court’s opinion the conclusion of the interpretation is that Fædrelandsvennen pointed to [the applicant] as a possible perpetrator of the murders of the two girls in Baneheia. His name is not stated, but it was possible for those who previously knew [the applicant] to recognize him in particular because of the photograph taken of him from behind and because of the information about where he lives and the work place in the report dated 25 May. It is difficult to evaluate how strong the suspicion created was. Even though it is correctly underlined that the police had given [the applicant] only a witness status without formally charging or suspecting him, in the High Court’s view the report as a whole was capable of giving the ordinary viewer the impression that the newspaper considered [the applicant] to be a man who already at this early stage in the investigation stood out as the most likely perpetrator among the persons who were in the police’s search light.’ (58) The High Court, amongst other aspects, emphasised that in the front page story of 24 May it was stated that [the applicant] was ‘probably the most interesting of several convicted persons whose movements are now being checked by the police’, that he had been questioned for 10 hours after having been collected by the police at his work place, and that the report was illustrated with Dagbladet’s photograph of [the applicant] with his head blanked, being escorted by two police officers. The High Court found that the photograph created associations of arrest. This was presented together with the information that, after having been brought home, another police car with a dog patrol had arrived at the house, had passed by in low speed, had turned and had vanished in the dark. In addition to this the newspaper rendered statements by a police inspector to Verdens Gang that the police had received much information with substance, and that the answer to who had killed the two little girls was to be found in the police records. Also the rendering on 25 May that the police were looking for a locally known murderer with a greatly deviant personal character, in the High Court’s opinion supports the view that the applicant may be a person with the special character that are a requisite for committing such a heinous crime. The High Court did not find that the rendering of [the applicant]’s denial and of the neighbours’ warning against prejudging were sufficient to weaken the suspicion created by the newspaper coverage as a whole. (59) I concur with the High Court in that the focus by Fædrelandsvennen on [the applicant] as a previously convicted knife killer, his presence in Baneheia that afternoon the misdeed was carried out, and the investigation of him, for an ordinary reader must have been perceived as if he could be suspected of having committed these killings. It was already publicly known that the perpetrator(s) had used knives when the girls were killed. This information, together with the description of parts of his criminal conviction from 1988 and the security measures [sikring], was likely to harm [the applicant]’s good name and reputation and to expose him to hatred and contempt. The objective description of the offence in Article 247 is therefore fulfilled. (60) The adversary party has stated that the reports in Fædrelandsvennen of 24 and 25 May did not contribute to identify [the applicant] beyond that occurred in TV2 in the evening of 24 May, where he was interviewed and filmed from behind and from the side while walking towards Baneheia. My comment to this is that Fædrelandsvennen in connection with the reports of 25 May 2000 about [the applicant] informed about ‘the 42 year old’s’ work place and place of residence. The photograph from the previous day depicting [the applicant] entering a bus, a new photograph of 25 May showing [the applicant] with the same jacket and with a plastic bag on his way home ‘to the house in ....[the applicant]’s road at Z’, and the article from the newly constructed housing area in Æ at Z, may have led to more people in the near environment becaming aware of [the applicant]’s identity.” 32. As to the further question whether the allegations were unlawful (rettstridige), Mr Justice Stang Lund observed inter alia “(76) It is self-evident that the rapes and killings in Baneheia on Friday, 19 May 2000 were of great public interest. The news media had a duty to report, and the public had a right to receive, information about the misdeed, the investigation and the progress in the case. It is clearly a matter of public interest that previously convicted felons are in the police’s searchlight, and that interrogations and other police work is taking place to check witnesses out of the case or to charge them. In the near environment it may be of public interest to be informed about the fact that a previously convicted killer in the area in respect of whom a case concerning prolongation of security measures was pending, has been brought in by the police for questioning. (77) This must however be weighed against the interest of privacy and the protection of reputation, when the media circles in and identifies one or a few previously convicted persons being under investigation. At this stage the public normally has no legitimate interest to receive detailed information about previously convicted persons and their identity, hereunder descriptions of the criminal offences for which they have been convicted. However, in this very special case people living in the vicinity had a particular interest in knowing that a person who had previously been found guilty of murder and of violent assault and who had been sentenced to security detention, was living in the area, so that they could protect their own and their children’s interests. (78) The character of the allegation and, in particular, its seriousness is an important factor in the balancing exercise to be carried out when determining whether the interests of protection of personal life justify an interference with the freedom of expression, see Norwegian case-law reports (Norsk Retstidende (Rt.)) 2002 p. 764 on pp 774-775. In accordance with the case-law of the European Court and the Norwegian Supreme Court a distinction ought to be made between statements of fact and value judgments, because only statements of fact may be susceptible to proof. Normally statements which may be understood to mean that a person is or may be suspected of a criminal offence must be considered to be statements of facts which need to be proven. (79) The respondents have argued that the impugned statement only concerns whether the unnamed 42 year-old ‘is probably the most interesting among several previously convicted felons whose movements are now being checked by the police’. The leader of the investigation has later confirmed that the applicant was the most interesting person on whom efforts were deployed at the beginning of the investigation. The statement is alleged to have been correct, and its publication is claimed not to be unlawful. (80) When one, as I do, has reached the conclusion that the newspaper’s reports and articles considered as a whole left the impression that [the applicant] could be a suspect in the case, the evidence must concern whether he has committed the crime he has been accused of. It is not sufficient that the newspaper gave an accurate description of the factual circumstances adduced to show that there was a basis for suspicion. As an exception to this general rule case law has accepted the publication of charges. Here the evidence is acceptable when it is proven that the reporting of the charge in itself is correct, see Rt. 1999 p. 1742 (Landåssaken). There is no corresponding exception for reporting on suspicion. (81) In this case Fædrelandsvennen has not rendered a suspicion stated by others. The newspaper coverage and the articles mainly consist of reporting on the judgment from 1988, the relevant preventive supervision case [sikringssak] and the statements made by leaders of the investigation. It appears clearly that the applicant has been interrogated as a witness and that neither he nor anyone else is under investigation as a suspect. The most direct statement indicating suspicion is attenuated in its form in that [the applicant] according to the newspaper is ‘probably the most interesting of several criminally convicted persons whose movements are now being checked by the police’. His statements in an interview published on 24 May 2000 about his being completely innocent, has been published in the head line on top of the front page. (82) In balancing the competing interests in the concrete case I have with some doubt found that it was not unlawful for Fædrelandsvennen on 24 and 25 May 2000 to publish that [the applicant] was the most interesting of several convicted persons investigated by the police, even though this in the context may be perceived to mean that he was or could be a suspect. The monstrous sexual offences and consequent killings in Baneheia were of particularly great public interest throughout the country, especially in Kristiansand and in the Agder counties. The people in the vicinity around Baneheia and in the vicinity where [the applicant] lived, had a particular interest in receiving continuous and concrete information about the investigation. (83) In my opinion the journalist and the editor have not been negligent. The intense and extensive interest shown by the national news media directed against [the applicant] before Fædrelandsvennen’s own publishing, his own statements to the media and the public interest justified the publication of the information about [his] workplace and place of residence and the use of anonymous photos of his person. When considering the question of negligence, I also emphasize that the coverage and articles were balanced, that their main content consisted of reporting true factual information, and that the police underlined that no one was under suspicion and that the [applicant]’s view was presented clearly. I add that since this case presented itself at the early stage of the investigation, the newspaper had no cause to investigate further if [the applicant] could be the perpetrator....” 33. Mrs Justice Coward, whose opinion was endorsed in the main by the other judge of the minority, stated, amongst other: “(93) There was obviously public interest attached to the investigation in the Baneheia case. The nation was shocked, and it was a task for the media to inform of the crimes and the work of the police. In the High Court it was agreed that it must be allowed to impart an information that a previously convicted felon was in the police’s search light and had been subjected to a long interrogation - even though the reporting would make it possible to understand who this was for those who had special knowledge or for those who carried out investigations on their own. I too agree with that. The disagreement in the High Court concerned whether the further identification provided by Fædrelandsvennen - in particular by revealing the workplace and residence was justified. (94) In assessing the character of the allegation it is a point that this constituted an affirmation of suspicion, which when considering the seriousness is different from an accusation of being the perpetrator. But, on the other hand, the suspicion was related to particularly heinous crimes. The crimes aroused strong feelings of abhorrence and hatred in the population, and it is difficult not to think that it must have been awful to have been exposed to suspicion for having committed them. I agree with the High Court minority when it states that ‘strong reasons for protecting the privacy militate for protecting the identity of an individual who for different reasons has come in the search light of the police in the investigation of criminal cases. This consideration is, not the least, important in serious criminal cases where great public interests are attached to clearing up the case’. And precisely a person like [the applicant], who with his background more easily than others would be suspected, had a special need for the protection offered by the presumption of innocence. (95) I cannot see that it betters things, as stated by Fædrelandsvennen, that [the applicant] was given the opportunity to declare his innocence on the front page of the newspaper’s issue of 24 May 2000: ‘Convicted murderer: I am completely innocent’. It emerges from this report that none of ‘a not insignificant number of people’ being checked in the case were under suspicion. However, neither this was likely to weaken the suspicion towards [the applicant] as the likely perpetrator. I agree with the High Court - all three justices - when it states: ‘Not in the least the High Court finds that the total search light directed against [the applicant] is important. He represents both the starting point and most of the reporting done by Fædrelandsvennen covering the Baneheia-case those days. Given the reluctance the press in accordance with the ethics of journalism usually show by not identifying individuals being in the police’s search light, this to a large extent must strengthen the ordinary reader’s impression of [the applicant] as being the most possible perpetrator.’ (96) I cannot see that the total reporting by Fædrelandsvennen should be considered balanced, even though the factual information taken apart had not been incorrect, [the applicant] had been given the opportunity to claiming his innocence and the police’s statement that no one was to be suspected had been referred to. When it comes to heinous crimes of such gravity as here, in my opinion the press should not be allowed to publish untrue suspicions against identifiable individuals, even though the coverage should otherwise be characterized as being balanced. (97) I add that [the applicant] was persecuted by assertive media people against whom he found it difficult to protect himself. That he at no point accepted to be identified, must be obvious. (98) The difference of opinion between the majority and the minority of the High Court was related to the significance of other media identifying [the applicant]. In the evening of 24 May 2000 TV2 showed a report where he was filmed from behind and somewhat from the side. On 25 May 2000 Dagbladet informed that he worked in a protected workplace in Kristiansand and lived in his brother’s cabin in Y at Z. The newspaper also showed a photo of him taken from behind. Fædrelandsvennen went the furthest in publishing identifying information about [the applicant] - in particular by revealing his workplace and residence, but besides this the articles in this most important district newspaper must have made it possible for more people to identify him than those who watch TV2 or read Dagbladet. (99) The High Court minority point to an important consideration in emphasising at the end stating the need for the individual to be protected from collective media pressure: ‘The minority also attaches considerable weight to the fact that the coverage in Faedrelandsvennen appeared as an extensive and independent contribution from the newspaper and that the damaging effect for [the applicant] and the problems caused for him must have been caused by the total pressure from the media coverage during a short and concentrated period of time where Fædrelandsvennen’s contribution was of particular significance. The minority is inclined to accept that [the applicant] had become ‘free game’ as a result of the fact that some media had identified him. Such a solution is not adequate for protecting each individual against libellous reporting in mass media and does not coincide with the independent responsibility each newspaper has in circumstances where judicial and ethical press norms may be under challenge due to a situation of competitiveness .’ (100) I concur with this, and conclude - in accordance with the vocabulary used by European Court - that a pressing need existed for interfering with the freedom of expression in the way of a reaction to the coverage by Fædrelandsvennen. (101) The conditions for compensation in accordance with section 3-6 of the Damage Compensation Act have been fulfilled. Since I am aware that I represent a minority, I see no reason to go into detail with regard to the amount of compensation. However, in view of Fædrelandsvennen’s pleadings I point to the fact the harm caused by the offence to a large extent must be objectified: Also people who are socially marginalised must enjoy effective protection against libellous allegations. Like the minority in the High Court, I vote for compensating [the applicant] with NOK 150,000 from the newspaper and NOK 25,000 from the editor. The contribution from the journalist was more peripheral, and she should not be ordered to pay compensation. ...” 34. In October 2003 the applicant brought defamation proceedings against TV2 AS (Ltd.) before the Kristiansand City Court claiming compensation with regard to TV2’s news coverage on 23 and 24 May 2000 of the Baneheia case. The City Court found for TV2 and rejected the applicant’s claims. On an appeal by the applicant, on 8 December 2006 the Agder High Court upheld the applicant’s claim that the news coverage constituted unlawful defamation and ordered the defendants to pay him NOK 250,000 in compensation for non-pecuniary damage and discontinued the case with regard to his claim for pecuniary damage. As regards the contents of the disputed broadcasts and their defamatory effect, the Agder High Court made similar findings in the TV2 case as made by the appellate courts in the present case. In finding the defamation unlawful it had regard to several factors, notably TV2’s national as opposed to local media role, unlike that of Fædrelandsvennen, the potency of the televised medium, the rule of caution applicable to the press with regard to identification of person regarding coverage of early stages of criminal investigations and the fact that, although aware of an autopsy report made available on 24 May 2000 revealing that the murders had involved rape, TV2 had in the evening news of that date continued to focus on the applicant notwithstanding the fact that his 1988 criminal conviction had not concerned sexual offences. TV2 had also been the first medium to insinuate suspicion against the applicant and to identify him in its broadcasts and had taken the lead in this regard. On 19 February 2007 the Appeals Leave Committee of the Supreme Court refused TV2 leave to appeal. 35. Conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Article 247 of which provides: “Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.” A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“rettsstridig”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement. 36. For further specific information on the relevant national law, reference is made to paragraphs 41 to 45 and 47 of Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, ECHR 2007... 37. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers’ Deputies) contains the following principle of particular interest to the present case: “Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” | 1 |
train | 001-85864 | ENG | GBR | ADMISSIBILITY | 2,008 | CHAMBERS v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Geoffrey Chambers, is a British national who was born in 1941 and lives in Essex. 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 20 August 1996. On 13 February 2002, the applicant made a claim for widows’ benefits. On 8 March 2002, the applicant was informed that his claim had been disallowed as he was not a woman. On 18 March 2002 the applicant made a request for reconsideration. On 1 August 2002 his claim was reconsidered but the decision remained unchanged. The applicant appealed and a Tribunal hearing was held on 22 October 2002. His claim was dismissed on 18 June 2003. 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 | 001-5332 | ENG | TUR | ADMISSIBILITY | 2,000 | CIMEN, YILMAZ, ÖZTÜRK, ULUG, DELIBAS ET AL AND SARI ET AL v. TURKEY | 4 | Inadmissible | Christos Rozakis | The applicants are all Turkish nationals (see appendix). The second applicant is represented before the Court by Mr Hüseyin Sıragezen, a lawyer practising in Edirne. The remaining applicants are represented by Mr Abdurrahman Şahin, a lawyer practising in Ankara. A. The facts of the cases, as submitted by the applicant, may be summarised as follows. Application no. 40079/98 Hüsni ÇİMEN On 18 February 1995 the applicant, who was serving in the army at the time, was shot and wounded in a clash with members of the PKK. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist. On 1 February 1996 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was awarded compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 13 June 1996 he requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 15 August 1996 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court (“Askeri Yüksek İdare Mahkemesi”). The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which he had been awarded under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess the amount which would represent just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s method of calculation. On 14 May 1997 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. Under domestic law the judgments of the Supreme Military Administrative Court are final and cannot be appealed. The applicant requested rectification of the judgment. In accordance with domestic law, the file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 14 May 1997. On 1 October 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Application no. 40273/98 Cemal YILMAZ On 22 January 1996 the applicant, a conscript soldier, was injured while manoeuvring the private car of a superior officer at a military car wash. According to military regulations, cars were to be washed only by commissioned soldiers employed at the car wash. The superior officer requested the applicant to assist the commissioned soldier at the car wash if he had free time. The officer left the car in gear with the key in the ignition. While washing the car, the commissioned soldier told the applicant to turn the ignition key to start the windscreen wipers. When the applicant turned the ignition the engine started up and the car moved forward. The applicant pressed the accelerator in panic, the car advanced rapidly and hit a tree. The applicant suffered permanent injury to both eyes and had to be discharged from military service. On 24 December 1996 the applicant requested compensation from the Ministry of Defence. The Ministry did not respond within the time-limit prescribed by law. On 26 March 1997 the applicant brought an action for compensation against the Ministry of Defence before the Supreme Military Administrative Court. His lawyer contended that the applicant had been injured in the course of his compulsory military duty and that the administration was strictly liable (“objektif sorumluluk”) for personal injury arising in the course of his duties. The defendant Ministry denied liability but noted inter alia that the applicant would qualify for a retirement pension. On 8 October 1997 the Supreme Military Administrative Court found that the act complained of could not be attributed to the defendant administration since it was not related to the applicant’s military duties. Accordingly, the injury was not sustained by the applicant in the performance of his military service. This judgment was final under domestic law. The applicant did not seek rectification of the judgment. Application no. 44195/98 Serdal ÖZTÜRK On 10 July 1994 the applicant, who was serving in the army at the time, was instructed to hold a meeting with the heads of villages. A jeep was arranged to take him to the meeting. The applicant took a lieutenant’s private car instead, claiming that the jeep was unavailable. He was involved in a road accident which left him 70 % paralysed. The applicant received a retirement pension on account of his disability. The applicant applied to the Ministry of Defence for compensation. The Ministry rejected his request on the ground that the accident had not arisen in the performance of his military duties. On 25 June 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court. On 22 April 1998 the court rejected his request on the ground that the applicant’s claim was unconvincing and that the record of the accident was invalid. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. The applicant requested rectification of the judgment. In accordance with domestic law, the file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 22 April 1998. On 8 July 1998 the Chamber rejected the applicant’s request for rectification, holding that the request did not fall within the grounds specified for rectification. Application no. 44196/98 Selçuk ULUĞ On 14 September 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist. On 1 June 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 19 August 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation awarded under Law no. 2330 already paid to him. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 6 May 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 6 May 1998. On 8 July 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Application no. 44248/98 Kutbettin DELİBAŞ, Muzaffer DELİBAŞ, Saliha DELİBAŞ, Şadiye DELİBAŞ On 15 October 1996 Hamdin Delibaş who was serving in the army at the time, committed suicide. The reason for his suicide was explained in a letter found in his pocket. According to the contents of his letter, he had been humiliated by the officers and other soldiers in his squadron. He became depressed and had decided to take his own life. On 31 December 1996 the Military Prosecutor found that it was unnecessary to conduct an investigation since there was no evidence to substantiate the allegations in the letter. The applicants claimed that the mental health of Hamdin Delibaş began to deteriorate after he commenced his military service as a result of the torture and oppression to which he had been subjected. On 24 October 1997 the applicants instituted proceedings for compensation before the second Chamber of the Supreme Military Administrative Court. On 15 April 1998 the court rejected the applicants’ request on the grounds that they had not substantiated their allegations and that there was no causal link between the deceased’s suicide and the performance of his military service. The Chamber was composed of military judges two of whom, according to the applicants, had no legal training. The applicants requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 15 April 1998. On 10 June 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Ertan ÇAMAŞ The applicant, who was serving in the army at the time, claims that as a result of an operation carried out at a military hospital on 21 December 1994 he was left with permanent damage to his spine. On 12 October 1995 he had a follow-up operation at another military hospital. A medical report was drawn up declaring him unfit to continue his military service. The applicant claims that the doctors informed him that the first operation had been carried out negligently. On 8 April 1996 the applicant instituted compensation proceedings before the second Chamber of the Supreme Military Administrative Court. The court appointed an expert committee consisting of two professors and an associate professor from the Medical Faculty of Hacettepe University to examine the allegation of negligence. According to the committee’s report, both operations had been carried out successfully and faultlessly. The applicant’s lawyer objected to the findings on the grounds inter alia that the experts were not impartial and that the report was motivated by considerations of professional solidarity. The Supreme Military Administrative Court dismissed these objections finding them unsubstantiated and in a judgment dated 21 May 1997 rejected the applicant’s compensation claim. The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 21 May 1997. On 17 September 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. The applicant applied to the Directorate General of Retirement Fund for a benefit on account of his physical disability. The Directorate General rejected his request and on 27 December 1996 he instituted proceedings before the second Chamber of the Supreme Military Administrative Court. On 21 October 1997, the court rejected his request, holding that his disability did not result from the performance of his military service and there was no concrete proof that that his operation had been conducted negligently. The applicant requested rectification of the judgment. On 10 March 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. Barış ÖZBAKİ On 8 August 1995 the applicant, who was serving in the army at the time, was accidentally shot and wounded by a sergeant. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist. On 1 September 1996 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 13 March 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 29 April 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 29 April 1998. On 8 July 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. Application no. 49554/99 Yusuf SARI The applicant, who was serving in the army at the time, claims he was the victim of medical negligence at a military hospital which left him with permanent damage to his spinal marrow and left him paralysed below the neck. A medical report declared him unfit to continue his military service. The applicant maintained that he did not receive any benefit for his physical disability and that his medical expenses were not covered by the State. On 28 February 1997 the applicant applied to the Ministry of Defence for compensation. The Ministry of Defence did not reply to the application. On 6 May 1997 the applicant instituted compensation proceedings before the second Chamber of the Supreme Military Administrative Court. The court appointed an expert committee composed of three professors from the Medical Faculty of Hacettepe University to examine the allegations of medical negligence. The committee found no evidence of negligence. The applicant’s lawyer objected to the finding on the grounds inter alia that the experts were not impartial and that the report was motivated by considerations of professional solidarity. On 21 October 1998 the second Chamber of the Supreme Military Administrative Court rejected the applicant’s compensation request on the ground that the administrative authorities were not at fault. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 21 October 1998. On 9 April 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. Alper BİNGÖL On 24 September 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him paralysed below the waist. On 1 December 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. He requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 2 March 1998 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 2 December 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 2 December 1998. On 3 February 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. Adnan YAVUZER On 10 April 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him 99% paralysed below the waist. On 1 August 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. The applicant requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 27 April 1998 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court. The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the assessment of the legal expert, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations. On 16 December 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 16 December 1998. On 3 March 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification. B. Relevant domestic law Article 157 of the Turkish Constitution provides (unofficial translation): “The Supreme Military Administrative Court shall be the first and last instance for the judicial supervision of disputes arising out of administrative actions involving military personnel or relating to military service, even if such acts and actions have been carried out by civilian authorities. However in disputes arising out of the obligation to perform military service, there shall be no condition that the person concerned be a member of the military body. Members of the Supreme Military Administrative Court who are military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the President and members of the court, who are also military judges, by secret ballot and by an absolute majority of the total number of such members, from among military judges of the first category; members who are not military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the Chief of the General Staff from among the officers holding the rank and qualifications prescribed by law. The term of office of members who are not military judges shall not exceed four years. The President, the Chief Public Prosecutor and Head of Division of the Court shall be appointed among military judges according to rank and seniority. The organisation and functioning of the Supreme Military Administrative Court, its procedure, disciplinary affairs and other matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and the requirements of military service.” The Law governing the Supreme Military Administrative Court (Law No. 1602, 4 July 1972) (unofficial translation) Article 4 (Security of tenure) “The President, the Chief Public Prosecutor, the Members and the Presidents of the Chambers of the Supreme Military Administrative Court, being judges of this Court, are guaranteed security of tenure under the Constitution of the Turkish Republic.” Article 8 (Selection of the Members) “The President of the Republic shall select: The members of the Supreme Military Administrative Court from among military judges on the basis of a list of three candidates nominated in respect of each vacant office by an absolute majority of the total number of current members and presidents who belong to the ranks of military judges. The members of the Supreme Military Administrative Court who do not belong to the ranks of military judges shall be appointed from a list of three candidates nominated in respect of each vacant office by the Chief of the General Staff.” Article 14 (Chambers) “The Supreme Military Administrative Court shall be composed of two chambers. The Ministry of Defence can increase the numbers of the chambers by up to three upon the proposal of the General Council and with the approval of the Chief of the General Staff. The Ministry of Defence can decrease the numbers of the chambers down to two under the same procedure. Each chamber shall be composed of a president and six members. Four of the members shall be military judges and two of them shall be staff officers. The number of the members in deliberations shall be composed of five. The majority of the members in the deliberations shall consist of military judges. Decisions shall be taken by majority.” Article 66 of the Law No. 1602 on the Supreme Military Administrative Court provides: “Rectification of a judgment rendered by the Chamber or the Grand Chamber may be requested on one of the following grounds, only once within 15 days after it is served on the parties: a) The judgment does not refer to the allegations and the objections which affect its merits; b) The judgment contains provisions which contradict each other; c) The judgment is contrary (“aykırı”) to procedural and substantive law (“usul ve kanuna aykırı”)”. | 0 |
train | 001-59720 | ENG | NLD | CHAMBER | 2,001 | CASE OF ELIAZER v. THE NETHERLANDS | 1 | No violation of Art. 6-1;No violation of Art. 6-3-c;No violation of Art. 14+6 | Elisabeth Palm;Gaukur Jörundsson | 8. By summons of 5 June 1995 the applicant was ordered to appear on 14 June 1995 before the First-Instance Court (Gerecht in Eerste Aanleg) of the Netherlands Antilles on charges of possession of about one kilogram of cocaine. 9. By judgment of 28 June 1995, following adversarial proceedings in the course of which the applicant was assisted by a lawyer, the First-Instance Court acquitted the applicant. The prosecution filed an appeal with the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba. 10. As the applicant had failed to appear before the Joint Court of Justice at its first hearing on the appeal on 2 January 1996, he was declared in default of appearance (verstek). The Joint Court of Justice adjourned the proceedings until 9 January 1996. The applicant also failed to appear on 9 January 1996. On that date, the Joint Court of Justice resumed the proceedings and examined the appeal. The applicant’s lawyer attended this hearing and conducted the applicant’s defence. 11. By judgment of 23 January 1996, following proceedings in absentia, the Joint Court of Justice quashed the judgment of 28 June 1995, convicted the applicant of having violated section 3(1) of the 1960 Opium Act of the Netherlands Antilles (Opiumlandsverordening 1960) and sentenced him to two years’ imprisonment. 12. Relying on the Cassation Regulations for the Netherlands Antilles and Aruba (Cassatieregeling voor de Nederlandse Antillen en Aruba), the applicant filed an appeal in cassation with the Netherlands Supreme Court (Hoge Raad), which appeal is limited to points of law and procedural conformity. 13. In its judgment of 27 May 1997, the Supreme Court noted that, pursuant to Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba, no appeal in cassation lay against judgments pronounced following proceedings in absentia. 14. It rejected the argument advanced by the defence, that the appeal in cassation should nevertheless be declared admissible on the ground that this provision of the Cassation Regulations was contrary to Article 14 of the Convention and Article 26 of the International Covenant on Civil and Political Rights in that it constituted an unjustified difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia. 15. The Supreme Court noted that, according to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles (Wetboek van Strafvordering van de Nederlandse Antillen), a person convicted on appeal following proceedings in absentia could file an objection (verzet) against this conviction. If the accused then appeared before the trial court, the case would, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by the same court in the course of adversarial proceedings and an appeal in cassation would lie against the resulting judgment. 16. The Supreme Court concluded that, in the circumstances, no appeal in cassation lay against the judgment of 23 January 1996. However, on the basis of the contents of a statement made on 29 January 1996 on behalf of the applicant, the Supreme Court interpreted the applicant’s appeal in cassation as being an objection against his conviction in absentia and ordered the transmission of the applicant’s case file to the Joint Court of Justice for a determination of the applicant’s objection. 17. According to Article 216 of the Code of Criminal Procedure of the Netherlands Antilles as in force at the relevant time, an appeal to the Joint Court of Justice lies against a judgment given by the First-Instance Court. This appeal is a full appeal, that is, one comprising both fact and law. 18. Under the Cassation Regulations for the Netherlands Antilles and Aruba an appeal in cassation may be filed with the Netherlands Supreme Court against judgments on appeal given by the Joint Court of Justice of the Netherlands Antilles and Aruba. Such an appeal in cassation is limited to procedural conformity and points of law. 19. According to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles, a person convicted by the Joint Court of Justice in absentia may file an objection (verzet) against this conviction. 20. If the accused then appears at the hearing on the objection before the Joint Court of Justice, the case will, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by that court. An appeal in cassation lies against the resulting judgment. 21. If the accused does not appear before the Joint Court of Justice for the purpose of a retrial, the objection will be declared defunct and the judgment given in absentia will become final. 22. Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba reads as follows: “The accused cannot file an appeal in cassation against judgments given in absentia [bij verstek gewezen vonnissen].” 23. According to the explanatory memorandum to the Cassation Regulations for the Netherlands Antilles and Aruba (Memorie van Toelichting, Kamerstukken II, Zitting 1959-1960 – 5959 (R 1945), no. 3, p. 5), Article 10 of these Regulations was based on the following considerations: “... given the great distance between the seat of the Supreme Court and the Netherlands Antilles, it is not to be recommended to provide for an appeal in cassation in Antillean cases in all cases, where this is possible for cases in the Netherlands ... In general the suspect himself will be to blame that his case has been dealt with in absentia. In these circumstances, there is no cause to attach more weight to his interests than to the inconveniences which are attached to proceedings in cassation in respect of overseas cases.” | 0 |
train | 001-80349 | ENG | UKR | ADMISSIBILITY | 2,007 | KARUNA v. UKRAINE | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Aleksandr Dmitriyevich Karuna, is a Ukrainian national who was born in 1953 and lives in Vinnytsia. He is represented by Mr Paliy, a lawyer practicing in Vinnytsia region. The respondent Government are represented by Mr Yuri Zaytsev, its Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was discharged from the Military Forces on 14 September 1998 due to his bad state of health. The amount of his pension was determined on 25 December 1998. In October 2004 the applicant instituted proceedings in the Leninsky District Court of Vinnytsia (the “Leninsky Court”) against the Vinnytsia Military Commissariat, seeking recalculation of his pension in view of the changes introduced to the legislation after his discharge. On 12 May 2005 the Leninsky Court, in the absence of the respondent, dismissed the applicant’s claims as being unsubstantiated. In particular, it found that the applicant was not entitled to such an increase and that the amended legislation did not apply retroactively to the determination of the amount of his pension. On 14 May 2005 the Commissariat informed the President of the Leninsky Court that it no longer intended to participate in civil proceedings concerning recalculation of pensions. It asked the President of that court to consider these cases in the absence of the Commissariat’s representative. It also filed written objections. On 2 August 2005 the Vinnytsia Regional Court of Appeal upheld the judgment of 12 May 2005. The applicant lodged an appeal in cassation with the Supreme Court. On 27 October 2005 the Supreme Court, acting under paragraph 10 of Chapter 10 of the Transitional Provisions of the Code of Administrative Justice, transmitted the case-file to the Higher Administrative Court for examination. It adopted no formal procedural decision on the transfer, or lack of, jurisdiction to hear cassation appeals in administrative cases. On 18 January 2006 the Higher Administrative Court rejected the applicant’s appeal in cassation as unsubstantiated. In particular, it upheld the reasoning of the Leninsky Court and the Vinnytsia Regional Court of Appeal. The Higher Administrative Court ruled that the previous court decisions were correct as they were based on the Resolution of the Plenary Supreme Court no. 4 of 15 April 2004. On 1 June 2006, following communication of the case to the respondent Government, the Supreme Court gave a formal ruling by which it referred the applicant’s cassation appeal lodged with the Supreme Court to the Higher Administrative Court. The applicant lodged no appeal in cassation with the Supreme Court against this decision. 1. Constitution of Ukraine, 28 June 1996 Article 125 “In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction. The respective high courts are the highest judicial bodies of specialised courts. Courts of appeal and local courts shall operate in accordance with the law. The creation of extraordinary and special courts shall not be permitted.” 2. Law of Ukraine on the Judicial System of 21 June 2001 Section 47 The Supreme Court of Ukraine - the highest judicial body “1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction ... 2. The Supreme Court of Ukraine: 1) examines in cassation proceedings the decisions of courts of general jurisdiction in cases which, in accordance with procedural law, fall within its jurisdiction and / or re-examines all cases considered by courts of general jurisdiction...” In accordance with Article 210 of the Code the court of cassation in administrative cases is the Higher Administrative Court of Ukraine. Under Article 211 of the Code the parties to administrative proceedings may lodge cassation appeals with the Higher Administrative Court against the judgments or rulings of the first instance court and the court of appeal. The grounds for appeal in cassation are an erroneous application of the procedural or substantive law. In accordance with Article 223 of the Code, the Higher Administrative Court can quash or amend judgments and rulings of the first instance courts and the courts of appeal or adopt a new judgment upon appeal in cassation. In accordance with Article 235 of the Code, the Supreme Court reviews the decisions of the Higher Administrative Court in the course of extraordinary review proceedings (в порядку виключного провадження). In accordance with Article 235 § 2 such a review is a type of cassation review of the case. Under Article 237 of the Code, one of the two grounds for review is the lack of coherence in judicial practice and the difference in application of the same legal provision by different higher courts that examine appeals in cassation (Higher Administrative Court and Higher Commercial Court). The Supreme Court may also re-examine the case if there was a finding of an international judicial body that a judicial decision in an administrative case infringed Ukraine’s international obligations. In accordance with paragraph 10 of Chapter VII of the Transitional Provisions of the Code, appeals in cassation which concern decisions of the courts of general jurisdiction (civil and commercial proceedings) given in administrative cases and which have not been examined by the Supreme Court by 1 September 2005 shall be transferred for examination to the Higher Administrative Court. Article 43 of the Law states that the pensions shall be calculated on the basis of the salary paid to them, military rank, post occupied, time-in-service, etc. and other conditions determined by the Cabinet of Ministers. On 25 March 2005 the Law was amended and the amounts of pensions were increased by 100%. Paragraph 8 of the Resolution of the Plenary Supreme Court stated that, in accordance with Article 63 of Law no. 2262-ХІІ and paragraph 8 of Resolution no. 393 of the Cabinet of Ministers of Ukraine of 17 July 1992, recalculation of previously determined amounts of pensions should be effected with due regard to the base salary. Other relevant factors should be taken into account (payment for rank, position, time-in-service, conditions of military service, secrecy, etc.). More specifically, the Plenary Court drew the courts’ attention to the fact that the pension legislation which was in force before 1 January 2005 did not provide for recalculation of pension on the basis of new changes introduced into legislation after the persons concerned had been discharged from the military. In particular, the Plenary Court considered that the Law no. 1769-ІV, which entered into force on 1 January 2005, did not have retroactive effect and therefore claims for recalculation of pension based on the changes to the base military salary or additional payments that were introduced after a person’s discharge from the military (i.e. before 1 January 2005) should not be allowed. Persons discharged from the military, who were given higher ranks after their retirement or discharge, had no right to recalculation of previously determined pension amounts. In paragraph 9 of its Resolution, the Plenary Supreme Court informed the courts that a new law no. 2255-ІV governing the issues of recalculation of pensions for former military servicemen would become effective as of 1 January 2006. Under the new law, all military pensions should be subjected to recalculation in the event of any changes introduced to constituent parts of the payments for acting military servicemen (payment for rank, time-in-service, post occupied, etc.). Recalculation of pensions shall be effected from the date of recognition of this right and within the time-limits established by Article 51 § 2 of Law no. 2262-ХІІ. The Resolution also stated that under the new law military pensions should be recalculated, but without retroactive effect. In accordance with paragraph 10 of the Resolution, recalculation of pensions under Article 51 of the Law no. 2262-ХІІ should be effected from the first day of every month following the month in which recalculation of pension was authorised by law. The Plenary Court informed the courts that where, in accordance with the legislative changes, a pensioner had obtained a right to an increase in his the pension, the difference should be paid for a period not exceeding twelve months. The Plenary Court Resolution also recommended that in examining the instant category of cases the courts should take into account the categories of military servicemen discharged from the military due to its reform (Law of 15 June 2004 no. 1763-IV that entered into force on 8 July 2004). The law covered all military servicemen discharged from the military as of 1 January 2004 (Article 3 § 2 of the Law no. 1763-IV). In accordance with paragraph 11 of Article 1 of the Law no. 1763-IV, former military servicemen, who had attained the age of 45 and had served in the military for at least 15 years could receive an increase in the amount of pension of no more than 50 % of the base salary. The amounts of pensions were to be determined in accordance with the Law no. 2262-ХІІ. In accordance with paragraph 14 of the Resolution, the courts in examining military pension cases had to take into account that under Article 55 of the Law no. 2262-ХІІ the amounts of pensions already determined for their recipients under the law were to be paid for the previous period of no more than three years before the pensioner requested recalculation. Also, the sums of pension not received by the pensioner due to the fault of the body determining the amount of pension were to be paid for the previous period without any time limitation. Under paragraph 15 of the Resolution of the Plenary Court, pensioners had the right to receive compensation for pecuniary and non-pecuniary damage, in accordance with the procedure established by law (Article 17 of the Law no. 2011-ХІІ “On Social and Legal Protection of the Military Servicemen and Members of their Families” of 20 December 1991). The Government provided the following resolution of the Administrative division of the Supreme Court: - Resolution of 14 February 2006 (case no. 21-321 во 05); - Resolution of 18 April 2006 (case no. 21-138 сво 05); - Resolution of 23 May 2006 (case no. 21-238 во 05); - Resolution of 4 July 2006 (case no. 21-60 во 06). The applicant referred to the following judgments given by the Leninsky District Court of Vinnytsia, in which the claimants’ requests for recalculation of their pensions were allowed: - judgment of 6 October 2004 (case no. 2-8/85/04p.); - judgment of 21 January 2005 in the case of B.V.V. against the Military Enlistment Office; - judgment of 24 February 2005 (case no. 2-814/05p.); - judgment of 24 February 2005 (case no. 2-741/05p.); - judgment of 19 April 2005 (case no. 2-2061/05p.); - judgment of 13 May 2005 (case no. 2-2889/05p.). The Government referred to the following judgments given by the domestic courts, in which the claims for recalculation of pensions were rejected: - rulings and judgments of the L’viv Regional Court of Appeal of 28 February (two rulings) and 28 March (four judgments) 2005. | 0 |
train | 001-58167 | ENG | CHE | CHAMBER | 1,998 | CASE OF SCHÖPFER v. SWITZERLAND | 3 | No violation of Art. 10 | R. Pekkanen | 6. The applicant, who is a lawyer and former member of the Cantonal Council (Großrat), lives in Root (Canton of Lucerne). At the material time he was an advocate acting as defence counsel for a Mr S., who had been placed in detention pending trial (Untersuchungshaft) on suspicion of committing a number of thefts. 7. On 6 November 1992 Mr S.’s wife informed Mr Schöpfer that the two district clerks (Amtsschreiber) of the Hochdorf district authority (Amtsstatthalteramt) had urged her to instruct a different lawyer to defend her husband if he wished to be released. 8. On 9 November 1992 the applicant then held a press conference in his office in Lucerne at which he declared that at the Hochdorf district authority offices both the laws of the Canton of Lucerne and human rights were flagrantly disregarded, and had been for years (werden sowohl die Luzerner Gesetze als auch die Menschenrechte in höchstem Grade verletzt, und zwar schon seit Jahren). He pointed out that he was speaking to the press because it was his last resort (deshalb bleibt mir nur noch der Weg über die Presse). 9. The following day the daily newspaper Luzerner Neueste Nachrichten (“the LNN”) published the following article (at page 25): “Former Christian Democratic Party (CDP) councillor demands investigation into Hochdorf district authority ‘I won’t let those gentlemen make a fool of me any longer’ Former CDP councillor Alois Schöpfer makes serious accusations against the Hochdorf district authority. ‘I’ve had enough of letting those gentlemen at the Hochdorf district authority make a fool of me’ thundered Alois Schöpfer. ‘So the only recourse left to me is to take the matter to the press.’ The former CDP councillor was prompted to take the unusual step of approaching the public during pending proceedings on account of a case entrusted to him as a lawyer in mid-October. At that time his client had already been in pre-trial detention at the Hochdorf district authority prison for a month. Detained without an arrest warrant The 20 year-old father of a one and a half year-old daughter was arrested on 18 August with his brother for the theft of car radios and clothes, and released after admitting the offences. When, on 15 September, he went to the Lucerne cantonal police to ask how his brother was, he was again immediately arrested. ‘When I enquired at the Hochdorf district authority about the arrest warrant, I was told that the order had been issued to him orally’ said Alois Schöpfer, who sees the conduct of the police as a clear breach of the cantonal Code of Criminal Procedure, Article 82 of which provides: ‘The arrest shall be carried out by the police, duly authorised by a written warrant of arrest.’ When these accusations were put to him, the Hochdorf prefect [Mr H. B.] was giving nothing away. ‘Where I’m in charge nobody is arrested without a written arrest warrant’, he said. ‘I cannot say any more about a pending case.’ On the other hand, Alois Schöpfer, who was asked by the accused’s wife to defend her husband, will not remain silent any longer: ‘The wife came to me because the lawyer appointed under the legal aid scheme had still not contacted his client even though he had been in pre-trial detention for six weeks.’ Schöpfer immediately contacted the officially appointed counsel who handed the case over to him. However, the Hochdorf district authority did not want Schöpfer to take over as defence counsel under the legal aid scheme and refused his request on 29 October on the ground that there were no reasons to dismiss the lawyer to whom the case had been assigned until then. He was, however, free to represent his client on a private basis. Schöpfer as the ground for detention? The last straw for Alois Schöpfer came when the accused’s wife informed him last Friday that [T.B.] and [B.B.], the two district clerks, had advised her not to keep him on the case. ‘They told me’ she confirmed for the LNN, ‘that my husband would not be released as long as Alois Schöpfer remained his defence counsel.’ But [T.B.] denied any involvement: ‘That’s ridiculous. I never said anything like that. [B.B.] can confirm that. He was present when I spoke with the man’s wife.’ Alois Schöpfer will not let the matter drop: ‘I demand the immediate resignation of the prefect and the district clerks and a thorough investigation of the case by an impartial commission of inquiry from outside the canton.’” In a box inside the article was the following text: “Accusations It is not the first time that serious charges have been levelled against the Hochdorf district authority. Prefect [H.B.] was previously prosecuted in connection with the conviction of [H.S.], the Rothenburg debt collection officer [Betreibungsbeamter]. He was fined 400 francs by the Lucerne District Court for disclosure of official secrets. Although the Court of Appeal also found that the objective elements of the offence had been made out, [H.B.] was acquitted on appeal.” The article was illustrated by two photographs, one showing the Hochdorf district authority building and the other Prefect H.B. with the caption: “Where I’m in charge nobody is arrested without a written arrest warrant (Bei mir wird niemand ohne schriftlichen Haftbefehl festgehalten).” 10. Another daily newspaper, the Luzerner Zeitung, also published, on 10 November 1992, an article on the press conference under the title: “Young man arrested without a warrant? Lucerne lawyer accuses Hochdorf district authority of breaking the law (Junger Mann ohne Haftbefehl verhaftet? Luzerner Anwalt wirft Amtsstatthalteramt Hochdorf Rechtsverletzungen vor).” 11. On 10 November 1992 the public prosecutor’s office (Staatsanwaltschaft) of the Canton of Lucerne issued a reply to the effect that the accused person concerned had been arrested in accordance with the law, and that the applicant had not filed an appeal against the refusal to allow him to take over as the officially appointed defence counsel. This reply was published in the press on 11 November 1992. 12. On 13 November 1992 the Luzerner Zeitung published a summary of a press communiqué issued by the applicant in reply to the public prosecutor’s statement. According to Mr Schöpfer, S.’s arrest had breached both the Convention and – “in a crude and unacceptable manner (in absolut grober und nicht mehr zu verantwortender Weise)” – the cantonal Code of Criminal Procedure. The applicant also quoted the following passage from a letter he had received from another lawyer: “The situation in Hochdorf is far from satisfactory... What makes it even worse is the fact that the judicial authorities know what is going on in Hochdorf and even make indirect allusions to the situation.” In conclusion, Mr Schöpfer called on the Court of Appeal and the Cantonal Council to look into the case. 13. On 15 October, 3 November and 13 November 1992 the applicant had lodged applications for the release of Mr S. (Haftentlassungsgesuch), which the Hochdorf prefect refused on 19 October, 5 November and 16 November 1992 respectively. Mr Schöpfer lodged an appeal (Rekurs) against the last of these decisions. This was dismissed by the Court of Appeal (Obergericht) of the Canton of Lucerne on 30 November 1992, on the ground, among others, that the prefect had subsequently validly extended Mr S.’s pre-trial detention, so that Mr S. no longer had standing to bring an action challenging the conditions of his arrest. It noted, however, that after his arrest Mr S. should have been brought, not before a district clerk, but before the prefect himself, the only person who could be considered a judge or other officer for the purposes of Article 5 § 3 of the Convention. It therefore ordered that its decision should be brought to the attention of the public prosecutor’s office, which was the prefect’s supervisory authority (Aufsichtsbehörde). 14. On 16 November 1992 the Lucerne Bar’s Supervisory Board (Aufsichtsbehörde über die Rechtsanwälte) informed Mr Schöpfer that his conduct raised certain ethical questions, relating in particular to the need for discretion (Zurückhaltung) with regard to pending proceedings and to covert publicity, and asked him what he had to say on the matter. In a letter of 18 November which he communicated to the press, the applicant replied that he had acted only in the general interest and in that of his client. 15. On 16 November 1992 the Hochdorf prefect had lodged a complaint (Anzeige) with the Supervisory Board and asked for disciplinary proceedings to be brought against Mr Schöpfer. He asserted that by his statements the latter had not only slandered the prefect and his two district clerks but had also been guilty of a serious breach of lawyers’ professional ethics (Standesregeln) by spreading false accusations through the media rather than making use of the available legal remedies. 16. On 21 December 1992 the Supervisory Board brought disciplinary proceedings against the applicant. On 15 March 1993, pursuant to Article 13 of the Statute of the Bar (Anwaltsgesetz) of the Canton of Lucerne (see paragraph 18 below), it fined him 500 Swiss francs (CHF) for a breach of professional ethics (Verletzung von Berufs- und Standespflichten). In its decision the Supervisory Board observed in particular that the applicant had omitted to refer his complaints – which were serious – in the first place to the public prosecutor’s office or the Court of Appeal, which were the relevant supervisory bodies for the district authority. He had therefore failed to observe the discretion which lawyers were required to maintain, in public, with regard to pending proceedings. In addition, he had engaged in covert publicity (versteckte Reklame) and cheap showmanship (Effekthascherei), thus demonstrating that he was more concerned about his own public profile than about the merits of the case. In any event, lawyers’ statements to the press always had to be not only of real public interest (reelles öffentliches Interesse) but also objective and moderate in tone (objektiv in der Darstellung und sachlich im Ton). But the tone of a number of passages in Mr Schöpfer’s statements to the press left something to be desired. For example he had said: “I won’t let those gentlemen make a fool of me any longer” and “I demand … a thorough investigation of the case by an impartial commission of inquiry from outside the canton” and also “So the only recourse left to me is to take the matter to the press.” This last statement was not even true, since at that time Mr Schöpfer had not even applied to the relevant supervisory bodies for the district authority, nor had he tried exercising the ordinary legal remedies. He had thus disparaged not only the Hochdorf district authority but all the canton’s judicial authorities, which was incompatible with a lawyer’s professional ethics. 17. The applicant lodged a public-law appeal against the above decision. This was dismissed by the Federal Court on 21 April 1994. It observed that lawyers enjoyed considerable freedom to criticise the judicial authorities, provided that this was done according to the correct procedures, and in the first place in the course of representing and defending their clients. When, however, a lawyer appealed to public opinion, he was under a duty, like any other person employed in the service of justice, to refrain from any conduct inconducive to the proper administration thereof. Article 10 § 2 of the Convention also enunciated the principle that interference could be justified if its purpose was to maintain the authority and impartiality of the judiciary. Admittedly, there might be circumstances in which the public interest required alleged violations of constitutional or human rights to be made public. In order to determine whether that was the case, it was necessary to ascertain how obvious the alleged violations were, whether pending proceedings were likely to be influenced, whether the available remedies had been exercised and in what form the criticism had been made. In the instant case Mr Schöpfer had been punished not so much for denouncing human rights violations as for the way in which he had done so. When considering the case the Supervisory Board had indeed taken into account the fact that one of the complaints raised by the applicant, concerning the fact that Mr S. had been brought before a district clerk rather than the prefect, had subsequently been upheld by the Court of Appeal. However, Mr Schöpfer’s other criticisms – which were likely to influence pending proceedings – had been found by the Supervisory Board to be unjustified. Furthermore, the Board had ruled that the applicant had not employed the right tone in his criticism and that he had made untrue allegations. It had given sufficient grounds for its decision and the applicant had not adduced any convincing counter-arguments. 18. Article 10 of the Statute of the Bar (Anwaltsgesetz) of the Canton of Lucerne establishes a Lawyers’ Supervisory Board (Aufsichtsbehörde über die Anwälte) whose members – two judges of the Court of Appeal, one administrative court judge and two lawyers – are appointed by the Court of Appeal for four years. Under Article 12 § 1 of the Statute the Board has jurisdiction to investigate lawyers’ breaches of professional ethics (Berufs- und Standespflichten) and may impose disciplinary penalties. Under Article 13 these range from a reprimand (Verweis) to temporary or permanent disbarment, with fines of up to CHF 5,000 as intermediate penalties. | 0 |
train | 001-127616 | ENG | TUR | CHAMBER | 2,013 | CASE OF NEZİR ADIYAMAN v. TURKEY | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 5. The applicant was born in 1978 and lives in Istanbul. 6. On 4 September 2005, at 10.30 p.m., the applicant was arrested and taken to the Beyazıt police station on suspicion of using explosives during a demonstration. 7. According to the arrest and seizure report, at around 10 p.m., the police had been informed of a gathering which needed to be monitored. Upon their arrival, they had noticed a group of people who had gathered in the middle of the street, holding Molotov cocktails. The group had dispersed when they saw the officers. The report further indicated that the applicant, who had been among the group, had started to run away, threatened to throw a Molotov cocktail at the officers and resisted when the police tried to arrest him. According to the report, the police had used gradual force within legal limits in order to keep the applicant under control and had finally handcuffed him. They had also seized the Molotov cocktail which was ready to explode and had found a piece of fabric in his pocket which could be used as a fuse for the Molotov cocktail. 8. At 11.50 p.m. the applicant underwent a medical examination at the Haseki Training and Research Hospital. The report drawn up afterwards indicated no sign of physical violence on his body. 9. Following the examination, the applicant was taken back to the Beyazıt police station. In the meantime, the Istanbul public prosecutor ordered that he should be handed over to the Anti-Terrorist Branch of the Istanbul Security Directorate. 10. The applicant underwent a second medical examination at the Haseki Training and Research Hospital before he was taken to the AntiTerrorist Branch. The second report issued there on 5 September 2005, at 1.14 a.m., noted once again that there was no sign of ill-treatment on his body. 11. Upon his arrival at the Anti-Terrorist Branch, the applicant was transferred to the Istanbul Forensic Medicine Institute and was examined by a doctor at 2.25 a.m. Before the examination, he claimed that he had been sworn at, stripped naked, and punched on the chin and shoulders at the Beyazıt police station. The interim forensic medical report issued afterwards noted that the applicant’s general health condition was good and that he was conscious. It stated that beside a bleeding scratch on his left hand, which he noted had occurred before his arrest, the applicant had two scratches of 1.2 x 0.8 cm and 2.5 x 1.2 cm and a lightly bleeding bruise of 2.5 x 0.8 cm on his right elbow, hyperaemia on both his wrists probably caused by the use of handcuffs and some other small scratches on his elbows, chest and shoulders. The report further noted that the movement of the applicant’s chin was found to be normal. It concluded that the applicant had several soft-tissue lesions, which did not put his life at risk and could be treated with simple medical attention. 12. Another medical report drawn up at around 8 p.m. the same day indicated that the applicant had two scratches of 3 x 0.7 cm on both elbows, had difficulty in opening his jaw and pain on the frontal area of his head. This report concluded that the applicant needed to be examined by orthopaedic and neurosurgical departments in a hospital for more accurate results. 13. Subsequently, at 9.30 p.m., the applicant was examined by doctors in the orthopaedics and general surgery departments of the Bakırköy State Hospital. The doctors reported that he had three 1 x 1 cm scratches on his left shoulder and right elbow and a scratch measuring 0.5 x 0.5 cm on his left side. They further stated that no urgent orthopaedic or osseous pathology could be determined. 14. After that examination, the Istanbul Forensic Medicine Institute issued a final report, stating that as there was no orthopaedic or neurosurgical pathology, the superficial scratches and bruises on the applicant’s body did not put his life at risk and could be cured with simple medical attention. 15. Finally, on 6 September 2005 the applicant underwent two examinations at the Beşiktaş Branch of the Forensic Medicine Institute. The medical report repeated the findings of the first examination performed in the Istanbul Forensic Medicine Institute. It also referred to a dental report, made on the same day on account of the applicant’s allegations of having been punched on the chin, which stated that there was no indication that such external force had been applied to his mouth. Consequently, the applicant was diagnosed as suffering from a soft-tissue lesion which could be cured with simple medical attention. 16. On the same day, following the medical examinations, the applicant made his submissions before the Istanbul public prosecutor, to whom he complained that he had been ill-treated while in police custody. He also denied the contents of the arrest and seizure report and stated that when the police had arrested him, he had been on his way to inform his employees’ families that the employees would stay late that night. 17. Later on, the applicant was questioned by the investigating judge at the Istanbul Assize Court. Repeating the statements he had given before the public prosecutor, he maintained that he had been walking along with three of his employees when the police had pushed him to the ground and handcuffed him. He added that the piece of fabric found in his pocket, which the police claimed was a fuse, was merely a sample he had carried with him for an order, as he worked in the textile business. The investigating judge decided to remand the applicant in custody on suspicion of being a member of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party), and of threatening to cause fear and panic. 18. On 15 September 2005 the Istanbul public prosecutor separated the investigation into the applicant’s allegation of ill-treatment from that regarding the applicant. 19. On 6 October 2005 the Istanbul public prosecutor invited thirteen police officers from the Beyazıt police station to attend within fifteen days at the prosecutor’s office, in order to give their statements on the matter. 20. On 12 October 2005 the Istanbul public prosecutor questioned the applicant once again. The applicant submitted that he had been punched, slapped and pushed against the wall by ten to fifteen officers for about twenty minutes during his time at the Beyazıt police station. He added that he had not been subjected to ill-treatment during his arrest and while at the Anti-Terrorist Branch. 21. On 1 and 2 December 2005 respectively, five police officers, who had carried out the applicant’s arrest, were questioned by the Istanbul public prosecutor. Denying the applicant’s allegations, they maintained that they had arrested the applicant using gradual force and had taken him to the police station in order to draw up an arrest report. They added that subsequently they had taken the applicant for a medical examination, brought him back to the police station and left. The other officers, who had been at the station while the applicant had been there, denied the allegations as well and maintained that no one at the station had inflicted physical violence on the applicant. Two of them further referred to the second medical examination, performed right before the applicant had been transferred to the Anti-Terrorist Branch, and maintained that the second report did not indicate any sign of ill-treatment on the applicant either. The officers noted, lastly, that the injuries to the applicant must have occurred during his arrest as he had resisted the officers. 22. On 29 June 2006 the applicant checked photographs of some of the police officers before the Tekirdağ public prosecutor. He maintained that he could not identify the officers who had beaten him from the photographs that were shown to him. He added that he still suffered from pain in his ear as a result of the ill-treatment. 23. On 31 May 2007 the Istanbul public prosecutor’s office asked the director of the Beyazıt police station to provide him with the names and photographs of all officers on duty at the police station on 4 September 2005 between 8 p.m. and midnight. The prosecutor’s office further wrote to various security headquarters in other cities, to which some of the police officers had been assigned, and requested their photographs. 24. Subsequently, on an unspecified date and on 5 November 2007 respectively, the applicant was taken twice to the Tekirdağ public prosecutor’s office with a view to checking the photographs of all the officers on duty at the time of the alleged incident. The applicant maintained that he had failed to identify the officers who had ill-treated him from their photographs on account of the passage of time but that he was certain that some, with whom he had been acquainted before his arrest, had not been among them. He added that he would have been able to identify the officers who had beaten him, in person, through an identification parade. 25. On 3 October and 13 December 2007 respectively, two officers from the Istanbul Anti-Terrorist Branch gave their statements before the public prosecutor. They indicated that before the applicant had been handed over to them, they had asked the police officers from the Beyazıt police station to obtain a medical report and had placed the applicant in custody only after that report had been provided. 26. On 17 January 2008 another police officer from the Istanbul AntiTerrorist Branch was questioned by the public prosecutor, in order to clarify why the applicant had undergone several medical examinations in two days. The officer claimed that the applicant must have been taken to the doctor several times because of his requests to that effect. 27. On 5 February 2008 the Istanbul public prosecutor asked the Istanbul Forensic Medicine Institute to explain whether the injuries to the applicant could have occurred as a result of the use of handcuffs during his arrest and whether they might have become visible only later on, so that the doctors at the Haseki Training and Research Hospital, who had conducted the initial examinations, could not have noticed them. 28. In response to the public prosecutor’s request, on 7 February 2008 the Istanbul Forensic Medicine Institute assessed all the medical reports and concluded that the lesions on the applicant’s body could not have occurred merely from the use of handcuffs and that he must have been subjected to trauma. The report also noted that such lesions might have been unnoticeable during the initial medical examinations as it was usual for them to become visible only after twenty-four hours. 29. After having examined the last report, the Istanbul public prosecutor requested further clarification from the Istanbul Forensic Medicine Institute, maintaining that its conclusion referring to trauma conflicted with the previous findings, which indicated that the lesions on the applicant’s body merely necessitated simple medical attention. Subsequently, on 10 March 2008 the Forensic Medicine Institute reported that the lesions must have resulted from injuries which had occurred before the applicant’s police custody and that such lesions might not have been immediately visible. The Institute also added that the last medical reports issued in respect of the applicant noted a reduced number of lesions. 30. On 11 March 2008 the Istanbul public prosecutor issued a decision not to prosecute. He stated that the police officers had denied the accusations and that the applicant had not been able to identify any of the officers involved even though he had been shown pictures of all the suspects along with several other officers from the Beyazıt police station. He further indicated that the applicant’s injury must have been caused by force lawfully employed by the officers during his arrest, which was within the scope of their duties and proportionate to the danger caused by the applicant as he was threatening to throw a Molotov cocktail at the officers. The public prosecutor concluded that the evidence obtained was not sufficient to conclude that members of the security forces had ill-treated the applicant. 31. The applicant lodged an objection with the Beyoğlu Assize Court against the decision of the public prosecutor. 32. On 28 May 2008 the Assize Court rejected the objection. The final decision was served on the applicant on 8 September 2008. | 0 |
train | 001-114778 | ENG | HRV | CHAMBER | 2,012 | CASE OF V.K. v. CROATIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 12 - Right to marry (Article 12 - Marry);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 4. The applicant was born in 1964 and lives in Zagreb. 5. On 30 November 2002 the applicant married M., and on 22 September 2003 a child, K., was born of the marriage. 6. On 14 April 2004 the applicant filed a petition for divorce with the Z. Municipal Court (Općinski sud u Z.). 7. At a hearing on 14 December 2004 the applicant submitted his proposal concerning contact and child maintenance for K. At the same hearing the parties agreed that the marriage be dissolved. 8. On 30 December 2004 M. informed the Z. Municipal Court that she did not agree with the applicant’s proposal as regards child maintenance and asked the court to set an appropriate amount. 9. The applicant lodged a request for expedition of the proceedings with the Z. Municipal Court on 2 February 2005. 10. On 2 August 2005 the applicant brought a separate action in the Z. Municipal Court, contesting his paternity of K. 11. The applicant further lodged a request with the Supreme Court (Vrhovni sud Republike Hrvatske) on 25 August 2005 asking that the proceedings be transferred to another court. 12. The Z. Municipal Court on 15 September 2005 ordered the parties to submit information concerning their incomes. On 22 September 2005 the applicant, and on 18 October 2005 M., complied with this order and submitted the requested information. 13. At a hearing on 31 October 2005 M. failed to appear. At the same hearing the applicant requested the trial court to issue a partial judgment by which the marriage would be dissolved. The trial judge dismissed the applicant’s request and ordered him to submit further documents concerning his financial status. 14. The applicant complied with the above order and submitted the requested documents on 2 November 2005. 15. On 14 December 2005 the applicant again lodged a request for expedition of the proceedings with the Z. Municipal Court. 16. The Z. Municipal Court on 13 March 2006 ordered M. to submit information concerning the child maintenance payments she had received from the applicant. On 19 April 2006 she complied with this order and submitted the requested information. 17. Another hearing was scheduled for 3 May 2006 but it was adjourned since the applicant informed the trial court that he was ill and could not attend the hearing. 18. At a hearing on 10 July 2006 the applicant asked the Z. Municipal Court to join the divorce proceedings with the proceedings in which he was contesting paternity of K. This request was granted, but further proceedings were stayed pending a Supreme Court decision on the applicant’s request for transfer of the proceedings to another court. 19. On 10 November 2006 the applicant asked the Z. Municipal Court to adopt a partial judgment, in respect of the petition for divorce alone. 20. The Supreme Court dismissed the applicant’s request for transfer of the proceedings to another court on 22 November 2006. 21. M. informed the Z. Municipal Court on 8 December 2006 and 9 March 2007 that she and K. had been living in Switzerland and that the applicant had refused to give consent for K. to obtain a passport and to come to Croatia to take part in the paternity proceedings. 22. On 30 March 2007 the applicant informed the Z. Municipal Court that he had given his consent for K. to obtain a passport. 23. A hearing scheduled for 23 April 2007 was adjourned because the applicant had not been properly summoned. 24. Another hearing scheduled for 12 June 2007 was adjourned because the applicant failed to appear. At the same hearing the Z. Municipal Court ordered a DNA test. 25. The Z. Municipal Court ordered the applicant to pay a sum of 10,000 Croatian kunas (HRK) for the DNA test on 26 June 2007. 26. In the period between 12 September and 21 November 2007 the applicant made four payments in instalments for the DNA test. He also asked the Z. Municipal Court to extend the time-limit for payment. The Z. Municipal Court granted the applicant’s request and extended the time-limit for a further thirty days. On 26 November 2007 he informed the Z. Municipal Court of the amount he had managed to pay for the DNA test. 27. On 27 November 2007 the applicant lodged a complaint about the length of the proceedings with the Constitutional Court (Ustavni sud Republike Hrvatske) which was forwarded to the Z. County Court (Županijski sud u Z.) for further examination. In his submissions the applicant complained that the Z. Municipal Court had dismissed his request for the partial judgment by which his marriage could be dissolved. He submitted that the lengthy divorce proceedings had had an adverse effect on his private life and his dignity and that the delay could prevent his marriage to another woman, planned for June 2008. The applicant also asked that the Z. Municipal Court be ordered to adopt a partial judgment by which his marriage with M. would be dissolved. 28. At a hearing on 11 February 2008 the Z. Municipal Court found that the applicant had failed to pay the full amount required for the DNA test, and adjourned the hearing. 29. Another hearing scheduled for 10 March 2008 was adjourned because the applicant informed the trial court that he could not attend the hearing. 30. On 15 May 2008 the applicant asked the Z. Municipal Court to exempt him from the duty to pay for the DNA test, relying on war veterans’ rights, but on 13 June 2008 that court dismissed his request. 31. Another hearing was held on 9 July 2008; the applicant failed to appear. 32. On 25 September 2008 the applicant submitted further complaints to the Z. County Court about the length of the proceedings: he argued that he was a practising Christian and would therefore like to marry again, but had been unable to do so because the Z. Municipal Court had refused to issue a partial judgment by which he could be divorced. He also stressed that he would be humiliated if he had to cancel the planned marriage because he had been unable to divorce. 33. On 26 September 2008 the applicant informed the Z. Municipal Court that he had made a further payment for the DNA test. 34. At a hearing on 15 October 2008 the Z. Municipal Court found that the amount necessary for the DNA blood test had been almost fully paid, and requested the parties to make an arrangement to have DNA samples taken. 35. On 27 October 2008 the applicant, relying on the Court’s case-law, complained before the Z. County Court about the manner in which the paternity proceedings and the DNA blood test had been conducted by the Z. Municipal Court. He pointed out that M. had refused to come to Croatia to have a sample of K.’s DNA taken. He again requested the Z. County Court to order the Z. Municipal Court to adopt a partial judgment concerning the divorce. 36. The Z. County Court accepted the applicant’s complaint about the length of the proceedings on 31 October 2008. It found a violation of the applicant’s right to a hearing within a reasonable time, awarded him HRK 5,000 in compensation and ordered the Z. Municipal Court to adopt a decision as soon as possible, and within six months at the latest. The relevant part of the decision reads: “ ... the overall length of these civil proceedings cannot be said to have complied with the reasonable time requirement. ... Everything suggests that the court has failed to conduct the proceedings in compliance with the principle of efficiency, since over a period of longer than four years the case has still not been decided by the first-instance court ... The applicant, as a plaintiff in the proceedings, has contributed to the length of the proceedings, since the court’s summons to some hearings could not be served on him and he failed to appear at these hearings. His contribution to the length of the proceedings can also be observed through the fact that he has failed to comply with the court’s orders in time (for example to pay for the DNA test).” 37. On the same day the applicant informed the Z. Municipal Court that he was insisting on a DNA test, although in the meantime he had been informed by M. that she and K. would not attend to have a DNA sample taken. 38. On 20 November 2008 the applicant lodged an appeal with the Supreme Court against the Z. County Court decision of 31 October 2008 in the part concerning the amount of the awarded compensation. He also complained that the Z. County Court had ignored his request that the Z. Municipal Court be ordered to adopt an interim judgment on his divorce. 39. On 26 January 2009 the applicant submitted to the Z. Municipal Court a written statement from the Employment Service (Hrvatski zavod za zapošljavanje) confirming that he was unemployed. 40. Another hearing scheduled for 2 April 2009 was adjourned because the applicant informed the trial court that he could not attend this hearing and M. had failed to inform the court when she and K. would be able to attend to have a DNA sample taken. 41. On 23 April 2009 the Supreme Court awarded the applicant further compensation of HRK 3,000 in respect of the length of the proceedings. The relevant part of the decision reads: “... This court considers that the conduct of the applicant had no influence on the length of the proceedings. On the contrary, the case file reveals that the applicant has demonstrated a strong resolve to have the proceedings concluded as soon as possible and within a reasonable time; this can be seen by his numerous requests that [the court] decide on his petition for divorce, to which the defendant also agreed at the hearing of 14 December 2004 ... Although the first-instance court pointed out that the applicant had contributed to the length of the proceedings by not complying with the summons to appear at the hearings, it is to be noted that it was only the hearing of 12 June 2007 at which he failed to appear despite having been properly summoned. As regards the hearing of 11 February 2008, the applicant was not properly summoned, since the court summons was returned with the notice “informed, did not collect”. As to the applicant’s failure to pay for the DNA test, it is to be noted that he requested that the time-limit for this payment be extended since it concerned a significant amount, given his income and his social circumstances, and the fact that he paid certain amounts in instalments on more than one occasion, in accordance with his financial means. This demonstrated his resolve to comply with the court order.” 42. The applicant further lodged a constitutional complaint with the Constitutional Court on 22 May 2009 against the above decision of the Supreme Court. 43. At a hearing on 7 July 2009 the Z. Municipal Court commissioned a DNA paternity report from Clinical Hospital Š. (Klinička bolnica Š.). 44. M. informed the Z. Municipal Court on 21 July 2009 that she refused to come to Zagreb to have a DNA sample taken. 45. On 6 August 2009 the applicant lodged a request for disqualification of the trial judge, president and all judges of the Z. Municipal Court. 46. On 10 September 2009 the Constitutional Court dismissed the applicant’s constitutional complaint in respect of the length of the proceedings as ill-founded, on the ground that his complaints had been properly addressed by the lower courts. 47. The Clinical Hospital Š. on 21 September 2009 informed the Z. Municipal Court that the parties had failed to appear to have DNA samples taken. 48. The Z. Municipal Court rejected the applicant’s request for disqualification of the judges of that court on 23 September 2009. 49. On 28 September 2009 the applicant again requested the Z. Municipal Court to commission a DNA report. 50. The president of the Z. County Court rejected the applicant’s request for disqualification of the president of the Z. Municipal Court on 2 October 2009. 51. On 7 October 2009 the applicant again requested the Z. Municipal Court to adopt a partial judgment in respect of the divorce alone. 52. The president of the Z. Municipal Court dismissed the applicant’s request for disqualification of the trial judge on 29 October 2009. 53. The Z. Municipal Court on 13 November 2009 again summoned the parties to have DNA samples taken. 54. On 30 November and 1 December 2009 the applicant informed the Z. Municipal Court that he was withdrawing his action concerning his paternity of K., on the ground that the payment of the requested sum for the DNA test had created an intolerable financial burden for him since he was unemployed and without any source of income. He also asked that the marriage be dissolved as soon as possible since his social benefits depended on his marital status. 55. At a hearing on 14 January 2010 the parties reached an agreement on child maintenance and contact between the applicant and K. On the same day the Z. Municipal Court dissolved the marriage of the applicant and M. and decided on the amount of the child maintenance and contact between the applicant and his child. The parties also declared that they would not lodge appeals and the judgment thus became final. 56. On 11 September 2010 the applicant married J.V. 57. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001) read as follows: “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.” “Family is under the special protection of the State. Marriage and legal relations in marriage, extra-marital relationship and family shall be governed by law.” 58. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004, 107/2007) read as follows: “Marriage cannot be concluded by a person who is already married.” “(1) Irrespective of the form in which it was contracted, a marriage ceases upon: the death of a spouse, the pronouncement that a missing spouse is deceased, annulment or divorce. (2) A marriage ceases by annulment or divorce when the judgement of a court concerning the annulment or divorce becomes final ...“ “(1) This Act governs special civil proceedings, non-contentious proceedings and special enforcement proceedings concerning the marital and family affairs under this Act. (2) Proceedings as in paragraph 1 are urgent.” “The provisions of the Civil Procedure Act and the Enforcement Act shall be applicable to proceedings under section 263 of this Act, unless otherwise provided under this Act.” 59. The relevant provisions 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 the 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), read as follows: “(1) If only some of a number of claims are ready for a final decision on the basis of the litigation, or if only part of one claim is ready for a final decision, the court may conclude the trial and adopt a judgment (partial judgment) in respect of the claims or the part of the claim that are ready. (2) The court is obliged to adopt a partial judgment without delay if, on the basis of admission or waiver of several claims put forward only some become ready for a final decision, or if only part of one claim is ready for this decision ...“ 60. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), as in force at the material time, read as follows: “(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next higher level of jurisdiction. (2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia. (3) Proceedings for deciding on a request as in sub-section 1 of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held. (1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months of the date on which the party’s request for payment is lodged. (3) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against a Supreme Court decision, but a constitutional complaint may be lodged.” 61. Amendments to the Courts Act in connection with the length-of-proceedings complaint procedure, enacted on 11 December 2009 (Zakon o izmjenama i dopunama Zakona o sudovima, Official Gazette, no. 153/2009), read as follows: “Section 28 [of the Courts Act] now reads: ... (5) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. A further appeal, to be lodged with a panel of judges of the Supreme Court, lies against the decision of the Supreme Court. The panel shall adopt its decision within three months. (6) The panel of judges referred to in paragraph 5 shall be composed of three Supreme Court’s judges. They shall be elected by a plenary session of the Supreme Court. ... “ | 1 |
train | 001-68565 | ENG | SVK | ADMISSIBILITY | 2,005 | M. AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicants, whose particulars appear in the appendix, were represented before the Court by Mr Ľ. Mráz, a lawyer practising in Bratislava. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants had originally served in the Police. On termination of their service they became entitled to a special monthly allowance for time served (príspevok za službu) pursuant to section 98 et seq. of the Act on Service in the Federal Police Corps (Law no. 334/1991 Coll., as amended). The allowance was paid to them by the Social Security Agency (“the Agency”) of the Ministry of the Interior (“the Ministry”) and its amount was calculated as a percentage of the applicants' monthly salary at the time of the termination of their service. The percentage depended on the number of the years served. Under section 98 (2) of Law no. 334/1991 Coll. the entitlement to the allowance expired once the officer in question recommenced “service”. The term “service” was understood to include also service in the Slovak Intelligence Service (Slovenská informačná služba - “the SIS”). It was the duty of the officer receiving the allowance to report the recommencement of “service” to the Agency within 8 days. At various dates in 1995, 1996 and 1997 the individual applicants started to work for the SIS. They were subject to an order of the Director (“the Director”) of the SIS no. 39/1996 which forbade them to report the recommencement of their “service” to the Agency so that their affiliation with the SIS would be concealed. The applicants thus continued receiving the allowance from the Agency (“the paid allowance”). At the same time they were receiving a salary from the SIS. The SIS was however withholding a part of this salary (“the withheld salary”) in an amount equal to the paid allowance. The applicants understood that the SIS would transfer the withheld salary to the State budget. At various dates in 1998 and 1999 the applicants' service in the SIS terminated and the latter reported the termination to the Agency. The Agency subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title. The applicants unsuccessfully challenged the decision before the Ministry. The applicants J. K. and F. B. refused to accept the debt and it was collected from them by a judicial enforcement officer. The remaining applicants commenced paying the amounts owed voluntarily in instalments. The applicants then lodged demands with the SIS for repayment of the withheld salary. As their demands were not met, they lodged a claim with the Bratislava III District Court (Okresný súd) and also sought interest for late payment of the principal amount. In several separate decisions taken between August 2000 and March 2001 the District Court found that it had no jurisdiction to deal with the applicants' claims against the SIS and that the body to determine the matter was the Director. The District Court based its finding on sections 1 (3), 3 and 231 et seq. of the Act on Service in the Police, the SIS, the Corps of the Prison Guards and the Railway Police (Law no. 73/1998 Coll., as amended) and section 22 (b) of the Act on the Slovak Intelligence Service (Law no. 46/1993 Coll., as amended). The District Court thus referred the actions under Article 104 § 1 of the Code of the Civil Procedure to the SIS for a determination by its Director and discontinued the judicial proceedings in their respect. The Bratislava Regional Court (Krajský súd) upheld the decision on appeal. On numerous subsequent occasions applicants again turned to the SIS claiming repayment of the withheld salary plus penalty interests. Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them. In late 2001 the SIS transferred an amount of money equal to the withheld salary to the Agency. In substance this amount was identical to the paid allowance. In 2002 the Agency returned to the applicants the part of the paid allowance which they had already repaid in the meantime. The SIS also later paid to the applicants J. K. and F. B. the costs of the enforcement of their debt to the Agency. Chapter (Časť) 5 governs the administrative judiciary. In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrativelaw actions under Section (Hlava) 2 of that Chapter and administrativelaw appeals under Section 3 of that Chapter. From 1 January 2002 the relevant provisions of this Chapter were amended by Law no. 501/2001 Coll. in that administrative tribunals also have the jurisdiction to review the “official conduct” of public administration authorities. Law no. 424/2002 Coll. further amended the provisions of this Chapter by defining detailed rules concerning actions against the inactivity of authorities of public administration. These rules are laid down in a new Section 4 and entered into force on 1 January 2003. By virtue of Article 244 § 3 the notion of “official conduct” also includes inactivity of the administrative authority concerned. Pursuant to Article 247 § 2 administrative tribunals are entitled to decide in administrativelaw actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies. Under Article 244 § 4 in conjunction with Article 250t any natural or legal person who alleges that an authority of public administration is not pursuing a matter, contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed time limit which cannot be longer than three months. Under Article 250u a failure to comply with the order can be sanctioned by a fine of up to 100,000 Slovakian korunas. In its judgment (rozsudok) of 23 May 2002 (file no. 7 Sž 24/02) the Supreme Court found that the Ministry of Finance had been inactive in a set of administrative proceedings and ordered that the Ministry give a final decision in the matter within 30 days from delivery of its judgment. In a resolution (uznesenie) of 16 June 2004 (file no. 23 S 102/03) the Banská Bystrica Regional Court found that the Banská Bystrica Land Registry Office wrongfully failed to determine the plaintiff's objections in land adjustment proceedings which were conducted before that office. The Regional Court ordered that the Land Registry Office determine the objections within 60 days and awarded the plaintiff reimbursement of her costs. The right to protection of a person's dignity, honour, reputation and good name is guaranteed by Article 11 et seq. of the Civil Code. According to Article 11 any natural person has the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics. Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction (Article 13 § 1). Article 13 § 2 provides that in cases when the satisfaction obtained under Article 13 § 1 is insufficient, in particular because a person's dignity and position in society have been considerably diminished, the injured person is entitled to financial compensation for non-pecuniary damage. | 0 |
train | 001-78629 | ENG | SVN | ADMISSIBILITY | 2,006 | KARAN v. SLOVENIA | 4 | Inadmissible | John Hedigan | The applicant, Mr Željko Karan, is a Croatian national who was born in 1954 and lives in Nedelišče. He was represented before the Court by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 November 1997 the applicant was injured in an accident at work and broke his elbow. The applicant’s employer had taken out insurance with the insurance company ZT. On 7 September 1998 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 4,017,650 Slovenian tolars (approximately 16,750 euros) for the injuries sustained. On 5 January and 4 October 2000 the applicant requested that a date be set for a hearing. On 8 November 2000 the applicant lodged preliminary written submissions and adduced evidence. On 23 November 2000 the court held a hearing and decided to appoint a medical expert. On 19 January 2001 the court appointed a medical expert to deliver an opinion concerning the applicant’s injuries. On 16 July 2001 the applicant lodged preliminary written submissions and requested that a date be set for a hearing. On 2 October 2001 the court held a hearing and decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 4 December 2001. On 19 December 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). On 23 May 2002 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 8 July 2002. On 26 July 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) and sought a recusal of one of the judges. On 13 January 2003 the president of the Supreme Court dismissed the request for a recusal. On 28 August 2003 the court allowed the appeal on points of law in part and increased the amount of the damages awarded. The judgment was served on the applicant on 9 October 2003. On 5 November 2003 the applicant requested a correction of the judgment, seeking reimbursement of some costs. The court dismissed the request on 3 December 2003. This decision was served on the applicant on 15 January 2004. | 0 |
train | 001-114782 | ENG | HRV | CHAMBER | 2,012 | CASE OF GOLUBOVIĆ v. CROATIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos | 4. The applicant was born in 1940 and lives in Zagreb. 5. The applicant worked as a professor of philosophy at the Faculty of Philosophy of the University of Zagreb (Filozofski fakultet Sveučilišta u Zagrebu - hereinafter the “Faculty”). 6. On 2 March 1994 the Dean of the Faculty (hereinafter: the “Dean”), relying on section 21(1) and (2) of the Employment Relations Act, suspended the applicant from work (stavljen na čekanje) for a period of six months on the minimum salary on the grounds that his job had become redundant. The applicant appealed against that decision to the Dean but his appeal was dismissed on 2 May 1994. 7. On 7 March 1995 the Dean, relying on section 23(1) of the Employment Relations Act, issued a decision to terminate the applicant’s employment. 8. On 26 May 1994 the applicant brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) contesting the Dean’s decisions of 2 March 1994 and 2 May 1994 and seeking payment of his full salary. The case file was assigned number Pr-1158/94. This subsequently changed a number of times and the case bore numbers Pr-3166/97, Pr-1143/99 and Pr-4675/00. 9. On 12 June 1995 the Zagreb Municipal Court declared the Faculty’s decisions of 2 March 1994 and 2 May 1994 null and void and ordered that the applicant’s salary for the period claimed be paid to him on the ground that the Faculty’s decisions had been based on its lack of money for salaries which was not a lawful reason for suspending the applicant’s employment. 10. The Faculty appealed against the above-mentioned judgment to the Zagreb County Court (Županijski sud u Zagrebu), and on 11 November 2007 that court quashed the first-instance judgment and remitted the case to the Zagreb Municipal Court for re-examination, on the grounds that all the relevant facts had not been established. 11. On 17 September 1998 the Zagreb Municipal Court declared the Faculty’s decisions of 2 March 1994 and 2 May 1994 null and void on the same grounds as before ordering it to pay the salary claimed by the applicant. 12. Following an appeal by the Faculty, on 23 March 1999 the Zagreb County Court again quashed the first-instance judgment of the Zagreb Municipal Court and ordered a re-examination on the ground that the first-instance court had misinterpreted the relevant law. 13. The applicant complained to the Zagreb Municipal Court on 7 October 1999 that the Zagreb County Court had treated him differently from other parties in similar cases. 14. On 9 December 1999 the Zagreb Municipal Court again declared the Faculty’s decisions of 2 March 1994 and 2 May 1994 null and void and ordered that salary claimed by the applicant be paid to him, stating that there had been no legal ground on which to suspend the applicant. 15. Following a further appeal by the Faculty, on 27 June 2000 the Zagreb County Court quashed the first-instance judgment and ordered a re-examination, reiterating its previous reasoning that the Zagreb Municipal Court had failed to establish all the relevant facts. 16. On 21 November 2002 the Zagreb Municipal Court dismissed the applicant’s action, on the ground that the Faculty’s decision to suspend the applicant’s employment had been lawful. 17. The applicant appealed against the above judgment, and on 18 January 2005 a panel of judges at the Zagreb County Court, including Judge D.M., dismissed the applicant’s appeal and upheld the Zagreb Municipal Court’s judgment of 21 November 2002. In its decision the court referred, in passim, to the parallel civil proceedings the applicant had instituted against the Dean’s decision of 7 March 1995 terminating his employment (see paragraph 23). That part of the Zagreb County Court’s judgment reads as follows: “The case file shows that in case no. Pr-3903/99 [pending before the Zagreb Municipal Court] a judgment was adopted whereby the plaintiff’s action challenging the defendant’s decision of 7 March 1995 to permanently terminate the plaintiff’s employment with the defendant was dismissed.” 18. The applicant then lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) on 20 March 2005. 19. In this appeal the applicant, inter alia, challenged Judge D.M. on grounds of bias. The applicant explained that in the parallel civil proceedings (case no. Pr-1158/95), Judge D.M. had sat as the president of the panel of the first-instance court. In those proceedings Judge D.M. had delivered the judgment against the applicant, to which the County Court had referred in its judgment of 18 January 2005 (see paragraphs 17 and 27). However, Judge D.M.’s judgment in those proceedings had later been quashed and the case remitted to the Zagreb Municipal Court for re-examination, after which that judge had on the resumption of proceedings, expressed a hostile attitude towards the applicant’s representative on several occasions and had eventually issued the decision to stay those proceedings pending the outcome of the case no. Pr-1158/94 (see paragraphs 23-29). 20. On 21 December 2006 the Supreme Court dismissed the applicant’s appeal on points of law. The relevant part of the Supreme Court’s judgment reads as follows: “The appellant considers that there was a serious breach of procedure in that the judge who had sat as the first-instance judge in proceedings between the same parties before the Zagreb Municipal Court no. Pr-3903/99, had also sat in the panel which handed down the second-instance judgment. ... ... there is no serious breach of procedure raised by the plaintiff because, under section 71 subsection 5 of the Civil Procedure Act, a judge is disqualified from sitting in a case only if he or she had previously participated in the same proceedings before a lower court, whereas the plaintiff in his appeal on points of law refers to a judge of the second-instance court who did not sit as the first-instance judge in the case at issue but in another case before a lower court. ” 21. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 24 March 2007, in which he complained, inter alia, of the lack of impartiality of Judge D.M. 22. On 26 November 2009 the Constitutional Court declared the applicant’s constitutional complaint inadmissible. It found that even though the applicant had correctly relied on the relevant Articles of the Constitution, he had not substantiated his complaint by any constitutional law arguments but had merely repeated those arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court was unable to examine the merits of his constitutional complaint. Its decision was served on the applicant’s representative on 23 December 2009. 23. On 8 May 1995 the applicant brought a civil action in the Zagreb Municipal Court, asking that the Dean’s decision of 7 March 1995 be declared null and void and that all the money he had claimed be paid to him. The case file was assigned number Pr-1158/95. This subsequently changed and the case bore numbers Pr-3903/99 and Pr-10588/01. 24. Judge D.M. presided over the panel of the Zagreb Municipal Court in this case. 25. On 10 April 1997 the Zagreb Municipal Court accepted the applicant’s claim and ordered that his salary be paid on the ground that the applicant should not have been made redundant from work because of the Faculty’s lack of financial means. 26. Following an appeal by the Faculty on 7 November 1997, the Zagreb County Court on 23 March 1999 quashed the first-instance judgment and ordered a re-examination of the case on the ground that all the relevant facts had not yet been established. 27. On 22 March 2001 a panel of the Zagreb Municipal Court, presided over by Judge D.M., dismissed the applicant’s action on the ground that the impugned decision had been based on the relevant law. 28. The applicant lodged an appeal and on 20 November 2001 the Zagreb County Court quashed the judgment of 22 March 2001 and ordered a re-examination, on the ground that all the relevant facts had not been established. 29. On 22 May 2003 Judge D.M., acting as the president of the panel of the Zagreb Municipal Court, ordered that those proceedings be stayed until the adoption of a final decision in the case no. Pr-1158/94, since the outcome of those proceedings was crucial to the case. 30. The applicant lodged an appeal, complaining, inter alia, that Judge D.M. had expressed a hostile attitude towards his representative and his complaint. 31. On 22 May 2003 the Zagreb County Court dismissed the applicant’s appeal as ill-founded. 32. 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, 123/2008, 57/2011 and 148/2011) provides as follows: “A judge ... shall be disqualified from exercising his functions: 1. if he or she himself or herself is a party...; ... 5. if, in the same case, he or she participated in the proceedings before a lower court or other authority; ... 7. if other circumstances exist which cast doubt on his or her impartiality.” Under section 72 of the Civil Procedure Act, the grounds enumerated in section 71 subsections 1-6 are considered absolute grounds for the judge concerned to be automatically disqualified from sitting in the case. Subsection 7 concerns situations in which a judge is obliged to inform the president of his court of any circumstances which might cast doubt on his or her impartiality. The president of the court must then, in view of the circumstances of the given case, make a decision regarding the possible disqualification of the judge. 33. The relevant provisions of the Employment Relations Act (Zakon o radnim odnosima, Official Gazette of the Republic of Croatia nos. 19/1990, 28/1990 (corrigendum), 19/1992, 25/1992 (consolidated text), 26/1993 and 29/1994), which was in force between 11 May 1990 and 1 January 1996, read as follows: “(1) An employer may make an employee temporarily redundant if during a period of six months it cannot provide him or her with the job he or she has been assigned to. (2) In the circumstances referred to in subsection 1 of this section, the employer may temporarily, but for a maximum period of six months: - ... - suspend the employee’s employment, during which period he or she has the right to a salary established by a collective agreement, ... , or the minimum salary; - ...” “(1) The employer may make an employee permanently redundant if for a period exceeding six months it cannot provide him or her with the job he or she has been assigned to.” | 1 |
train | 001-67416 | ENG | SWE | ADMISSIBILITY | 2,004 | B. v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant is a Libyan national who was born in 1968. He was represented before the Court by Mr N. Odén, a lawyer practising in Gothenburg. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived in Sweden on 13 May 2001 and applied for asylum on 28 May 2001. An initial interview with the applicant was conducted by the Migration Board (Migrationsverket) on 30 May 2001. At that interview the applicant stated, inter alia, that he had travelled to Sweden with a false passport which he had obtained through a friend of his father's who worked at the Libyan passport authority. As agreed with that person, he had sent back the false passport after having entered Sweden. His own genuine passport remained in Libya with his parents. Asked about his professional background, the applicant responded that he was an architect by profession and had been employed by the state for seven years at “the People's Committee for the educational sector in the district of al-Zawiyah”. However, he had stopped working in mid-January 2001. The applicant stated that disturbances had erupted in al-Zawiyah at the end of the year 2000. He had openly participated in the protests against the presence of (sub-Saharan) Africans in the country, mainly by distributing leaflets. In January 2001 he had been arrested by the security office in al-Zawiyah and accused of participating in the uprising against the Africans. On this occasion he had been questioned and held in detention for four days. Following the interview, the record of it was read out to the applicant who declared that it was correct and that he had understood the interpreter well. A second interview was held by the Migration Board on 21 March 2002. On this occasion the applicant was heard, inter alia, about the contents of three documents which he had received from Libya after his arrival in Sweden and submitted to the Board on 6 August 2001: (1) a birth certificate, (2) an international driver's licence issued in Libya on 15 May 2001 after he had left for Sweden, and (3) a document showing that he had completed his national military service. Asked about his passport, the applicant stated that it was impossible for him to obtain it as it was held by the security service which had taken it at the end of October 2000 “for reasons identical to his grounds for seeking asylum”. Describing his activities during the disturbances in his hometown, the applicant stated that he had participated by writing and distributing leaflets, encouraging people to force the Government to resign. In the leaflets, he had mentioned that, since coming to power in 1969, Mu'ammar Al-Qadhafi had treated the applicant's clan harshly. The clan had been politically influential before 1969. The uprising had lasted for 2-3 weeks in September 2000 and most of those living in al-Zawiyah had taken part. The security services had been sent to al-Zawiyah to deal with the problem. They had first targeted the applicant's clan. They had had no information regarding the names of the persons who had participated but had acted arbitrarily and arrested a large number of young men. In October 2000 the applicant had been arrested by the security service at his work place and held in detention for four days awaiting a hearing concerning his detention. On the fourth day the persons in charge of his interrogation had released him pending further questioning. Upon his release, the applicant had gone to Sabrata, a small town west of al-Zawiyah, where he had stayed in hiding with a friend for six to eight months before leaving for Sweden. Throughout this period he had been searched for by the security service. Asked about what would happen to him if returned to Libya, the applicant first stated that it was difficult to say exactly but that he would consider himself fortunate if he were given life imprisonment. Slightly later during the interview, however, he stated that the media had reported that death sentences had been handed down against the leaders of the revolt and that his own name had been among those that had been mentioned. He also asserted that a friend in Libya had informed him that he had been sentenced to death in absentia. According to the applicant, this type of judgment was not issued by a court but by a kind of popular conference entitled Al-Moétamarat Al-Shaébia. No appeal lay against it. The applicant further stated that it was possible that news about his sentence could have been published in either of two named government-controlled Libyan newspapers. The applicant declared that he had understood the interpreter well. The record of the second interview further stated that it had been read out to the applicant who had approved it. In written observations submitted to the Migration Board on 16 April 2002, the applicant's counsel, who had not been present at the interviews, stated that the record of the second interview had not been read out to the applicant or approved by him. Counsel further mentioned that, while in hiding in Sabrata, the applicant had been unable to communicate with his parents by telephone. Instead, the friend who had been hiding him had visited the parents a couple of times and had then received information and the applicant's allegedly false passport. The Migration Board noted that in March 2001 the Swedish General Consulate in Tripoli had received an application for an entry visa in the applicant's name, which contained a copy of a passport in the same name. The application had been rejected. On 5 August 2002, in reply to this information, the applicant's counsel noted that the copy of the passport was a copy of the same, allegedly false, passport the applicant had used to enter Sweden. The name, address and place of birth were correct in the application. The applicant had not made the visa application himself and therefore assumed that it must have been made by the head of the passport authority, who was the person who had issued the false passport and had made the arrangements for the applicant's journey to Sweden. The applicant was now in a position to name this person, as he had, for unknown reasons, left his position at the passport authority. Counsel further stated that the applicant's brother had sought to obtain a copy of the newspaper in which the applicant's death sentence had been reported but the brother's motives had been questioned and he had failed to obtained the copy due to fear. On 25 October 2002 the Migration Board rejected the applicant's request for asylum and ordered that he should be expelled from Sweden. It considered it remarkable that the applicant had been able to leave detention unconditionally, without for example any obligation to report or to put up bail. Moreover, it found that the fact that the applicant had remained in the country for several months after his release indicated that he did not perceive his need for protection as pressing. It also found it remarkable that he had been able to leave the country with a passport that he had acknowledged contained correct personal data, especially since he alleged that the Libyan authorities were searching for him. Against this background, the Migration Board found that the applicant's involvement in the riots as well as the possible consequences thereof were exaggerated. On 29 November 2002 the applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 9 January 2003 he submitted what he stated was a copy of a document which his brother had been able to obtain “via an acquaintance with contacts in the congress”. The document had been sent to an acquaintance in England who, in turn, had sent it to the applicant by fax. Issued by the People's Committee in al-Zawiyah on 28 May 2001, it called for the search and arrest by the security service of four named persons, including the applicant. It stated that a decision had been taken that the four persons should be executed on account of acts committed against the security of the state. While the applicant did not at this stage specifically claim that this document was a “judgment” issued by the People's Committee, he asserted that it unambiguously demonstrated that he had been sentenced to death in Libya and was being sought for execution of the judgment. On 29 April 2003 the Aliens Appeals Board rejected the applicant's appeal. It noted that there had been violent riots in September 2000 resulting in the death of many of its participants. Most of the people accused of involvement in the riots had been sentenced to death. It considered that the applicant had not shown that he would risk the death penalty upon return to Libya. If he had been of interest to the Libyan authorities he would not have been able to leave the country the way he claimed. Even having regard to the alleged copy of the judgment, the Aliens Appeals Board found reasons to question that he was of any particular interest to Libyan authorities. He had, thus, not shown that he was in need of protection. In June 2003 the applicant filed a new application for a residence permit with the Aliens Appeals Board, arguing that the previous decisions had been based on misunderstandings, misinterpretations and mistrust. He provided further details regarding the circumstances surrounding his arrest and subsequent escape from Libya. He thus stated, inter alia, that he had been one in a group of seven persons who had cooperated in writing and distributing leaflets in order to demonstrate their discontent with the regime. However, the security services had begun a campaign of arrests, torture and detentions without trial. One in their group had been arrested and, before being executed, had been forced under torture to reveal the identity of the others. When learning of the arrest the other members of the group had tried to hide or escape, but the applicant and two others had been arrested. He had been held in detention for four days at a local police station but had eventually been able to bribe a police officer to let him escape. He had paid the officer the equivalent of 3000 US dollars and had handed over his genuine passport. He had thereafter hid in another town for seven months. By bribing the head of the passport authority his family had been able to obtain a false passport for him. This passport was in fact a “real” and new passport but it was not “registered with the passport authority” and did not contain a bar code used for computer control or his “real name”. The passport also erroneously stated that he was married. The same person had arranged all other details regarding his journey, including his application for a visa and his ticket. The applicant further stated that during the time when he was in hiding in Libya the authorities had sent summonses for his appearance to his home, to the office where he worked and to the engineers' labour union of which he was a member. When this had not succeeded the authorities had tried to put pressure on his family. His father had been arrested and detained for three days, like his brothers who had been tortured to disclose his whereabouts. To avoid exposing his relatives to further torture, he had decided to escape abroad. However, after his arrival in Sweden his youngest brother had been imprisoned and had informed the authorities that the applicant was living in Sweden. The applicant also stated that he had stayed in Libya for several months before leaving as the journey had required careful preparation. After a period of time in Sweden the applicant had learned that he and three others in his group had been sentenced to death and that orders had been issued to all police units to arrest and execute them. Several attempts had been made to obtain this judgment. His brothers had finally managed to get in touch with “someone who has the key to the cupboard where the judgments are kept”. By bribing this person with 1000 dinars they had managed to obtain a copy of the judgment. The applicant claimed that two of the persons in his group had been granted asylum in the United Kingdom and in Canada. In support of his new application the applicant submitted what he claimed were copies of three summonses for him to appear for questioning issued by the Libyan authorities in October and November 2000 and May 2001, respectively. On 4 September 2003 the Aliens Appeals Board rejected the new application stating that it contained no new circumstances which would give reasons to change its previous assessment. The new documents, which were copies, were not of such a character as to influence the assessment of the applicant's need for protection. The immigration authorities have contacted the Libyan Embassy in Stockholm in order to obtain travel documents for the purpose of enforcing the expulsion order against the applicant. By a decision of 21 October 2003, following the Court's indication under Rule 39 of the Rules of Court, the Migration Board stayed the enforcement of the applicant's expulsion until further notice. On 19 November 2003 the applicant submitted to the Court copies of documents purportedly issued by Libyan authorities. One document, dated 3 June 2001, is a communication from “the Secretary to the People's Committee of the Congress” in old Zawia to “the Secretary to the People's Committee for Justice and General Security”, in which the latter is requested to agree to the notification of all airports, seaports and border-controls to prevent five named individuals, among them the applicant and a Mr Hasan Ahmed El Amouri, from leaving Libya. Another document, dated 18 June 2001, is a communication from the first-mentioned official to “the Secretary to the Office for Communications Abroad”, informing the recipient that four individuals mentioned in the first document, including the applicant but not Mr El Amouri, had fled the country and calling for their capture and return to Libya by the external security organs. A third document records a decision of 27 May 2001 to detain the applicant's younger brother for failure to disclose the applicant's whereabouts. Another document contains a summons for the applicant's father to appear on 20 June 2001 for questioning in relation to the applicant's escape from Libya. | 0 |
train | 001-22598 | ENG | AUT | ADMISSIBILITY | 2,002 | KÖLL v. AUSTRIA | 4 | Inadmissible | Georg Ress | The applicant is an Austrian national, born in 1958 and living in Innsbruck. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a lawyer practising in Innsbruck (Austria). On 25 September 1996 he filed a request with the Tyrol Regional Government Office (Amt der Landesregierung) requesting a declaration that he was not a member of the local Tourism Federation (Tourismusverband). According to the Regional Tourism Act (Tourismusgesetz), the applicant had been considered to be a compulsory member of the Innsbruck Tourism Federation and had therefore been obliged to pay an annual contribution to that Federation. The applicant submitted in his request that, as a practising lawyer, he had no direct or indirect interests in Tyrol tourism. On 2 April 1997, as the Tyrol Government Office had not reacted to his request, the applicant filed an application for a transfer of jurisdiction (Devolutionsantrag) with the appeal board established under the Tourism Act. On 4 April 1997 the appeal board requested the applicant to supplement his request by stating for what reasons he considered that he had no interest whatsoever in Tyrol tourism. In his statement the applicant explained that most of his clients had nothing to do with the tourist industry. On 12 May 1997 the appeal board found that the applicant was a member of the Tourism Federation. Referring to the case-law of the Constitutional Court and Administrative Court, according to which lawyers were deemed to benefit from tourists in certain regions because they created more business for them, the board found that the applicant had not shown that in his particular case he had not benefited at all from the tourism in the region. On 25 June 1997 the applicant filed a complaint with the Constitutional Court claiming that the compulsory membership of the Tourism Federation violated his right not to be member of an association, as guaranteed by Article 11 of the Convention. On 27 November 1997 the Constitutional Court refused to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. On 9 February 1998 the Administrative Court requested the applicant to supplement his complaint. On 26 May 1998 the Administrative Court discontinued the proceedings as the applicant had failed to comply with the court’s request. The Tyrol Regional Tourism Act provides for the establishment of local Tourism Federations with the statement that “all entrepreneurs of a community form a Tourism Federation” (Section 1 § 1). Section 1 § 1 further provides that “Tourism Federations are public law institutions”. According to Section 2 § 1 of the Tyrol Tourism Act, compulsory members of a Tourism Federation are those entrepreneurs who are economically, directly or indirectly, interested in Tyrol tourism and who have a permanent establishment or place of business in the area of the Tourism Federation. This compulsory membership starts with the taking up of a business according to Section 2 § 1 and ends with its termination (Section 2 § 2). The Regional Government Office (Amt der Landesregierung) is competent to take a decision on the compulsory membership of an entrepreneur upon his request, that of the chairman (Obmann) of a Tourism Federation or ex officio (Section 2 § 3). According to Section 30 § 1 members are liable to compulsory contributions, which are calculated on the basis of their taxable turnover. The amount of the contribution due is fixed by the Office of the Regional Government on the basis of the member’s turnover tax orders which are furnished by the Federal Tax Authorities. (Sections 36 and 37). The Office of the Regional Government, which collects the contributions, has to apply the Regional Tax Code (Section 38 § 1). Against contribution orders issued by the Office of the Regional Government an appeal lies with an appeals board (Section 38 § 2), which is composed of civil servants from the Office of the Regional Government, the Regional Chamber of Commerce, the Regional Chamber of Labour and the Regional Chamber for Agriculture. The tasks of a Tourism Federation are the promotion of the interests of local tourism, inter alia, by developing forms of tourism linked to local specificity, by promoting the understanding of the economic importance of tourism, and by supporting and training the members of the Tourism Federation (Section 4). Sections 39 to 42 provide for the control of the Tourism Federations by the Regional Government. The Regional Government may, inter alia, request any information from a Tourism Federation, inspect its files and accounts and send delegates to plenary sessions, to sessions of the supervisory board and to sessions of the management board (Section 39 § 2). The Regional Government may also quash any decision of a Tourism Federation that is contrary to the law (Section 39 § 4). | 0 |
train | 001-59558 | ENG | GBR | CHAMBER | 2,001 | CASE OF PHILLIPS v. THE UNITED KINGDOM | 1 | No violation of Art. 6-2;No violation of Art. 6-1;No violation of P1-1 | Georg Ress;Nicolas Bratza | 8. On 27 June 1996, at Newport Crown Court, the applicant was convicted of being concerned in the importation in November 1995 of a large quantity of cannabis resin, contrary to section 170(2) of the Customs and Excise Management Act 1979. On 12 July 1996 he was sentenced to nine years’ imprisonment in respect of this offence. The applicant had previous convictions, but none in respect of a drug-related offence. 9. An inquiry was conducted into the applicant’s means, pursuant to section 2 of the Drug Trafficking Act 1994 (“the 1994 Act” – see below). On 15 May 1996 a Customs and Excise appointed drug financial investigation officer advised the applicant’s solicitors that he was carrying out an investigation into their client’s financial affairs and that he wished to interview him in order to assist the court in determining whether he had benefited from drug trafficking. The applicant declined to take part in the interview. 10. The investigation officer prepared a written statement pursuant to section 11 of the 1994 Act which was served on the applicant and filed with the court. In the statement the investigation officer observed that the applicant had no declared taxable source of income, although he was the registered owner of a house converted into four flats from which he had started a bed-and-breakfast business in December 1991. Examination of the applicant’s building society account showed cash and cheque deposits in the period from August 1994 to November 1995 totalling over 17,000 pounds sterling (GBP), which the investigation officer suggested might represent rental income from the four flats. The applicant was found to have become a director of a newsagents business in July 1992 of which his parents were the sole shareholders and to have bought a shop in September 1992 for GBP 28,493.25, of which GBP 12,200 was paid in cash. He was the registered owner of five cars, of an estimated total value of approximately GBP 15,000, and was found to have spent GBP 2,000 on a BMW 520i in October 1995, and approximately GBP 88,400 on expenses related to the November 1995 importation of cannabis (in respect of which he had been convicted). The investigation officer concluded that the applicant had benefited from drug trafficking and that the total benefit was GBP 117,838.27. In respect of the applicant’s realisable assets, the investigation officer observed: “The size of Phillips’ realisable assets is likely to be peculiarly within the defendant’s own knowledge and I feel it reasonable to suppose that any successful drug trafficker (in as much as the defendant is) may take care to ensure, so far as he can, that the proceeds of his trade will be hidden away so as to be untraceable. Examples include the fact that his business dealings are always conducted in cash, that no records are ever maintained, and that some assets, for example the BMW 520i, are registered in false names.” 11. The applicant filed a written statement in response, in which he denied having benefited from drug trafficking. He explained that in 1990-91 he had been convicted of car theft and required to pay GBP 25,000 to the insurance company which had indemnified the victims. He claimed that he had sold the house for GBP 50,000 to X in order to clear this debt and had used the GBP 12,000 residue from the sale to purchase the newsagents premises for his parents because he owed them money too. He denied owning any part in the newsagents business. When he was released from prison in April 1994 he began trading in telephones; this was the source of the GBP 17,000 in his building society account. He denied owning any of the cars registered in his name, claiming variously that each had been purchased and sold on behalf of a friend or stolen without insurance. In conclusion, he alleged that his only realisable assets were some GBP 200 in a building society account and the fittings of a garage rented from the local authority. The applicant filed documentary evidence and affidavits in support, primarily, of his claim no longer to own the house. 12. The investigation officer filed a second statement in accordance with section 11(1) of the 1994 Act. He stated, inter alia, that the applicant was still the owner of the house and that the conveyance to X had never been registered. 13. At the confiscation hearing in the Crown Court the applicant gave evidence and called witnesses. Giving judgment on 24 December 1996 the judge observed: “It is for the prosecution to establish, of course, on a balance of probabilities that he has benefited from drug trafficking, that is received any payment or reward in connection with drug trafficking. Here there is no direct evidence of that so the Crown invite me to make the assumptions required by section 4(3) of the Act, namely (a) that property held by him since his conviction, and property transferred to him since 18 November 1989, the appropriate date, was received as such a benefit; (b) that any expenditure of his since that date in 1989 was met out of payments received by him in connection with any drug trafficking carried on by him. I must do so unless either he shows on a balance of probabilities that the assumption is incorrect, or I am satisfied that there would be a serious risk of injustice to him if the assumption was made.” The judge commented generally that, in seeking to displace the assumption and to counter the prosecutor’s allegations, the applicant had failed to take obvious, ordinary and simple steps which would clearly have been taken if his account of the facts had been true. For example, instead of calling as witnesses the alleged purchaser of the house, X, and other individuals for whom he claimed to have bought and sold cars, the applicant had called only himself, his father and a solicitor. 14. The judge found the prosecution’s allegation that the applicant still owned the house to be correct and held that X’s purported purchase payment of GBP 50,000 had in fact been a benefit of drug trafficking. The judge stated: “The assumption to be made is plain, and the accused has neither shown that it is incorrect nor demonstrated a risk of injustice. There are real indications on the civil basis of proof that [X] was complicit in the crime of which the accused was convicted. They travelled to Jamaica together at about the time when arrangements for shipment of the load of compressed herbal cannabis would be likely to be made. A mobile phone at the heart of the arrangements for the haulage of the drugs was registered in the name of [X]. Just as the jury did not believe Mr Phillips, neither do I. What has happened here, in my judgment, is a device of just the sort providing a cover to explain the transfer of money which one would expect to find in concealing benefit from drug trafficking. There is an apparently ordinary, formal, commercial transfer of property, appropriately done through solicitors in the ordinary way, which has never ultimately been formally finalised, and my judgment is that it was indeed a sham, that the property ... is still owned by the accused ...” 15. The prosecution alleged that the applicant had received a further GBP 28,000 in cash from X. The applicant accepted that he had received this money, but claimed that X had merely been cashing a cheque drawn by the applicant’s father to buy out the applicant’s share in the family business for a total of GBP 50,000. In connection with this transaction, the judge observed: “No sensible explanation for the involvement of [X] in that cashing of that cheque was given to me at all, and it is impossible, in my judgment, to see any sensible reason other than that he did not cash a cheque; that it was a simple payment. It involves my disbelieving not only the accused but also his father, but I do. I think family loyalty has overcome his honesty. Although the accused now has no formal interest in the remaining shop premises from which the family business is conducted, I do not accept the account of himself and his father that he has no interest in the business. Even within a family I find the purchase of a share of a business for GBP 50,000 entirely without documentation simply unbelievable. Again, on the balance of probabilities it is a device to conceal the true reason for the payment by [X] to the accused of GBP 28,000 which was that it was a payment for drug trafficking.” 16. In respect of the applicant’s dealings with cars, the judge remarked: “Accepting his lowest estimates of those sums which he has paid out, a total of GBP 11,400 in cash is reached. He told the jury that he always dealt in cash in all his transactions, not only dealing with these but other transactions, he presenting himself to the jury as a general wheeler-dealer, having specialised at one stage in cars, more recently in mobile telephones, but willing to deal in anything which would offer a profit. He says he never kept records at all. He accepts and asserts that he dealt dishonestly in cars, as well as legitimately, and that is certainly so. He has been convicted during the relevant period of offences of dishonesty in relation to ringing cars and was sentenced to a substantial term of imprisonment in respect of that. There are also in the papers before me indications of earning legitimate commissions in ordinary sales of cars. But the fact that he may have had other sources of cash, both legitimate and illegitimate, does not, in my judgment, displace the second assumption in a case such as this where no sort of account, complete or partial, is available or possible. I have seen what must have been a fraction of his dealings, and I am satisfied that the GBP 11,400 must be treated as a benefit.” 17. The judge assessed the applicant to have benefited from drug trafficking to the extent of GBP 91,400. He next calculated the value of the realisable property held by the applicant as follows: “For the reasons that I have given above I am satisfied that [the applicant] is in fact the beneficial owner of [the house]. In the absence of a current valuation, but taking judicial notice of a recent modest recovery in the housing market after a long, flat period, I am satisfied that the GBP 50,000 which he said in evidence was what such a property was worth in 1992, that is to say during the long, flat period, I am satisfied that GBP 50,000 is a fair estimate of the likely net proceeds of a sale of that property now or in the relatively near future. Again for the reasons that I have given above, I am satisfied that the accused still has a one-third interest with his parents in the [newsagents business]. He and his father said that the business was worth GBP 150,000 in 1993. That is what was purported to be the basis of the GBP 50,000 he was to be given for it. There is no evidence that it is worth any less now, and I therefore find his realisable share in the equity in that business to be worth GBP 50,000. Since I am satisfied as to GBP 100,000 realisable sums, that figure exceeds the GBP 91,400 and under section 5 I find the amount to be recovered to be that figure.” In view of the difficulties inherent in realising the applicant’s share of the family business, the judge allowed him three years in which to pay the confiscation order, with a period of two years’ imprisonment to be served in default of payment. 18. On 28 January 1997 the applicant was refused leave to appeal against conviction and sentence (including the imposition of the confiscation order). His application to renew leave to appeal against conviction and sentence was refused on 22 January 1998 after a full hearing before the Court of Appeal. 19. Section 2 of the 1994 Act provides that a Crown Court should make a confiscation order in respect of a defendant appearing before it for sentencing in respect of one or more drug-trafficking offences, whom the court finds to have received at any time any payment or other reward in connection with drug trafficking. 20. Under section 5 of the 1994 Act, the confiscation order should be set at a sum corresponding to the proceeds of drug trafficking assessed by the court to have been gained by the defendant, unless the court is satisfied that, at the time the confiscation order is made, only a lesser sum could be realised. 21. In determining whether and to what extent the defendant has benefited from drug trafficking, section 4(2) and (3) of the 1994 Act require the court to assume that any property appearing to have been held by the defendant at any time since his conviction or during the period of six years before the date on which the criminal proceedings were commenced was received as a payment or reward in connection with drug trafficking, and that any expenditure incurred by him during the same period was paid for out of the proceeds of drug trafficking. This statutory assumption may be set aside by the defendant in relation to any particular property or expenditure if it is shown to be incorrect or if there would be a serious risk of injustice if it were applied (section 4(4)). 22. The required standard of proof applicable throughout the 1994 Act is that applied in civil proceedings, namely on the balance of probabilities (section 2(8)). 23. Provisions broadly similar to the above were previously included in the Drug Trafficking Offences Act 1986 (“the 1986 Act”, considered by the Court in Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307-A). 24. In its judgment of 13 October 2000 the Scottish Court of Appeal, by a majority of two to one, held that a confiscation procedure similar to that applied in the present case was incompatible with Article 6 § 2 of the Convention. Lord Prosser, with whom Lord Allanbridge agreed, observed, inter alia: “... By asking the court to make a confiscation order, the prosecutor is asking it to assess the value of the proceeds of the petitioner’s drug trafficking. It is therefore asking the court to reach the stage of saying that he has trafficked in drugs. If that is criminal, that seems to me to be closely analogous to an actual charge of an actual crime, in Scottish terms. There is of course no indictment or complaint, and no conviction. And the advocate depute pointed out a further difference, that a Scottish complaint or indictment would have to be specific, and would require evidence, whereas this particular allegation was unspecific and based on no evidence. But the suggestion that there is less need for a presumption of innocence in the latter situation appears to me to be somewhat Kafkaesque, and to portray vice as a virtue. With no notice of what he is supposed to have done, or of any basis which there might be for treating him as having done it, the accused’s need for the presumption of innocence is in my opinion all the greater ... I can see no basis upon which it could be said that [such] assumptions ... would not offend against the presumption of innocence, leaving it to the accused to show that these assumptions were incorrect. ...” 25. On 21 December 2000 the Court of Appeal held unanimously that the imposition of a drug confiscation order did not give rise to a violation of Article 6 of the Convention. Giving judgment, the Lord Chief Justice examined the confiscation process on the basis that Article 6 as a whole, including Article 6 § 2, applied. He concluded that, considered as a whole, the confiscation scheme struck a fair balance between justice for the defendant and the public interest in controlling the proceeds of drug trafficking. 26. The prosecution appealed from the Court of Appeal’s decision (see paragraph 24 above) and on 5 February 2001 the Judicial Committee of the Privy Council held, unanimously, that Article 6 § 2 did not apply, since during the confiscation proceedings the accused was not “charged with a criminal offence” but was, instead, faced with a sentencing procedure in respect of the offence of which he had been convicted. Moreover, the Privy Council held that even if Article 6 § 2 could be said to apply, the assumption involved in the making of the confiscation order was not unreasonable or oppressive. | 0 |
train | 001-4928 | ENG | GBR | ADMISSIBILITY | 1,999 | McPARLAND v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is an Irish citizen, born in 1946 and living in Newry, Northern Ireland. He is represented before the Court by Mr Gerard Trainor of the Elliot-Trainor Partnership, a firm of solicitors based in Newry. A. On 3 April 1998 the Transport Licensing and Enforcement Branch of the Department of the Environment of Northern Ireland (“the Department”) notified the applicant in writing that his application for a road service licence had been refused on the ground that he was not considered to be of “good repute” within the meaning of sections 28A(1)(a) and 46A(3A)(a) of the Transport Act (Northern Ireland) 1967 as amended. The Department’s refusal was based on the fact that the applicant was convicted on 1 June 1990 of possessing explosives, firearms and ammunition and sentenced to ten years’ imprisonment. The applicant was released on 7 March 1995. Following a hearing held on 19 May 1998 before the Vehicle Licensing Review Body (“the Review Body”), the Department informed the applicant in June 1998 that it had accepted the Review Body’s recommendation and had decided to uphold its decision of 3 April 1998. The applicant’s solicitor requested the Department to provide reasons for the Review Body’s decision. By letter dated 7 August 1998, the Department informed the applicant that the Review Body had met on 19 May 1998 to hear his appeal and had taken into account all the information before it, including the character references which the applicant had supplied. It was the Review Body’s unanimous recommendation that the Department’s initial decision be upheld. The Department drew the applicant’s attention to the fact that the Review Body was an independent institution which did not have any power to take decisions on appeals from its licensing authority. The Review Body’s functions were limited to making recommendations for consideration by the Department. The Department took a final decision on the applicant’s application in which it affirmed its licensing authority’s earlier decision to refuse him an operator’s licence on the grounds specified in its letter of 3 April 1998. The applicant subsequently sought leave to apply for judicial review of the Department’s decision on the grounds inter alia that the decision refusing him a licence was discriminatory, unreasonable, unfair and unlawful; that the licensing authority had given undue emphasis to his criminal conviction; and that the same authority had failed to take into account relevant matters such as the character references he had submitted, his qualifications and the fact that official and private agencies had earmarked funding for the business venture which he was attempting to mount. The applicant also prayed in aid the provisions on the rehabilitation of offenders following their release from prison. On 25 September 1998 the applicant’s lawyer informed the High Court of Northern Ireland that the applicant no longer wished to proceed with the leave application. Mr Justice Kerr accordingly dismissed the application. According to the applicant, Mr Justice Kerr stated at the leave hearing that the licensing authorities confronted as they were with the applicant’s previous conviction and the terms of the relevant domestic legislation could not have reached a different conclusion. B. Relevant domestic law Section 28 of the Transport Act (Northern Ireland) 1967 was amended by regulation 4 of the Road Transport (Qualifications of Operators) Regulations (Northern Ireland) 1977 so as to provide that the Department of the Environment shall refuse to grant to an applicant an operator’s licence unless it is satisfied that the applicant is, inter alia, of good repute (new section 28A). The Transport Act (Northern Ireland) 1967 was further amended by the Road Transport (Qualifications of Operators) (Amendment) Regulations (Northern Ireland) 1991. According to section 5(2) of the Regulations, the Department shall determine that a person is not of good repute if he has been convicted of serious offences, defined as any offence which carries a sentence of imprisonment for a term exceeding three months, a fine exceeding level 4 on the standard scale, or a community service order for more than 60 hours. Spent convictions are to be disregarded. A person who has been refused a licence may apply in writing within fourteen days from the date of issue of the notice of refusal to the Department of the Environment stating his grounds of complaint and requiring the decision to be reviewed by the Department. The Department must inform the applicant in writing whether the decision has been confirmed or reversed. The Department must give reasons for the confirmation of a decision (regulation 5 of the Road Service Licensing Regulations (Northern Ireland) 1989). | 0 |
train | 001-70377 | ENG | NLD | CHAMBER | 2,005 | CASE OF MATHEW v. THE NETHERLANDS | 1 | Violation of Art. 3 (certain aspects);No violation of Art. 3 (other aspects);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 9. The applicant, Mr Eduardo A.A. Mathew, is a Netherlands national who was born in 1973. As far as the Court is aware, he is currently living in Providence, Rhode Island, United States. 10. The applicant, a kickboxing instructor by trade who also had business interests, was arrested on Aruba on 9 October 2001 on a charge of inflicting grievous bodily harm. He was placed in detention on remand in the Aruba Correctional Institution (Korrektie Instituut Aruba – “the KIA”). Aruba is a “country” (land) of the Kingdom of the Netherlands (see paragraph 125 below). It is one of a group of Caribbean islands known as the Dutch Leewards. Its climate is tropical. 11. The applicant and the Government disagreed on many of the events that occurred after the applicant had been placed in detention. 12. It appears that on 16 November 2001 a dispute took place between the applicant and a prison guard, after which the applicant was placed in solitary confinement in the punishment cell (cachot). 13. The applicant alleged that on 17 November 2001 he had been surreptitiously drugged, after which some guards had come in and illtreated him. He stated that a bag had been placed over his head and that when he came to he was lying on the floor in his own blood, covered in urine. He also stated that he had not been let out of the punishment cell for fresh air until 29 November and that he had never received any medical attention despite asking for it. 14. On 29 November 2001 a violent incident took place in which the then acting governor of the KIA, Mr B.F.C. Vocking, was seriously injured. The applicant was subsequently charged with inflicting grievous bodily harm on him (see below). For his part, the applicant denied having harmed Mr Vocking; according to his version of events, when entering his cell Mr Vocking had bumped into a prison guard, Mr Janga, and had fallen to the floor. 15. On 4 January 2002 the interim prison governor, Mr F.A. Maduro, who had by that time replaced Mr Vocking, ordered that the applicant be subjected to a special detention regime: he was to spend the remainder of his detention in the committal cell (gijzelaarscel), a solitary confinement cell located next to the punishment cell. In addition, the special regime applicable to the applicant was to comprise the following ten points: “1. Under no circumstances may [the applicant] leave his cell without handcuffs and fetters; 2. Prisoner Mathew shall be taken out of his cell and locked back in again by no fewer than two members of staff; 3. Outdoor exercise [luchten] shall take place in the space located behind the multi-purpose area for one hour a day, to be decided by the head of department of the internal service or, in his absence, the CMK team leader; 4. Telephone calls shall be made from telephone no. 120, which shall be brought to Prisoner Mathew's cell; 5. Visits by, among others, counsel, probation officers [reclassering], social workers, the medical service and spiritual counsellors, shall take place in his cell where possible; 6. However, a suitable area shall be made available to the above persons; 7. The KIA reserves the right to revoke point 6 should problems arise [mocht het spaak lopen]; 8. Visits by relatives [relatiebezoek] and church services shall take place as normal, in the multi-purpose area; 9. Items from the canteen shall be brought to Prisoner Mathew in his cell; 10. The prisoner shall also be allowed mail, books and, for example, magazine subscriptions [leesmappen] which are being circulated, once they have been censored.” 16. On 20 February 2002 the applicant's lawyers, Mr Loth and Mr Römer, wrote to the public prosecutor responsible, Ms Hemmes-Boender, complaining about the applicant's treatment leading up to the events of 29 November 2001. It was stated that the acting prison governor, Mr Vocking, had entered the punishment cell with two prison guards, Mr Janga and Mr Van der Biesen, to interrogate the applicant about some threats he had allegedly made to a prison guard. When the applicant refused to cooperate, they had placed a bag over his head and beaten him, apparently with truncheons. As he lay on the floor, the applicant was kicked with booted feet. At that point the applicant had begun to request medical treatment, which, however, had been withheld. In the course of the scuffle, the acting governor, Mr Vocking, had collided with Mr Janga and fallen to the ground, sustaining severe injuries to his face. The applicant had then been locked in the committal cell, where he had later been visited by Mr Loth and Mr Römer. Conditions in the applicant's cell had been revolting: the cell offered insufficient protection from the elements and the floor was covered in filth, including rotting food scraps several days old. Even assuming that the applicant had been abnormally aggressive, the conditions were tantamount to ill-treatment. A request was made on behalf of the applicant for appropriate action to be taken to ensure his detention in humane conditions. The letter was copied to the Governor of Aruba, the Aruban Minister of Justice, the Procurator General of Aruba, the President of the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba, the Aruban parliament (Staten van Aruba), Mr Fabrice Kellens (member of the Secretariat of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)) and the KIA prison authorities. 17. The public prosecutor, Ms Hemmes-Boender, replied to the letter on 27 February 2002, stating that matters were not as serious as had been alleged. The prison was being refurbished and the applicant himself had refused to keep his cell clean. She promised that the glass fibre-reinforced resin sheet covering the hole in the ceiling would be raised in order to improve ventilation. 18. On 26 June 2002 an MRI (magnetic resonance imaging) scan of the applicant was taken by Dr C.E. Loo, a radiologist at Dr Horacio E. Oduber Hospital in Aruba's capital, Oranjestad. The medical report drawn up noted degeneration of the fifth lumbar disc (discusdegeneratie L5/S1) and no nerve root compression (geen wortelcompressie). 19. On 8 August 2002 a radiological examination by Dr I.F.M. Lambertina, a radiologist at Dr Horacio E. Oduber Hospital, showed some lumbar lordosis (excessive backward curvature of the spine, causing concavity of the back) and possible limited sclerosis (hardening) of the two lumbosacral joints, but no degenerative abnormalities. 20. On 10 September 2002 Dr Carlos A. Vallejo Lopez, the neurosurgeon at Dr Horacio E. Oduber Hospital, wrote a note finding the applicant to be suffering from lumbago and prescribing “more mobilisation” and “active physical therapy” for his lower back. 21. It appears that on 13 February 2003 an altercation took place in the prison courtyard, in the course of which the applicant sustained injuries. A medical report of the same date by one Dr Perez of the Dr Rudy A.M. Engelbrecht Medical Centre – completed on a pre-printed form in Dutch – described the applicant as having suffered “ill-treatment” (mishandeling). The report stated that the applicant had been found lying on the ground with a head wound and complaining of pain. 22. On 19 February 2003 the applicant's wife, Ms Arianna Iannuccilli, lodged an official complaint with the Aruba police alleging grievous bodily harm inflicted on the applicant by three prison staff. 23. On an unknown date, probably in April or May 2003, the applicant was referred by the prison doctor to the island's neurosurgeon, Dr Carlos A. Vallejo Lopez. 24. On 21 May 2003 Dr Vallejo Lopez examined the applicant. On 22 May and again on several occasions over the following few days he prescribed, in particular, outpatient physiotherapy and painkillers. On 22 May 2003 Dr Vallejo Lopez signed an application for physiotherapy for the applicant's lower back problems. A physiotherapist described the treatment as “mobilisation with walker [a walking frame]”. 25. On 23 May 2003 the applicant was taken to hospital. 26. On the same day the applicant was examined by a radiologist, Dr Stojanov, using magnetic resonance imaging. The report noted increased rupturing of the annulus fibrosus L5/S1 on the left side. 27. Another document of the same date, in an unidentifiable hand, contained the query “Got beaten?!”, noted pain in the applicant's lower back area and legs – with a query as to whether it had been simulated – and suggested mobilisation with a walking frame. 28. On 5 June 2003 Dr Vallejo Lopez wrote to the KIA asking permission for the applicant to complete the physiotherapy treatment programme as an outpatient. 29. On 6 June 2003 Dr Vallejo Lopez wrote to the social worker A. de Veer, asking whether it was possible to transport the applicant to hospital twice a week for physiotherapy, surgery not being an option at the prison. On 13 June one Major F. Tromp replied, writing on the same note, that it had been agreed that the KIA would make the appropriate arrangements. 30. On 13 June 2003 the applicant was released from hospital with the following diagnosis, in the form of a handwritten note by Dr Vallejo Lopez: “I. Lumbar ... compression L5-S1 II. Lumbar discal hernia L5-S1 III. Lumbar disc. extrusion L5-S1 Plan: A. Physical therapy. B. Surgery.” 31. On the same date the interim prison governor, Mr Maduro, wrote to the hospital saying that a prison nurse would ensure that the applicant was taken to hospital for treatment twice a week. 32. It appears that it had been agreed at a meeting the day before that arrangements would be made for the applicant to be taken to the rehabilitation department of Dr Horacio E. Oduber Hospital twice a week. 33. On 23 June 2003 Dr Rodriguez Robelt and Dr Perez Dopazo of the Aruba Public Health Department wrote to the interim governor of the KIA asking that the applicant be given a wheelchair in order to prevent, in particular, falls like the one that had taken place the week before. 34. Also on 23 June 2003 Prison Guard First Class Grovell, on behalf of the interim governor, imposed a punishment regime on the applicant for twenty-eight days: the applicant was not to receive any visits or use the telephone. The applicant was said to have attacked prison staff with his walking frame and incited fellow inmates in the remand unit to violence. His actions, moreover, were made more serious by the fact that they had been premeditated. 35. On the same day another inmate by the name of Ignacio complained to the Queen, the Minister of Justice of Aruba, the Public Prosecution Service and the CPT about an incident that had taken place the day before. The incident had been caused by the alleged refusal of the prison authorities to show Ignacio papers justifying the prolongation of his detention. When he had asked to see them, instead of showing him the papers, prison guards had ill-treated him. This had been witnessed by the applicant, who had told the prison guards to stop. The applicant had not attacked anybody: he had merely tried to block one of the prison guards with his walking frame to prevent further violence. The complaint was co-signed by ten inmates, including the applicant. 36. On 30 June 2003 another of the applicant's fellow prisoners, one Van der Biezen, signed a statement describing a fire that had broken out in the remand unit, after which prison guards had allegedly come in and ill-treated the applicant. 37. On 1 July 2003 Dr Rodriguez Robelt examined the applicant. He noted a slight inflammation of the skin where the handcuffs had been and pain in the lumbar region from L5 to S1, which increased when the applicant moved his lower limbs, and made a diagnosis. He prescribed treatment as indicated by the specialist (Dr Vallejo Lopez), urgent palliative care, rest and continued physiotherapy. 38. On 3 July 2003 the interim prison governor, Mr Maduro, imposed a disciplinary punishment on the applicant. The punishment involved fourteen days' solitary confinement, commuted in view of the applicant's state of health to twenty-eight days without visits or telephone. The applicant was said to have orchestrated premeditated attacks on prison staff, to have incited fellow prisoners to violence, threatened prison staff, failed to follow orders immediately and to have been an accomplice to arson and the destruction of public property. The punishment was to begin on 21 July 2003, in view of the earlier disciplinary measures imposed on 23 June. 39. On 4 July 2003 fellow prisoner Van der Biezen signed a statement to the effect that the prison management had fabricated a case against the applicant. 40. On the same date the neurosurgeon Dr Vallejo Lopez wrote the following statement (original in English): “Mr Alexander Matthew [sic], with Lumbalgia and Radicular pain at the level of L5-S1 (Lumbar Discal Hernia S5-S1) is under medical treatment with Physical Therapy, but his condition is not so good, specially the aspect of the pain. Considering the situation of the patient like prisoner (K.I.A. Aruba) it is very difficult to give guarantee that the medical treatment and Physical Therapy treatment are going in the normal direction. Mr Matthew has indication for surgical procedure, but this indication at the present is not so clear, because of the abnormal situation of the patient. I suggest to have a second opinion with another Neurosurgeon and then it will be possible to define this difficult case. Considering that Aruba has only one Neurosurgeon, we have to explore the needs to get a second opinion with the Neurosurgeon that periodically is visiting the Island or one Neurosurgeon from abroad. The need for a second opinion to evaluate the case of Mr Matthew is Medically necessary. [signed] Dr Carlos A. Vallejo Lopez” 41. On 5 July 2003 a fellow prisoner named Paesch signed a statement to the effect that a fire had broken out in the remand unit, near the applicant's bed. Paesch blamed an unnamed fellow inmate. He stated that guards had come in and beaten the applicant. The applicant had been handcuffed, fettered, beaten and given electric shocks. A statement dated 6 July described ill-treatment inflicted on the applicant in the form of beating, fetters and handcuffs. According to a further statement by the same prisoner, dated 7 July, a guard called Moure had threatened to kill the applicant when he asked for his pills; Paesch did not remember the date on which that had happened. 42. On 7 July 2003 the lawyer Mr David G. Kock wrote to the interim governor of the KIA noting that the applicant was once again being detained in the committal cell. Pointing out that the Joint Court of Justice had held, in its judgment of 14 April 2003, that the conditions of the applicant's detention there bordered on the unacceptable, he demanded his transfer to another cell and improved conditions of detention. 43. On 18 October 2003 Ms Iannuccilli wrote to the interim governor of the KIA asking for the applicant to be examined by a doctor of his choice and offering to take responsibility for all costs incurred. 44. On 20 October 2003 she received a fax, on Aruba Prison Service stationery, which read as follows (original in English): “Dear Doctor Iannucelli [sic], Your husband can be referred to any specialist of his choice in Aruba, as long as the specialist in question is registered in Aruba according the current law. According to several medical reports Eduardo needs no surgery, he's supposed to have some medical treatments, but he won't cooperate. Let's get that clear, if Eduardo won't cooperate in his healing, he cannot be forced to do so. Sincerely, A.F. Maduro Director DGWA [Aruba Prison Service]/KIA [signed per procurationem] Janga” 45. On 23 October 2003 Ms Iannuccilli wrote to the Governor of Aruba, Mr O. Koolman, informing him of the reply she had received and asking him to order that the applicant be removed from the committal cell without further delay and be seen by a specialist medical practitioner from abroad. 46. On 25 November 2003 Dr Rodriguez Robelt and Dr Perez Dopazo wrote to the KIA prison authorities noting that the applicant had had difficulty attending physiotherapy sessions in recent months. The letter contained the following passages: “And without wishing to violate any established rules of the KIA of which we are not aware, we propose and prescribe the following: 1. Resumption of physiotherapy as soon as possible. 2. Cooperation of prison staff in helping the patient to attend physiotherapy, as he is currently being kept in a place where he has to walk down stairs and is therefore in danger of falling, which would aggravate his condition. 3. If for any reason the above prescription cannot be followed, it will be necessary to transfer the patient to another place where he does not have to go down stairs and to offer him a wheelchair, as already suggested in our previous request, so that he can find his own way to the point from where he can be taken for physiotherapy. 4. That he continue to be given assistance in cleaning his cell, as has been done hitherto. Note: The patient suffers from a discal hernia (L5-S1) which, even if it does not result in paralysis of his lower limbs, is very painful. That is why the patient declines to walk or to adopt certain positions that cause him pain.” 47. On 5 January 2004 the applicant again wrote to the interim prison governor, Mr Maduro, complaining that he was still being denied a wheelchair and physiotherapy and being made to walk down two flights of stairs to meet his visitors despite his condition. He stated that his pain was so severe that he had difficulty sitting upright through a fifty-minute visit. 48. Apparently on 27 January 2004 the applicant was informed orally that he would not be granted early release. It was claimed that he had not been issued with a formal written decision. He submitted a copy of an unsigned document dated 16 January 2004 sent by the registry of the Aruba Court of First Instance to the Aruba Minister of Justice, phrased in the following terms: “Please find attached the documents sent to the Central Rehabilitation Board [Centraal College voor de Reclassering] relating to the release of Eduardo Alexander Antonio Mathew. The Board has the honour of informing you as follows. It appears from the appended reports that the above-mentioned Mathew has acted contrary to the conditions for granting provisional release, in particular, by causing grievous bodily harm to a member of staff, fleeing from hospital, failing to follow orders given by KIA staff, issuing threats and insults, disturbing the order, peace and safety of the institution, causing unrest, destroying property, etc. The Central Rehabilitation Board therefore suggests that you consider not granting provisional release to Eduardo Alexander Antonio Mathew, born on Aruba on 9 February 1973.” 49. On 19 November 2001 the applicant wrote to the supervisory board (Commissie van Toezicht) of the KIA. He complained that Mr Vocking had ordered that he be placed in solitary confinement on the basis of a misunderstanding and without interviewing him first. He had been forced to see his lawyer in the punishment cell while naked. He also complained that he had been ill-treated on 17 November. 50. On 5 September 2002 the applicant, through his lawyer, complained to the KIA's supervisory board about the regime imposed on 4 January 2002 and the condition of the committal cell. Promises to improve these had not been kept. Appended was a handwritten statement addressed to the interim governor of the KIA, Mr Maduro, describing the treatment of the applicant as “illegal”, “corrupt” and “tourcher” (torture); it was signed by a large number of other KIA inmates. 51. On 7 October 2002 the applicant, through his lawyer, wrote to the KIA supervisory board noting that the roof of the committal cell had finally been repaired, but that the other complaints set out in the letter of 5 September 2002 remained valid. The applicant had not been allowed outdoor exercise for four months and was still being denied the physiotherapy prescribed for him. 52. On 30 October 2002 the applicant himself wrote to Ms E.M.D. Angela, the chairperson of the KIA supervisory board, complaining that despite the promises made by the public prosecutor, Ms Hemmes-Boender, in her letter of 27 February 2002, his situation had not improved. Since 14 June 2002 he had not been allowed access to fresh air, as prison staff refused to carry his wheelchair downstairs. Physiotherapy was being denied him by the KIA prison authorities, who refused to take the trouble to transport him to hospital. In addition, the lack of ventilation was causing him headaches. 53. On 19 August 2001 the applicant was arrested by order of the public prosecutor on charges of violence against a former employee. He was placed in police custody and subsequently in detention on remand. He was placed in the remand unit of the KIA, where he remained until he was released on 4 October 2001. 54. On 9 October 2001 the applicant was rearrested, this time for inflicting grievous bodily harm using weapons, and again placed in the remand unit of the KIA. 55. On 15 October 2001 the applicant was taken to hospital by KIA personnel for the treatment of stomach complaints. The applicant absconded from hospital the following day. Later that day, accompanied by his lawyer, he returned to the KIA and gave himself up; he was given fourteen days' solitary confinement for absconding. 56. The Government submitted a report by a prison guard stating that on 25 October 2001 the applicant had refused to return to solitary confinement after outdoor exercise – “for the umpteenth time” (voor de zoveelste keer), in the words of the report – and had been accompanied back to his cell by several guards. 57. Another report by a prison guard, dated 12 November 2001, described the applicant refusing to return to his cell and threatening violent retribution. 58. On 16 November 2001 the applicant and some fellow inmates refused to return to their cells for locking in. The prisoners broke down a partition to use parts of it as weapons. This led the acting prison governor, Mr Vocking, to place the applicant in solitary confinement for seven days. The applicant was also denied telephone calls and outdoor exercise until further notice. 59. On 26 November 2001, upon being refused outdoor exercise, the applicant threatened the prison guards. 60. The incident in which Mr Vocking was badly injured took place on 29 November 2001. The Government stated that the applicant had deliberately broken Mr Vocking's eye socket, cheekbone and skull and caused him severe concussion by punching him and kicking him in the head. The Government pointed to the applicant's conviction by the Aruba Court of First Instance and the Joint Court of Justice and the rejection of the applicant's appeal on points of law by the Supreme Court on 1 June 2004 (see below). 61. As a result of this violent altercation the applicant was given thirty-five days' solitary confinement. On 4 January 2002, after the end of this term, a special regime was ordered by the interim prison governor, Mr Maduro, which was intended to last for the remainder of the applicant's detention in the KIA. The ten-point order, which was submitted by both parties, is quoted in extenso above (see paragraph 15). 62. On 5 March 2002 the applicant's special regime was changed: the applicant would no longer be required to wear fetters as well as handcuffs when leaving his cell unless he endangered prison staff by using his feet. On 1 August 2002 an order was given granting him two hours of outdoor exercise every day. 63. The applicant's conduct did not, however, change for the better. He continued to threaten prison staff and transgress the rules. The Government submitted reports which described the applicant removing his handcuffs during outdoor exercise, hiding a mobile telephone in his cell and damaging the padlock on the door of his cell beyond repair. 64. On 2 August 2002 the applicant was asked to leave his cell so that the roof could be repaired. When he stated that he could not walk, prison guards offered to carry him out on a stretcher. The applicant, however, refused, saying that he was suffering from headaches and pain in his back and wanted to see a doctor. He had been seen three days earlier, on 30 July 2002, by the prison doctor, Dr Ernesto Rodriguez; Dr Rodriguez had given him an injection and prescribed medicine. He had also been seen on 1 August 2002 by the prison nurse, Ms Bowina H. Vos. Given the applicant's refusal to be moved, work on the roof of the cell was halted. 65. A report by a prison guard dated 12 March 2003 stated that on 6 January 2003 at 1.30 a.m. the applicant had been seen doing push-ups, apparently untroubled by his physical condition. 66. Violent behaviour was reported in the first half of 2003. One official report, by Prison Guard First Class Anthony Williams, related the following events, alleged to have taken place on 13 February 2003: “On taking over from Prison Guard Semerel, the reporting officer was told that Prisoner Mathew, who was in a wheelchair, unhandcuffed, near the inner guard post, had been brought back and had to be locked up again. Around 3.10 p.m. the reporting officer ordered Mathew to go to his cell with the help of two outdoor workers (fellow inmates). Mathew refused and informed the reporting officer that he needed to speak with the governor or a supervisor, otherwise he would not return to his cell. The reporting officer telephoned Prison Guard First Class J.M.A. Grovell and notified him of the situation. Grovell then informed the reporting officer that he would send reinforcements to get Mathew back into his cell. The reporting officer was joined by prison officers G. Weller and W. Beyde and again ordered Mathew to go to his cell otherwise he would be carried there. Mathew replied that he would not go to his cell and did not want the two designated, bona fide outdoor workers (fellow inmates) to touch the wheelchair. Knowing Mathew, the reporting officer took out his handcuffs in order to put them on Mathew so as to be prepared for the worst. Unfortunately the reporting officer only succeeded in handcuffing Mathew's right hand since Mathew began to put up fierce resistance and even ripped off a piece of the metal armrest on the wheelchair, which he brandished in the air, with the clear intention of using it as a weapon. At one point Mathew bit the reporting officer's right hand very hard, and the reporting officer responded by elbowing Mathew in the back of his head, but Mathew continued his fierce resistance, waving his hands and feet in the direction of the reporting officer and his colleagues G. Weller and W. Beyde. Beyde finally managed to pull the piece of metal out of Mathew's right hand. With the help of Weller and Beyde, Mathew was held firmly and carried in the direction of the committal cell. Mathew continued to offer fierce resistance by waving his hands and feet, and tried to throw the reporting officer and his two colleagues down the stairs. The reporting officer received a hard blow from the back of Mathew's head, resulting in a cut to the reporting officer's lower lip. While going down the stairs leading to the observation section, Mathew seized the opportunity to fasten the still open handcuff to the rail to prevent his being carried any further. By constantly moving his whole body, Mathew sustained injuries to the back of his head on the metal rail. W. Beyde pulled out his handcuffs in order to secure both of Mathew's hands, and the prisoner was then carried to his cell and locked up. As a result of Mathew's fierce resistance, the reporting officer sustained a broken finger among other injuries. Thus drawn up by the reporting officer under oath of office for forwarding to whomsoever it is deemed necessary.” 67. Apparently on 1 July 2003 an incident took place, recorded in the following terms in an official report by Prison Guard First Class S.E. Vos: “Prisoner Mathew was told three times by Prison Guard First Class L. Pemberton that he had to be transferred to the committal cell. Mathew got out of bed, remained standing (without a walking frame), persistently refused to go to the committal cell, became insolent and began to attack the officers by kicking and punching them. The undersigned tried to grab the prisoner's hands, but Mathew punched the undersigned in the face. The reporting officer, with the help of Prison Guard Pemberton, resorted to force in order to handcuff Mathew so that he could be moved; this was not easy since Mathew offered fierce resistance. With great difficulty, the reporting officer and Prison Guard Pemberton managed to handcuff Mathew. He was then put on a stretcher so that he could be taken to the committal cell. On the way, Mathew became aggressive and insolent again and deliberately fell off the stretcher several times, with the clear intention of hindering his transfer. Once on the ground, Mathew began to threaten the reporting officer and officers present with death or murder. Mathew was put back on the stretcher. While being carried, Mathew shouted at the reporting officer and those present in English: 'All of you get fucked when I come out, I have six more months to do, don't worry!' Upon reaching the committal cell, the handcuffs were removed and the prisoner was locked in the cell. As a result of the blows the reporting officer received from Mathew, the reporting officer had to go to the St. Nicolaas outpatient department to receive medical attention. Knowing Mathew, and in view of his past deeds, the reporting officer feels threatened and fears that Mathew will put his words into action. The reporting officer has therefore notified the criminal investigation authorities.” The Government suggested that this might in fact have been the incident referred to in the statement by one of the applicant's fellow prisoners dated 30 June 2003 (see paragraph 36 above). 68. By way of disciplinary punishment, the applicant was for each of these incidents denied private visits and use of the telephone for twenty-eight days, in lieu of the fourteen days' solitary confinement he would otherwise have received. These disciplinary measures were enforced consecutively between 23 June and 18 August 2003. 69. The Government denied all knowledge of any incident on 5 July 2003 (see paragraph 41 above). 70. In the course of 2003 a further attempt was made to detain the applicant in a normal (multi-person) cell, but the problems were such that he had to be returned to the committal cell. 71. The Government stated that since the applicant had refused to keep his cell clean, a job normally left to the occupants themselves, the prison authorities had paid another inmate to do it for him. 72. On 27 April 2004 the Government informed the Court that the Governor of Aruba had decided to grant the applicant early release on the occasion of the Queen's official birthday on 30 April 2004. The applicant was released on that date. 73. The Government stated that the applicant had reported stomach complaints from the beginning of his detention, but had refused to take prescribed medicines or give a blood sample. 74. In January 2002 it became apparent that the applicant was injuring his ankles deliberately by rubbing the fetters against them. A nurse treated the wounds with bethadine (a disinfectant) and sterile gauze. The applicant was seen twice by the prison doctor in connection with these complaints, on 24 January and 15 February 2002. On 5 March 2002 it was decided that the fetters would no longer be applied. 75. On 6 March 2002 the applicant saw the nurse, complaining of headaches and eye problems; on 15 March he was duly taken to the outpatient department. On 26 March he was given a check-up by the KIA medical staff. 76. On 31 March 2002 the applicant complained that he was suffering from a stomach ache and passing blood. However, he refused to give a urine sample. 77. On 4 April 2002 the prison doctor again saw the applicant. 78. On 16 April 2002 the applicant put his back out while doing strenuous physical exercise. He was seen by the doctor and given painkillers. He was seen again on 19 April. 79. On 26 April 2002 the applicant refused treatment by a psychiatrist from Curaçao. 80. On 30 July 2002 the applicant was apparently examined by a doctor from Cuba, who found nothing wrong with him. 81. On 14 August 2002 the applicant was provided with a wheelchair. 82. On 10 September 2002 the applicant was taken to hospital so that he could consult Dr Vallejo Lopez and Dr Molina. They examined him using X-ray and magnetic imaging scans. They found that the applicant was suffering from lumbago and prescribed physiotherapy. 83. A report by KIA nursing staff dated 21 January 2003 stated, among other things, that physiotherapy had to be financed by the prisoners themselves and that the applicant had refused to meet the expense involved out of his own pocket; for that reason he was not being given such treatment. It also stated that the applicant had not seen a psychiatrist because of preconditions which he had set before he would agree to do so; finally, despite his allegedly poor physical condition, the applicant did not present the complications that might be expected in the case of a bedridden patient (including constipation, bedsores, poor hygiene – the applicant was able to take showers by himself – loss of appetite and depression). 84. On 13 February 2003 the applicant had some stitches to the back of his head, which were removed on 20 February. 85. In February and March 2003 the applicant again complained of back pains, claiming that the painkillers were not effective. On 5 April 2003 the applicant was again seen by Dr Vallejo Lopez, who again prescribed physiotherapy. 86. On 21 May 2003 the applicant was admitted to hospital for intensive physiotherapy. He remained in hospital until 13 June 2003, the intention being that treatment should continue in the KIA. 87. On 19 June 2003 the applicant refused to attend physiotherapy. 88. On 21 June 2003 the applicant stated that he had fallen on his back. He was taken to the outpatient department for treatment. 89. The applicant missed his appointments with the physiotherapist on 24 and 26 June and 1, 3 and 7 July 2003. He attended physiotherapy on 10 and 15 July. 90. Physiotherapy was resumed on 6 March 2004, after the applicant had again reported back pains, but discontinued shortly afterwards because the physiotherapist could not identify the problem clearly. 91. Following an intervention by the supervisory board (see below), physiotherapy was again resumed on 6 April 2004. 92. The Government stated that the applicant had first written to the supervisory board of the KIA on 20 January 2002. The board had considered the applicant's complaints at its meetings of 30 January and 27 February 2002. It had sent him a reply on 26 March 2002, phrased as follows: “... Nearly all your complaints relate to the special regime in the KIA which has applied to you since the incident with Mr Vocking on 29 November 2001. You are – presumably – aware of what the regime involves. attitude, in particular vis-à-vis KIA staff) that regime can be relaxed. Everything depends on your behaviour and your attitude. ...” 93. On 5 September 2002 the applicant again wrote to the board, through his lawyer, complaining about the regime and the state of his cell. 94. By letter of 7 October 2002, again through his lawyer, the applicant acknowledged that the roof had been repaired but complained that he had not been allowed outdoor exercise for four months and that he had still not been given the prescribed physiotherapy. 95. On 30 October 2002 the applicant himself wrote to the supervisory board restating his complaints. On the same day the board inspected the applicant's cell and interviewed him in person about his complaints. This led the board to suggest to the interim governor of the KIA that the applicant be moved back to an ordinary cell subject to certain conditions. The interim governor promised to organise this. 96. Later, however, the interim governor withdrew his promise following the theft of X-rays from the hospital instigated by the applicant and the latter's refusal to accept the letter setting out the conditions subject to which he would be returned to detention under the ordinary regime. 97. The supervisory board discussed this problem with the Aruban Minister of Justice, who instructed the interim governor to place the applicant in an ordinary cell. The instruction was obeyed. 98. However, after the applicant had been placed in a ground-floor cell with other prisoners, an incident took place which led to his being returned to solitary confinement in the committal cell. 99. After receiving medical information from the applicant's wife, the supervisory board requested the KIA governing body to ensure that the applicant received physiotherapy. They received the reply that no physiotherapist was prepared to treat the applicant: the problem was that the applicant was not willing to meet the expense, and it had not been demonstrated that either he or his family was indigent. 100. The supervisory board engaged the services of a physiotherapist, Mr Carti, who stipulated that the Aruban Ministry of Justice should guarantee payment for his services. This condition was met and treatment began on 6 March 2004. The Government submitted his handwritten report, which reads as follows (original in English): “Mar 6, 04 9 A.M. Alex Matthew [sic] c/o – severe lumbago (L) > (R) Diff – gait, stairs prolonged w.b. Onset: + 1.5 yr ago, gradually worse Medi – Tramal [an analgesic] Prev PT – hospital last year & no effects. Obs: gait & walker. Partial w.b. Able to t. steps & use of railing. + 20 steps. Walked + 90 metres to nurses' station. Climbed onto treatment table & min ass. c/o PI during massage – trembling. (Aloe heat lotion) After massage – turned prone to side ... RC and sat up before standing. – used a comode [sic] on wheels to return to cell. Pt complained of too much pain to carry out traditional physical testing however able to stand/turn unassisted. S+S do not make sense, or correlate with his physical activities. P – D/C physio. due to my inability to determine exactly what the problem is. PT carries out complex physical activities such as twisting lumbar spine and stairs & no or little complaints while trembles and complains of severe pain while massaging his back. He also states that he does not feel the heat from the Aloe heat lotion which was used to massage. My final impression is that physiotherapy at this time (by myself) is unable to help this patient. [signed] Rudolph P. Carti P.T. B.Sc. Aruba Chiropractic & Physical Therapy Tel. 582-0122” 101. On 14 June 2002 the Aruba Court of First Instance (Gerecht in Eerste Aanleg van Aruba) delivered its judgment in the criminal case against the applicant. It convicted the applicant on two charges of inflicting grievous bodily harm and sentenced him to six years' imprisonment. The applicant appealed. 102. On 14 April 2003 the Joint Court of Justice gave judgment on the applicant's appeal against his conviction and sentence. It quashed the first-instance judgment of 14 June 2002. In a fresh decision, it held that the applicant's conditions of detention on remand did not constitute grounds for declaring the prosecution inadmissible. It went on to find the applicant guilty of, firstly, having on 19 August 2001, together with another person, inflicted grievous bodily harm on one M. (kicking and beating resulting in fracture of the nose and the zygoma) and, secondly, having on 29 November 2001, acting alone, inflicted grievous bodily harm on Mr Vocking (punching and kicking resulting in the fracture of an eye socket, the sinus, the cheekbones and the cranium, as well as severe concussion). The Joint Court of Justice's reasoning included the following: “In determining the sentence the Joint Court of Justice will further consider the circumstances in which the suspect has been, and is still being, detained. The following is apparent in relation to the suspect's conditions of detention. On 16 November 2001 the suspect was placed in a punishment cell. He had already been placed in a punishment cell at an earlier stage for various reasons, including an escape. His stay in the punishment cell was twice extended for seven days, until 30 November 2001, first for failing to follow an order given by a staff member and subsequently for disturbing the order, peace and security of the institution. The second extension related to the action of a number of detainees who refused to return to their cells after outdoor exercise. On 29 November 2001, the date [of the attack on Mr Vocking], the prisoner's solitary confinement was extended for another seven days for threatening and spitting on a prison guard. Afterwards, his solitary confinement was extended until 4 January 2002 for [the attack on Mr Vocking], with the result that the suspect has spent a total of forty-nine days in the punishment cell. By letter of 4 January 2002 the KIA authorities let it be known that the suspect was to spend the remainder of his detention in the committal cell, subject to restrictive measures including not being allowed to leave the cell without handcuffs and fetters. This measure was amended on 5 March 2002 by being limited to the use of handcuffs. As regards the committal cell, it appears that the roof is made of corrugated plastic sheeting and was defective during at least part of the detention period. During [the suspect's] stay in the committal cell he has had no television, activities, work or sport. Moreover, outdoor exercise no longer takes place on a regular basis since the suspect has indicated that he is unable to walk. The Joint Court of Justice considers that the applicant has established that during his period of detention on remand – which has lasted until today – he has been kept under an exceptionally severe regime. The [suspect's] continuous placement in a punishment cell, which began shortly after [his] detention, suggests that the interaction between the suspect and the staff of the KIA has resulted in a downward spiral, in the sense that an incident was followed by punishment, which in turn was followed by a reaction from the suspect, and so on. All this culminated in the attack on Mr Vocking. It is understandable in itself that after such an act the KIA should not have wished, after having imposed an extended stay in the punishment cell, to place the suspect under the normal detention regime again. However, this does not alter the fact that prolonged detention in the punishment cell and the committal cell in restrictive conditions approaches the limits of what is acceptable, assuming that these have not already been exceeded. The Joint Court of Justice also considers it plausible that the conditions of detention have negatively influenced the suspect's health. The above leads the Joint Court of Justice to impose a considerably lighter sentence than would be justified by the crimes. The suspect has also argued that he has been ill-treated in detention. However, an investigation of [that allegation] falls outside the scope of the present proceedings. As a result of the conditions which the suspect has set for his cooperation in drawing up psychiatric reports and a probation report [reclasseringsrapport], no such reports are available. The Joint Court of Justice can therefore consider the suspect's person and personal circumstances only to the extent that these are known from the case file and the hearing.” 103. The Joint Court of Justice indicated that it would normally have been minded, in view of the crimes committed, to sentence the applicant to five years' imprisonment, but that the sentence would be reduced to three years and six months in view of the conditions of his detention. 104. The applicant appealed on points of law (cassatie) to the Supreme Court (Hoge Raad) against this judgment. The appeal was dismissed with summary reasoning on 1 June 2004. 105. On 19 February 2003 the applicant brought summary civil proceedings in the Aruba Court of First Instance to secure his release from solitary confinement and restrictive conditions of detention. 106. The Aruba Court of First Instance gave judgment on 12 March 2003 finding that it had no jurisdiction to consider the applicant's action in civil proceedings: the remedy open to the applicant was the “criminallaw summary suit” (strafrechtelijk kort geding) (Article 43 of the Code of Criminal Procedure), which – since the applicant's appeal against his conviction and sentence was pending before the Joint Court of Justice – should be heard by that court also. 107. Accordingly, on 21 March 2003, the applicant lodged a request with the Joint Court of Justice under Article 43 of the Code of Criminal Procedure to be restored to ordinary prisoner status and to have the restrictions lifted. 108. The Joint Court of Justice held a hearing on 16 April 2003. The applicant challenged all the judges on the ground that they had participated in decisions at first instance affecting him. 109. On 25 April 2003 the Joint Court of Justice rejected the challenge. The hearing on the merits of the applicant's request was resumed on 13 May 2003. 110. On 27 May 2003 the Joint Court of Justice gave an interlocutory decision on the applicant's request for the lifting of the restrictive conditions of detention. It adjourned the case, summoned the interim governor of the KIA as a party and set him a deadline (17 June 2003) for a written statement of defence. 111. On 15 July 2003 the Joint Court of Justice gave a decision in the proceedings adjourned on 27 May. It ordered the interim governor to have regard to the following guidelines in relation to the restrictions to which the applicant was subject: “(a) The need for detention in the committal cell should be assessed at regular intervals, at least once a month. In the absence of incidents, transfer to the normal regime should be considered, it being reasonable to expect [the applicant] to abide by the conditions set down in writing by the governor. (b) Any use of irons outside the cell should also be assessed at regular intervals, at least once a week. In the absence of incidents, this restriction should be lifted. (c) [The applicant] should be given the opportunity to go to the outdoor exercise and visiting areas. The Court does not consider it appropriate to oblige the KIA to carry [the applicant] to these areas or to enable him to receive visitors in his cell. [The applicant] has not denied that he can walk with a walking frame. Nor is it apparent from the medical statements that [the applicant] is not able to go to the outdoor exercise and visiting areas himself or that independent walking is itself harmful. (d) It does not appear that [the applicant] has been subjected to special restrictions as regards censoring of his mail. (e) Clearly [the applicant] should be given the medical care considered necessary by the physicians treating him. However, it is not apparent that this has been withheld from him. (f) The Joint Court of Justice would add the following. The said downward spiral has resulted in the applicant's being detained in difficult conditions. Even though he is not blameless in this regard, he should nonetheless be treated as humanely as possible. If, for whatever reason, outdoor exercise, visits or other activities do not take place, then in order that the applicant's detention should remain 'within the limits of what is acceptable' the KIA must consider and decide on each occasion whether measures to compensate the loss may be offered, such as the use of a television or personal computer. (g) In so far as this is not already being done, a written record shall be kept of any future incidents which cause the restrictions to be maintained, as well as of the (reasoned) decisions referred to under (f), in order to determine in any future proceedings whether this decision has been complied with.” 112. On 17 July 2003 Dr Rodriguez Robelt of the Aruba Public Heath Department wrote to Dr Vallejo Lopez inviting him as a specialist to give an expert opinion and advise on appropriate treatment. 113. On 8 August 2003 the applicant requested the Joint Court of Justice to release him from detention on remand. 114. On 2 September 2003 the Joint Court of Justice declared the request inadmissible, there being another procedure for that purpose. The Joint Court of Justice's reasoning included the following: “3.2 Mathew has asked, in the alternative, that the public prosecution service and/or the prison governor be ordered to transfer him to the formal detention regime applicable to the other prisoners. The public prosecution service has no competence in this matter. The actual execution of orders for detention on remand is the responsibility of the Country of Aruba, represented by the governor of the KIA. The request directed against the public prosecution service will be dismissed for this reason. 3.3. It is clear from the decision of today's date given by the Joint Court of Justice on Mathew's other request, for the lifting of his detention on remand, that this request has not been granted. Accordingly, Mathew has a legitimate interest based on his alternative claim against the governor of the KIA (transfer to the 'normal detention regime'). 3.4 The Country of Aruba has the responsibility to ensure that the execution of judicial detention orders takes place in accordance with the regulations in force. Mathew's complaints about the way [his detention order is being executed] may be summarised as follows: (a) he is currently being kept in the committal cell for an indeterminate period; (b) he is not being allowed outdoor exercise; (c) he cannot receive visits; (d) he has not been offered compensation as referred to in paragraph 2.6 (f) of the decision of this Court of 15 July 2003; (e) he was not interviewed prior to the imposition of disciplinary measures; (f) the operation he needs is being withheld from him. As to (a): 3.5 In its decision of 15 July 2003 the Joint Court of Justice ruled that detention in the committal cell should be assessed every month. This was based on the consideration that Mathew had been returned to the committal cell in response to an incident. It has become clear in the meantime – since the prison governor has admitted as much at the hearing – that [the applicant's] placement in the committal cell should not (any longer) be seen as a response to an incident, but as – in the prison governor's perception – the only possible regime for Mathew. It has been argued in support of this proposition that Mathew is quite unsuited to detention on remand in a communal setting. This prompts the question whether this is in fact the case, and, if so, what consequences should ensue for the complaints raised in these proceedings by Mathew. 3.6. Ever since Mathew was first detained in the Aruba Correctional Institution there have been problems, in particular Mathew's unpredictable behaviour. Reports by prison staff of recalcitrant behaviour, followed by the (sudden) use of violence by Mathew, are legion. The number of reported incidents is such that it may be concluded that it is no longer feasible to let Mathew undergo his detention on remand in a communal setting. It is now sufficiently plausible that there is no alternative within the Aruba Correctional Institution, given the aforementioned conclusion, than to keep Mathew detained in the committal cell. It cannot be ruled out that at some point Mathew's attitude and behaviour may show such a change that it may be possible to return him to a communal regime, but the Joint Court of Justice sees no indications that such is the case now or will be in the near future. It is therefore pointless to set the prison governor a time-limit for reconsidering the matter. As to (b) and (c): 3.7. As regards outdoor exercise and receiving visits, it does not appear that the present circumstances are any different from those noted at the time of the Joint Court of Justice's decision of 15 July 2003. That means that it can once again be considered established that Mathew is given the opportunity to take outdoor exercise and to receive visits in the visitors' area. It is up to Mathew whether or not he makes use of that opportunity. In the absence of medical information to the contrary the Court assumes that Mathew is still able to reach the outdoor exercise and visitors' areas unaided [op eigen kracht]. ... As to (f): 3.10. As it did at the time of its decision of 15 July 2003, the Joint Court of Justice again finds nothing to indicate that Mathew is being denied the medical assistance he requires. According to the neurosurgeon Carlos A. Vallejo Lopez, in his letter of 4 July 2003, 'surgery is indicated'. The conditions of Mathew's detention, according to that letter, are one reason why the 'prospects' are 'uncertain' at present. Although it is not quite clear to the Joint Court of Justice what is meant by this, one thing is clear: the letter does not state that an operation is necessary now, without further delay. On that basis alone there is no need to order any measures. In addition, the public prosecution service and the prison governor have promised that Mathew will receive the necessary medical care. There is no indication that the public prosecution service and the prison governor will fail to honour that promise. For that reason also there is no need to order any measure.” 115. The KIA governor was ordered to make provision for the applicant to have his own television in his cell; the applicant's other requests – including a request to be transferred to the Netherlands (the Realm in Europe) – were refused. 116. The KIA is reported by the Government to be capable of holding 250 prisoners. It comprises a dormitory for prisoners serving short terms of detention in lieu of unpaid fines and separate sections for female prisoners and juveniles. Adult male remand prisoners and convicted prisoners are typically kept in three-person cells. There are four single-prisoner cells intended for convicted prisoners serving very long sentences. There are four observation cells intended for mentally unstable prisoners; these tend to be occupied most of the time. 117. The committal cell in which the applicant was detained is described as being 7.4 metres long and 3 metres wide and equipped with a bed, a table, a chair, a lavatory and a shower. It is located on the second floor, directly under the roof. 118. A new highsecurity wing is being added to the KIA; it is expected to be suitable for detaining aggressive prisoners. 119. The applicant was seen by Mr Michele Lancellotti, a chiropractor in Providence, Rhode Island, on 19 May 2004. He complained to Mr Lancellotti of severe lower back pain with numbness in his left leg and occasionally in his right leg. The pain prevented him from walking up and down stairs. He had difficulty getting up from a seated position and walking for any length of time. He further complained of neck pain, headaches, blurred vision and pain and cracking in both knees. He used a walking frame. Mr Lancellotti's report described the applicant as, at that time, “totally disabled” and contained a plan for treatment. 120. Mr Lancellotti saw the applicant on subsequent occasions. The applicant submitted records of visits dated 21, 24, 26 and 28 May; 2, 4, 7, 9, 11, 14, 17, 22, 24 and 29 June ; 1, 6, 13, 19, 21, 23, 26 and 30 July; and 2, 4, 11, 13, 16, 19, 23, 27 and 30 August 2004. A record of a re-evaluation undertaken by Mr Lancellotti on 3 September 2004, based on magnetic resonance images and the applicant's subjective complaints of pain, expressed the opinion that the applicant “has a permanent physical impairment of the body as a whole caused by ill-treatment and neglect; progress is slow”. 121. The applicant submitted copies of colour photographs, the first showing a man of very muscular build, stated to be the applicant, lying prostrate on a floor, clad only in underpants, with another person's foot on his head, and the second the same man lying prostrate on a floor, with large spatters of a red substance around his head. The red spatters are not visible in the first photograph. No laceration or other injury is discernible in either photograph, although the first shows dark patches on the man's left shoulder and left thigh that might be bruising. 122. The Government did not deny that the man shown in the photographs was the applicant but they stated that the photographs were bogus. They submitted that the boot and the trousers worn by the person holding his foot on the applicant's head (who was clearly also the person taking the photograph) in the first photograph were identifiable as part of the uniform worn by prison staff: it was obvious, therefore, that the applicant had bribed a member of the KIA staff to take the pictures and smuggle them out of the prison. 123. The photographs were published, together with others also stated to be an accurate reflection of the treatment meted out to the applicant and of conditions in the KIA generally, in the Aruban press and on an Internet site. The other published photographs included one of a man's ankle that appeared to be bleeding from a small laceration and one of a hole in a roof which was only partially covered by grating and by a sheet of corrugated translucent material. 124. The publication of the photographs prompted the interim governor of the KIA, Mr Maduro, to lodge a criminal complaint of libel with the Aruban police on 23 July 2002. The police investigation was eventually discontinued, with the permission of the public prosecutor, on 6 December 2002. Ms Iannuccilli was suspected of involvement in the matter but no prosecution was brought. 125. The provisions of the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk der Nederlanden) relevant to the present case provide: “The Netherlands, the Netherlands Antilles and Aruba, noting that in 1954 the Netherlands, Suriname and the Netherlands Antilles expressed freely their will to establish a new constitutional order in the Kingdom of the Netherlands, in which they will conduct their internal interests autonomously and their common interests on a basis of equality and will accord each other assistance, and resolved in consultation to adopt the Charter for the Kingdom; noting that the ties with Suriname under the Charter were terminated as of 25 November 1975 ...; considering that Aruba has expressed freely its will to accept the aforesaid constitutional order as a Country; have resolved in consultation to adopt the Charter for the Kingdom as follows.” “The Netherlands, the Netherlands Antilles and Aruba shall accord one another aid and assistance.” “Judgments given and warrants issued by courts in the Netherlands, the Netherlands Antilles and Aruba, and engrossments of authentic acts issued by them, may be enforced throughout the Kingdom, with due observance of statutory provisions in the Country of enforcement.” “1. The Netherlands, the Netherlands Antilles and Aruba shall conduct their internal affairs autonomously. 2. The interests of the Kingdom shall be a matter of common concern to the Countries.” 126. Article 43 of the common Code of Criminal Procedure of the Netherlands Antilles and Aruba provides in its relevant parts: “1. In all cases in which a measure [voorziening] not provided for by the Code is necessary in the interests of the proper administration of criminal justice [een goede strafrechtsbedeling], a request for such a measure can be made by the suspect or by the person directly concerned. ... 5. The measure may include an order or a prohibition as regards future behaviour. 6. The decision shall be given as speedily as the interest of the case requires. ... 8. The court shall be competent to order the provisional execution of its decision, notwithstanding any appeal. ...” 127. The following extracts are taken from the European Prison Rules: 26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. 2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be a staff of suitably trained officers. ... 39. The use of chains and irons shall be prohibited. Handcuffs, restraint-jackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances: (a) if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; (b) on medical grounds, by direction and under the supervision of the medical officer; (c) by order of the director, if other methods of control fail, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.” 128. The following extracts are taken from the 2nd General Report of the CPT (CPT/Inf (92) 3): “53. Prison staff will on occasion have to use force to control violent prisoners and, exceptionally, may even need to resort to instruments of physical restraint. These are clearly high risk situations insofar as the possible ill-treatment of prisoners is concerned, and as such call for specific safeguards. A prisoner against whom any means of force have been used should have the right to be immediately examined and, if necessary, treated by a medical doctor. This examination should be conducted out of the hearing and preferably out of the sight of non-medical staff, and the results of the examination (including any relevant statements by the prisoner and the doctor's conclusions) should be formally recorded and made available to the prisoner. In those rare cases when resort to instruments of physical restraint is required, the prisoner concerned should be kept under constant and adequate supervision. Further, instruments of restraint should be removed at the earliest possible opportunity; they should never be applied, or their application prolonged, as a punishment. Finally, a record should be kept of every instance of the use of force against prisoners. ... 56. The CPT pays particular attention to prisoners held, for whatever reason (for disciplinary purposes; as a result of their 'dangerousness' or their 'troublesome' behaviour; in the interests of a criminal investigation; at their own request), under conditions akin to solitary confinement. The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible. ...” | 1 |
train | 001-22252 | ENG | NLD | ADMISSIBILITY | 2,002 | HENDRIKS v. THE NETHERLANDS | 3 | Inadmissible | null | The applicant, Christiaan Hendriks, is a Dutch national, who was born in 1951 and, at the time of the introduction of the application, was serving a prison sentence in the Netherlands. He is represented before the Court by Mr Hermsen, a lawyer practising in Bemmel. The facts of the case, as submitted by the applicant, may be summarised as follows. On 31 March 1993 the body of the applicant’s partner Ms G. was found on Belgian territory. As it appeared that she had been killed by strangulation, the Belgian authorities opened a criminal investigation. On 2 April 1993 the applicant was arrested in Luxembourg, where he then resided. On 6 April 1993 he was extradited to Belgium, where he was placed in detention. In the course of the criminal investigation in Belgium it appeared that the victim had not been killed in Belgium but in Luxembourg and that, therefore, the Belgian criminal courts were not competent to deal with the case. Consequently, the criminal proceedings against the applicant in Belgium were discontinued. On 16 December 1993 the Liège Court of Appeal ruled that the applicant could not be extradited to Luxembourg. On 17 May 1994, the Liège Court of Appeal ordered the applicant’s release from detention in Belgium. At the beginning of 1996, the Belgian authorities transmitted the case-file on the criminal investigation against the applicant to the Netherlands Minister of Justice with the request to consider the possibility of taking criminal proceedings against the applicant in the Netherlands in relation to the killing of Ms G. The case-file was registered in March 1996 at the public prosecutor’s office in Arnhem and, in August 1996, a criminal investigation was opened in the Netherlands, during which new evidence against the applicant was found. On 22 October 1996, the applicant was arrested in the Netherlands and placed in pre-trial detention and charged with homicide. On 11 February 1997, following a hearing held on 28 January 1997, the Arnhem Regional Court (Arrondissementsrechtbank) held that it was competent to deal with the case, convicted the applicant of homicide and sentenced him to seven years’ imprisonment. It rejected the argument raised by the defence that, given the time that had elapsed between the applicant’s arrest on 2 April 1993 and the hearing before the Regional Court, the proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention and that, therefore, the prosecution should be declared inadmissible. The Regional Court did, however, state that in the determination of the sentence it would take into account the time that had elapsed since the applicant’s arrest on 2 April 1993 as well as the time the applicant had spent in pre-trial detention in Belgium. The applicant filed an appeal with the Arnhem Court of Appeal (Gerechtshof). On 17 July 1997, following a hearing held on 3 July 1997, the Court of Appeal rejected the appeal and upheld the judgment of 11 February 1997. The applicant’s subsequent appeal in cassation – including his complaint that the prosecution should be declared inadmissible on the basis of the fact that the criminal proceedings against him had already started on 2 April 1993 and should thus be regarded as having lasted an unreasonably long time – was rejected by the Supreme Court (Hoge Raad) on 2 June 1998. As to the applicant’s complaint of the length of the criminal proceedings, the Supreme Court held that the relevant period for the Netherlands authorities started to run on 22 October 1996, when the applicant was arrested in the Netherlands and, on this basis, concluded that the criminal proceedings against the applicant in the Netherlands had not been unreasonably long. | 0 |
train | 001-87352 | ENG | RUS | CHAMBER | 2,008 | CASE OF MATVEYEV v. RUSSIA | 2 | Preliminary objection allowed (ratione materiae) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant, Mr. Sergey Matveyev, is a Russian national who was born in 1949 and lives in Arkhangelsk. 7. In the 1980s the applicant and his spouse, Mrs Matveyeva, organised short-wave radio broadcasts from their home. 8. On 1 May 1981 their broadcasting was terminated by the authorities. A number of searches were conducted in their flat. 9. On 12 May 1981 criminal proceedings were instituted against Mr Matveyev. 10. On 11 August 1981 the Lomonosovskiy District Court of the Arkhangelsk Region convicted Mr Matveyev of forgery of a postal stamp and of having used it to send personal correspondence free of charge, and sentenced him to two years’ imprisonment. The District Court held, in particular: “The court finds untenable the argument of the accused [Mr] Matveyev that the postal stamp he took from the radio-technical school ... could not be used for sending correspondence free of charge [since it] was invalid according to Price List no. 125 “Postal Rates and Services”, adopted by the USSR Ministry of Communication and to Decree of the State Committee on Pricing no. 517 of 25 June 1980 [in force from] 1 October 1980 [Прейскурант № 125 «Тарифы и услуги связи», утвержденный Министерством связи СССР введенный в действие с 1 октября 1980 г. и Постановление Госкомцен СССР от 25 июля 1980 г. № 517]. At the time of theft of [the] postal stamp and the subsequent sending of letters with [the use of] the stamp [Mr] Matveyev did not know about the above-mentioned documents and his intent was directed at sending his [personal] correspondence free of charge, [which he did] repeatedly as corroborated by the ... evidence.” 11. On 25 September 1981 the Arkhangelsk Regional Court upheld the judgment. The applicant served the sentence and was dismissed from his job with a State enterprise. 12. On 6 October 1999, in supervisory review proceedings, the Presidium of the Arkhangelsk Regional Court reversed Mr Matveyev’s conviction for forgery of a stamp, finding that it had been wrongful as there was no indication that a crime had been committed. The Presidium held: “The letter of the Head [of the Arkhangelsk postal service] of 10 July 1981 contained in the case file makes clear that the stamp “To be sent free of charge” was used by the postal enterprises for correspondence between radio associations until 1980. [After] the entry into force on 1 October 1980 of Price List no. 125 “Postal Rates and Services”, correspondence free of charge between short-wave radio broadcasters was permitted only on the basis of postal receipt cards... [T]herefore, the stamp was no longer valid. Having regard to the fact that ... the stamp [could not be used to obtain profit unlawfully], the criminal case should be closed.” 13. In 2001 Mr Matveyev brought proceedings seeking compensation for non-pecuniary damage sustained as a result of his wrongful conviction. 14. On 20 December 2001 the Lomonosovskiy District Court of Arkhangelsk dismissed the claim on the ground that at the time of the conviction there had been no provision in domestic law for claiming such damages. 15. On 21 January 2002 the Arkhangelsk Regional Court upheld the judgment on appeal. 16. On an unspecified date the applicant applied for the proceedings to be reopened on account of newly discovered evidence. 17. On 24 December 2002 the Lomonosovskiy District Court of Arkhangelsk dismissed the application. 18. On an unspecified date the applicant applied for supervisory review of the judgment of 20 December 2001 and the ruling of 24 December 2002. 19. On 4 and 17 February 2004 respectively the Arkhangelsk Regional Court dismissed the applications. 20. Following the delivery of the ruling of 6 October 1999 Mr Matveyev brought proceedings seeking compensation for pecuniary damage sustained as a result of his wrongful conviction within the framework of criminal proceedings. 21. On 27 September 2000 the Lomonosovskiy District Court of Arkhangelsk granted the claim and awarded damages in the amount of 531,269.73 Russian roubles (RUB) and costs in the amount of RUB 1,214.98. On an unspecified date the Chairman of the Arkhangelsk Regional Court lodged an application for supervisory review of the judgment. 22. On 7 February 2001 the Presidium of the Arkhangelsk Regional Court quashed the judgment of 27 September 2000 and remitted the case for a fresh examination by a different bench. 23. On 7 March 2001 the Lomonosovskiy District Court of Arkhangelsk reclassified the proceedings as civil proceedings. On 13 April 2001 the Arkhangelsk Regional Court quashed the ruling of 7 March 2001 and remitted the case for a fresh examination. 24. On 11 October 2001 the Lomonosovskiy District Court of Arkhangelsk awarded the applicant damages in the amount of RUB 124,583.57. 25. On 23 November 2001 the Arkhangelsk Regional Court quashed the judgment of 11 October 2001 and remitted the case for a fresh examination. 26. On 21 January 2002 the Lomonosovskiy District Court of Arkhangelsk awarded the applicant damages in the amount of RUB 2,225. Damages in the amount of RUB 393,574.87 were awarded on 7 February 2002. Costs in the amount of RUB 1,481.18 were awarded on 28 February 2002. 27. After the writs of execution were issued, the applicant transmitted them directly to the defendant, namely the Federal Treasury of the Ministry of Finance. 28. The judgments of 7 and 28 February 2002 were executed on 26 November 2003. The judgment of 21 January 2002 was executed on 31 May 2004. “If a person has sustained non-pecuniary damage (physical or mental suffering) as a result of actions violating his personal non-pecuniary rights or other non-material benefits enjoyed by citizens, and also in other instances provided for by law, the court may require the perpetrator to afford monetary compensation for the said damage.” “Damage caused to an individual or a legal entity as a result of an unlawful act (failure to act) of State and local self-government bodies or of their officials, including as a result of the issuance of an act of a State or self-government body which is contrary to the law or any other legal act, shall be subject to compensation. The damage shall be compensated at the expense, respectively, of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury of the municipal authority.” “1. Damage caused to an individual as a result of his or her unlawful conviction, unlawful criminal prosecution, unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place and unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated in full at the expense of the treasury of the Russian Federation and in certain cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, regardless of the fault of the officials of agencies of inquiry or preliminary investigation, prosecutor’s offices or courts in the procedure established by law. ...” “In instances where, in accordance with the present Code or other laws, the damage caused is subject to compensation at the expense of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury of the municipal authority, the respective financial agencies shall act on behalf of the treasury...” “1. The grounds and amount of compensation payable to an individual for non-pecuniary damage shall be determined by the rules laid down in the present Chapter and in Article 151 of the present Code. 2. ... 3. Compensation for non-pecuniary damage shall be awarded irrespective of any award for pecuniary damage.” “Compensation for non-pecuniary damage shall be awarded irrespective of the fault of the perpetrator, when: ...the damage is caused to a person as a result of his or her unlawful conviction, unlawful criminal prosecution, unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place, or unlawful imposition of an administrative penalty in the form of arrest or corrective labour.” “22. This article provides that compensation shall be paid to a victim of a miscarriage of justice, on certain conditions. First, the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction. According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them”. It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again. Likewise, this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or, on appeal, by a higher tribunal. If, however, in one of the States in which such a possibility is provided for, the person has been granted leave to appeal after the normal time of appealing has expired, and his conviction is then reversed on appeal, then subject to the other conditions of the article, in particular the conditions described in paragraph 24 below, the article may apply. 23. Secondly, the article applies only where the person’s conviction has been reversed or he has been pardoned, in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is, some serious failure in the judicial process involving grave prejudice to the convicted person. Therefore, there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground. Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice. This is a matter for the domestic law or practice of the State concerned. The words “or he has been pardoned” have been included because under some systems of law pardon, rather than legal proceedings leading to the reversal of a conviction, may in certain cases be the appropriate remedy after there has been a final decision. 24. Finally, there is no right to compensation under this provision if it can be shown that the non-disclosure of the unknown fact in time was wholly or partly attributable to the person convicted. 25. In all cases in which these preconditions are satisfied, compensation is payable “according to the law or the practice of the State concerned”. This does not mean that no compensation is payable if the law or practice makes no provision for such compensation. It means that the law or practice of the State should provide for the payment of compensation in all cases to which the article applies. The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.” | 0 |
train | 001-91447 | ENG | RUS | CHAMBER | 2,009 | CASE OF EMINBEYLI v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 6. The applicant was born in 1956 and lives in Sweden. 7. On 26 February 1996 the applicant arrived in Russia from Azerbaijan. In April 2001 he asked the St. Petersburg City Representation of the United Nations High Commissioner for Refugees to grant him refugee status. Four months later refugee status was granted and the applicant was informed of his right to move to Sweden. 8. On 10 September 2001 the acting chief of the Gyandzha Town police department of the Republic of Azerbaijan faxed a letter to the chief of the St. Petersburg City police department asking him to arrest the applicant. The letter read as follows: “[We] seek your order to arrest a criminal, [the applicant], wanted by us for having committed a crime (theft of State property) under Article 88-1 of the Criminal Code of the Azerbaijan Republic... criminal case no. 10/295. The arrest warrant and order for transport were issued on 29 May 1995 by the first deputy military prosecutor of the Azerbaijan Republic.” A translation of the arrest warrant of 29 May 1995 was attached to the letter. 9. On 13 September 2001 the Prosecutor General of the Russian Federation received a letter from the Moscow Regional Representation of the United Nations High Commissioner for Refugees, informing him about the applicant’s refugee status. The letter read as follows: “The Regional Representation of the United Nations High Commissioner for Refugees in the Russian Federation applies to you in connection with the case of Mr Gunduz Eminbeyli, which was examined by the UNHCR in July 2001, as a result of which [the applicant] was granted refugee status and was considered in need of international protection under the UNHCR mandate in the territory of the Russian Federation. In August 2001 Sweden accepted [the applicant] as a refugee with permanent leave to remain, in support of which he was given a travel document and issued with an entry visa for that country. As it follows from the information obtained by us, a federal search warrant was issued in respect of [the applicant] on the basis of the fact that the Azeri authorities accused him of having committed criminal actions; the [accusation] prevents him from leaving the Russian Federation. Due to the fact that [the applicant] is a proxy of the former Prime Minister of Azerbaijan, Mr S. Guseynov, who subsequently became a leader of the opposition to the Government of Mr G. Alieyev in Azerbaijan, and due to the fact that he worked with an Azeri national, Mr Z. Ismaylov, whose case was examined by the Prosecutor General’s office last summer, the UNHCR has grounds to conclude that the true reasons for the warrant issued by the Azeri authorities are [the applicant’s] work with and close ties to the above-mentioned Azeri political figures. As we were informed by the St. Petersburg City Department of Visas and Registration where [the applicant] lives and with whom he lodged his application for a visa, the Azeri authorities lodged a request for [the applicant’s] extradition. The UNHCR is concerned that if [the applicant] is expelled to Azerbaijan, there will be a danger of a violation of Article 33 § 1 of the UN Convention relating to the Status of Refugees... and of the Russian Law of 25 October 1999... by the Russian Federation. Article 33 of the Convention relating to the Status of Refugees forbids an expulsion of persons to a country where their lives and freedom will be threatened by a persecution on account of his race, religion, nationality, membership of a particular social group or political opinion.” The UNHCR Representation in Moscow sent a similar letter to the St. Petersburg City Prosecutor. 10. On 19 September 2001 police officers arrested the applicant pursuant to the faxed letter of 10 September 2001 and placed him in the temporary detention unit of the St. Petersburg City and Leningrad Region Department of the Interior (ИВС при ГУВД города Санкт-Петербурга и Ленинградской области). A police investigator issued a report on the applicant’s arrest. The report represented a two-page printed template, in which the dates, the applicant’s name, and the grounds for his arrest 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): “I, [the police investigator], ... on the basis of the order of the prosecutor of the Republic of Azerbaijan Mr A. Aliyev., arrested an individual,[the applicant], born on 9 April 1956,... Reasons for the arrest Receipt of the prosecutor’s arrest warrant The arrested is brought to the police station no. 78 For that the present report is drawn up by [the police investigator’s signature]. Signature of the arrested person [the applicant’s signature].” The second page of the report contained information on the applicant’s body search. 11. The applicant insisted that he had not been informed about the reasons for his arrest and he had not been given a certified copy of the arrest warrant. He was later served with a translation of the warrant which was attached to the letter of 10 September 2001. The applicant further alleged that the conditions of his detention in the unit had been very poor. 12. On 20 September 2001 the Moscow Regional Representation of the UNHCR sent a letter, on the applicant’s behalf, to the head of the St. Petersburg police department, complaining about the applicant’s arrest with a view to extradition and seeking additional information on the case. 13. On 24 September 2001 the UNHCR Representation retained a lawyer, Ms O. Tseytlina, to represent the applicant. On the same day Ms Tseytlina arrived at the detention unit for a meeting with the applicant, but she was not allowed to see him. Two days later Ms Tseytlina complained to the St. Petersburg City Prosecutor that she had been barred from seeing her client. 14. On 1 October 2001 Ms Tseytlina lodged an application with the Dzerzhinskiy District Court of St. Petersburg seeking the applicant’s release and complaining that he had been unlawfully arrested and detained. A copy of the lawyer’s complaint bears the stamp of the Dzerzhinskiy District Court showing that it received the complaint on the same day it had been sent. On the following day Ms Tseytlina was allowed to visit the applicant. 15. The Government, relying on a letter issued by the deputy President of the Dzerzhinskiy District Court, submitted that on 9 October 2001 the District Court had forwarded Ms Tseytlina’s complaint to the St. Petersburg City prosecutor’s office finding that the Prosecutor General had the exclusive jurisdiction to examine extradition matters. Ms Tseytlina complained to the St. Petersburg City Court about the transfer of her complaint to the prosecution authorities. The City Court forwarded that complaint to the Dzerzhinskiy District Court. The District Court decided to examine the merits of the application for release and the lawyer’s complaints and fixed the first hearing for 20 December 2001. 16. On 5 October 2001 the Prosecutor General’s Office received a request for the applicant’s extradition from the Prosecutor General of the Azerbaijan Republic. The Azeri authorities stated that the applicant was suspected of having committed aggravated robbery with the aim of acquiring State property on 1 September 1993. 17. On 22 October 2001 the Prosecutor General of the Russian Federation, relying on Article 33 § 1 of the Convention relating to the Status of Refugees, dismissed the request for the extradition. The Prosecutor General stressed that the applicant had been granted refugee status and that he had been allowed to take up permanent residence in Sweden. The Prosecutor also noted that the St. Petersburg City Prosecutor’s office had been given an order for the applicant’s immediate release. 18. According to the Government, the Prosecutor General’s order reached the prosecutor’s office of the Tsentralniy District of St. Petersburg on 25 October 2001. The Tsentralniy District Prosecutor immediately authorised the applicant’s release. 19. On 5 November 2001 the applicant moved to Sweden. 20. On 20 December 2001 the Dzerzhinskiy District Court adjourned for one week the proceedings concerning the examination of the lawfulness of the applicant’s detention to allow the prosecutor to examine the case file. The following hearing listed for 27 December 2001 was also rescheduled for 4 February 2002 to obtain additional documents from the parties. 21. On 8 February 2002 the Dzerzhinskiy District Court dismissed Ms Tseytlina’s complaint concerning the applicant’s detention. The District Court held that the detention was lawful. The applicant was detained at the request of the Azerbaijani authorities with a view to his extradition. Criminal proceedings were instituted against him in Azerbaijan, he absconded and his arrest was authorised. The Azerbaijani authorities requested the applicant’s extradition in good time and submitted all necessary documents in compliance with the requirements of the Minsk Convention on Legal Assistance in Civil, Family and Criminal Cases of 22 January 1993. The applicant was released after the extradition request had been dismissed. 22. Mrs Tseytlina lodged an appeal statement. She complained that the applicant’s arrest had not been authorised as required by domestic law, that the faxed letter from the chief of the police department could not have served as the legal basis for the arrest, that the Russian authorities had not issued any detention order in respect of the applicant, that he had not been promptly informed about the reasons for his arrest and that there had been no legal grounds for the applicant’s detention between 22 and 25 October 2001. 23. On 26 February 2002 the St. Petersburg City Court upheld the decision of 8 February 2002. The City Court held: “... [The applicant], having permanent residence in the territory of Azerbaijan, was placed on the inter-State wanted persons’ list by the law-enforcement organs of the above-mentioned State as a person who had absconded from investigation. His remand in custody was authorised (the detention order of 29 May 1995). On 20 September 2001 [the applicant] was arrested on the basis of the warrant issued by the Republic of Azerbaijan with the view to his extradition in accordance with the Minsk Convention of 22 January 1993 on Legal Assistance in Civil, Family and Criminal Cases (thereafter – the Convention)... The Azerbaijani officials had submitted the request for the [applicant’s] arrest... on 10 September 2001 and, thus, the court correctly held that the [applicant’s] detention was lawful. ...the period of [the applicant’s] detention in the temporary detention unit of the St. Petersburg City and the Leningrad Region Department of Interior amounts to thirty-five days (between 20 September and 25 October 2001) and conforms to the requirements of Article 62 § 1 of the Minsk Convention, which indicates that a person arrested pursuant to Article 61 § 1 of the Minsk Convention shall be released if no request for extradition is received within one month of the arrest. The request of the Prosecutor General of Azerbaijan for [the applicant’s] extradition was received by the Prosecutor’s General office on 5 October 2001, fifteen days after [the applicant’s] arrest in St. Petersburg. [The applicant] was released on 25 October 2001 after the Prosecutor General of the Russian Federation ordered his release in connection with the decision refusing the request of the Prosecutor General of the Republic of Azerbaijan for his extradition.” 24. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 25. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Azerbaijan are parties, provides as follows: “When executing a request for legal assistance the requested authority should implement domestic legal norms. The State Party which seeks legal assistance may ask the other Party to use the legal norms of the requesting Party, if those norms do not contradict legal norms of the State Party providing legal assistance...” “1. The Contracting Parties shall ... on each other’s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” “1. A request for extradition shall include the following information: (a) the title of the requesting and requested authorities; (b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order....” “After a request for extradition is received, the requested Contracting Party immediately takes measures to retrieve and detain a person whose extradition is sought save for those cases when the person cannot be extradited.” “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition. The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax. 2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” “1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party.... 2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition. 3. A request for the search shall be accompanied by a certified copy of ... the detention order.... 4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.” “1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest. 2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.” “The requested Party shall notify the requesting Party of the place and time of surrender. If the requesting Party does not accept the person being extradited within fifteen days of the scheduled date of surrender, that person shall be released.” “Relations concerning extradition issues and criminal prosecution are performed by Prosecutor Generals (prosecutors) of the State Parties.” 26. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1. 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. 2. 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.” “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 27. The United Nations Convention relating to the Status of Refugees, adopted on 28 July 1951, provided as follows: “1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 28. The Federal Law “On refugees” (no. 4528-I of 19 February 1993) provided as follows: “1. The following basic definitions are applied for the purposes of the present Federal Law: 1) A refugee is a person who is not a national of the Russian Federation and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it... “1. A person... who is granted refugee status...cannot be expelled against his will to the territory of the State of his nationality (of his former permanent residence) if the conditions described in Article 1 § 1 (1) of the present Federal Law are still in force in that State...” 29. Article 4 of the Treaty between the Russian Federation and the Republic of Azerbaijan on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (“the 1992 Treaty”), adopted on 22 December 1992 (in force since 20 January 1995) provides that the State Parties effect legal relations through their respective Ministers of Justice and the offices of the Prosecutors General. 30. By virtue of Article 8 of the Treaty, each State Party applies its own law in order to carry out the other Party’s request for legal assistance. Only on an explicit request of another Party may a State Party to the Treaty apply another Party’s law in so far as it does not contradict the law of the latter Party. 31. Article 67 § 1 of the Treaty sets out the requirements for an extradition request. The request should contain the name of the requesting authority, an extract from the requesting Party’s law according to which an imputed act or omission constitutes a crime, the name of the person whose extradition is sought, information on his or her nationality, whereabouts, his photo and/or fingerprints where possible, and a reference to the estimation of the damage caused by the criminal offence. A certified copy of a decision on taking the person into custody with the statement of facts should be attached to the request. 32. Under Article 1 of the RSFSR Code of Criminal Procedure (the CCrP – in force at the material time) wherever a crime is committed, proceedings conducted on Russian territory are always governed by the Russian law on criminal procedure. 33. A decision to order detention can only be taken by a prosecutor or a court (Articles 11, 89 and 96 of the CCrP). 34. A prosecutor’s order or court decision ordering detention must be reasoned and justified (Article 92). The accused must be informed of the detention order and must have the procedure for lodging an appeal explained to him or her (Article 92). 35. An investigating authority should issue a report pertaining to each arrest. The report should include the following information: the grounds and reasons for the arrest, its date, time and place, the arrestee’s explanations, and the time when the report was drawn up. The investigating authority should transmit the report to a prosecutor within twenty-four hours. Within forty-eight hours following the receipt of the report, the prosecutor should authorise the person’s detention or release him (Article 122 of the CCrP). | 1 |
train | 001-119026 | ENG | TUR | ADMISSIBILITY | 2,013 | MELEAGROU AND OTHERS v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicants, born in 1954, 1928, 1957 and 1953, are Cypriot citizens resident in Nicosia or London. They are represented by the AIRE Centre in London. 3. The applicants, a mother, and three adult siblings, Cypriot citizens, living in London, claimed to be the owners of 18 separate plots of land, one of which contained the family’s second home, all of which were in the occupied area of the “TRNC” (“the Turkish Republic of Northern Cyprus”). 4. On 7 November 2006 the applicants filed claims with the Immovable Property Commission (“IPC”) claiming restitution of this property and damages for loss of use and non-pecuniary damage. On October 2007, there was a directions hearing before the IPC, which required the production of further documents. A preliminary hearing took place on 19 November 2007 at which the “TRNC” representative made an offer of settlement. The IPC adjourned the case pending the applicants’ response to the offer of settlement. A number of preliminary hearings were listed and adjourned during 2008, during which the applicants claimed further attempts were made to obtain their agreement to a settlement. The applicants lodged a written request on 4 August 2008 for a hearing of their claims. 5. The IPC held hearings on the claims on 3 November 2008, 19 January 2009 and 5 May 2009. On 14 October 2009, the IPC issued its decisions. Of the 18 properties in issue, it found that the applicants were not the registered owners of 14 properties, which were held by a registered company of which the applicants were shareholders still in existence. Of the other properties, restitution was ordered in respect of part of one plot (583/2); as no particulars had been given of loss of use, no award was made for pecuniary loss and as the land had been uninhabited no award for non-pecuniary loss was made. Restitution was refused in respect of the other plots as the property was either occupied by a refugee family or by the military. The claims for non-pecuniary compensation and loss of use were rejected as these could not be made under the law where restitution was refused and where no claim had been lodged for exchange of land or for pecuniary compensation for the land. 6. The applicants lodged appeals to the High Administrative Court on 30 December 2010 and 4 January 2010. The appeals were listed for hearing on 14 January 2011. By three decisions dated 27 June 2011, the court upheld the decisions of the IPC, noting that the applicants had been represented by a lawyer at the hearing and that there had been interpretation into English at the hearing. It found that the IPC had not erred in its application of the law, citing the provisions concerned. 7. The relevant law and practice are set out in Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010. | 0 |
train | 001-95880 | ENG | RUS | CHAMBER | 2,009 | CASE OF BOTSKALEV AND ROSTOVSKAYA AND OTHER "PRIVILEGED PENSIONERS" CASES v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicants are pensioners who live in the Moscow Region. Before retirement they used to work in hazardous industries. They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the Region's district and town courts. 5. In May 2005–November 2006 the courts held for the applicants and ordered the pension authority to recalculate the pensions. The courts based their findings on the Law on Labour Pensions. In May 2005–February 2007 these judgments became binding and were executed. 6. On the pension authority's request, in November 2007–April 2008 the district and town courts quashed their judgments due to discovery of new circumstances. The courts found, in particular, that the judgments had ignored the interpretation of the Law on Labour Pensions given by the Supreme Court in December 2005 and March 2007. 7. The applicants' cases were remitted for a rehearing and subsequently dismissed. | 1 |
train | 001-57972 | ENG | NLD | CHAMBER | 1,996 | CASE OF DOORSON v. THE NETHERLANDS | 3 | Lack of jurisdiction (new complaint);No violation of Art. 6-1+6-3-d | N. Valticos | 7. The applicant is a Netherlands citizen born in 1958 and resident in Amsterdam. 8. In August 1987 the prosecuting authorities decided to take action against the nuisance caused by drug trafficking in Amsterdam. The police had compiled sets of photographs of persons suspected of being drug dealers. These were shown to about 150 drug addicts in order to collect statements from them. However, following a similar action in 1986 when drug addicts who had made statements to the police had been threatened, it turned out that most of those to whom photographs were shown were only prepared to make statements on condition that their identity was not disclosed to the drug dealers whom they identified. In each set of photographs shown there was one of a person known to be innocent. Statements made by persons who identified this photograph as that of a drug dealer were regarded as unreliable and discounted. 9. In September 1987 the police received information from a person referred to by the police under the code number GH.021/87 that the applicant was engaged in drug trafficking. The applicant's identification photograph, which had been taken in 1985, was thereupon included by the police in the collection of photographs shown to drug addicts. 10. A number of drug addicts subsequently stated to the police that they recognised the applicant from his photograph and that he had sold drugs. Six of these drug addicts remained anonymous; they were referred to by the police under the code names Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16. The identity of two others was disclosed, namely R. and N. 11. On 12 April 1988 the applicant was arrested on suspicion of having committed drug offences. It appears that he was subsequently taken into detention on remand. 12. On 13 April 1988 the applicant was shown the photograph made of him by the police and recognised it as a photograph of himself. 13. A preliminary judicial investigation (gerechtelijk vooronderzoek) was opened, during which the applicant's lawyer submitted a request for an examination of the witnesses referred to in the police report in the applicant's case. The investigating judge (rechter-commissaris) accordingly ordered the police to bring these witnesses before him on 30 May 1988 between 9.30 a.m. and 4 p.m. The applicant's lawyer was notified and invited to attend the questioning of these witnesses before the investigating judge. 14. On 30 May 1988 the applicant's lawyer arrived at the investigating judge's chambers at 9.30 a.m. However, after an hour and a half had elapsed and none of the witnesses had appeared, he concluded that no questioning would take place. He therefore left for another appointment. According to the lawyer he did so with the consent of the investigating judge, Judge M., who had promised him that if the witnesses should turn up later that day, they would not be heard but would be required to appear for questioning at a later date so that he would be able to attend. After the lawyer had left, two of the eight witnesses referred to in the police report turned up and were heard by the investigating judge in the absence of the lawyer, witness Y.15 at about 11.15 a.m. and witness Y.16 at about 3 p.m. From an official record of his findings (proces-verbaal van bevindingen) drawn up by Judge M. on 17 June 1988, it appears that Y.15 and Y.16 did not keep a promise to return for further questioning on 3 June. 15. On 19 July 1988 the applicant appeared before the Amsterdam Regional Court (arrondissementsrechtbank) on charges of drug trafficking. At the prosecutor's request, the court decided to adjourn its examination until 25 August 1988. 16. On 25 August 1988 the Regional Court resumed the hearing. As the Regional Court was differently composed, it recommenced its examination of the case. The applicant's lawyer requested the court to refer the case back to the investigating judge for an examination of the six anonymous witnesses and to hear the two named witnesses R. and N. itself. The court refused the first request but ordered the witnesses R. and N. to be brought before it and adjourned the hearing until 4 October 1988. The Regional Court also refused a request made by the defence for the applicant's detention on remand to be terminated or else suspended, being of the opinion that the applicant was still under suspicion and that the reasons for which the detention on remand had been ordered were still valid. One of the judges sitting on this occasion was a certain Judge Sm. 17. On 29 September 1988 the applicant's lawyer submitted to the Regional Court a number of documents including the judgment of the European Court of Human Rights in the case of Unterpertinger v. Austria (judgment of 24 November 1986, Series A no. 110) and the report of the European Commission of Human Rights in the case of Kostovski v. the Netherlands (report of 12 May 1988, application no. 11454/85). 18. On 4 October 1988 the Regional Court resumed the proceedings. In view of the fact that all three judges of the Regional Court had been replaced, the court again recommenced its examination. The defence again made a request to have the six anonymous witnesses examined, which was refused. The named witness N. appeared, R. did not. Both the prosecution and the defence were given the opportunity to put questions to N. Asked to identify the applicant, N. stated that he did not recognise him. On being shown the applicant's photograph, he said that he recognised it as that of a man who had given him heroin when he was ill. However, towards the end of his examination he stated that he was no longer quite sure of recognising the man on the photograph; it might be that the man who had given him the heroin only resembled that man. He further alleged that when shown the photographs by the police, he had only identified the applicant's photograph as that of a person from whom he had bought drugs because at the time he had felt very ill and had been afraid that the police might not give him back the drugs which they had found in his possession. The court adjourned its further examination until 29 November 1988, ordering the appearance of the witnesses R. and N., and - on a motion of the defence - of L., an expert in the field of problems related to drug trafficking and abuse. It ordered the witness R. to be brought before it by the police. 19. On 29 November 1988 the Regional Court resumed its hearing. The expert L. appeared and was questioned before the court. He doubted whether statements such as that made by the drug addicts in the present case could be qualified as voluntarily made. In any event such statements were in his opinion highly unreliable because before photographs were shown all kinds of promises were made so that when it came to identifying individuals the persons concerned knew exactly what was expected of them by the interrogator, whether police officer or judge. The witnesses N. and R. did not appear, the latter despite the order that he be brought before the court by the police. The defence thereupon withdrew its request to have R. and N. examined before the court in order to avoid a further adjournment of the hearing which would mean prolonging the applicant's detention on remand. The applicant's lawyer gave a critical analysis of the statements made by the anonymous witnesses. He remarked moreover that there were no valid reasons for preserving their anonymity as it had not been demonstrated that the applicant had ever taken reprisal action or was of a violent disposition. 20. On 13 December 1988 the Regional Court convicted the applicant of drug trafficking and sentenced him to fifteen months' imprisonment. In so doing it took into consideration the fact that the applicant had previously been convicted of similar offences. 21. The applicant appealed to the Amsterdam Court of Appeal (gerechtshof). 22. By letter of 6 November 1989 the applicant's lawyer requested the procurator general (procureur-generaal) of the Court of Appeal to summon the anonymous witnesses, the named witnesses N. and R. and the expert L. for questioning at that court's hearing, which was scheduled on 30 November. The procurator general replied by letter of 22 November that he would summon N., R. and L. but not the anonymous witnesses as he wished to preserve their anonymity. If necessary, the Court of Appeal could decide at the hearing to order these witnesses to be heard in camera by the investigating judge. 23. On 24 November 1989 the applicant's lawyer wrote to the president of the Court of Appeal requesting that the six anonymous witnesses be summoned. In support of this request he pointed out that neither his client nor he had ever had the opportunity to question these witnesses. In this context he referred to the judgment of the European Court of Human Rights in the case of Kostovski v. the Netherlands, which had been delivered four days earlier (judgment of 20 November 1989, Series A no. 166). 24. The hearing of the Court of Appeal on 30 November 1989 was attended by the expert L. but none of the witnesses appeared. The applicant therefore requested that the hearing be adjourned so that they might be summoned for questioning in open court at a later date or, in the alternative, by the investigating judge. The Court of Appeal decided to verify the necessity of maintaining the anonymity of the witnesses and referred the case back to the investigating judge for this purpose. The Court of Appeal also requested the investigating judge to examine the witnesses - after deciding whether their anonymity should be preserved or not - with respect to the facts imputed to the applicant, and to offer his lawyer the opportunity both to attend this examination in the room in which it would take place and to put questions to the witnesses. The court also expressed the wish that the series of photographs used by the police should, if still available, be added to the file. Finally, it ordered the appearance of the witnesses R. and N. and the expert L. before it and adjourned the hearing sine die. 25. On 14 February 1990 the investigating judge heard the witnesses Y.15 and Y.16 in the presence of the applicant's lawyer. The investigating judge was Judge Sm. of the Amsterdam Regional Court, who had taken part in the hearing on 25 August 1988 as a member of the trial court and in the decisions taken on that occasion (see paragraph 16 above). The lawyer was given the opportunity to put questions to the witnesses but was not informed of their identity. The identity of both witnesses was known to the investigating judge. Both witnesses expressed the wish to remain anonymous and not to appear in court. Witness Y.16 stated that he had in the past suffered injuries at the hands of another drug dealer after he had "talked" and feared similar reprisals from the applicant. Witness Y.15 stated that he had in the past been threatened by drug dealers if he were to talk. He further stated that the applicant was aggressive. The investigating judge concluded from the reasons given that both witnesses had sufficient reason to wish to maintain their anonymity and not to appear in open court. Y.15 and Y.16 were extensively questioned, both by the investigating judge and by the applicant's lawyer. The latter inquired, inter alia, into their reasons for testifying against a dealer who they both said sold good quality drugs and asked them whether they were being paid for giving evidence. Neither Y.15 nor Y.16 refused to answer any of the questions put by the applicant's lawyer. They both stated that they had bought drugs from the applicant and that they had seen him selling drugs to others. They again identified him from the police photograph and gave descriptions of his appearance and dress. Y.16 stated in addition that the police had rehearsed his previous statement with him before taking him to see the investigating judge. The official record of the examination of Y.15 mentions that the investigating judge, having come to the conclusion that Y.15 had good reasons for not wishing to have his identity revealed or to be heard in open court, placed him on oath; a similar statement is lacking in the official record of the examination of Y.16. 26. On 20 March 1990 Judge Sm. drew up an official record of her findings containing information obtained from the police with regard to witnesses Y.05, Y.06, Y.13 and Y.14. Y.06, who was a foreign national, had been expelled from the Netherlands. Y.13's place of residence was unknown. Y.05 and Y.14 had been seen but attempts to trace them so as to bring them before the investigating judge had not been successful. She added that the sets of photographs could not be spared by the police; however, should the Court of Appeal so order, the police could produce them at the trial. On the same day Judge Sm. returned the file to the Court of Appeal. 27. After notice had been given to the defence that the hearing of the Court of Appeal would resume on 10 May 1990, the applicant's lawyer requested the procurator general by letter of 17 April 1990 to summon all six anonymous witnesses, Y.05, Y.06, Y.13, Y.14, Y.15 and Y.16, to attend. On 2 May 1990 the procurator general refused this request on the ground that Y.15 and Y.16 had been heard for a second time in the presence of the applicant's lawyer by the investigating judge, who had been aware of their identity and had found that they had valid reasons for their wish to remain anonymous. He further found that in view of the findings of the investigating judge it would serve no useful purpose to attempt to call the other anonymous witnesses. It was also necessary to take into account the desirability of bringing proceedings to an end as expeditiously as possible (lites finiri oportet). 28. On 10 May 1990 the Court of Appeal recommenced its examination, having changed composition. The defence again asked the court to hear R. and N. and the six anonymous witnesses. The court, however, further considering the wish of the witnesses Y.15 and Y.16 to remain anonymous, concluded that it had been decided on sufficiently convincing grounds that these two witnesses had good reasons to feel seriously threatened, in view, inter alia, of police records contained in the case file from which it appeared that there was a real possibility that drug dealers might threaten potential witnesses. Accordingly, it did not order them to be summoned. As to the witnesses Y.05, Y.06, Y.13 and Y.14, the court accepted the findings of the investigating judge that it would be pointless to summon them. On the other hand, the Court of Appeal ordered that the witnesses R. and N. be brought before it by force and adjourned its hearing until 28 August 1990. 29. By letter of 15 August 1990 the defence again requested the procurator general to produce the six anonymous witnesses. By letter of 17 August 1990 they also asked him to call K., a university lecturer in criminology who had done a great deal of research on drug addicts in Amsterdam, and V., a former drug addict who had personal experience of interrogation by the police. 30. The procurator general refused both requests on 22 August 1990. As regards the six anonymous witnesses, he referred to his earlier decisions of 22 November 1989 and 2 May 1990 and reiterated the finding of the Court of Appeal of 10 May 1990. He based his decision not to call K. and V. on the fact that K. had published a book which rendered his views sufficiently clear and which the defence could quote at the hearing if desired, and on the assumption that V. would not be able to make statements about anything other than his own experiences as a person suspected of drug offences. It was also unnecessary to call either of them in view of the fact that the expert L. would appear at the hearing on 28 August. 31. On 28 August 1990, the Court of Appeal resumed its hearing. The witness V., who was in prison, did not appear. The defence withdrew its request to have him heard but maintained its request that the Court of Appeal should hear the six anonymous witnesses and the expert K. Referring to its decision of 10 May, the Court of Appeal refused to accede to the request of the defence to hear the six anonymous witnesses. However, in view of the judgment of the Supreme Court of 2 July 1990 (see paragraph 46 below), it decided to refer the case back to the investigating judge, requesting her to record her findings as to the reliability of the witnesses Y.15 and Y.16, adding that if in order to appraise their reliability the investigating judge found it necessary to hear them again she should do so. Although the expert K. was present at the hearing on 28 August 1990, having been convened by the defence, the Court of Appeal decided not to hear him. The reason given was that as an expert rather than a witness he could not be expected to contribute to the elucidation of the facts of the case. The witness N. was heard by the Court of Appeal in the applicant's presence and the applicant's lawyer was given the opportunity to question him. N. said that his statement to the police had been untrue and that he did not in fact know the applicant. In pursuance of the court's order of 10 May 1990 that he be brought by force, the named witness R. was present initially. It appears that before he was heard, he asked the court usher who was guarding him for permission to leave for a minute; this being allowed him, he then disappeared and could not be found again. The court subsequently ordered that he be brought before it by force at its next hearing on 22 November 1990. The Court of Appeal heard the expert L., who stated that drug addicts often made unreliable statements concerning alleged drug dealers to the police. He understood from drug addicts that police officers made promises to them and that they made statements only in order to be allowed to leave as soon as possible. Such statements were, in his view, "somewhere between the truth and a lie". 32. On 19 November 1990 the investigating judge, Judge Sm., drew up a record of her findings regarding the reliability of the statements made to her by Y.15 and Y.16 on 14 February 1990. She stated in this document that she could not remember the faces of the two witnesses, but having re-read the records of the interrogations could recall more or less what had happened. She had the impression that both witnesses knew whom they were talking about and had identified the applicant's photograph without hesitation. With regard to the facts of which the applicant stood accused, her impression had been that the witnesses themselves believed their statements to be true. As far as she remembered, both witnesses had answered all questions readily and without hesitating although they had made a "somewhat sleepy impression". 33. At the Court of Appeal's hearing on 22 November 1990, the witness R. did not appear, the police having been unable to find him. The court thereupon decided that a new order for R.'s appearance would be pointless. The procurator general brought forward a police officer, I., who had been involved in the investigation and asked that he be heard. The applicant's lawyer protested that the expert K. had not been heard and that the defence had no opportunity to prepare for the questioning of I.; to agree to hear I. now would prejudice the rights of the defence. The Court of Appeal nonetheless acceded to the request, and I. was heard concerning the way in which the investigation had been conducted. I. explained that from 1982 until 1988 he had been a member of a police team set up to fight drug trafficking in the centre of Amsterdam. Over the years that team had built up a good understanding with many of the drug addicts living in that area; making use of that relationship, they had asked them for information on drug dealers. Their cooperation was wholly voluntary. I. denied that the police made promises to drug addicts or put pressure on them; nor were photographs shown to addicts who had been arrested. In his assessment the statements made by drug addicts were therefore highly reliable. Moreover, action was only taken against alleged drug dealers if there were at least eight statements incriminating them. He further confirmed that it had happened in the past that convicted drug dealers, after serving their sentence, had threatened and assaulted drug addicts who had made incriminating statements against them. Although he had never known the applicant to resort to violence or threats, he did not rule out the possibility that he might do so. The defence challenged the reliability of the statements made by the various witnesses, both named and anonymous, pointing to what they considered to be inconsistencies among them. They objected particularly to the admission as evidence of the statements made by Y.15 and Y.16, on the grounds, inter alia, that both were drug addicts and that the investigating judge's record of her findings of 20 March 1990 did not contain a statement that she believed that the witnesses had been telling the truth. Relying on the Hauschildt v. Denmark judgment of the European Court of Human Rights of 24 May 1989 (Series A no. 154), they moreover expressed doubts as to the impartiality of the investigating judge, Judge Sm., in that as a member of the Regional Court she had taken part in the hearing of the Regional Court of 25 August 1988 and in the decisions then made. They protested against the refusal to hear K. 34. On 6 December 1990, the Court of Appeal quashed the Regional Court's judgment of 13 December 1988, as it was adopting a different approach with regard to the evidence. It found the applicant guilty of the deliberate sale of quantities of heroin and cocaine. This finding was based on the following evidence: (a) the fact, as appeared from the police records, that upon information that the applicant was engaged in drug trafficking his photograph was added to the collection of photographs of persons suspected of that offence; (b) the statements made before the investigating judge on 14 February 1990 by Y.15 and Y.16 (see paragraph 25 above); (c) the fact that on 13 April 1988 the applicant had recognised himself on the police photograph (see paragraph 12 above); (d) the statements made to the police by the named witnesses N. and R. (see paragraph 10 above). As regards the applicant's complaint that the majority of the witnesses had not been heard in the presence of the applicant or his lawyer, the court stated that it had based its conviction on evidence given by the witnesses N., R., Y.15 and Y.16. The latter two had been questioned by the investigating judge in the presence of the applicant's lawyer. The Court of Appeal added that it had used their statements "with the necessary caution and circumspection". It held that these statements could be used in evidence, in view, inter alia, of the consistency between them and the testimony of the police officer I. It also found that the reliability of the witnesses and the well-foundedness of their wish to remain anonymous had been sufficiently verified by the investigating judge. The witness N. had been heard in open court both at first instance and on appeal. Although he had retracted his earlier statement to the police, that was the statement which the Court of Appeal chose to believe in light of the testimony of the police officer I. Finally, the mere fact that the defence had not had the opportunity to question R. did not mean that his statement could not be used in evidence. The Court of Appeal rejected the applicant's complaint based on the alleged lack of impartiality of Judge Sm. It noted that the hearing on 25 August 1988 had been summary; the Regional Court had only considered the applicant's request to have the six anonymous witnesses examined and his request for release. During that hearing the Regional Court had not examined the substance of the applicant's case. It did not appear, nor had it been argued, that Judge Sm. had had any dealings with Y.15 and Y.16 before questioning them. An investigating judge in any case did not have to provide the same safeguards as a member of a trial court. Furthermore, no particular facts or circumstances had been suggested or had come to light warranting the conclusion that she had not been able to form an unprejudiced opinion as to the reliability of the witnesses she had examined, or that she had been biased in her examination of those witnesses. The applicant was sentenced to fifteen months' imprisonment. The time which he had spent in police custody and detention on remand was deducted from the sentence. 35. The applicant filed an appeal on points of law to the Supreme Court (Hoge Raad). Counsel for the applicant submitted a statement of grounds of appeal on 29 November 1991. The complaints put forward, in so far as relevant, were the following. In the first place, the Court of Appeal ought not to have refused to hear the expert K. The fact that the court had chosen to hear I. at the behest of the prosecution, which had brought him forward at the last moment, meant that the applicant had not had the possibility to obtain the attendance of a witness on his behalf under the same conditions as a witness against him. In addition, the court had failed to give sufficient reasons as to why the statement of K. could not serve the purpose of elucidating the facts, the court not having set out anything either in the record of the hearing or in its judgment with regard to the testimony that K. intended to give. In the second place, the Court of Appeal ought not to have relied on the statements made by Y.15 and Y.16. It had ignored the wish of the defence to have them brought before the trial court in order that that court might itself see how unreliable they were and in order that the applicant might put questions to them in person. In the third place, the Court of Appeal ought not to have taken account of the statement of R., whom the defence had not had the opportunity to question; nor should it have decided after he had been allowed to abscond that there was no further point in attempting to obtain his attendance. In the fourth place, given the fact that the prosecution had brought forward the witness I. at the very last moment and without the defence having had any opportunity to prepare itself, the Court of Appeal should have either declined to hear him or deferred his examination to a later date. In the fifth place, the Court of Appeal ought not to have relied on witness statements taken by an investigating judge (Judge Sm.) who had previously, as a member of a trial court and on the basis of the evidence then contained in the case file (which included statements of all eight witnesses), taken part in a decision to prolong the applicant's detention on remand. Judge Sm. had, in his view, failed to preserve an appearance of impartiality. 36. In accordance with the advisory opinion of the advocate general (advocaat-generaal), Mr Fokkens, the applicant's appeal was rejected by the Supreme Court on 24 March 1992. As to the first complaint, the Supreme Court held that the Court of Appeal had given sufficient reasons for not hearing K., especially since the defence had not indicated in what way his statement might be relevant to any decision regarding the charges proffered. Nor had the applicant been denied a "fair hearing" in this respect; it made no difference that, in spite of the protests made by the defence, the Court of Appeal had given the prosecution the opportunity to have a witness heard without previously announcing its intention to bring him forward. As to the second complaint, it was held that the mere fact that a defendant in a criminal case was not able to question an anonymous witness himself but had to do so through his counsel did not constitute a violation of the right to a "fair trial", guaranteed by Article 6 para. 1 (art. 6-1) of the Convention, or of the right protected by Article 6 para. 3 (d) (art. 6-3-d). As to the third complaint, the Supreme Court found that the reasoning on which the Court of Appeal had based its decision to make no further attempts to have R. brought before it was not unintelligible; in any case, it could not assess the validity of that reasoning since this was mainly a question of appreciation of facts. In view of the fact that it had proved pointless to repeat attempts to have R. brought before the Court of Appeal by force and of the fact that his statement was sufficiently corroborated by other evidence, in particular the statement made by N. to the police, the Court of Appeal had been entitled to use his statement in evidence. As to the fourth complaint, it was held that the Court of Appeal had not been bound to construe the protests put forward by the defence either as a request for an adjournment or as a defence plea requiring a reasoned decision. As to the fifth complaint, the Supreme Court concurred with the Court of Appeal that there was no reason to assume that Judge Sm. had lacked the required impartiality or that the applicant could have had any cause for so fearing. It continued: "The mere fact that a judge who has been involved in adecision at first instance refusing requests made by thedefence to adjourn the hearing and to refer the case backto the investigating judge for the hearing of anonymouswitnesses and in decisions refusing requests for thetermination or suspension of detention on remand, hasafterwards, pursuant to an order of the Court of Appeal,heard the said witnesses and given an opinion on thereliability of their testimony and on their reasons forremaining anonymous as a rule does not imply that onappeal the requirement of trial by an `impartialtribunal' in the sense of Article 6 para. 1 (art. 6-1)has not been met. It does not appear from the case filethat there are any special circumstances which in thepresent case should lead to a different conclusion." 37. Except for the differences noted below (see paragraphs 45 and following), relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the Court's above-mentioned Kostovski judgment of 20 November 1989. Reference is therefore made to that judgment, especially pp. 13-17, paras. 22-32. In so far as legal provisions relating to detention on remand are of relevance, reference is made to the Court's Nortier v. the Netherlands judgment of 24 August 1993 (Series A no. 267), pp. 13-14, para. 27. 38. The public prosecutor has the power to call witnesses and experts to the hearing (Article 260 CCP). In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution. If the accused wishes to call witnesses, he can - according to Article 263 - submit a request to the public prosecutor no later than three days before the court hearing to summon a witness before the court. As a rule, the public prosecutor should summon the witness, but - according to Article 263 para. 4 - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court ("Indien redelijkerwijs moet worden aangenomen, dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt gehoord"). He has to give a reasoned decision in writing and must at the same time inform the defence of its right under Article 280 para. 3 (see paragraph 40 below) to renew the request to the trial court at the hearing. 39. At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called, which is then read out by the registrar (griffier) (Article 280 para. 2). 40. If the public prosecutor has failed to summon a witness at the request of the accused, or declined to do so, the defence may ask the court to have that witness summoned (Article 280 para. 3). The court so orders, unless it finds that the non-appearance of this witness cannot reasonably be considered prejudicial to the rights of the defence ("De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen, tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad" - Article 280 para. 4). 41. A request by the defence to hear a witness who has not been placed on the list of witnesses, who has not been convened to attend the trial and whose summons the defence has not sought in accordance with Article 280 falls under Article 315 CCP (see paragraph 42 below). It appears from the judgment of 23 December 1986 by the Supreme Court that the trial court needs only accede to a request of this nature if it finds it necessary to do so. 42. Under Article 315 CCP the trial court has the power to order of its own accord the production of evidence, including the summoning of witnesses whom it has not yet heard. 43. If it finds that there is occasion to do so, the trial court may order that a witness be brought to its hearing by the police (Articles 282 para. 1 and 315 CCP). 44. If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge, it must suspend the hearing and refer the question to the investigating judge along with the case file. The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules (Article 316 CCP). 45. Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414 CCP). The defence enjoys the same rights as it does at first instance (Article 415 CCP). 46. In its judgment of 2 July 1990, Nederlandse Jurisprudentie (Netherlands Law Reports, "NJ") 1990, no. 692, the Supreme Court considered that it had to be assumed in light of the European Court's Kostovski judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case-law until then. It defined these stricter requirements in the following rule: such a statement must have been taken down by a judge who (a) is aware of the identity of the witness, and (b) has expressed, in the official record of the hearing of such a witness, his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous, and (c) has provided the defence with some opportunity to put questions or have questions put to the witness. This rule is subject to exceptions; thus, according to the same judgment, the statement of an anonymous witness may be used in evidence if (a) the defence have not at any stage of the proceedings asked to be allowed to question the witness concerned, and (b) the conviction is based to a significant extent on other evidence not derived from anonymous sources, and (c) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection. 47. The Act of 11 November 1993, Staatsblad (Official Gazette) 1993, no. 603, has added to the CCP a number of detailed provisions relating to the "protection of witnesses". It entered into force on 1 February 1994. The additions include the following. Article 226a now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life, health, safety, family life or socio-economic existence and if the witness has made it clear that he does not wish to make any statement because of this. The decision is made by the investigating judge, who must first hear the prosecution, the defence and the witness himself. An appeal against the decision of the investigating judge lies to the trial court (Article 226b). The investigating judge may order that a threatened witness be heard in the absence of the accused, or of counsel, or of both, so as not to disclose the identity of the threatened witness; in that event, the prosecution authorities may not attend the questioning of the witness either. The investigating judge must then allow the defence to put questions of its own to the witness, either through the use of telecommunication or in writing (Article 226d). Article 264 now lays down that the prosecution may refuse to summon a threatened witness. If the trial court has ordered that a witness be heard and that witness turns out to be under threat, he must be heard in camera by the investigating judge (Article 280 para. 5). The statement of an anonymous witness taken in accordance with the above-mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted (Article 342 para. 2 (b)). A new paragraph has been added to Article 344 to the effect that a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned. | 0 |
train | 001-96673 | ENG | MKD | CHAMBER | 2,010 | CASE OF ATANASOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Violations of Art. 6-1;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger | 5. The applicant was born in 1937 and lives in Bitola. He worked for “Aparati za domakinstvo”, a socially-owned company which was later restructured under the Government’s decision of August 1997 allowing its transformation. 6. On 21 February 1997 the applicant was reassigned to the post of technologist with the stated aim of increasing productivity and efficiency and improving operations. 7. On 17 March 1997 the applicant brought a civil action seeking to have the reassignment annulled since, in thirty years with the same employer, he had never worked as a technologist. 8. On 21 May 1997 the Bitola Court of First Instance (“the first-instance court”) dismissed the applicant’s claim. On 29 September 1997 the Bitola Court of Appeal quashed this decision ordering the lower court to examine what had been the applicant’s status with the employer; whether and how had the bankruptcy proceedings, initiated meanwhile against the employer, affected the applicant’s employment and whether the employer had been restructured. 9. On 30 September 1998 the first-instance court annulled the employer’s decision of 27 May 1997 dismissing the applicant (in respect of which the applicant had brought a separate action). According to the Government, in these proceedings the applicant had sought to have the proceedings concerning his reassignment suspended. 10. On 29 March 1999 the applicant’s claim was upheld at first instance. The court held that although the reassignment decision had referred to the relevant provisions of the Labour Act and the General Collective Agreement (see “Relevant domestic laws” below) it had not provided the applicant with concrete reasons for his reassignment. In this connection, it stated that section 27 of the Labour Act had been of a declaratory nature without providing any concrete reason for reassignment. On 29 September 1999 the Bitola Court of Appeal quashed this decision finding that the reassignment decision had provided reasons for the applicant’s reassignment. However, it ordered the first-instance court to determine whether the reassignment had been justified. 11. On 26 March 2001 the first-instance court, deciding the case for the third time, upheld the applicant’s claim and annulled the reassignment decision. The court established that the applicant had worked for the same employer since 1966 in different posts and that no concrete reasons had been given for his reassignment. In this latter respect, it referred to a court annulment, for lack of concrete reasons, of the reassignment of Mr R.V., the applicant’s colleague, which had been based on the same grounds, as the applicant’s (see paragraph 6 above, П.бр. 680/97 of 9 June 1999). Noting that the reassignment decision had been rendered under section 27 of the Labour Act and section 11 of the General Collective Agreement, it stated, inter alia, “... in case of reassignment, an employee should be provided with a reasoned decision in writing so that he or she can protect his or her rights and the court may review its lawfulness. In the present case, the disputed decision does not set out any reasonable ground, which implies that the employer had not established the need for the [applicant’s] reassignment. If no reasonable grounds are provided, the reassignment of any employee, including the [applicant], is unlawful. [The employer] has only quoted the terms for reassignment, as specified in the Collective Agreement, without providing any reasonable ground ...” 12. The court also concluded that the reassignment had been unjustified given the applicant’s age and lack of experience required for the new post. 13. On 24 May 2001 the Bitola Court of Appeal dismissed the employer’s appeal and upheld the lower court’s decision. It stated, inter alia: “... the reassignment decision does not set out any reasons. The employer has merely referred to the Collective Agreement’s objectives of increasing the productivity and efficiency of the applicant and for work organisation purposes. It does not mean that by mere reference to these grounds, the employer has established the need for the [applicant’s] reassignment...It means that [the applicant] was reassigned to a post which does not correspond to his work experience ...” 14. On 29 May 2003 the Supreme Court allowed an appeal on points of law submitted by the employer on 9 July 2001 and overturned the lower courts’ decisions. It held that they had wrongly applied national law. Referring to section 27 of the Labour Act and section 11 of the Collective Agreement, it found that the employer had been entitled to assess the need for reassignment - which would be well-founded only if an employee was reassigned to a post commensurate with his or her vocational capacity. It further held that the issue as to whether the employee would be more efficient in the new post went beyond the scope of judicial review. It concluded that: “Concerning the grounds for reassignment provided in the [disputed] decision, the court considers that it is sufficient to state one of the terms specified in the Collective Agreement. The disputed decision meets this requirement ...” 15. Under Article 101 of the Constitution, the Supreme Court is the highest court providing uniformity in the implementation of laws by the courts. 16. Section 27 (2) of the Labour Act (Закон за работните односи), as in force at the material time, provided that in cases where collective agreements applied, an employee could be reassigned to any post commensurate with his or her vocational capacity. 17. Under section 11 of the Collective Agreement, an employee may be reassigned to a post commensurate with his or her qualifications with a view to, inter alia, improving efficiency. 18. Section 408 provided, inter alia, that the court should take into consideration the need for the urgent settlement of employment disputes. 19. In two decisions of 1997 and 1999, the Supreme Court ruled that employers were required to give concrete reasons for reassignment and that mere reference to section 27 of the Labour Act and section 11 of the collective agreement was insufficient unless concrete facts, circumstances and grounds were provided for the reassignment (the Supreme Court’s decisions of 5 February 1997 (Рев.бр.474/96) and 23 June 1999 (Рев.бр.312/98)). 20. In 2005 and 2006, the Supreme Court ruled that under section 27 of the Labour Act, it was sufficient that the new post corresponded to the qualifications of the person concerned. Only employers, and not the courts, were entitled to assess the need for reassignment and employers were not required to provide concrete reasons (the Supreme Court’s decisions of 7 December 2005 (Рев.бр.768/04) and 22 March 2006 (Рев.бр.285/05)). | 1 |
train | 001-99863 | ENG | AUT | CHAMBER | 2,010 | CASE OF MLADOSCHOVITZ v. AUSTRIA | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicants were born in 1998 and 2002 respectively and live in Linz. 6. The applicants have a maintenance claim against their father Mr W (“the debtor”). Apparently the debtor fell into arrears with maintenance payments (Unterhaltsrückstand) amounting to the sum of EUR 3,006. The applicants applied for enforcement of their payment orders to the competent District Court (Bezirksgericht) in Enns. The enforcement order (Exekutionsbewilligung) provided for the sale of the debtor's movable property (Fahrnisexekution) and granted the applicants a lien on outstanding claims which the debtor held against his own debtors (Forderungsexekution). 7. On 21 July 2006 the debtor lodged an action under Section 35 of the Enforcement Act (Oppositionsklage) to have the claim underlying the enforcement order dismissed and also applied to postpone enforcement (Aufschiebung der Exekution) until a decision on his action had been reached. In support of his case to have the enforcement order set aside, the debtor stated that during the period of time in which he had not made maintenance payments, the applicants had been living with him and he had paid all their living expenses. 8. In support of his application to postpone enforcement regarding the sale of movable property, the debtor claimed he would risk losing his property rights over the objects seized for enforcement. He also argued that if a lien against outstanding claims from his own debtors was enforced, the recovery of the money from the applicants, who did not have any funds, would be nearly impossible if the enforcement order was, in fact, set aside. 9. On 27 July 2006 the District Court, without hearing the applicants, allowed the postponement of enforcement by granting the applicants a lien on outstanding claims if a deposit of EUR 3,500 was lodged with the court but the postponement of the sale of the debtor's movable property was not granted. On 2 August 2006 the debtor appealed, claiming that the deposit was too high. The applicants were not notified of the appeal. 10. The Steyr Regional Court (Landesgericht) quashed the decision, ordering both kinds of enforcement to be postponed until the decision on the action under Section 35 of the Enforcement Act was rendered and re-setting the deposit at EUR 1,000. The applicants were not heard in the proceedings. It held that an appeal on points of law to the Supreme Court was not admissible. The applicants, having lost the case on postponement of the enforcement, were obliged to reimburse legal costs amounting to EUR 305.40 to the debtor. 11. The enforcement of court orders is set down in the Enforcement Act (Exekutionsordnung). In principle, an application for an enforcement order (Exekutionsbewilligung) can only be made when the civil right to be enforced is established with final effect; such a decision establishing a civil right is called a fiat of execution (Exekutionstitel). 12. If after a fiat of execution has been passed, new facts emerge which vitiate or weaken the enforceable claim, the debtor can bring an action under Section 35 of the Enforcement Act. If successful, such an action will set aside the fiat of execution. In the proceedings, the Code on Civil Procedure (Zivilprozeßordnung) will apply. 13. If an action is brought under Section 35 of the Enforcement Act, enforcement may also be postponed according to Section 42 § 1 no. 5 of the Enforcement Act, until a final decision is taken under Section 35 of the Enforcement Act. The postponement of enforcement is taken in the form of a decision (Beschluß). According to Section 44 § 2 no. 1 of the Enforcement Act, such postponement is to be subject to the payment of a deposit by the debtor seeking to have the claim underlying the fiat of execution set aside unless the debtor can show unobjectionable documents supporting his action under Section 35 of the Enforcement Act. The deposit serves to safeguard the creditor(s) against damage resulting from delay in the enforcement of the claim. 14. According to Austrian jurisprudence, the amount of the deposit is to be determined according to the likelihood of a successful outcome to the action under Section 35 of the Enforcement Act, without taking into account the merits of the action under Section 35. 15. Section 78 of the Enforcement Act stipulates that, unless provided otherwise, the general provisions of the Code of Civil Procedure (Zivilprozessordnung) are applicable to enforcement proceedings. 16. As a general principle, the opponent does not have the right to be heard if the other party lodges an appeal against a decision (Rekurs) other than those decisions set out in Section 521a of the Code of Civil Procedure. 17. The legal costs have to be borne by the party who loses the case; in circumstances in which both parties partly lose and partly win a case, the costs will be split proportionately, with the court enjoying a narrow margin of appreciation (see Sections 40 to 43 of the Code of Civil Procedure). 18. While certain court fees are payable upon application for an enforcement order and the bringing of an action under Section 35 of the Enforcement Act, no such fees are payable for a motion to postpone enforcement. However, appeals against decisions (Rekurs) have to be signed by a lawyer in principle, who is entitled to remuneration. | 1 |
train | 001-98206 | ENG | HRV | ADMISSIBILITY | 2,010 | GOTTWALD-MARKUSIC v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mrs Miroslava Gottwald-Markušić, is a Croatian national who was born in 1937 and lives in Zagreb. She was represented before the Court by Mr A. Tomašić, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. In 1938 the applicant’s mother, M.G., became the owner of a 600 square-metre plot of land in Zagreb and was registered as such in the land register. It would appear that the land in question was sequestered on 18 October 1946 by the Communist authorities. Meanwhile, in 1939 the applicant’s mother had built a garage and a one-storey residential building comprising of four flats on it, but without recording them in the land register. The applicant claims that in 1945, her mother and she were forcibly evicted from the building by the Communist authorities without any formal decision. She further claims that no proceedings leading to appropriation of the building were ever instituted, nor was it ever transferred into social ownership and registered as such in the land register. During the Communist regime, the authorities awarded the flats in the building to various persons under specially protected tenancies (stanarsko pravo). On 27 March 1996, following the applicant’s request, the Land Registry Division (Zemljišnoknjižni odjel) of the Zagreb Municipal Court (Općinski sud u Zagrebu) recorded the building and the garage in the land register, and registered the applicant’s mother as their owner, on the ground that the applicant’s mother, who died in 1990, had until then been recorded in the land register as the owner of the plot of land on which those constructions had been built. Once the proceedings concerning her late mother’s estate ended (inheritance proceedings), on 9 September 1996 the applicant, as her heir, registered herself as the owner of the property in question. On 13 February 1997 A.S. and A.B., the tenants of two flats located in the building at issue, brought a civil action against the applicant in the Zagreb Municipal Court seeking: (a) a declaration that in 1958 the building had been nationalised and transferred into social ownership, (b) a declaration of nullity of the applicant’s and her mother’s registration as owners in the land register, and (c) deletion of those entries from the land register and registration of the property in the name of the City of Zagreb. The City of Zagreb later intervened in the proceedings on the side of the plaintiffs. On 16 May 2000 the Municipal Court dismissed the plaintiffs’ action and ruled in favour of the applicant. The court held that, while the Act on Nationalisation of Rental Buildings and Construction Land of 1958 (“the 1958 Nationalisation Act”) had indeed provided that residential buildings conforming to certain criteria were nationalised and transferred into social ownership by its mere entry into force (ex lege), it had also required the authorities to issue individual decisions determining which buildings had been nationalised under that Act. Thus, in the absence of an individual decision issued in respect of the building in question, the court concluded that it had not been nationalised. Following an appeal by the plaintiffs and the intervener, on 16 December 2003 the Zagreb County Court (Županijski sud u Zagrebu) reversed the first-instance judgment and ruled for the plaintiffs. It held that under the 1958 Nationalisation Act all residential buildings conforming to the criteria set forth in that Act had been nationalised ex lege and that the individual decisions to be issued by the authorities had only been of a declaratory nature. Thus, the failure of the Communist authorities to issue such a decision in the applicant’s case did not mean that the building in question had not been nationalised. The relevant part of the County Court’s judgment read as follows: “The gist of the dispute between the parties is whether the building [in question], in which the plaintiffs were holders of specially protected tenancy in respect of the flats in it, could be considered nationalised by the operation of law on the day of the entry into force of [the 1958 Nationalisation Act]. ... The first-instance court correctly found, given the absence of a decision on nationalisation of the said building (...), that as a preliminary issue it had to be determined whether the provisions of [the 1958 Nationalisation Act] could be applied to the building in question. Relying on section 12 of [the 1958 Nationalisation Act], the first-instance court established beyond dispute that the building at issue has more than two flats or three small flats, as it did at the time the Act had been passed, and that [the Act] accordingly applied to it. ...However, the first-instance court is of the view that a decision on nationalisation should also have been rendered in order to establish which building or part of a building was nationalised, [which meant that] ‘those buildings and parts of buildings in respect of which the competent authority did not establish that they were nationalised – in a decision rendered in the proceedings prescribed by [the 1958 Nationalisation Act] – were not nationalised.’ This view of the first-instance court is incorrect, primarily because it contradicts section 8(1) of [the 1958 Nationalisation Act]. Section 8(1) of that Act expressly provided that buildings, parts of buildings and construction land passed into social ownership on the day of [its] entry into force. Therefore, what is important is the date of the entry into force of [the 1958 Act] and not the delivery of a decision. On the day of the Act’s entry into force all immovable property to which [it] was applicable was by the operation of law nationalised and became social property. [Accordingly], from that date the former owners were no longer able to exercise any prerogatives of an owner in respect of those buildings, and the decisions issued in implementation of that Act were of a declaratory character. ... Therefore, the fact that a certain immovable property was nationalised by the operation of law on the day of the entry into force of [the 1958 Nationalisation Act], is not altered by the fact that a potential decision on nationalisation was not issued or executed in the land register, or even by the fact that, as in the present case, the property itself was not recorded in the land register. ... As regards the arguments raised in reply to the appeal, it should also be said that even though the legal system of the Republic of Croatia no longer recognises social ownership, for certain legal relations derived from social ownership it is sometimes still necessary to interpret provisions of statutes enacted [during the Communist regime]. This does not mean that nationalisation is being carried out retroactively, because, as already stated above, it occurred in 1958, on the day of the entry into force of [the 1958 Nationalisation Act]. However, the protection of the rights of [third] persons acquired in the implementation of that and other statutes enacted in that period depends on their correct interpretation. In the present case that means protection of the rights of plaintiffs who acquired specially protected tenancy of (and thereby the right to purchase) the flats [located] in the building [in question].” On 17 February 2005 the applicant lodged a constitutional complaint against the second-instance judgment alleging violations of her constitutional rights to a fair hearing and ownership. On 17 May 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed her complaint. The relevant part of the Constitutional Court’s decision read as follows: “Article 48 paragraph 1 of the Constitution provides: The right of ownership shall be guaranteed. The Constitutional Court protects the right of ownership at the constitutional level in 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, having regard to the reasons [adduced by] the second-instance court ..., finds that the constitutional guarantee [of ownership] was not breached. The provision of section 50 paragraph 1 of the Constitution, which provides that ownership may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to its market value, is not relevant in the present case because it [the case] concerns [a] fact which occurred on 26 December 1958.” The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette of the Republic of Croatia nos. 91/1996, 73/2000, 114/2001, 79/2006, 141/2006, 146/2008 and 38/2009), which entered into force on 1 January 1997, reads as follows: Chapter 4. “(1) The acquisition, modification, legal effects or termination of rights in rem after the entry into force of this Act shall be assessed on the basis of its provisions... (2) The acquisition, modification, legal effects and termination of rights in rem until the entry into force of this Act shall be assessed on the basis of the rules applicable at the moment of the acquisition, modification or termination of those rights or of the legal effect thereof. (3) ...” The relevant provisions of the Act on Nationalisation of Rental Buildings and Construction Land (Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta, Official Gazette of the Federal People’s Republic of Yugoslavia no. 52/1958 – “the 1958 Nationalisation Act”), which entered into force on 26 December 1958, provided as follows: I. GENERAL PROVISIONS Section 8 “(1) Buildings, parts of buildings and construction land nationalised by this Act shall become [that is, be transferred into] social property on the day of its entry into force. (2) A decision of the competent authority rendered in the proceedings prescribed by this Act and [relevant] subordinate legislation ..., shall determine which objects are nationalised by this Act.” II. OBJECT OF NATIONALISATION 1. Residential buildings and special parts of residential buildings Section 12 “On the day of the entry into force of this Act the following [property] shall be nationalised: 1) residential buildings, that is, privately owned buildings with more than two flats or with more than three small [two-room] flats; 2) ...” The Supreme Court has consistently held that the nationalisation of property falling within the scope of the 1958 Nationalisation Act had occurred by the operation of law (ex lege), that is, by the Act’s mere entry into force on 26 December 1958, and that the decisions issued pursuant to its section 8(2) had had been merely declaratory. Accordingly, the absence of such a decision or the failure of the competent authorities to record in the land register that the property had been transferred into social ownership had been of no relevance (see judgments in cases nos. Rev-2760/99-2 of 24 January 2002, Rev-557/02-2 of 18 February 2003 and Rev 698/05-2 of 7 December 2006 and decision no. Rev-2018/1996-2 of 23 April 2002). The Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette of the Republic of Croatia nos. 92/1996, 92/1999 (corrigendum), 80/2002 (amendments) and 81/2002 (corrigendum) – “the 1996 Denationalisation Act”), which entered into force on 1 January 1997, enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and spouse), to seek under certain conditions either restitution of or compensation for appropriated property. Section 2(1) provides that former owners shall have the right to restitution of, or compensation for, property appropriated on the territory of the Republic of Croatia on the basis of legislation listed in that section, including the 1958 Act on Nationalisation of Rental Buildings and Construction Land. Section 3 provides that former owners shall also have the right to restitution of, or compensation for, property appropriated by judgments, decisions, rulings or other acts issued by military or civilian authorities from 15 May 1945 until the enactment, or in the implementation of legislation listed in section 2 of the Denationalisation Act, as well as for property appropriated without a legal ground or without basis in any legislation. Section 22 of the Denationalisation Act provided that nationalised flats in respect of which third persons had acquired specially protected tenancies (stanarsko pravo) were not to be restored to their former owners. The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo). At the same time, the former owners were entitled to financial compensation in respect of the flats. Section 22 reads as follows: “(1) Unless they were appropriated by means of confiscation, the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners. ... (3) The former owner shall have the right to compensation and the tenant [i.e. the holder of a specially protected tenancy] shall have the right to purchase the flat.” Section 65(3) provides that the former owners have to lodge their requests within six months from the Act’s entry into force (that is, by 1 July 1997). Section 65(4) provides that requests submitted after that date shall be declared inadmissible, resulting in the loss of all rights under the Denationalisation Act. Section 67, which stipulates what documents should be enclosed with the request of the former owner, prescribes that such a request should be accompanied by, inter alia, the act whereby the property was transferred into state or social ownership (“akt o podržavljenju, odnosno podruštvovljenju imovine”) as well as an extract from the land register containing all entries from the date the property was transferred into state or social ownership. Section 73 provides that if in the administrative proceedings for restitution of, or compensation for, property appropriated during the Communist regime a dispute arises between the parties as regards facts on which a certain right of theirs depends, or as regards the existence of a right, the competent administrative authority shall stay the administrative proceedings and instruct the parties to bring a civil action or institute other proceedings before the competent authority. In interpreting the Denationalisation Act the Administrative Court held that the six-month time-limit stipulated in its section 65(3) was of a substantive-law nature (decision no. Us-10020/1999 of 27 June 2002) and preclusive in its character (decision Us-12303/1999 of 31 October 2001), meaning that after its expiry a former owner lost his or her right to restitution of or compensation for property appropriated during the Communist regime. In its decision no. Us-5564/200 of 19 April 2001 the Administrative Court held that the former owner was entitled to obtain compensation for property appropriated during the Communist regime even if the decision on nationalisation had never been recorded in the land register and he had remained recorded as the owner of the nationalised property. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991) provide as follows: Section 144(1) provides that if the authority before which the administrative proceedings are pending finds that the case cannot be decided without deciding an issue the resolution of which is within the competence of a court or other authority (preliminary issue), it may decide on that issue itself or stay the administrative proceedings until the competent authority resolves it. Section 249 provides that administrative proceedings that ended in a definitive decision may be reopened if, inter alia, the contested decision is based on a preliminary issue which the competent authority later resolved differently in important aspects. | 0 |
train | 001-61211 | ENG | POL | CHAMBER | 2,003 | CASE OF R.W. v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 8. The applicant was born in 1940 and lives in Warsaw. 9. In March 1982 the applicant became divorced. 10. On 30 September 1982 his former wife filed with the Warsaw District Court (Sąd Rejonowy) a request for the partition of the property of the spouses. The request related to 147 items and a shared flat in a housing co-operative building. 11. The Government submitted that between 27 December 1982 and 2 December 1987 the court held 19 hearings. The applicant stated that one of the hearings referred to by the Government had never been held and four others had been only in camera sittings. 12. In 1985 and 1986 the court ordered six expert opinions. According to the Government, on an unspecified date after 2 December 1987 the case-file was lost. 13. In 1992 the applicant lodged a further request for the partition of the property. He informed the Warsaw District Court that the place of residence of his former wife was unknown and it was impossible to bring her before the court. The applicant maintained that he had had difficulties in establishing her place of residence. The court appointed a guardian ad litem for her. On 22 May 1992 it gave judgment. 14. The Government submitted that after the completion of those proceedings the applicant had formally reported his former wife's departure to Germany. 15. In December 1992, after her return to Poland, the applicant's former wife requested the re-opening of those proceedings, relying on the applicant's misinformation as to the alleged lack of knowledge of her residence in Germany. On 22 July 1993 the Warsaw District Court quashed the decision issued in those proceedings. 16. In January 1994 the lost case-file was found. The court held hearings on 14 January, 4 March, 16 May, 5 August and 14 November 1994. The Government submitted that the applicant had failed to attend the hearings of 14 January, 4 March and 16 May 1994. The applicant maintained that he had been present at the hearing on 14 January 1994 and that his absence on 16 May 1994 had been justified. 17. The court held a hearing on 12 June 1995. 18. On 18 July 1995 the court ex officio made attempts aimed at converting the disputed flat into smaller ones. Between July 1995 and January 1996 it enquired with various authorities as to possible solutions to the dispute. 19. The hearing scheduled for 30 September 1996 was adjourned because of the absence of the applicant's lawyer. The applicant submitted that his lawyer had had an operation on his heart. 20. Further hearings were held on 6 January, 14 April and 18 September 1997. According to the applicant, the hearing of 18 September 1997 was in fact an in camera sitting. 21. The applicant requested the adjournment of the hearing scheduled for 30 January 1998. 22. Subsequent hearings were held on 25 May 1998 and 25 February 1999, as well as on 7 January and 3 March 2000. 23. On several occasions the applicant's former wife failed to attend hearings or her lawyer failed to submit certain documents or pleadings. The court ordered expert opinions concerning the value of objects located in the flat of the applicant and his former wife, their cars and jewellery. 24. On 25 May 2000 the applicant learnt that the case-file had been lost again. It was subsequently found. 25. The applicant failed to attend the hearing scheduled for 18 December 2000. 26. According to the Government, the hearing scheduled for 19 April 2001 was adjourned at the applicant's request. He submitted that no hearing had been scheduled for that day. 27. The court held a hearing on 11 May 2001. 28. At the hearing held on 21 September 2001 it ordered an expert opinion. 29. Hearings were held on 11 February and 14 November 2002, as well as 17 January 2003. 30. On 31 January 2003 the court gave judgment. | 1 |
train | 001-101987 | ENG | RUS | ADMISSIBILITY | 2,010 | CHELBAYEV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | The applicant, Mr Anatoliy Anatolyevich Chelbayev, is a Russian national who was born in 1977 and lives in Bataysk in the Rostov Region. He is currently serving his sentence in the correctional colony UCh 398/15 in the town of Bataysk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 January 2003 the applicant was arrested on suspicion of murder and detained in a temporary confinement cell of a local police station. According to the applicant, from 13 to 16 January 2003 he was held in custody without food or water. On an unspecified date but apparently immediately after his arrest, he was interrogated and beaten up by police officers and was forced to sign unspecified documents. According to the trial court and appeal judgments (see below), on 13 January 2003 the applicant was questioned by the investigator of the local prosecutor’s office and not by the police officers. The interrogation of 13 Janaury 2003 took place in the presence of a lawyer, apparently appointed as a legal-aid counsel, who subsequently represented the applicant throughout the domestic proceedings. The applicant pleaded guilty during the interrogation. On 14 January 2003, when questioned by the investigator in the presence of counsel, the applicant repeated his confession statements. During the trial the applicant pleaded not guilty claiming that his confession had been obtained as a result of coercion. When questioned by the trial court, he was unable to cite the names of the police officers who had allegedly ill-treated him, to provide a detailed account of the events or to outline the basic facts his allegations had been based upon. On 19 August 2003 the Zheleznodorozhny District Court of Rostov-on-Don of the Rostov Region convicted the applicant as charged and sentenced him to ten years’ imprisonment. The court found that the applicant had intentionally killed Mr T., having struck the latter no fewer than thirteen times. The crime had been committed in the flat of Mr S., a friend of the applicant. The court based the conviction, in particular, on the testimony of Mrs Ta., which she had given during the pre-trial investigation, claiming to have been an eyewitness to the crime. According to her statements, the applicant had demanded money from the victim and had then kicked him continuously for 10 to 15 minutes. Mrs Ta. failed to attend the trial. The applicant objected to the reading out of her testimony at the trial. The court rejected his objection. It held, in particular, as follows: “The court made all necessary efforts to secure the witness Mrs Ta.’s presence; however there is no information about her whereabouts... It follows from the submissions of investigator L. and witness S. that witness Mrs Ta. does not have a permanent place of abode, was temporarily registered at victim Mr T.’s address, but did not live there even before the latter’ s death... The case file contains information that Mrs Ta. previously lived with her relatives; however the court’s officer visited this address and found out that she had not lived there for a long time. Nobody among those who knew her has information about her current whereabouts.” The court also relied on: - the testimony of Mr S., whom Mrs Ta. told that the applicant had killed Mr T.; - testimonies of police officers and investigators who knew from Mrs Ta. and Mr S. that the applicant had killed Mr T. and who also asserted that, after being arrested, the applicant had confessed to the murder; - a forensic expert’s conclusion that the blood found on the applicant’s shoes belonged to the victim; - a pathologist’s conclusion that the death of Mr T. had resulted from severe bodily harm caused by repeated kicking; - the corpse inspection record and several other documents. As regards the allegation of duress, the court established that on the date of his arrest the applicant had only been questioned by the investigator of the local prosecutor’s office. No police officers had interrogated the applicant either on the date of his arrest or later. The interviews of 13 and 14 January 2003 took place in the presence of the lawyer. The court rejected the applicant’s allegations of ill-treatment by the police officers as unsubstantiated. In his grounds of appeal the applicant complained, inter alia, that the trial court had not secured the attendance of Mrs Ta., who had been the only eyewitness, that he had not been able to examine this witness in court, that his confession had been obtained under duress and that his lawyer had failed to represent him effectively at the trial. He admitted having beaten the victim on the date of his death, but denied intending to kill him. On 27 April 2004 the Rostov-on-Don Regional Court upheld the judgment. As regards the applicant’s complaints, it found as follows: “The appellant’s arguments that Mrs Ta.’s statements were vitiated are baseless, as these statements do not contradict other evidence... The fact that this testimony was taken from Mrs Ta. during the pre-trial investigation does not invalidate their significance as evidence. [...] The allegations of a considerable discrepancy between Mrs.Ta.’s statements and the facts revealed by the corpse inspection record, pathologist’s report and forensic expert’s conclusion, are unsubstantiated.” The appeal court rejected, as unfounded, the complaint about the lawyer’s ineffectiveness, having observed, in particular, that the applicant had not objected to the lawyer’s participation in the trial at earlier stages of the proceedings, had not requested another lawyer to represent him and had not complained to the trial court about any particular actions or omissions of the lawyer. On 8 August 2008 the deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Rostov Regional Court. He submitted that the Zheleznodorozhny District Court and the Rostov Regional Court had infringed the applicant’s right to examine witness Mrs Ta. He claimed that a reference to Mrs Ta.’s testimony be excluded from the judgments. On 4 September 2008 the Presidium of the Supreme Court granted the prosecutor’s application. It found that the appeal court had read out the testimony by Mrs Ta. despite the applicant’s objection, and thus had violated domestic law as regards court procedure in a criminal case. The court observed that at no stage of the proceedings had the applicant been given an opportunity to examine Mrs Ta. and concluded that his right to examine a prosecution witness had indeed been violated. The Presidium accordingly found that Mrs Ta.’s testimony was not to be taken into account and modified the judgments of 19 August 2003 and 27 April 2004 by excluding the reference to her witness statements. The Presidium examined in detail the other items of evidence in the criminal case, reduced the applicant’s sentence to seven years’ imprisonment on the ground that he was in charge of a minor and upheld the remainder of the lower courts’ findings. According to the applicant, the officers of the correctional colony Uch 398/15 had returned the applicant’s letter to the Court dated 25 September 2008 four times and had only posted it on 31 October 2008. According to the expedition note by the colony, the correspondence was sent to the recipient on 22 October 2008. The Court received the above letter on 16 December 2008. | 0 |
train | 001-76714 | ENG | UKR | CHAMBER | 2,006 | CASE OF LYASHKO v. UKRAINE | 4 | Violation of Art. 10;Damage - partial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 5. The applicant was born in 1972 and lives in Kyiv. 6. The applicant was an editor-in-chief of the Ukrainian daily newspaper Polityka. The periodical has ceased publication. 7. On 2 July 1997 the applicant published an article about Mr V. Durdynets, who at that time was the acting Prime Minister of Ukraine. The article was entitled “Durdintsovshchina” (the first article) and described the dismissal of Mr A. Stoginenko, the President of the Black Sea Shipping Company (Чорноморське морське пароплавство, hereinafter the “BSSC”), a State-owned enterprise. The applicant alleged that Mr Durdynets dismissed Mr Stoginenko because of his involvement in financing the Polityka. The relevant extracts from the article were as follows: “Who could imagine that a former Komsomol bureaucrat, police pen-pusher and near-political schemer would occupy today one of the highest posts in the Government? The press is what the sinister Premier hates the most, as he fears public opinion. He did not forget that in March this year our newspaper accused him of plotting against Prime Minister Lazarenko. And as soon as he got the chance, he triggered the punitive mechanisms to suppress the independent media. For instance, he accused Alekzandr Stroginenko, the President of the Black Sea Shipping Company, of financing Polityka. Stroginenko’s “error” was that he had concluded a contract with us to issue promotional materials for the BSSC. The newspaper spent tens of thousand dollars from its own pocket, but has not yet received full payment for the published materials. Without waiting for the results of a ministerial inquiry, on Monday before last, the acting Prime Minister, in the absence of both the President, who was in New York, and the Prime Minister, who was hospitalised, summoned the Cabinet of Ministers and forced a decision to dismiss the president of the BSSC.” 8. On 16 July 1997 the applicant published an article entitled “Save the barbed wire, citizen Durdinets” (Экономьте колючую проволку, гражданин Дурдинец – the second article), where he stated that Mr Durdinets had personally instructed the General Prosecutor to institute criminal proceedings against him. The relevant extracts from the article read as follows: “...As we have learned, immediately after the release of the article [Durdintsovshchina], Durdinets summoned the General Prosecutor, Grigory Vorsinov, to his office and, showing him the newspaper, demanded that criminal proceedings for defamation be instituted against the author... Any other person, who considers himself to be defamed or insulted, would go to a court of law to make his case publicly. But Durdinets has no regard for civil rights as he attempts to use his powers as a high ranking governmental official. So it is worth mentioning here the abuse of power, as neither I nor any of our readers can summon Vorsinov to his office, the less so to demand the institution of criminal proceedings against one’s opponent. The acting Prime Minister considers that he can give orders to the General Prosecutor (although the law provides for the independence of the latter), and he does so.” 9. On 5 November 1997 the applicant wrote an article under the headline “The Rogue and the General” (“Аферист и генерал” – the third article), which concerned the alleged relationship between General G., at that time the Chief of the Odessa Regional Police Department, and a certain Mr S., who was reported to have been involved in criminal activity. The applicant’s newspaper also published several photographs in which the police chief and Mr S. were pictured together. It appears that these pictures were made during a private occasion and were subsequently published by the paper and TV media (see paragraph 15 below). The article stated, inter alia, that: “An ... inquiry revealed that ... S. was never employed by the Tax Police. The person who had blackmailed [local businessmen] was a former police officer, S., and the photographs [which he had showed to prove his authority] contained images of high officials of the Odessa Regional Police Department. But where did the ex-policeman ... get the photographs of G. and his deputies drinking with him and hugging him? Now he is showing these photographs to [businessmen] and thereby collects money for ... life. The examination of this relationship clarifies the statements of S. ... that ‘they will stand for me ...’. This story seems to prove the corruption in the Odessa Regional Police Department we were writing about.” 10. On 19 November 1997 the applicant published an article entitled “The Rogue and the General turn out to be relatives” (“Аферист и генерал оказались родственниками” – the fourth article), in which he recited the interview of certain Ms K. to a local TV station to the effect that the Chief of Police and Mr S. were distant relatives: “The scandal surrounding the head of the Odessa Regional Police Department, General G., continues. Condemned by the press for having patronised criminals, the General stands on firm ground so far. When we published ‘The Rogue and the General’, we did not know that S. and Grigorenko were brothers-in-law. ... The unlawful activity of S. is blessed by the figure of General G....” 11. On 7 July 1997 the Head of the Parliamentary Committee for Law and Order tabled a written question to the General Prosecutor raising concern as to the publications defaming the acting Prime Minister Durdynets. In July 1997 the General Prosecutor’s Office (hereinafter “the GPO”), referring to the extracts from his articles quoted above, charged the applicant with intentional defamation in print (Article 125 § 2 of the Criminal Code of 1961), an unfounded accusation of committing a serious crime (Article 125 § 3) and abuse of power (Article 165). 12. On 9 December 1999 the Pechersky District Court of Kyiv acquitted the applicant for lack of corpus delicti. However, in November 2000 the Kyiv City Court, on the prosecutor’s appeal, quashed this decision and remitted the case for fresh consideration. 13. On 7 June 2001 the Minsky District Court of Kyiv (hereinafter “the Minsky Court”) found the applicant guilty as charged. In the introductory part of the judgment the court noted the personal data of the applicant and, inter alia, stated that he was “previously unconvicted” (раніше не судимий). 14. With respect to the first and second articles, the court indicated that the applicant, having abused his office, published intentionally false and malicious statements to the effect that Mr Durdynets had persecuted the Polityka, had unlawfully dismissed Mr Stoginenko for his financing the newspaper and had summoned the General Prosecutor to his office with a view of giving him an order to institute criminal proceedings against the applicant. 15. As regards the third and fourth articles, the Minsky Court stated that the applicant, again abusing his office, had intentionally defamed the law enforcement agencies of Ukraine by publishing libellous and false information regarding General G., namely that Mr S. was involved in criminal activity and that Mr G. had had illegal links with this person. The court found that the statements that Mr S., aided and abetted by General G., had extorted money from local businessmen and that they were family related were false and offensive. This conclusion was made on the basis of, inter alia, testimonies of S. and a witness Z. who stated that the photographs, published by the Polityka, were taken at a private party, but somehow made their way to the paper and TV media. The police officers, who had investigated the complaints of the businessmen about the alleged extortions, also gave oral evidence, stating that the proceedings in the case were terminated on the early stage of the pre-trial investigation due to the lack of any corpus delicti. 16. The Minsky Court concluded that the applicant, as an editor-in-chief, was directly liable for any abusive material published in the newspaper. Using his office, the applicant had intentionally published false statements aimed at defaming the police in revenge for a certain unspecified previous conviction. 17. The applicant was convicted of abuse of power, intentional defamation in print and an unfounded accusation of committing a grave offence and sentenced to two years’ imprisonment on probation and a two years prohibition on occupying posts involving media management. 18. On 18 October 2001 the Kyiv City Court of Appeal upheld the applicant’s conviction in substance, indicating that the fact that the imputed offences had been committed was proved by a wide range of evidence, collected by the prosecution. In particular, the court came to the conclusion that the applicant had made intentionally false and offensive statements concerning the unlawful dismissal of Mr Stoginenko and Mr Durdynets’ summons of the General Prosecutor to his office, the criminal activity of S. and his liaisons with General G., thus committing offences under Articles 125 and 165 of the Criminal Code, 1961. However, the appellate instance quashed the applicant’s sentence for intentional defamation in print and an unfounded accusation of committing a grave offence as these offences had been decriminalised by the new Criminal Code adopted in 2001. As regards the third offence imputed to the applicant – abuse of office – the applicant was exempted from punishment on account of expiry of the statutory limitation period. 19. On 23 July 2002 the Supreme Court upheld the decision of the Kyiv City Court of Appeal. 20. Relevant extracts from the Constitution read as follows: “... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information.” “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.” 21. The text of Article 125 of the Code was as follows: Defamation [Наклеп], namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ... Defamation in print ... shall be punishable by up to three years’ imprisonment or a fine from 50 to 100 minimal monthly salaries. Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years’ imprisonment. Article 165 of the Code provided as follows: Abuse of power or office, namely intentional, lucrative or with other personal interest or the interest of third persons, use by official of his/her power or office against the interest of service, if it caused serious damage to the State or public interests or to lawful interests of natural or legal persons shall be publishable by between two and five years’ imprisonment or by up to two years’ correctional labour with up to three years’ prohibition of employment in certain occupations.” 22. Article 364 of the Code provides that: Abuse of power or office, namely intentional, lucrative or with other personal interest or the interest of third persons, use by official of his/her power or office against the interest of service, if it caused serious damage to the State or public interests or to lawful interests of natural or legal persons shall be publishable by up to two years’ correctional labour or by up to six months’ arrest or by up to three years’ limitation of freedom with up to three years’ prohibition of employment in certain occupations.” 23. The text of Article 27 of the Code (hereafter “the CCP”), as worded until 21 June 2001, was as follows: “The cases concerning crimes stipulated in Articles 125 ... of the Criminal Code of Ukraine, if the damage is caused to the rights and interests of citizens are instituted only upon the complaint of the victim, who conducts the prosecution in court. In such cases there is no pre-trial investigation. ...If the case concerning any crime referred to in paragraph 1 of this Article has special public interest ...the prosecutor may institute the case in absence of the victim’s complaint. The case instituted by the prosecutor should be sent to the pre-trial investigation and, thereafter, is tried under the general rules.” 24. Article 17 of the Law provides that the General Prosecutor’s Office is staffed with “senior investigators for particularly serious cases” and “investigators for particularly serious cases”. 25. Further relevant material regarding the state of freedom of press in Ukraine at the material time may be found in the judgment of 29 March 2005 in the case of Ukrainian Media Group v. Ukraine (no. 72713/01, §§ 18-22 and 25-26). | 1 |
train | 001-82378 | ENG | SVK | ADMISSIBILITY | 2,007 | HANULIAK AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | Each of the first four applicants was, and the fifth applicant is, a Slovakian national. Their particulars appear below. The respondent Government were represented by Ms A. Poláčková, their Agent, who was succeeded in that function by Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant, Mr Štefan Hanuliak, was born in 1913 and died in 2006. He was the father of the fifth applicant. The second applicant, Mrs Kamila Hanuliaková, was born in 1915 and died on 14 January 2001. She was the wife of the first applicant and the mother of the fifth applicant. The third applicant, Mr Jozef Hanuliak, was born in 1919 and died on 4 March 2000. He was the husband of the fourth applicant, Mrs Ľudmila Hanuliaková, who was born in 1918 and died in 2005. The third applicant was the uncle of the fifth applicant and the fourth applicant was his aunt. The fifth applicant, Mr Augustín Hanuliak, was born in 1941 and resides in Topoľníky. He originally represented the first four applicants and then expressed the wish to continue the application in their stead. In 1924 family F. bought real property located in Okoč. In 1939 they exchanged that property with another family for different real property. In 1946 the real property in Okoč was confiscated. The area was subsequently divided into plots, some of which were allocated to the first four applicants as “assigned owners” (prídeloví vlastníci) under a deed of 1948. In 1952 the allocated plots were effectively taken over by an agricultural cooperative and in 1958 the allocation was formally quashed and the ownership of the plots passed to the State. The fifth applicant submits that in 1997 the first four applicants donated their claims to the title to the relevant plots to him and that he became their legal successor in respect of these plots. In 1991 the first applicant and the third applicant lodged, unsuccessfully, demands with the above agricultural cooperative for restitution of the assigned plots and for compensation. The claims were based on a special law of 1991, the Land Ownership Act (Law no. 229/1991 Coll. - “the Act”). However, they were not lodged with the competent Land Office, as required under section 9(1) of that Act. In 2004 the applicants lodged a claim for restitution of the land in question under a newly adopted special law, the Restitution of Title to Real Property Act of 2003 (Law no. 503/2003 Coll.). It is still pending. In 1992 several members of family F. lodged a claim under the Act with the Dunajská Streda Land Office for restitution of the land in Okoč. They submitted that it had belonged to their legal predecessors at the time of the confiscation in 1946. On 7 July 1992 the claimants and the agricultural co-operative which was using the land entered into an agreement on restitution (dohoda o vydaní) of the property in question to the claimants. The agreement was submitted for approval to the Land Office as envisaged under the Act. Considering that it was questionable whether the claimants had any title to the land, the Land Office invited them to seek a determination of their rights before a court and stayed the restitution proceedings pending the outcome of such judicial proceedings. On 17 February 1993 the Dunajská Streda District Court (Okresný súd) found that the land had been in the co-ownership of the claimants’ legal predecessors at the time of their death in 1961 and 1986, respectively. On 15 July 1993 the Land Office approved the restitution agreement of 7 July 1992. The decision became final on 9 August 1993. In 1996 the first four applicants unsuccessfully challenged the decision of 15 July 1993 before the Ministry of Agriculture in a special procedure outside the framework of ordinary appellate proceedings (mimo odovlacieho konania). Nevertheless, the decision of 15 July 1993 was finally quashed on a protest lodged by the prosecution service. The restitution agreement of 7 July 1992 was then examined anew, by the Dunajská Streda District Office (legal successor to the Land Office), which decided – twice - not to approve it. Both decisions were judicially reviewed and quashed by Trnava Regional Court (Krajský súd). The proceedings are still pending On 14 December 1993 the first two applicants brought an action against the Slovak Land Fund in the District Court for a determination of ownership in respect of the relevant plots. In 1994 the proceedings were discontinued on the ground that the matter fell outside the jurisdiction of the courts. On 21 November 1994 the first two applicants brought an action against family F. They sought a ruling declaring them to be the owners of the land in question and an interim measure suspending the above-mentioned court rulings concerning the title of family F. to the land. All judges of the District Court declared that they were unable to sit in the case further to a previous incident when the fifth applicant and his son had insulted the president and one of the judges of that court. On 17 January 1995 the Regional Court ruled that there were no grounds for disqualifying the entire bench of the District Court from dealing with the case. In March and April 1995 the District Court requested the defendants’ observations in reply and other information from the Land Office and the Šaľa District Archive. On 13 April 1995 the District Court dismissed the request for an interim measure, discontinued the proceedings and decided to transmit the matter to the administrative authorities within the jurisdiction of which it fell. The plaintiffs appealed and challenged all judges of the District Court for bias. Between May and July 1995 the District Court sought the defendants’ observations in reply to the appeal, an explanation of the plaintiffs’ challenge of bias, information from the District Archive and the Nitra Register Office and an amendment to the action in view of the fact that one of the defendants had died. On 29 September 1995 the Regional Court quashed both the decision concerning the interim measure as well as that concerning the discontinuation of the proceedings. The former ruling was found to be premature and the latter ruling to be erroneous given that the defendants were natural persons. In November and December 1995 and January 1996 the District Court requested three times that the plaintiffs substantiate the challenge of bias, pay the court fees and complete the request for an interim measure. In the meantime they had withdrawn the power of attorney from their lawyer. In February 1996, in response to the District Court’s request, the plaintiffs’ new representative submitted the missing information. A hearing was scheduled for 14 March 1996. Two days before that hearing the plaintiffs’ representative apologised for not being able to attend due to health reasons. The plaintiffs did not appear. The hearing was adjourned until 2 May 1996. The defendants’ lawyer then requested a postponement of the hearing which was planned for 2 May 1996 due to health reasons and the plaintiffs withdrew the power of attorney from their representative. The hearing was adjourned until 27 May 1996. Following the latter hearing, on the same day, the District Court decided to join the present action to the action of the third and fourth applicants (see below). On 21 November 1994 the third and fourth applicants brought separate proceedings against family F. for a determination of ownership in respect of the land in question. They also sought an interim measure, similar to that sought by the first two applicants. On 31 May 1995 the Regional Court ruled, in the context of the incident mentioned above, that there were no grounds to disqualify the District Court’s judges from dealing with the case. In July 1995 the District Court requested information concerning the case from the Land Office and the District Archive. In November 1995 it demanded that the plaintiffs bring their request for an interim measure in line with the applicable formal requirements and specify who the actual defendants were, given that one of the original defendants had died. In response, their legal representative informed the District Court that the plaintiffs had withdrawn his power of attorney. The request was reiterated. In January 1996 the plaintiffs submitted that they had new legal representation but they submitted no power of attorney. The District Court again requested that they specify the action and the request for an interim measure and sought further information from the District Archive. A hearing scheduled for 14 March 1996 had to be adjourned until 2 May 1996 owing to the absence of the plaintiffs and their legal representative who had informed the court that he had been unable to appear for health reasons two days before the hearing. The plaintiffs then again cancelled their legal representation. On 27 May 1996 the District Court held a hearing and the proceedings in the present action were joined with the proceedings in the action of the first two applicants. Following the hearing, on the same day, the District Court dismissed both actions. A copy of the judgment was served on the first two applicants in June 1996. The third and fourth applicants refused to accept the service. All the plaintiffs appealed. On 8 July 1996 the District Court corrected clerical errors in its judgment and requested the defendants’ observations in reply to the appeal. On 12 November 1996 the Regional Court held a hearing following which, on the same day, it quashed the first-instance judgment and remitted the case to the District Court for re-examination. It pointed out, inter alia, that it was the plaintiffs’ responsibility to substantiate the scope, the legal nature and the factual basis of their claims. In December 1996 and January 1997 the District Court invited the plaintiffs’ representative to submit valid powers of attorney from all the plaintiffs and to substantiate the action. In March and April 1997 the plaintiffs’ legal representative demanded that the court proceedings be stayed pending the outcome of the administrative proceedings on the restitution claim of family F. in view of the fact that the administrative decisions on that claim had been quashed (see above). In April and May 1997 the plaintiffs appointed a lawyer to represent them in the proceedings. The lawyer submitted the missing information on 24 July 1997. On 25 July 1997 the District Court appointed a geodesy and cartography expert to draw up a report on the land in question and ordered the parties to pay an advance on his fees. On 14 July 1997 the plaintiffs appealed against the ruling concerning the expert’s fees and requested an exemption from the obligation to pay the court fees. On 22 July 1997 they submitted further information. On 5 September 1997 the District Court sought information from the Sereď and Ťerchová municipal authorities concerning the plaintiffs’ material standing. It was supplied in October 1997. On 7 November 1997 the District Court decided not to exempt the plaintiffs from the obligation to pay the court fees. They appealed and stated that they would supply the reasons for their appeal later. On 12 January 1998 the District Court invited the plaintiffs’ lawyer to submit the reasons for their appeal of 7 November 1997, which they finally did on 10 February 1998. On 23 April 1998 the Regional Court upheld the decision of 25 July 1997. On 2 June 1998 the District Court admitted the Land Fund to the proceedings as the eighth defendant. On 5 March 1999 the expert submitted two reports. The parties were then requested to submit observations in reply to the reports. On 31 March and 17 May 1999, respectively, the defendants’ lawyer informed the District Court that one of the defendants had died in 1998 and submitted the death certificate. On 13 May 1999 the District Court ordered the plaintiffs to pay the fees of the expert. They all appealed. On 19 May, 9 June and 19 July 1999 the District Court repeatedly requested the plaintiffs’ lawyer to bring the action in line with the applicable requirements. On 23 July 1999 the lawyer informed the court that the third and fourth applicants had withdrawn the power of attorney from her. On 27 July 1999 a new lawyer informed the District Court that the third and fourth applicants had appointed him to represent them in the proceedings. On 24 September 1999 he responded to the court’s request for further and better particulars. On 14 October 1999 the District Court informed the plaintiffs’ lawyer that the particulars of their claim did not reflect the specification of the land as in the expert’s reports and warned him that he would be fined if he failed to correct the claim within 7 days. The lawyer responded on 19 October 1999 but did not change the identification of the land as instructed. On 9 March 2000 the Regional Court quashed the decision of 13 May 1999 concerning the expert’s fees and remitted the question to the District Court for re-examination. In May 2000 the plaintiffs’ representative submitted that they had cancelled his power of attorney. The District Court ruled again on the expert’s fees and warned the plaintiffs that the proceedings would be discontinued if they failed to correct their claim. Between May and July 2000 the District Court made inquiries following a finding that the third applicant had died. On 14 December 2000 the District Court discontinued the proceedings under Article 43 § 1 of the Code of Civil Procedure on the ground that the plaintiffs had failed to pursue the case. They refused to accept the service of the decision. It became final on 20 January 2001. On 17 May 2001 the fifth applicant made a written submission by which he sought to appeal against the decision of 14 December 2000. He made similar submissions later. On 21 May 2001 the District Court informed the fifth applicant that there were doubts as to his power of attorney to act in the name of the first four applicants and invited him to show that he was authorised to do so. In a letter of 24 June 2002 the District Court warned the fifth applicant that it would be unable to continue communication with him unless he produced evidence that he was empowered to act on behalf of the first four applicants. There is no indication that any formal proceedings ensued from the fifth applicant’s submissions. On 26 January 2000 the first four applicants, who were represented by the fifth applicant, filed a petition (podnet) with the Constitutional Court. They complained about the length of the proceedings concerning the restitution claim of family F. and their ownership actions of 1994. On 22 June 2000 the Constitutional Court rejected their motion as falling short of the statutory requirements. On 7 November 1995 the fifth applicant was charged with the offence of unauthorised use of someone else’s property under Article 249 of the Criminal Code. The charge was based on the suspicion that he had been using illegally a plot which belonged to the real estate in dispute. On 30 January and 29 April 1996, respectively, the applicant was committed for trial and found guilty as charged by the Komárno District Court in summary proceedings by way of a penal order (trestný rozkaz). The applicant successfully appealed (protest). The order was ex lege vacated and the matter fell to be determined in ordinary proceedings. In 1997 the proceedings were stayed under Article 173 § 1 (c) of the Code of Criminal Procedure on the ground that the fifth applicant had become unable to understand them owing to the state of his mental health. In 1999 the proceedings were stayed under Article 173 § 1 (a) of the Code of Criminal Procedure on the ground that it was not possible to secure the fifth applicant’s presence. On 19 December 2003 the proceedings were resumed and joined with the proceedings concerning the charge of 2002 (see below). On 30 August 2002 the fifth applicant was charged with the offences of violence and grave disturbance under Articles 197a and 2002 § 1 of the Criminal Code. In October 2002 the Dunajská Streda District Court ordered examination of the fifth applicant’s mental health by two experts. On 19 December 2003 the proceedings on the charges of 1995 and 2002 were joined. The proceedings are still pending. | 0 |
train | 001-4521 | ENG | SWE | ADMISSIBILITY | 1,999 | PAVLOVIC v. SWEDEN | 3 | Inadmissible | Josep Casadevall | The applicant, born in 1970, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality. a. On 19 November 1993 the applicant arrived in Sweden. He requested asylum three days later. He had a Croatian passport but stated that he considered himself to be a citizen of Bosnia-Hercegovina and not of Croatia. He claimed further that he had been a soldier in the Bosnian-Croatian army from which he had deserted. On 9 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. The Board found that the applicant held both Bosnian and Croatian citizenship. Noting that the prevailing situation in Bosnia-Hercegovina rendered a deportation to that country impossible, the Board examined the applicant’s situation with respect to Croatia. The Board found that he did not risk to be sent from Croatia to Bosnia-Hercegovina or to be punished for desertion in Croatia. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 2 June 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country. On 16 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements and added that he is an ethnic Croat from Kresevo in Bosnia-Hercegovina. Further, he had been informed by his parents in Bosnia-Hercegovina that he had been sentenced to five years’ imprisonment for desertion. He was convinced that, if returned to that country, he would have to serve the sentence and also risk harassment as the majority of the population in his home district were now Muslims. The applicant referred also to the time he had spent in Sweden. On 24 February 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to a guiding decision taken by the Swedish Government on 28 November 1996. In that decision the Government stated, inter alia, the following: (Translation) “As regards the situation in Croatia and the region, the ongoing peace process, based on a general agreement on peace in Bosnia-Hercegovina, has lead to stabilisation. The relations between Croatia and the Federal Republic of Yugoslavia have improved. Croatia has been admitted into the Council of Europe. Acts of warfare have not occurred on Croatian territory since August 1995. The risk of further conflicts appears unlikely. The general situation in Croatia has improved in such a way since the Government’s previous assessment in May 1995 that nowadays Croatian citizens can generally be afforded protection in Croatia.” As in its previous decision concerning the applicant, the Board found that he could not be sent back to Bosnia-Hercegovina. The Board considered, however, that the applicant’s submissions did not show that he was unable to go to Croatia. Following the applicant’s appeal, the Aliens Appeals Board, on 23 April 1997, quashed the Immigration Board’s decision and referred the case back for re-examination. The Appeals Board found that no oral hearing had been held by the Immigration Board, as required by law. The Immigration Board later held an oral hearing at which the applicant stated that, being a Catholic, he would be persecuted by Muslims in Bosnia-Hercegovina. He maintained further that he had obtained his Croatian passport illegally and that he could not be considered as a citizen of that country. He had no relatives or friends in Croatia and could not see any reasons why Croatia should admit him. Allegedly, during his stay in Sweden he had adjusted to Swedish society. In a decision of 17 July 1997 the Immigration Board rejected the applicant’s new application and ordered that he be deported to either Bosnia-Hercegovina or Croatia. The Board referred to the Swedish Government’s decision of 28 November 1996 in which the following conclusions were drawn as regards the situation in Bosnia-Hercegovina: (Translation) “Recently, the situation in Bosnia-Hercegovina has improved. After the parties signed a general agreement on peace in Bosnia-Hercegovina there is an ongoing peace process in the country. It has been strengthened by the establishment of Government institutions and the general elections held in September 1996. There are still actual restrictions on the movement of people within the territory of the State. The possibility to return to the home district without risking harassment and outrage is, in the present circumstances, dependent on the prevailing ethnic composition of the population in the district. In the Government’s view, it is now possible to return to the home district where one’s own ethnic group is in the majority. This view corresponds to the position taken by the UNHCR in regard to the return of people to Bosnia-Hercegovina. The relative stability enjoyed by “the majority population” in the respective regions leads to the conclusion that asylum seekers from such places in Bosnia-Hercegovina can no longer be considered as generally being in need of protection.” The Board noted that, according to information from the United Nations High Commissioner for Refugees (UNHCR), the majority of the population in Kresevo were Catholics. Consequently, the applicant’s fear of persecution was considered to be exaggerated. The Board considered also that the amnesty laws enacted in Bosnia-Hercegovina would be applicable to the applicant. As regards the possible deportation of the applicant to Croatia, the Board considered that the applicant’s Croatian passport was genuine and noted that the applicant had previously stated that this was the case. According to the Board, there was thus no reason to assume that Croatia would not afford him protection. In this respect, the Board again referred to information available from the Swedish Government and the UNHCR. This view had been confirmed also by the Croatian Government. Finally, the Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit. On 9 March 1998 the Aliens Appeals Board upheld the Immigration Board’s decision. On 16 June 1998 the applicant submitted yet another application for a residence permit to the Appeals Board. He referred to his long stay in Sweden and to the fact that he had already had a temporary residence permit. Furthermore, he claimed that, while serving in the Bosnian-Croatian army, he had seen how his neighbour and a work-mate had been killed. His experiences during the war, a difficult childhood and his fears of persecution and punishment for desertion in Bosnia-Hercegovina had impaired his mental health and rendered the deportation to that country impossible. He could not be deported to Croatia either, as he had no connections to Croatia and as the situation for Bosnian Croats in Croatia had worsened as of late. He invoked a medical certificate issued on 3 April 1998 by chief physician E.A. and psychologist L.L. at the psychiatric clinic at the hospital in Karlskrona, according to which the applicant suffered from insomnia, anxiety and flashbacks from the war. By a decision of 25 June 1998 the Appeals Board rejected the applicant’s latest application. In a further medical certificate issued at the above-mentioned psychiatric clinic on 2 December 1998 physician M.N. stated that the applicant, as from 19 November 1998, received treatment at the clinic for a post-traumatic stress syndrome. M.N. found that there was a considerable risk that the applicant would attempt to commit suicide. The applicant states that he has since left the clinic but that he continues to visit his psychiatrist on a regular basis. Relevant domestic law Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien’s condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician’s decision. | 0 |
train | 001-90985 | ENG | FIN | CHAMBER | 2,009 | CASE OF PETIKON OY AND PARVIAINEN v. FINLAND | 4 | Violation of Article 6 - Right to a fair trial;No violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 4. The second applicant was born in 1947 and lives in Espoo. 5. The applicant company, which is wholly owned and administered by the second applicant, bought shares in a housing corporation on 18 June 1992. Later the applicants found out that the same shares had been given as security by company X. which had been declared bankrupt. They also found out that the whole of the real estate had been placed under an interdiction against sale or dispersal. 6. On 23 August 1993 the applicant company initiated an action for damages in the Espoo District Court (käräjäoikeus, tingsrätten) against the bank and the bank director responsible for selling the shares, claiming compensation for the loss of the shares. On 25 October 1993 the District Court dismissed the claim as premature without considering the merits. 7. On 23 December 1993 the applicant company initiated, together with the other share holders, a new action for damages against the bank as the rules on civil procedure had changed in the meantime. The company claimed that the damage had been caused by a bank manager and that the bank as employer was liable for its employees. Allegedly, the bank manager had given incorrect information, had not acted diligently but in breach of good banking practice and was guilty of criminal conduct. The company claimed that the bank was obliged to compensate, inter alia, by reimbursing the purchase price of the shares, the condominium charges paid to the housing corporation and the company’s legal expenses incurred in the criminal case. 8. The case was postponed pending the outcome of other civil proceedings related to the present case. The final judgment in those proceedings was rendered on 7 December 1995. 9. After the conclusion of the above-mentioned civil proceedings, the present case was postponed once more pending the outcome of criminal proceedings which had been brought against the representatives of the bank and which concerned the same sale of shares. The Helsinki District Court judgment in the criminal proceedings was issued on 19 December 1997. 10. In letters dated 14 January and 2 April 1998 and addressed to the Espoo District Court, the applicant company requested that, despite the pending appeal against the judgment in the criminal case, the consideration of the present case be resumed. 11. On 2 April 1998 the applicant company also informed the Espoo District Court that the shares in the housing corporation had been declared part of the bankruptcy estate of company X. pursuant to the above-mentioned final judgment of 7 December 1995. The shares were thus worthless since the housing company was de facto bankrupt. 12. On 18 June 1998 the defendant bank requested that the proceedings remain adjourned pending the outcome of criminal proceedings since the proceedings were still pending on appeal. 13. On 6 November 1998 the Espoo District Court held a preparatory meeting. On 4 March 1999 it decided to adjourn the proceedings pending the final outcome of the criminal proceedings. According to the court, it was important to await that outcome as the question of criminal liability formed the basis of the civil proceedings and the cases partly overlapped. 14. On 8 March 1999 the applicant company lodged an appeal with the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the Espoo District Court decision of 4 March 1999 be annulled and that the civil proceedings be immediately resumed. It claimed that, due to the adjournment, the proceedings would necessarily last over ten years and that, as a result, the excessive length of the proceedings would violate its rights under Article 6 of the Convention. It requested that the proceedings in the Appeal Court be examined urgently. 15. On 6 May 1999 the Appeal Court found that the applicant company’s appeal did not give reason to take any action. 16. By an appeal dated 21 June 1999 the applicant company appealed against this decision to the Supreme Court (korkein oikeus, högsta domstolen), which refused leave to appeal on 10 December 1999. 17. The applicant company filed a written statement dated 31 July 2001 informing the Espoo District Court that the criminal proceedings had been terminated by a final judgment given on 9 March 2001 and requesting the resumption of the civil proceedings. 18. On 27 November 2001 the second applicant lodged a request to intervene in his own name in the proceedings before the Espoo District Court and claimed compensation. The applicants presented as written evidence a deed of sale with which the second applicant had purchased the said shares of the housing corporation from the applicant company on 1 December 1992 and with which the claim for compensation had been transferred to the second applicant. 19. The court held an oral hearing in the case on 3 and 7 May 2002. 20. By a judgment of 10 July 2002, the Espoo District Court first rejected the second applicant’s request to intervene and found that the first applicant was the correct plaintiff. The court rejected the remainder of the complaints and considered that the circumstances of the sale of the shares and the documents relating to it were so obscure that the risk involved in the purchase had been apparent. Moreover, the court found no causal link between the acts of the defendant bank and the damage suffered by the first applicant. 21. By an appeal dated 2 September 2002, the applicants appealed to the Appeal Court, requesting that the Espoo District Court judgment be quashed. By a letter dated 6 August 2003, the applicants asked the appellate court to accelerate the proceedings. 22. On 1 February 2005 the Appeal Court found that the rightful owner of the shares was the second applicant and that, consequently, only the second applicant could claim damages. The court noted, however, that the defendant bank had already paid compensation and interest due from 6 February 1996 onwards. Since the second applicant had claimed damages in his own name only on 27 November 2001, he no longer had any claims against the bank. The Appeal Court thus rejected the applicants’ appeal. 23. On 4 April 2005 the defendant bank appealed to the Supreme Court, complaining about the partial rejection by the Appeal Court of its claim for costs and expenses. On 18 January 2006 the Supreme Court refused leave to appeal. | 1 |
train | 001-95378 | ENG | HUN | CHAMBER | 2,009 | CASE OF MARIA MENYHART v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1942 and lives in Ajka. 5. In November 1993 the applicant's husband brought an action against her before the Ajka District Court, asking the court to dissolve their marriage and divide the matrimonial property. After holding several hearings and obtaining the opinion of an expert, the District Court dissolved, in a partial decision, the applicant's marriage on 6 February 1997. 6. At the applicant's request, the case was suspended between 29 January 1999 and 1 August 2000 pending a related dispute. After holding numerous further hearings and obtaining the opinions of additional experts, the court divided the matrimonial property on 8 June 2004. 7. On appeal, on 12 May 2005 the Veszprém County Regional Court partly changed the first-instance decision. | 1 |
train | 001-61959 | ENG | HRV | CHAMBER | 2,004 | CASE OF BLECIC v. CROATIA | 2 | No violation of Art. 8;No violation of P1-1 | Christos Rozakis | 7. The applicant was born in 1926 and lives in Zadar, Croatia. 8. In 1953 the applicant, together with her husband, acquired a specially protected tenancy (stanarsko pravo) of a flat in Zadar. After her husband’s death in 1989 the applicant became the sole holder of the specially protected tenancy. 9. On 3 June 1991, Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulates the sale of publicly-owned flats previously let under specially protected tenancy. 10. On 26 July 1991 the applicant went to visit her daughter who lived in Rome. She intended to stay with her daughter for the summer. She locked the flat in Zadar and left all the furniture and personal belongings in it. She asked a neighbour to pay the bills in her absence and to take care of the flat. However, by the end of August 1991, the armed conflict escalated in Dalmatia, resulting in severe travel difficulties in that area, including the town of Zadar. 11. In October 1991 the Croatian authorities stopped paying the applicant’s pension. The payments were resumed in April 1994. The applicant also lost the right to medical insurance. In these circumstances, the applicant decided to remain in Rome. 12. From 15 September 1991 the town of Zadar was exposed to constant shelling and the supply of electricity and water was disrupted for over one hundred days. 13. In November 1991 a certain M.F., with his wife and two children, broke into the applicant’s flat in Zadar. 14. On 12 February 1992 the Zadar Municipality (Općina Zadar) brought a civil action against the applicant before the Zadar Municipal Court (Općinski sud u Zadru) for termination of her specially protected tenancy on the flat in question. The Municipality claimed that the applicant had been absent from the flat for more than six months without justified reason. 15. In her submissions to the court, the applicant explained that she had been forced to stay with her daughter in Rome from July 1991 until May 1992. She had not been able to return to Zadar since she had no means of subsistence and no medical insurance and was in poor health. Furthermore, during her stay in Rome, she had learned from the neighbour that M.F. had broken into her flat with his family. When she had enquired about her flat and her possessions in the flat, M.F. had threatened her over the telephone. 16. On 9 October 1992 the Zadar Municipal Court terminated the applicant’s specially protected tenancy. The court established that the applicant had left Zadar on 26 July 1991 and had not returned until 15 May 1992. It stated that in the relevant period no order had been issued to the citizens of Zadar to evacuate the town owing to the escalation of the armed conflict but that it had been the personal decision of every citizen whether to leave the town or to stay. On that basis the court found that the applicant’s absence was not justified by the war in Croatia. 17. Furthermore, the court did not accept the applicant’s explanation that she had fallen ill during her stay in Rome and was not able to travel. It was established that the applicant had suffered from spinal arthrosclerosis and diffuse osteoporosis for a long time, which had not affected her ability to travel. Even though her left shoulder had been dislocated on 25 March 1992, she had been able to travel following the immobilisation of the injured joint. Furthermore, by 25 March 1992 she had already been absent from the flat for a period of more than six months. 18. The applicant’s further explanation that she had stopped receiving her pension in October 1991 and thus had been left without any means of subsistence was not accepted by the court as a justified reason for not returning to Zadar. It took the view that the applicant’s daughter could have sent her money. Therefore, the court concluded that the applicant’s reasons for not having lived in the flat were not justified. 19. Following an appeal by the applicant against the judgment, it was quashed by the Zadar County Court (Županijski sud u Zadru) on 10 March 1993. The County Court found that the court of first instance had not taken into careful consideration the applicant’s personal circumstances, namely her age and poor health, the fact that she had lost her pension and the fact that she had lived alone in Zadar without any close relatives. Furthermore, the applicant’s decision to prolong her stay in Rome should have been carefully assessed against the background of objective circumstances, namely that Zadar had been exposed to daily shelling and had not had a regular supply of water or electricity in the material period, and that third persons had occupied the applicant’s flat. The case was remitted to the first-instance court. 20. In the resumed proceedings, on 18 January 1994 the Zadar Municipal Court ruled again in favour of the municipality and terminated the applicant’s specially protected tenancy. It observed that she had been absent from the flat for over six months without justified reason and repeated in substance the findings of the judgment of 9 October 1992. 21. The applicant appealed. On 19 October 1994 the County Court reversed the first-instance judgment and dismissed the municipality’s claim. It found that the escalation of war and the applicant’s personal circumstances, as described above (see paragraphs 11-13), justified her absence from the flat. 22. On 10 April 1995 the Zadar Municipality filed a request for revision on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske). 23. On 15 February 1996 the Supreme Court accepted the request for revision and reversed the County Court’s judgment. It found that the reasons submitted by the applicant for her absence from the flat were not justified. 24. The relevant part of the Supreme Court’s judgment reads as follows: “In the period of the aggression against Croatia, living conditions were the same for all citizens of Zadar and, as rightly submitted by the plaintiff, it is neither possible nor legitimate to separate the defendant’s case from the context of that aggression. Holding the contrary would mean assessing her case in a manner isolated from all the circumstances which marked that time and determined the conduct of each individual. Contrary to the appellate court’s opinion, this court, assessing in that context the defendant’s decision not to return to Zadar during the aggression but to stay in Italy, considers the non-use of the flat unjustified. The factual findings made in the case reveal that, in view of her health condition and the available travel connections, the defendant was able to come to Zadar; her health would not have deteriorated because of her stay in Zadar; and she could have taken care of herself. The assumption that she would have had to make a considerable mental and physical effort in order to provide for her basic living needs (all the residents of Zadar who remained in the town, from the youngest to the oldest, were exposed to the same living conditions) does not justify her failure to return to Zadar and, accordingly, does not constitute a justified reason for the non-use of the flat.” 25. On 8 November 1996 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She claimed that her rights to respect for her home and property had been violated and that she had been deprived of a fair trial. 26. On 8 November 1999 the Constitutional Court dismissed the applicant’s complaint. It found that the Supreme Court had correctly applied the relevant legal provisions to the factual background established by the lower courts when holding that the applicant’s absence from the flat for more than six months had been unjustified. The Constitutional Court concluded that the applicant’s constitutional rights had not been violated. 27. The relevant provisions of the 1990 Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990 and 135/97), as in force during the material period, read as follows: “Rights and freedoms may only be restricted by law to protect the rights and freedoms of others, the legal order, public morals or health.” “The home is inviolable.” “1. The right to property is guaranteed. 2. Property implies duties. Holders of the right to property and its users shall have a duty to contribute to the general welfare.” “International agreements concluded and ratified in accordance with the Constitution and made public shall be part of the Republic’s internal legal order and shall be [hierarchically] superior to the [domestic] statutes.” 28. Article 17 of the International Covenant on Civil and Political Rights (which entered into force in respect of Croatia by notification of succession on 8 October 1991) provides: “1. No one shall be subjected to arbitrary or unlawful interference with his...home... 2. Everyone has the right to the protection of the law against such interference...” 29. The relevant provisions of section 99 of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force in the material period, provided as follows: “1. A specially protected tenancy may be terminated if the tenant [...] ceases to occupy the flat for an uninterrupted period exceeding six months. 2. The termination of a specially protected tenancy under the provisions of paragraph 1 of this section may not be effected in respect of a person who does not use the flat on account of undergoing medical treatment, performing military service or for other justified reasons.” 30. In case no. Rev-3839/93 the Supreme Court interpreted section 99(1) of the Housing Act as follows: “War events per se, without any particular reasons indicating the impossibility of using a flat, do not constitute a justified reason for the non-use of the flat.” 31. In case no. Rev-155/1994-2 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.” 32. The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette no. 27/1991) regulates the conditions of sale of flats let under specially protected tenancies. The Act entitles the holder of a specially protected tenancy on a publicly-owned flat to purchase it under favourable conditions. | 0 |
train | 001-5697 | ENG | GBR | ADMISSIBILITY | 2,001 | SMITH v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in 1935 and living in South Bedfordshire. She is represented before the Court by Ms White, a solicitor practising in Berkhamsted. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, a gypsy born in Luton, started travelling at the age of 21 years when she married a gypsy who travelled. After the marriage ended, the applicant married John Smith, a romany gypsy who had travelled with his parents widely. During their travelling together, they and their three children were moved on by the police many times for parking their caravan on the road side. They were frequently moved on week after week and escorted by the police outside the county. In the 1970’s, the applicant and her family found a pitch on an official site at Stopsley, Luton. Her children and their caravan were attacked by other gypsies, and there were quarrels between the applicant and other gypsy parents. She and her husband decided to move off the pitch. After some years of travelling and making short term stays on gypsy sites, the applicant moved onto a private gypsy site in Wellingborough, Northamptonshire, where they stayed for six years. After this period, a new gypsy family moved onto the adjacent pitch, who were drunkards and kept the applicant and her family awake with brawls and quarrels. A neighbouring caravan was set on fire and another caravan vandalised. The applicant’s husband grew very depressed and in 1989 he developed a heart condition requiring quiet and rest. After many years looking for a piece of land on which to settle, they found an affordable site at Half Moon Lane, Pepperstock, Bedfordshire. This was close to the applicant’s family and in a quiet lane full of mobile homes and adjacent to an official gypsy site. They purchased the site in summer 1996. A planning application was put in on 15 August 1996 for two mobile homes and two tourers. The application was refused by South Bedfordshire District Council (‘the Council’) on 11 October 1996. An enforcement notice was issued on 12 December 1996. The applicant and her husband’s appeal against the refusal of planning permission and the enforcement notice was heard by a planning inspector on 14 and 15 October 1997. In his decision letter of 22 December 1997, the inspector held inter alia: “7. The site is located within the predominantly open countryside to the south of the settlement of Slip End… It is irregular in shape and approximately 0.251 hectares in extent. It adjoins a former chapel to the east, which is now used as a day care centre, and on its western side it adjoins a residential property,… and an open field. Opposite is a purpose built local authority gypsy site, Timberlands, and to the south east is the Half Moon public house. It falls within the South Bedfordshire Green Belt. … 12. The site is clearly visible from both Half Moon Lane and Front Street… 13. You claim that the site is well-screened and does not intrude into the open countryside. To my mind, the number of caravans, structures, vehicles and trailers, etc. effectively urbanises the site and results in a material loss of openness. The use detracts from the visual amenity of the site. The land north of Half Moon Lane is largely open. Development of the site intrudes into the open belt of land, south of Slip End, and consolidates the sporadic development in Pepperstock. It contributes to the coalescence of Pepperstock and Slip End. It involves an encroachment of residential use into the open countryside contrary to one of the main purposes of the Green Belt. 15. The site has a 40m boundary with a private dwelling which is positioned close to the boundary. I consider that the occupants of the dwelling have experienced a material loss of amenity due to the loss of openness and increased noise and disturbance from the intensified activity on the site. ...There is evidence of on site business activities. The appeal site consolidates gypsy site provision in the locality and extends the use on both sides of Half Moon Lane. The change of use results in an ad hoc extension to the consciously located official gypsy site opposite. It has resulted in loss of natural features and does not complement and harmonise with the local surroundings contrary to policy BE11. In my view the use diminishes the rural quality of the landscape in this area. 19. …There are two purpose built gypsy sites in the district and three authorised sites. The Council claims that statistical evidence does not demonstrate a continuing or compelling need for further provision in the district, either permanent, temporary or transit. I note that a Designation Order for the district was made by the Secretary of State in 1982 as an area to which section 10 of the Caravan Sites Act 1968 applied. On the basis of official counts taken twice a year, the level of need in the district in recent years has been very low… 20. The Timberlands site opposite has recently been upgraded and accommodates twelve families. The other Council site, Eaton Bray, accommodates 29 families. There are three other local authority sites within the County. The current waiting list for Timberlands is three but there are eight vacancies at the Kempston Hardwick site. <The applicant’s husband> voluntarily moved to the site from an official gypsy site at Wellingborough, Northamptonshire. He has no local connections in Slip End or Pepperstock or particular links with South Bedfordshire. … 22. <The applicant’s husband> has a heart condition and is on pills for life, he had gout and a back problem… I appreciate that he needs a more peaceful and settled existence. Nevertheless, the site is not within easy reach of medical and pharmacy services. <He> is able to undertake some light work, such as erecting fencing and is able to drive; I am not persuaded that his medical condition amounts to such very special circumstances which would justify a breach of Green Belt policy. 23. <The applicant’s husband> approached other travellers to find a site and made informal inquiries about vacancies on the Timberlands site. His preference to live with his son complicates availability. He did not consult with the Council before he bought the site... the evidence indicates that the Council made every effort, both in writing and by personal visits, to inform <him> that planning permission was needed and that approval would be unlikely due to the site’s Green Belt status. … 25. The objections to the development in the Green Belt are serious ones which cannot be overcome by the imposition of planning conditions such as landscaping… The public interest can only be safeguarded by the cessation of the use...” The Inspector granted a compliance period of one year in recognition that it might take some considerable time for a vacancy to be found on an appropriate site elsewhere. Counsel advised that there was no error of law on which the applicant and her husband could appeal to the High Court. He did consider that the inspector had made an errors of fact, in particular, in setting out the local council criteria for gypsy sites. However, this did not assist the applicant as it was clear from the rest of the decision that the inspector would have found that the relevant criteria had not been met and would have reached the same result. In 1995, the Secretary of State for the Environment approved the local plan for South Bedfordshire. This identified specific sites for 1,140 dwellings, planned to identify a further 8,500 dwelling sites and failed to identify a single site for gypsies. The local authority had zoned all rural land as Green Belt, excluding 80 hectares of quarries unsuitable for human habitation. Residential and agricultural land in the area was valued at between 300,000 and 500,000 pounds sterling (GBP) per acre. In or about August 1999, the applicant’s husband was convicted of being in breach of an enforcement notice and fined 1000 GBP. He lodged a further application for planning permission which was dismissed after a public enquiry at a date unspecified. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995). “1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. … 1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development. 1.5. There are five purposes in Green Belts: – to check the unrestricted sprawl of large built-up areas; – to prevent neighbouring towns from merging into one another; – to assist in safeguarding the countryside from encroachment; – to preserve the setting and special character of historic towns; and – to assist in urban regeneration by encouraging the recycling of derelict and other urban land. … 2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. … 3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. … 3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.” | 0 |
train | 001-4943 | ENG | NLD | ADMISSIBILITY | 1,999 | DE BRUYN v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm | The applicant is a Dutch national, born in 1959, and resides in Oudewater. He is represented by Mr L.J.L. Heukels, a lawyer practising in Haarlem, the Netherlands. a. Particular circumstances of the present case On 15 November 1991, in the context of an inspection by the General Inspection Service (Algemene Inspectie Dienst) of the Ministry of Agriculture, Nature Conservancy and Fisheries (Ministerie van Landbouw, Natuurbeheer en Visserij), urine samples were taken from cattle on the applicant’s farm and two plastic bottles containing a suspect liquid found on the farm were seized. Subsequent tests of the urine samples indicated that nine cows had been administered the illegal substance clenbuterol. The two plastic bottles seized were found to contain clenbuterol. The applicant was summoned to appear before the single-judge chamber for economic offences (economische politierechter) of the Regional Court (Arrondissementsrechtbank) of Utrecht to answer charges of possession of beef cattle to which clenbuterol had been administered, of illegal possession of clenbuterol and of illegally administering that substance to animals. A hearing was held on 7 October 1993 in the course of which the applicant gave evidence. By judgment of 21 October 1993, the applicant was convicted of the first two charges and sentenced to payment of a fine of NLG. 600. The nine cows and the two plastic bottles were declared forfeit. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. On 23 June 1995, a hearing was held before the Court of Appeal. According to the formal record (proces-verbaal) of this hearing, the applicant’s lawyer submitted his memorandum of oral pleading (pleitnota) to the Court of Appeal and this document was added to the case-file. In its judgment of 4 July 1995, the Court of Appeal quashed the judgment of 21 October 1993, convicted the applicant of the first two charges and sentenced him to payment of a fine of NLG. 4,500 in respect of the first charge and a fine of NLG. 500 in respect of the second charge. The nine cows and the two plastic bottles were declared forfeit. Insofar as the applicant complained that the technical manner in which the samples at issue had been taken, packed, sealed, transported and tested was contrary to his rights under Article 8 of the Convention in that this provision is aimed at protecting individuals against arbitrary acts by public authorities, the Court of Appeal held that no concrete doubts had arisen as regards the taking, packing, sealing, transporting and the testing of these samples. The Court of Appeal added that it did failed to see the connection between Article 8 of the Convention and the manner in which these samples were obtained and subsequently handled. It considered that the mere speculations expressed by the applicant’s lawyer at the hearing on appeal were insufficient to invoke the unreliability of the taking and subsequent handling of the samples at issue. It accepted the method used by the General Inspection Service as containing sufficient guarantees. The Court of Appeal further rejected arguments raised by the applicant in relation to the findings of the Court of Justice of the European Communities in its judgment in case No. C - 143/91 and the EEC Council Directive 86/469 of 16 September 1986. It held that these arguments did not alter the fact that the first charge against the applicant constituted a punishable offence. The Court of Appeal further rejected a request by the defence to seek a preliminary ruling from the Court of Justice of the European Communities as regards the alleged incompatibility of the Dutch rules in respect of growth inducing hormones with the EEC Council Directive 86/469 of 16 September 1986. It held that no necessity to do so had appeared, as Member States of the European Communities are at liberty to issue stricter rules than those set by the Directive concerned. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) and, by letter of 26 February 1996, his lawyer submitted the applicant’s complaints in cassation to the Supreme Court. On 11 June 1996 a hearing was held before the Supreme Court in the course of which it considered the applicant’s complaints in cassation and the advisory opinion of the Procurator-General (Procureur-Generaal) to the Supreme Court. By letter of 18 June 1996 to the Supreme Court, the applicant’s lawyer reacted to the advisory opinion of the Procurator-General. At some unspecified point in time, the Procurator-General submitted an additional advisory opinion to the Supreme Court, to which the applicant’ lawyer reacted in his letter of 13 March 1997 to the Supreme Court. In this letter, the applicant’s lawyer further requested to be informed of the hearing date in order to submit further oral explanations. He did not substantiate this request. In its judgment of 6 May 1997, the Supreme Court stated that it had noted the contents of the applicant’s letters of 18 June 1996 and 13 March 1997, which had been submitted after the hearing on which the Procurator-General had submitted his advisory opinion and additional advisory opinion respectively. The Supreme Court rejected the applicant’s complaints in cassation, but following an ex officio examination of the case, quashed the judgment of 4 July 1995 as regards the qualification of the first charge of which the applicant had been convicted and the pertaining part of the sentence, corrected this qualification itself and determined the sentence for this charge at payment of nine separate fines of NLG. 500 each, the payment of NLG. 250 of each fine being suspended pending a probation period of two years. Referring to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie, "RO"), the Supreme Court rejected as not prompting a determination of legal issues in the interest of legal unity and legal development without stating any further reasons the applicant’s complaints that certain arguments raised in connection with the application of EEC Directive 86/469 and which were stated in his memorandum of oral pleadings submitted to the Court of Appeal in the course of the hearing held on 23 June 1995 were incorrectly reproduced in the formal record of this hearing and that as a result thereof the Court of Appeal had not dealt with these arguments in its judgment of 4 July 1995. Insofar as the applicant complained that the Dutch rules at issue, i.e. the complete prohibition of possession of cattle treated with growth inducing hormones, are incompatible with the EEC Council Directive 86/469 of 16 September 1986 and that the Court of Appeal should have sought a preliminary ruling on the matter from the Court of Justice of the European Communities, the Supreme Court noted that this Directive had in the meantime been replaced by Directive 96/23 of 23 April 1996. It rejected this complaint, holding that, according to the judgment of the Court of Justice of the European Communities of 8 October 1992 (No. C - 143/91) invoked by the applicant, one may possess animals to which - in strict compliance with the Directives concerned - substances have been administered for the purpose of therapeutic treatment. However, in the present case it had not been submitted or established before the trial courts that the substance at issue had been administered for that specific purpose. The Supreme Court also rejected the applicant’s complaints under Article 8 of the Convention in respect of the manner in which the inspection was carried out on 15 November 1991, including that the officials involved had started to take samples in the applicant’s absence and without prior notification, holding that in cassation proceedings no complaints can be raised concerning facts and circumstances which have not been established and which have not been invoked before the trial courts. b. Relevant domestic law and practice The 1991 Ordinance on substances with a sympathomimetic effect (Verordening stoffen met sympathico mimetische werking) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle older than 14 weeks. Pursuant to Article 3 para. 1 of that Ordinance it is illegal to have in stock, sell or purchase beef cattle to which such substances have been administered, and Article 4 para. 1 makes it illegal to have in stock, sell or purchase their meat. Clenbuterol is, moreover, an unregistered animal medicine the use or possession of which is prohibited by Article 2 of the Animal Medicines Act (Diergeneesmiddelenwet). The offences here described are economic offences for the purposes of the Economic Offences Act (Wet op de Economische Delicten), which Act lays down particular rules for the prosecution and punishment of economic offences. Insofar as procedure is concerned, it is a lex specialis in relation to the Code of Criminal Procedure (Wetboek van Strafvordering, "CCP"), the provisions of the latter remaining applicable in so far as the Economic Offences Act does not provide otherwise. A person convicted by the highest competent trial court may file an appeal in cassation with the Supreme Court (Article 427 CCP). An appeal in cassation is limited to points of law and procedural conformity (Article 99 RO). An appellant in cassation has the right to submit written grounds of appeal within one month of lodging his appeal on points of law (Article 447 para. 3 CCP), but an appeal in cassation is not automatically declared inadmissible if this has not been done. An appellant in cassation may further submit at the hearing before the Supreme Court grounds of appeal not filed at an earlier stage (Article 433 CCP). Following the Court’s judgment in the case of Borgers v. Belgium (Eur. Court HR, judgment of 30 October 1991, Series A no. 214 - B), the Supreme Court takes note, before determining an appeal in cassation, of the contents of any reaction from the side of the appellant in cassation to the advisory opinion of the Procurator-General or Advocate-General to the Supreme Court. | 0 |
train | 001-87090 | ENG | LTU | ADMISSIBILITY | 2,008 | LENKAUSKIENE v. LITHUANIA | 4 | Inadmissible | András Sajó;Antonella Mularoni;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Vladimiro Zagrebelsky | The applicant, Jūratė Lenkauskienė, is a Lithuanian national, who was born in 1957 and lives in Kaunas. She ran a business supplying brokerage services. The applicant was represented before the Court by Mr G. Zavtrakovas, a lawyer practising in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms Elvyra Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 December 2000 the Kaunas City District Court convicted the applicant of conspiracy in forging an important official document (Articles 18 § 6 and 207 § 2 of the Criminal Code as then in force). The court found inter alia that the applicant had agreed with SK, a police officer acting under cover pursuant to a “criminal conduct simulation model”, in accordance with the Operational Activities Act 1997, to falsify a number of stamps on SK’s passport for a fee of 1,200 Lithuanian litas (“LTL”; about 350 euros [“EUR”]). The simulation model, authorised by the Deputy Prosecutor General on the basis of information obtained by the police, had mentioned that the applicant was engaged in forging passports and visas and organising travel to the United States of America, for specific fees. It therefore authorised SK, over a period of a year, to obtain such forged documents from the applicant and her accomplices. The District Court held that the applicant had conspired with other people, the co-defendants RB and GD, in this matter. The court examined the simulation model and its application in detail and questioned SK, who had also been questioned by defence counsel. Moreover, the court had taken testimony from the applicant and her co-defendants and admitted the secretly recorded conversations between SK, RB and the applicant, the legality of which had not been challenged by her. The applicant was sentenced to eighteen months’ imprisonment and fines in a total of LTL 2,500 (about EUR 724). On 3 April 2001 the Kaunas Regional Court rejected the applicant’s appeal, holding inter alia that the lower court had objectively and thoroughly assessed the case, and that there was no proof that she had been incited to commit the offence. On 8 May 2001 the applicant submitted a cassation appeal, claiming inter alia that she had not committed a crime but had been provoked by SK. She asserted that SK had taken the initiative in telephoning her 15 times over a few weeks in early 1999 and exerting psychological pressure. As a result, the applicant had met him twice, but there was nothing in their conversations (secretly recorded by SK) to prove her criminal involvement. Newspaper articles, however, alleged that she was part of a group of people who forged visas, and had sentenced her before the trial was over. On 26 June 2001 the Supreme Court declared the cassation appeal by the applicant inadmissible in a decision which included the following passage: “Only the factual circumstances established by the courts from the evidence are contested in the cassation appeal. It must be noted that the applicant, while alleging that she did not commit the crime she was sentenced for, does not request that the case be discontinued, but that it be returned for examination to the court of first instance, alleging that the pre-trial investigation was not thorough. Her allegation is merely a declaration as the appeal does not elaborate what specific circumstances were not examined by the court. The cassation appeal in essence is repeating the appeal claim, where it was also stated that the conclusions in the judgment did not correspond to the factual circumstances in the case. The submissions presented in this claim were examined in detail by the court of appellate instance and a reasoned decision was adopted.” On 27 June 2001 the applicant submitted a further cassation appeal on the same grounds. On 16 October 2001 that appeal was again declared inadmissible by the Supreme Court on the same basis as before. In both cassation appeals the Supreme Court had heard the prosecution and defence before reaching its decision. It appears that at some point the applicant’s prison sentence was amnestied, although she did pay the fines. The relevant domestic law and practice, as well as the relevant international law, concerning police undercover activities and criminal conduct simulation models, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37). Of particular note in that judgment is the description of the prosecuting authorities’ power to authorise criminal conduct simulation models, following an application by the police under the Operational Activities Act 1997 (ibid. § 32). The scope of this power has been developed by the case-law of the national courts, especially a Constitutional Court decision of 8 May 2002, in order to prohibit provocation or incitement by the police to commit an offence (ibid § 34). The relevant provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas) read as follows: “The judgment or decision in force can be appealed against and examined at the cassation instance, if: the criminal law has been applied wrongly (Article 386 of the Code); there has been a substantive breach of procedural law (Article 382 of the Code); there has been a substantive breach of procedural law in the appellate instance: the appeal was not examined; the instructions given in the decision by the cassation court were not followed, or there have been other breaches of law which the cassation court could recognise materially.” “The substantive breaches of the criminal procedural law are such violations of the requirements of the Code [of Criminal Procedure] which have impugned or restricted the rights of the parties to the case, or have in any other manner precluded the court from examining the case thoroughly, and have interfered with the adoption of a legitimate and well-founded decision. The judgment shall be annulled if: the right of the convicted person to have a lawyer has been violated; the right to use the language that he understands or the right to have an interpreter has been violated; the accused person was not informed of the accusation against him; after the pre-trial investigation had been concluded, the accused has not been acquainted with the case, except if the accused has not been acquainted with all the material of the case due to circumstances foreseen in Articles 226 § 6 and 228 § 3; the accused has not been handed over to the court; the case has been examined by a court which has not had the relevant competence; the case has been examined without the accused being present when [his presence] is mandatory according to the law; the case has been examined by a court with an unlawful composition; the parties ... have not been afforded a right to state their case; the defendant has not been afforded the right to have the last word; when adopting the judgment, the secrecy of the deliberations has been breached; there was no protocol of the court hearing.” “The persons listed in article 425 of this code have a right to be acquainted with the cassation appeal and the other materials in the case before the court. The court of cassation examines the cases at a public hearing, except the cases foreseen in Article 16 of this Code. On the appointed date, the President of the Panel opens the court hearing and announces which case, whose cassation appeal and against which court decision or judgment, will be examined. Further, the President verifies who appears at the hearing and if the persons named in Article 425 of this Code were informed about the hearing date. The President then announces the composition of the court and asks the persons present if there are any requests for the removal of any judges. Such requests are determined pursuant to the procedure set out in Articles 29-32 of this Code. At the start of the hearing in a case, a judge on the Panel can point out that the cassation appeal does not raise any grounds for cassation, as set out in Article 418(1) of this Code, and thus the cassation appeal should be left unexamined. The President of the Panel then asks the opinion of the persons present at the hearing. Thereafter, the court leaves the room to deliberate, whereupon [the court] can decide to adopt the decision to leave the appeal unexamined and to discontinue the judicial process. Such a decision is announced to the persons present at the hearing. If at the start of the hearing there were no grounds to leave the appeal unexamined, or if during the deliberations [the court] decided to continue with the hearing, the cassation appeal is then examined in essence. The President of the Panel asks the persons present if there are any requests. The court adopts a decision regarding those requests. One of the judges announces the essence of the case and the content of the judgment or decision and of the cassation appeal. After this announcement by a judge, the public prosecutor, counsel and the persons convicted or acquitted, their legal representatives, the victim and his representatives have a right to make oral submissions. First to speak is the appellant. After the explanations of the parties to the case, the court gives the floor to the convicted or acquitted person, their counsel or legal representatives. Having examined the case, the court leaves the room to deliberate. After adopting its decision, the court returns to the hearing room and the President of the Panel or another judge announces the resolution reached and explains the reasons. The reasoned decision is written up and signed by all members of the Panel not later than 7 days after the adoption of the decision. If, after the case had been examined by the cassation court, the convicted person has to be released from detention, the decision shall be written and signed on the same day. The protocol shall be written at the court hearing.” | 0 |
train | 001-72950 | ENG | BGR | CHAMBER | 2,006 | CASE OF PEKOV v. BULGARIA | 3 | Violations of Art. 5-3;No violation of Art. 5-4 (pre-trial detention);Violation of Art. 5-4 (house arrest);Violation of Art. 6-1;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 5. The applicant was born in 1959 and, at the time of the latest information from him, lived in Burgas. 6. In 1993 the applicant became the chairman of the board of a credit and savings cooperative (popular bank) – Popular BankPekov – having its registered office in Burgas. 7. In 1994 the applicant became the chairman of the board of the Union of the Popular Banks, having its registered office in Burgas. 8. On an unspecified date in mid-1995 criminal proceedings were opened against the applicant in relation with his duties as chairman of the board of Popular BankPekov. 9. On 15 August 1995 the investigation authorities requested the Nesebar District Court to attach certain assets belonging to the applicant and to Popular BankPekov, with a view to securing their forfeiture in the event the applicant was convicted. In a decision of 21 August 1995 the Nesebar District Court allowed that request. 10. On 25 August 1995 an investigator at the Burgas Regional Investigation Service attached further property belonging to Popular Bank-Pekov. 11. On 29 August 1995 the applicant was charged with having engaged in banking business without the requisite licence, contrary to Article 252 § 2 of the Criminal Code (“the CC”). 12. On 3 January 1996 new charges were preferred against the applicant. It was alleged that he had misappropriated 65,000,000 old Bulgarian levs (BGL) from the deposits made in Popular BankPekov, contrary to Article 203 § 1 of the CC. 13. It seems that witnesses were questioned on 4 January, 30 and 31 July, 17 and 23 September, 17 and 22 October, 4 November, and 6, 9, 10 and 15 December 1996, 14 and 18 January, 20 and 28 February, 20 March, and 4 and 7 August 1997. On an unspecified date an accounting expert report was drawn up. 14. On 4 February 1998 the applicant was charged anew under Articles 202 § 2, 219 § 1, 252 § 2 and 282 § 2 of the CC. 15. On 7 July 1998 the Burgas Regional Prosecutor’s Office decided to drop the charges under Articles 203 § 1 and 219 § 1 of the CC. On 15 December 1998 its decision was quashed by the Burgas Appellate Prosecutor’s Office insofar as it concerned the charges under Article 219 § 1 of the CC, and upheld, insofar as it concerned the charges under Article 203 § 1 of the CC. 16. On 10 July 2001 the applicant was charged anew under Articles 201, 202 §§ 1 and 2, 219 § 1, 252 §§ 1 and 2, and 282 § 2 of the CC. 17. On 18 December 2001 the charges against the applicant were amended once again to include counts under Articles 201, 202 §§ 1 and 2, 219 § 1, 252 §§ 1 and 2, and 282 § 2 of the CC. 18. On 3 July 2003 the applicant was charged anew under Articles 202 § 2, 219 § 4, 252 § 2 and 282 § 2 of the CC. 19. On 8 July 2003 the Burgas Regional Prosecutor’s Office submitted an indictment against the applicant to the Burgas Regional Court. 20. The first hearing, listed for 27 October 2003, was adjourned at the request of the applicant, who presented a doctor’s note to the effect that he was ill and could not attend, and argued that the copy of the indictment which had been sent to him had pages missing. Another reason for the adjournment was that most of the prosecution’s witnesses did not show up. 21. A hearing scheduled for 12 January 2004 was adjourned by reason of the failure of a number of witnesses to show up. The court ordered a new accounting expert report to be drawn up by three experts. 22. A hearing planned for 5 April 2004 could not take place because the accounting expert report had not yet been drawn up and a number of witnesses were absent. The court fined some of the missing witnesses and ordered that they be brought by force to the next hearing. 23. At the next hearing, which took place on 12, 13 and 14 July 2004, the applicant requested that the case be remitted for the correction of alleged procedural mistakes made during the preliminary investigation. His request was denied. The court heard the applicant and approximately fifteen witnesses. However, as a number of other witnesses were absent, the court adjourned the case. It gave leave to the parties to ask the experts additional questions. 24. A hearing took place on 15 November 2004. The court heard several witnesses, but as a number of others were absent, it adjourned the case. 25. A hearing listed for 7 February 2005 was adjourned at the request of the applicant, who presented a doctor’s note to the effect that he was ill and could not attend. 26. A hearing took place on 25 April 2005. The court heard several witnesses. The prosecution stated that certain amounts allegedly misappropriated and squandered by the applicant had been wrongly noted down in the indictment by reason of an error in the calculations. In reply the applicant submitted that the correction of the mistakes in the indictment constituted an amendment of the charges against him and requested an adjournment in order to prepare his defence. The court agreed and adjourned the case to 27 April 2005. 27. On 27 April 2005 the court heard one witness and adjourned the case at the request of the applicant, holding that in view of the large volume of written evidence, he should be given more time to prepare his defence after the amendment of the charges, even though this amendment consisted only in the correction of an error in the amounts noted down in the indictment. 28. At the time of the latest information from the parties (10 May 2005) the criminal proceedings against the applicant were still pending before the Burgas Regional Court; a hearing had been listed for 20 June 2005. 29. On 29 August 1995, when the applicant was first charged, the investigator dealing with his case ordered him to pay bail in the amount of BGL 500,000. The applicant appealed to the Burgas District Prosecutor’s Office, stating that this sum was too high and he could not pay it. In a decision of 11 September 1995 the Burgas District Prosecutor’s Office dismissed his appeal, reasoning that he owned sufficient assets and that the amount was justified in view of the gravity of the offence alleged against him. On the appeals of the applicant that decision was upheld by the Burgas Regional Prosecutor’s Office, but later, on 28 November 1995, varied by the Chief Prosecutor’s Office, which reduced the bail amount to BGL 250,000. 30. On 3 January 1996, when preferring new charges of misappropriation of funds against the applicant, the investigator of the Burgas Regional Investigation Service in charge of the case ordered his pretrial detention. She noted, without providing further detail, that the offence alleged against him was particularly serious, and that there was a risk that he could imperil the investigation. The investigator’s decision was confirmed by a prosecutor of the Burgas Regional Prosecutor’s Office the same day. 31. On the appeal of the applicant, on 5 January 1996 the Burgas Regional Prosecutor’s Office decided to release him on bail, citing his bad health requiring special medical treatment. It seems that the applicant paid the bail amount – BGL 250,000 – the same day and was released. 32. On 6 May 1996 the investigator in charge of the applicant’s case once again ordered his pretrial detention. She reasoned that he had failed to show up for questioning despite having been duly summoned on 26 March 1996. Moreover, on 2, 3 and 4 April 1996 it had proved impossible to find him at the address indicated by him in Sofia. The applicant had also failed to report to the Burgas Regional Investigation Service every second Thursday of the month, as ordered by the investigator. It could thus be inferred that he had failed to show up without good cause and that it was therefore necessary to take him into custody. That decision was confirmed by a prosecutor of the Burgas Regional Prosecutor’s Office on 16 May 1996. 33. In May and June 1996 the police conducted initially a local and afterwards a nationwide search for the applicant. 34. On 5 July 1996 the applicant was arrested. It was found that on 16 May 1996 he had changed his address without notifying the investigation authorities. 35. The applicant appealed against his pretrial detention to the Burgas Regional Prosecutor’s Office. In her observations in reply to the appeal the investigator in charge of his case stated that the his pre-trial detention was mandatory, as he had been charged with a “serious intentional offence” and there were no reasons to apply the exception provided for by paragraph of 2 of Article 152 of the Code of Criminal Procedure (“the CCP”). 36. On 6 August 1996 the Burgas Regional Prosecutor’s Office upheld the decision to keep the applicant in custody. It found that he had failed to notify the investigator in charge of his case of his change of address and to report to the Burgas Regional Investigation Service on several dates despite the instructions to that effect. On the other hand, the applicant’s state of health did not require his release. In consideration of this and of the fact that the applicant had been charged with an offence under Article 203 § 1 of the CC, i.e. a serious intentional offence, it was justified to maintain him in detention. 37. On the appeal of the applicant, the Chief Prosecutor’s Office upheld this decision on 13 September 1996. 38. During the following months the applicant underwent treatment in the prison hospital and was examined several times by medical doctors. 39. On 2 October 1996 the Burgas Regional Prosecutor’s Office decided to release the applicant from pretrial detention and place him under house arrest. It found that his remaining in custody could have an irreversible negative impact on his health. The attempts to treat him in the prison hospital had proved futile, whereas his state of health required immediate specialised hospital treatment. 40. On 10 October 1996 the applicant informed the investigator in charge of his case that he had to be admitted to a hospital in Sofia. He advised the investigator of his address in Sofia and obliged to report to the Burgas Regional Investigation Service every second and fourth Thursday of the month. 41. On 4 February 1998 and 10 July and 18 December 2001 the investigator in charge of the applicant’s case confirmed his house arrest of her own motion, without giving reasons. 42. During the period when the applicant was under house arrest, he changed his address several times for health reasons and because of difficulties in finding employment, each time notifying the investigator in charge of his case by mail. 43. The applicant was released from house arrest on 3 July 2003. 44. Article 201 of the CC makes it an offence for an official or a manager to misappropriate public or private funds which are in his or her possession in his or her professional capacity or which he or she has been entrusted with to keep secure or administer. By Article 202 § 2 (1) of the CC, as in force at the relevant time, if the misappropriated funds were in large amounts, between three and fifteen years’ imprisonment could be imposed. If the misappropriated funds were in particularly large amounts and the case was particularly aggravated, the punishment ranged between ten and thirty years’ imprisonment (Article 203 § 1 of the CC, as in force at the relevant time). 45. Article 219 § 1 of the CC makes it an offence for an official or a manager to fail to take due care in managing or keeping secure the assets entrusted to him or her, provided this failure results in substantial losses, destruction or dissipation of these assets, or other substantial damage to the undertaking or the economy. At the relevant time the punishment could be up to three years’ imprisonment. 46. Article 252 § 1 of the CC makes it an offence to engage in, inter alia, banking business without the requisite licence. By paragraph 2 of that Article, as in force at the relevant time, if the perpetrator had obtained substantial illegal gains therefrom, between one and six years’ imprisonment could be imposed. 47. Article 282 § 1 of the CC makes it an offence for an official or a manager to, inter alia, abuse his powers or rights in order to provide a financial benefit to himself or another, provided that this leads to nonnegligible harmful consequences. By paragraph 2 of that Article, as in force at the material time, if the harmful consequences were substantial, the punishment ranged between one and eight years’ imprisonment. 48. At the relevant time and until the reform of the CCP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been described in paragraphs 2529 of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II). 49. The relevant provisions of the CCP and the relevant case-law of the Bulgarian Supreme Court have been summarized in paragraphs 38 and 39 of the Court’s judgment in the case of Shishkov v. Bulgaria (no. 38822/97, ECHR 2003I (extracts)). 50. A summary of the relevant domestic law may be found in paragraphs 5155 of the Court’s judgment in the case of Vachev v. Bulgaria (no. 42987/98, ECHR 2004VIII (extracts)). 51. The provisions governing judicial review of pretrial detention at the time when the applicant was held in such are summarised in paragraphs 7276 of the Court’s judgment in the case of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports of Judgments and Decisions 1998VIII) and paragraphs 33-36 of the Court’s judgment in Nikolova (cited above). 52. Article 152a of the CCP, as enacted in August 1997 and in force until the end of 1999, read as follows: “1. The detainee shall be immediately provided with a possibility of filing an appeal with [the competent court] against the [imposition of detention]. [The appeal must be filed] not later than seven days after the [imposition of detention]. The court shall consider the appeal in an open hearing to which the [detainee] shall be summoned. The hearing shall take place not later than three days after the receipt of the appeal at the court. 2. The appeal shall be filed though the organ which has ordered the detention ... . 3. The court[‘s ruling shall not be] subject to appeal ...” 53. On 21 March 1997 the Assembly of the Criminal Divisions of the Supreme Court of Cassation decided to request the Constitutional Court to rule on the compatibility of Article 152 of the CCP, governing pretrial detention, with, inter alia, Article 5 of the Convention. It reasoned that by virtue of Article 5 § 4 of the Constitution the Convention was incorporated into Bulgarian law and that all statutory provisions should therefore be in compliance with it. It also stated that when deciding cases before them the Bulgarian courts should take into account the caselaw of the European Court of Human Rights (опред. № 1 от 21 март 1997 г. по н.д. № 1/ 1997 г. на ОСНК на ВКС). | 1 |
train | 001-104868 | ENG | GBR | ADMISSIBILITY | 2,011 | FACEY v. THE UNITED KINGDOM | 4 | Inadmissible | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano | The applicant, Mr Clive Errol Facey, is a Jamaican national who was born in 1973 and lives in Spanish Town, Jamaica. He was represented before the Court by Mr R Posner, a lawyer practising in Nottingham with Bhatia Best Solicitors. On 13 June 2003, the applicant and another man, B, were stopped and arrested in a car that the applicant was driving. B was sitting in the front passenger seat when the car was stopped. The car was searched and, under the front passenger seat, under a flap in the carpet, a package containing heroin was discovered. The men were taken by police van to a police station and charged. The following day, a metal smoking pipe was found by a police officer, Special Constable M, in the police van, in the cubicle where B had been sitting. She also stated that she had heard a metal “clang” in the van when the men were being taken to the police station. The pipe was found to contain traces of cocaine. Each man blamed the other for placing the package in the car and denied all knowledge of it. At trial, a police officer, Police Constable W, gave evidence that, on the basis of a test he had conducted, it would have been impossible for someone sitting in the front passenger seat to place the package where it had been discovered. He had also tried the seat in different positions. On this basis, B was acquitted by the judge. The jury was discharged and a re-trial ordered in respect of the applicant. At the applicant’s re-trial, PC W gave evidence and Special Constable M’s statement as to the pipe was read to the jury. The applicant was convicted but, on appeal, his conviction was quashed on the basis of fresh expert evidence, which showed it would have been possible for a man of B’s build, sitting in the passenger seat, to place the package. The Court of Appeal, in quashing the conviction, ordered a second re-trial. At the second re-trial, PC W appeared to give different evidence to the effect that he did not move the seat to different positions. He was not cross-examined by the applicant on this inconsistency with his previous testimony because, for tactical reasons, the defence did not wish the jury to know about the previous trials. Special Constable M’s statement was not read at this trial. The applicant did not give evidence in his own defence. In his summing up, the trial judge erroneously directed the jury that the pipe had been found in the car and contained traces of heroin, not cocaine. He nonetheless observed: “you [the jury] may think that really nothing turns on the pipe in this case. It does not add or subtract to the case one way or another”. The applicant was convicted and appealed. On appeal, he argued that: (i) had the trial judge been aware of Special Constable M’s statement he would have directed the jury differently and the applicant would have been able to argue more strongly that B was a drug user, and was thus more likely to have placed the package; (ii) PC W’s change in evidence was highly material but, because of a tactical decision not to refer to the previous trials, he had been deprived of the ability to cross-examine him. The applicant also submitted that, since PC W’s evidence had led to the discharge of B, it also deprived the applicant of the opportunity to cross-examine B. This deprived the applicant of the opportunity to put to B the allegation that the heroin belonged to him and that the applicant knew nothing about it. The Court of Appeal dismissed the appeal on 24 February 2009 ([2009] EWCA Crim 622). It gave the following reasons for its decision (at paragraphs 34–40 of the judgment: “...The question is whether the conviction of the applicant at the third trial is unsafe. Is it unsafe by reason of any material irregularity in the procedure or by any misdirection of law by the judge? The answer to each must be no. 35. We deal first with the fact that the evidence of [Special Constable M] was not adduced at the third trial. It is clear that this evidence had been adduced at the previous trial. It must have been clear to the applicant that it existed. We think that those who were advising the applicant must have realised of its existence. It is referred to, after all, at the front of the transcript of the summing up of the judge in the second trial. We find it difficult (if not impossible) to conclude that its existence was not known to the applicant and the defence team at the time of the third trial. 36. But, in any event, the evidence about the noise in the police van and finding the pipe in Mr [B’s] cubicle in the van adds either nothing or very little to the case. The pipe was, as the judge said, of no consequence. It contained traces of cocaine, not heroin. The judge was mistaken when he referred to heroin in his summing up. The pipe is an irrelevance. It does not follow, in our view, that because Mr [B] dropped the pipe in the van, therefore he and he alone was concerned with the Class A drugs that were found in the car. We do not accept that [Special Constable M’s] evidence would or might have materially affected the minds of the jury as concerns the guilt of the applicant. 37. Secondly, the error of the judge, if such it were, that the pipe had been found in the Rover car, is also an irrelevance. The pipe had nothing to do with the case against the applicant, as the judge made clear in his summing up. If anything, the remark of the judge about the pipe was helpful to the applicant’s case on the third trial. 38. Thirdly, the fact that PC [W] had changed his evidence from that given at the first two trials and that he now agreed with the experts was, on the face of it, highly favourable to the applicant. The effect was that the two experts and PC [W] all agreed that it was possible for the heroin to be placed under the carpet under the front passenger seat by a person of Mr [B’s] height and build. It was easier when the seat was in the rear position, but could even have been done with the seat in a more forward position. That evidence all assisted the applicant’s case that it was Mr [B] who had the heroin and it was he who hid it under the carpet when the police arrived. 39. We are unable to see how it could have helped to cross examine PC [W] on his previous evidence when the evidence that he gave at the third trial was so much more favourable to the applicant’s case. We do not accept the argument that if the Court of Appeal Criminal Division [which heard the first appeal against conviction and ordered the second re-trial] had thought that the evidence of PC [W] was incorrect, then there would have been no retrial. The fact is that on the appeal the Court of Appeal knew that there was a possibility of discrepancy with his earlier evidence because they had received, and regarded as entirely credible, the evidence of the experts about how it was possible to get underneath the seat in whichever position it might be. Despite this potential discrepancy, and therefore the challenge effectively to PC [W’s] version of the facts, the Court of Appeal was still prepared to order a second retrial. 40. Accordingly, we have concluded that none of the points raised are capable of demonstrating even an arguable case that this conviction was unsafe. ” In England and Wales a witness is competent if he may lawfully give evidence and compellable if he may lawfully be required to give evidence. Competent witnesses are usually but not necessarily compellable ([2011] Archbold’s Criminal Pleading, Evidence and Practice at 8-52). The test for competence is set out in section 53 of the Youth Justice and Criminal Evidence Act 1999, which, where relevant, provides: “(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. (2) Subsection (1) has effect subject to subsections (3) and (4). (3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to— (a) understand questions put to him as a witness, and (b) give answers to them which can be understood. (4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings). (5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).” The effect of subsections (4) and (5) is that a co-accused may only give evidence for the prosecution if he ceases to be a co-accused, for example when he has been acquitted. In addition, under section 1(1) of the Criminal Evidence Act 1898, a person charged in criminal proceedings shall not be called as a witness “except upon his own application”. Therefore, a co-accused can only become a competent and compellable witness for any other co-accused once he or she ceases to be a person charged, for example because he or she pleads guilty or is acquitted. | 0 |
train | 001-89275 | ENG | POL | CHAMBER | 2,008 | CASE OF CYNARSKI v. POLAND | 4 | Violation of Article 5 - Right to liberty and security | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1976 and lives in Warsaw. 6. On 12 November 2003 the applicant was arrested by the police. 7. On 14 November 2003 the Warsaw District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had stolen four Jaguar cars as a member of an organised criminal gang. The applicant appealed against this decision. 8. On 15 January 2004 the Warsaw Regional Court (Sąd Okręgowy) dismissed his appeal. 9. The applicant’s pre-trial detention was prolonged on 4 February, 16 April and 28 September 2004. The court relied on the reasonable suspicion against the applicant and on the severity of the penalty that might be imposed, making it probable that the applicant would obstruct the proceedings and attempt to put pressure on witnesses. 10. The applicant appealed against all those decisions and applied to be released from detention, but to no avail. 11. On 26 July and 27 October 2005 the Warsaw District Court further prolonged the applicant’s detention on remand, giving identical reasons for its decisions as on previous occasions. 12. As the length of the applicant’s detention had reached the statutory time-limit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego) the District Court made several applications to the Warsaw Court of Appeal for the applicant’s detention to be prolonged beyond that term. On 8 November 2005 and 10 March 2006 the Court of Appeal granted the application. The court justified its decisions with reference to the reasonable suspicion that the applicant had committed the offences and the complexity of the case, which concerned an organised criminal gang. The court also held that the measure was justified by the severity of the sentence to which the applicant was liable. On both occasions, however, the court decided to prolong the applicant’s detention for a period shorter than had been requested by the trial court and instructed it to intensify its efforts to finish the trial, given that the most severe preventive measure had been applied to the applicant for a lengthy period. 13. On 9 June 2006 the Warsaw Court of Appeal prolonged the applicant’s detention until 11 November 2006, reiterating the grounds given previously. 14. On 26 October 2006 the Warsaw District Court decided to release the applicant from detention and to place him under the supervision of the police. The court considered that it could not be excluded that the applicant would be sentenced to a prison term amounting to the period he had already spent in detention on remand. The court also found that police supervision would secure the proper course of the proceedings. On the same day the applicant was released from detention. 15. In 2006 the trial court held 18 hearings. On 31 January 2007 it gave a judgment. The applicant was convicted of membership of an organised criminal gang involved in stealing cars and of having stolen three Jaguars. He was sentenced to four years and six months’ imprisonment. 16. The applicant lodged an appeal against the judgment. On 19 March 2008 the Warsaw Regional Court quashed the impugned judgment and remitted the case. 17. The proceedings are still pending before the trial court. 18. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. | 1 |
train | 001-60423 | ENG | GRC | CHAMBER | 2,002 | CASE OF SAKELLAROPOULOS v. GREECE | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Françoise Tulkens | 8. The applicant had inherited half a mine producing fluoride, which on 28 January 1985 was assessed by an inspector. According to the Mining Code, minerals are owned by the State and may be assigned by the State to any person, in accordance with the provisions of the law. The main obligation of a mine owner is the exploitation of the mine (Articles 102 and s.). When the competent public service establishes that no exploitation or mining research is carried out in a mine in accordance with the provisions of the law, it forwards the pertinent particulars to the Mines Board which, after hearing the concerned parties, decides on the forfeiture of the right of ownership (Article 121). 9. On 30 April 1986 the applicant asked the Ministry of Industry not to declare that he had forfeited his rights over the mine. He claimed that the mine’s production had dropped because its exploitation had provisionally become unprofitable. 10. On 17 July 1986 the Ministry of Industry declared that the applicant and the other two owners of the mine had forfeited their rights over it because they had remained idle during three years, between 1981 and 1983. During that period there was a crisis in the market as opposed to complete lack of demand for the mineral in question, as the applicant had claimed. The applicant was not given any compensation. 11. On 25 August 1986 the applicant and the two other owners lodged an appeal (προσφυγή) against the decision of the Ministry before the first-instance administrative court (Διοικητικό Πρωτοδικείο) of Athens. They alleged that the Ministry’s decision did not contain adequate reasons. They pointed out in this connection that between 1981 and 1983 the mine was not idle. Its production had simply fallen because there was a crisis in the fluoride market. They also alleged that the inspector’s report of 28 January 1985, on which the Ministry’s decision was based, had not examined their claims. Finally, they alleged that the decision was unlawful because they should have been given an extra year in which to exploit the mine. 12. On 30 October 1987 the court rejected the appeal on the grounds that the mine had indeed remained idle, that it was up to the appellants to prove that there was a crisis in the market and that the fact that they had not been given an extra year was an irrelevant consideration under the relevant rules. This judgment was served on the applicant on 8 November 1998. 13. On 5 December 1988 the applicant and the two other owners appealed. A hearing was set down for 3 July 1990. On that date, on the applicant’s request, the hearing was postponed for 22 November 1990. 14. On 14 December 1990 the Administrative Court of Appeal (Διοικητικό Εφετείο) of Athens ordered the production of a number of documents including the report of 28 January 1985. On 29 November 1991 it rejected the appeal considering, inter alia, that the crisis in the relevant market could not justify the idleness of the mine, as the report of 28 January 1985 had wrongly accepted. The idleness could be justified only if there was no demand for the mineral in question whatsoever, a fact which the appellants did not prove. Finally, there was no obligation under the law for the authorities to grant the applicant an extra year. This judgment was served on the applicant on 21 July 1992. 15. On 17 August 1992 the applicant and the two other persons appealed in cassation. At first, the hearing was set down for 24 March 1993 but it was continuously postponed. A hearing was set down for 24 April 1996. On that date, the applicant appeared before the court and announced that one of the other appellants had died. The hearing was postponed and was finally held on 4 December 1996. 16. On 13 July 1998 the Council of State rejected the appeal considering, inter alia, that it was for the lower courts to assess the report of 28 January 1985. | 1 |
train | 001-126972 | ENG | ROU | CHAMBER | 2,013 | CASE OF ŞANDRU v. ROMANIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses) | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 5. The applicant was born in 1985 and lives in Râmnicu Vâlcea. 6. On 8 April 2005 the applicant, then aged 19, was placed in pre-trial detention for twenty-four hours, following a criminal complaint made the previous day by D.A., a girl aged 17. She had complained that two girls, also minors, had brought her to an apartment where they had hit her and forced her to have oral sex or sexual intercourse with the applicant and three other boys, who were minors too. 7. By an interlocutory judgment of the same day the Râmnicu Vâlcea District Court (“the District Court”) placed the applicant and the three other boys in pre-trial detention for twenty-nine days. The District Court considered that this measure was necessary, given the aggravated circumstances of the alleged offence and the serious risk it posed to society, the dangerous character of all the defendants, and their attitude during the investigation. By a decision of 11 April 2005 the Vâlcea County Court (“the County Court”) dismissed an appeal by the applicant against that judgment. 8. Subsequently, the applicant’s pre-trial detention was regularly extended, by District Court interlocutory judgments on 25 April, 25 May, 29 June, 20 July, 24 August, 14 September, 19 October, 23 November and 21 December 2005, and 25 January 2006. The County Court dismissed appeals by the applicant against these judgments on 27 April, 27 May, 4 and 21 July, 9 and 25 August, 16 September, 21 October, 25 November and 23 December 2005, and 27 January 2006. The reasons given for continuing his detention remained the same throughout the proceedings, namely the seriousness of the offence, the sentence provided by the law, and the lack of any new circumstances justifying release pending trial. 9. Several incidents occurred during the proceedings related to the pretrial detention. 10. On the one hand, the appeal against the judgment of 20 July 2005 was reviewed twice by mistake, on 21 July and 9 August 2005. By an interlocutory judgment of 28 November 2005 the County Court rectified this mistake. 11. On the other hand, on 21 July and 9 and 25 August 2005, when the appeals on points of law were reviewed by the County Court, the applicant was not brought before the judges. On each occasion the registrar of the County Court had telephoned Colibaşi Prison, where the applicant was held at the time. According to the registrar’s transcript, prison staff replied that it was not possible for them to bring the applicant to court because no such service for detainees was available on the dates in question (“nu există planificare pentru data de ...”). At the hearings on 21 July and 9 August 2005 the applicant was represented by a lawyer appointed by the County Court. The applicant had himself appointed a lawyer for the whole duration of the proceedings, but he maintained that the authorities had failed to notify his lawyer of the hearings held on 21 July and 9 August 2005. His lawyer was only present at the hearing on 25 August 2005. 12. According to documents adduced to the file by the Government, on 16 September, 21 October and 23 December 2005 as well as on 27 January and 24 February 2006 the applicant was absent from the hearings at which the County Court reviewed his appeals on points of law against the interlocutory judgments extending his pre-trial detention. According to the registrar’s transcript drafted on each occasion the reason for his absence was also given as the lack of such a service for detainees on the dates in question. 13. On 7 April 2005 the police heard D.A. in connection with her criminal complaint. The applicant’s lawyer was not present during that questioning. 14. On 7 and 8 April 2005 the police also heard the applicant and his five co-defendants. The applicant declared that he knew both the victim and his co-defendants, whom he had met before. With regard to the victim’s allegations, he declared that he had gone to the apartment with the sole purpose of giving her and one of the other girls a lift home, and denied abusing the victim. He also declared that he had taken the victim home and had not noticed any signs of abuse on her. 15. The applicant’s co-defendants made different statements: one of the two girls denied all the accusations and claimed that she had not seen the victim being abused; the other admitted that she had seen the victim being abused by the other girl and some of the boys, but denied being responsible herself. She declared that after the incident “she had heard” that the applicant had had oral sex with the victim. The boys either denied the accusations or claimed that they had had protected sexual intercourse or oral sex with the victim, who had acted willingly. Two of the boys declared that the applicant had been in the same room as the victim and that on coming out of the room he had said that he had had oral sex with her and that she was not looking good (“arăta rău”). 16. In addition, two witnesses were heard. They confirmed that the applicant had been present at the apartment but claimed that they did not see or hear the victim being abused. 17. On 21 April 2005 the applicant applied to the prosecutor attached to the District Court and requested a confrontation with D.A. He claimed that during the investigations the victim had made inconsistent statements and implied that such inconsistencies made it necessary for her to be confronted with the defendants. 18. On 22 April 2005 the prosecutor attached to the District Court dismissed the applicant’s request with the reasoning that the factual situation had been clearly established and a confrontation would not have been useful to the investigation. 19. On 25 April 2005 the prosecutor attached to the District Court issued a bill of indictment against the applicant on a charge of rape. The prosecution held that the applicant had forced D.A. to have oral sex with him while being aware that she was a minor, and that she had been abused by the others before he had arrived at the apartment where the events took place. 20. The case was registered with the District Court. The applicant, through his lawyer, repeated several times his request for a confrontation with the victim for the contradictory aspects of her statements to be clarified. 21. On 15 June 2005 D.A. was present before the District Court, with her mother and her lawyer. She was not heard by the court with regard to her criminal complaint. She only declared that she had civil claims to make. 22. On 7 December 2005 the District Court heard all the defendants and the two witnesses. The applicant again denied the charges against him. The girl who had previously declared that she heard that he had abused the victim changed her statement, and declared that she had not seen the applicant abuse D.A. (see paragraph 15 above). At the same hearing the District Court agreed to the defendants’ request to cross-examine the victim. On 22 December 2005 and 16 January 2006 the District Court ordered D.A. to attend the trial by virtue of a warrant to appear. 23. On 15 March 2006 D.A. was present at the hearing of the District Court. However, in application of the rules of procedure, she was not heard by the court because one of the defendants, a minor, was in hospital and therefore absent (see paragraph 31 below). 24. By a judgment of 31 March 2006, the District Court sentenced the applicant to two years and six months’ imprisonment. The court relied on the statements made by the victim before the prosecutor and those made by the applicant’s co-defendants and the two witnesses. It dismissed the applicant’s statements, judging that they did not corroborate the other evidence or that they were inconsistent. 25. All the parties lodged appeals. The applicant relied mainly on the fact that he had not had a confrontation with D.A., who had purposely refused to appear before the courts. He claimed that her statements had not been supported by any other evidence, and that he should not be sentenced solely on the basis of the victim’s complaint. 26. On 21 June 2006 the County Court dismissed the applicant’s appeal but allowed the prosecutor’s and victim’s appeals. The applicant was sentenced to a heavier sentence, of five years’ imprisonment. The court did not address the applicant’s arguments related to the absence of a confrontation with the victim. 27. Following appeals on points of law lodged by all the parties, on 18 September 2006 the Piteşti Court of Appeal allowed the prosecutor’s and the victim’s appeals. The Court of Appeal found that the lower courts had correctly assessed the evidence but that the clemency of the sentences did not match the gravity of the defendants’ acts. It therefore increased the applicant’s sentence to seven years’ imprisonment. 28. By a judgment of 6 December 2006 the District Court dismissed an extraordinary appeal by the applicant (“revizuire”) on the ground that the legal requirements for a reopening of the proceedings had not been met. 29. Article 771 of the Romanian Code of Criminal Procedure (CCP) provides the following: “(1) When a victim’s life, physical integrity and freedom ... are at risk ... the court can allow for him or her to be heard without being present ... on the site where the hearing takes place, by means of technical devices provided for in the following paragraphs ... (3) The victim ... can be heard by video or audio link.” 30. Article 1403 §§ 1 and 3 of the CCP provides the following: “(1) An accused or defendant or a prosecutor may lodge an appeal with the higher court against an interlocutory judgment ... ordering ... the extension of pretrial detention ... The time-limit is twenty-four hours from delivery of the decision for those present, and twenty-four hours from its communication for those who are absent. (3) An accused or defendant held in pre-trial detention shall be brought before the court and heard in the presence of his or her counsel. If the defendant is in hospital or his or her state of health does not allow him or her to appear in court, or if there are other circumstances in which he or she cannot appear, the complaint shall be examined in his or her absence, but only in the presence of his or her counsel, who shall be allowed to make submissions.” 31. Article 484 of the CCP provides the following: “(1) Proceedings related to a crime perpetrated by a person who is a minor must take place in his or her presence, unless the minor has eluded trial.” 32. The CCP also provides for hearings to be held in private when the dignity of a person may be damaged or their private life exposed (Article 290). Only the parties, their representatives and counsel and persons who have an interest in the case are allowed to attend such hearings. | 1 |
train | 001-70720 | ENG | GRC | CHAMBER | 2,005 | CASE OF OURANIO TOXO AND OTHERS v. GREECE [Extracts] | 1 | Violation of Art. 6-1;Violation of Art. 11;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Loukis Loucaides | 9. The political party Ouranio Toxo (Rainbow), founded in 1994, has regularly taken part in elections since that date. Its declared aims include the defence of the Macedonian minority living in Greece. The other two applicants are members of the party's political secretariat. 10. In September 1995 the party established its headquarters in the town of Florina. The second and third applicants affixed to the balcony of the premises a sign indicating the party's name in the two languages spoken in the region: Greek and Macedonian. 11. According to the applicants, the opening of the headquarters and the affixing of the sign triggered a wave of violent protests by the town's inhabitants, but the police failed to take the appropriate measures to protect them against the various attacks to which they were subjected. 12. In particular, the offices were opened in early September 1995 and on 12 September 1995 priests from the church in Florina published a statement describing the applicants as “friends of Skopje”, driven by “anti-Hellenic and treacherous sentiments”. The statement continued as follows: “we call upon the people to join a demonstration to protest against the enemies of Greece who arbitrarily display signs with anti-Hellenic slogans, and we will demand their deportation.” 13. On 13 September 1995 the Florina town council held an informal meeting and, by a resolution published in the local press, decided to organise protests against the applicants. 14. On the same day the public prosecutor at the Florina Criminal Court ordered the removal of the sign on the ground that the inclusion of the party's name in Macedonian was liable to sow discord (Article 192 of the Criminal Code – see paragraph 23 below) among the local population. Police officers removed the party's sign without giving any explanation to the applicants, who then put up a new sign. That evening, according to the applicants, while they were inside the party headquarters a crowd of people, among whom they apparently recognised the mayor, the deputy mayor and certain town councillors, gathered in front of the building to shout threats and insults at them, such as “traitors”, “dogs”, “death to the dogs of Skopje”, “you're going to die”, and “we'll burn everything”. The crowd also allegedly demanded that the applicants hand over the sign. 15. On 14 September 1995 at about 1.30 a.m. a number of people allegedly attacked the party headquarters, and, after breaking down the door, assaulted those inside and demanded that they hand over the sign, which the applicants did. Another group entered the premises at approximately 4 a.m., threw all the equipment and furniture out of the window and set it on fire. According to the applicants, throughout these events they made a number of telephone calls to the police station located some 500 metres from the party headquarters, but were apparently told that no officers were available to come out. The applicants submitted that the public prosecutor's office took no action against those involved in the incidents. However, criminal proceedings for inciting discord were brought against four members of the party, including the second and third applicants, under Article 192 of the Criminal Code. The bill of indictment stated that “they had affixed to the party headquarters a sign on which, among other things, the word vino-zito (rainbow) was written in a Slavic language, and had thus sowed discord among the local inhabitants ...”. The applicants were committed for trial. 16. The trial took place on 15 September 1998 before a single judge in the Florina Criminal Court, who acquitted the applicants (judgment no. 979/1998). The court acknowledged that a crowd had gathered in front of the party headquarters and that one of the applicants had been beaten up. It found that there had also been criminal damage, which had culminated in the premises being set on fire. 17. On 5 December 1995 four party members, including the second and third applicants, lodged a criminal complaint and applied to be joined to the proceedings as civil parties, alleging that those responsible for the incidents had committed the following offences: incitement to discord (Article 192 of the Criminal Code), breach of the peace (Article 189), destruction of property (Article 381), criminal damage (Article 330), trespass (Article 334), threats (Article 333), insults (Article 361) and arson (Article 264). 18. On 24 November 1999 the Indictments Division of the Florina Criminal Court considered that there was insufficient evidence against the individuals named in the applicants' complaint and decided to discontinue criminal proceedings against them (order no. 30/1999). 19. On 10 December 1999 the applicants appealed. 20. On 4 April 2000 the Indictments Division of the Court of Appeal for West Macedonia dismissed the appeal (order no. 27/2000). 21. On 4 May 2000 the applicants appealed on points of law. 22. On 30 January 2003 the Criminal Division of the Court of Cassation dismissed their appeal as inadmissible (order no. 176/2003). 23. The relevant provisions of the Criminal Code read as follows: “1. Anyone who takes part in an unlawful assembly, ... attacks persons or property, or forcibly enters houses, dwellings or other premises belonging to another, shall be punished by a prison sentence of up to two years. 2. The perpetrators of such an attack and anyone who has incited another to commit the attack shall be punished by a prison sentence of at least three months. 3. The above-mentioned sentences shall be imposed unless the offence attracts a harsher sentence under a different provision.” “Anyone who, publicly or otherwise, provokes others to commit a violent act or sows discord among citizens, or incites citizens to do so, thus causing a breach of the peace, shall be punished by a prison sentence of up to two years, unless the offence attracts a harsher sentence under a different provision.” | 1 |
train | 001-120951 | ENG | HUN | CHAMBER | 2,013 | CASE OF PRIZZIA v. HUNGARY | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 5. The applicant was born in 1962 and lives in Glen Allen, Virginia, USA. 6. The applicant married a Hungarian citizen, Ms J.B., and the couple had one son, T.M.P., born on 3 February 2000. The family lived in Virginia. 7. In 2003, following a visit to relatives in Hungary, J.B. did not return to the USA and instituted divorce proceedings. The applicant initiated proceedings before the Hungarian courts in order to have the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) applied and the child taken back to the USA. By a decision of 14 September 2004, the Hungarian Supreme Court found that the retention of the child in Hungary by her mother without the father’s consent was illegal but refused to grant a return order under the Hague Convention. The applicant’s visiting rights were regulated through a number of interim measures pending the divorce proceedings. 8. On 19 March 2005, following the pronouncement of the divorce of the applicant and his wife, the Budapest Central District Court placed the couple’s son with the mother. After appeals, on 27 March 2007 the Supreme Court regulated by a final judgment the applicant’s access rights in a way that he had access to his son four consecutive days every month and was entitled to spend one month of the summer vacation with him, including the possibility to take him to the USA. The mother was obliged to hand over the necessary travel documents for this purpose. The court explained that it was in the child’s best interest to maintain emotional links with his father, which would become difficult should he be disconnected from the linguistic environment. In addition, the court, referring to the Hague Convention, found no evidence to support J.B.’s supposition that the applicant would fail to return the child to Hungary. 9. In August 2007 the applicant complained to the Budapest XII District Guardianship Authority that his access granted in respect of the months of August 2007 could not be exercised on account of the mother’s reluctance to co-operate. In reply, J.B. maintained that the son was sick and needed medical treatment. Despite assurances from the applicant that he would accompany T.M.P. to all medical appointments that were necessary, the mother left Budapest with the child for a place unknown to the applicant. The Guardianship Authority established that the mother and son had not been available on 1 August 2007 as regulated in the Supreme Court’s judgment. On 11 September 2007 the Authority warned the mother that she might be fined for her conduct. The applicant for his part initiated enforcement proceedings with no success. 10. On 1 July 2008 the mother again failed to comply with the applicant’s access right. On 23 July 2008 the then competent Budapest XIII District Guardianship Authority imposed a fine of 100,000 Hungarian forints (HUF) (approximately 360 euros (EUR)) on her, ordering the handover of the child to the applicant on 1 August 2008. The mother stated that she would not comply with the court judgment as regards the child’s visit to the USA, since there was an international warrant in place to locate the child, which might impede his return to Hungary. In the resumed first-instance administrative proceedings the Guardianship Authority ordered J.B. to pay a fine and to reimburse the applicant’s travel costs in the amount of HUF 396,375 (approximately EUR 1,300). This decision was upheld by the Budapest Regional Court on 26 April 2010. 11. The applicant again requested the enforcement of the access arrangements. On 28 July 2008 a bailiff ordered J.B. to deliver the child’s passport to the applicant within three days. Nonetheless, she did not comply with this decision but handed over the child’s passport to an employee of the Ministry of Foreign Affairs on 19 August 2008. However, the Ministry did not transfer the passport to the applicant upon the bailiff’s order but returned it to the mother on 15 October 2008. 12. The applicant lodged a criminal complaint against the employee of the Ministry of Foreign Affairs on charges of abuse of power. Eventually, on 19 October 2010 the Budapest Public Prosecutor’s Office discontinued the investigation, finding no appearance of a criminal offence. 13. On 24 September 2009 the Authority established the mother’s non-compliance with the access arrangements in respect of 1 August 2008 and imposed a further fine of HUF 200,000 (approximately EUR 720) for the overdue visit. Moreover, she was ordered to compensate the applicant for the costs incurred by travelling in vain. During the hearing before the Authority the mother reiterated that she would not allow the child to travel to the USA since the father would obstruct his return to Hungary. The mother’s request for a judicial review was rejected by the Budapest Regional Court on 23 June 2010. 14. It appears that the applicant was otherwise able to have contact with his son in compliance with the Supreme Court’s decision. 15. Meanwhile, both the applicant and the mother initiated actions before the Buda Central District Court in February 2007, the applicant seeking, in particular, a change in custody and the official deposit of the child’s passport. The mother requested a restriction on the applicant’s access rights, removing his entitlement to take the child to the USA. The cases were joined. On 11 December 2008 the court rejected both actions. Nonetheless, the court allowed the applicant’s request to have the annual summer visits moved to July (in which case a missed opportunity could be substituted for by a visit in August) and modified the scheme accordingly. The decision was upheld by the Budapest Regional Court, acting as a second instance court, on 25 January 2010. 16. The child’s envisaged stay with his father, first scheduled for 1 July and then rescheduled for 1 August 2009, did not take place. The mother stated that she would not co-operate in this respect, unless the applicant saw to it that the criminal proceedings allegedly initiated against her in the USA were discontinued. On both occasions a police officer accompanied the applicant to the mother’s flat, but his access right could not be enforced, since the mother had left with the child for an unknown place. The applicant’s first request seeking the enforcement of his right to July visit was dismissed by the Guardianship Authority as premature, because he was entitled to reschedule the visit to August. However, subsequent to the omission of the visit in August, the applicant initiated enforcement proceedings, following which a penalty in the sum of HUF 300,000 (approximately EUR 1,000) was imposed on the mother by the Guardianship Authority. This decision was confirmed by the Budapest Regional Court on 14 July 2011. 17. Furthermore, it appears that the applicant’s access to his son of four consecutive days every month, as regulated by the Supreme Court’s decision, did not take place at least in June 2009 and November 2009. 18. The applicant brought proceedings against J.B. in respect of the missing visit of July/August 2011. Based on the mother’s statement that she had stayed at home and been available on the prescribed day in order to hand over the child to the applicant, his action was dismissed by the Government Office for Budapest, acting as the second-instance administrative authority, on 10 August 2012. 19. Meanwhile, the applicant initiated another action before the Pest Central District Court, again seeking a change of custody. In an interim measure of 15 June 2010, the court ruled that the applicant’s access rights in respect of the 2010 summer holiday should be exercised in Hungary. 20. In its judgment of 19 May 2011 the court dismissed the applicant’s action. It limited his access rights to the effect that the access visits during the child’s summer holiday could take place in Hungary only, and this until the child’s sixteenth birthday, explaining that the child was concerned about his father not bringing him back to Hungary. The applicant was granted access visits for some days during autumn, Christmas and spring holidays, to be exercised in Hungary as well. The court also regulated the exact days of every other month when the applicant was entitled to visit his son in Hungary in the coming years. It considered, among other things, that the child did not consider the applicant as being a member of his family, the disputes between the parents had negative impact on him and he seemed to be reluctant to leave for the USA with his father alone. On 29 November 2011 the Budapest Regional Court upheld the first-instance decision, rejecting the applicant’s request to establish the bi-monthly days of visit in a flexible way. 21. The applicant’s petition for review is pending before the Supreme Court. 22. The relevant rules concerning the enforcement of contact orders are contained in Government Decree no. 149/1997 (IX. 10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides as follows: “(2) A child’s development is endangered where the person entitled or obliged to maintain child contact repeatedly fails, by his or her own fault, to comply or to properly comply with the [contact rules], and thereby fails to ensure undisturbed contact. ... (4) Where, in examining compliance with subsections (1)-(2), the guardianship authority establishes [culpability on the parent’s side], it shall, by a decision, order the enforcement of the child contact within thirty days from the receipt of the enforcement request. In the enforcement order it shall: a) invite the omitting party to meet, according to the time and manner specified in the contact order, his or her obligations in respect of the contact due after the receipt of the order and to refrain from turning the child against the other parent, b) warn the omitting party of the legal consequences of own-fault non-compliance with the obligations under subsection (a) c) oblige the omitting party to bear any justified costs incurred by the frustration of contact. (5) Where the person entitled or obliged to maintain contact fails to meet the obligations specified in the enforcement order under subsection (4), the guardianship authority may ... a) initiate to involve the child contact centre of the child welfare service or to take the child into protection in case the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or the parents have communication problems, b) initiate child protection mediation procedure .... ... (7) If it is proved that the person liable to contact brings up the child by continuously turning him/her against the person entitled to contact and, despite the enforcement measures specified under subsections (4)-(5), fails to comply with the contact order, the guardianship authority: a) may bring an action seeking change of placement if it is the best interests of the child, b) shall file a criminal complaint ...” | 1 |
train | 001-82742 | ENG | POL | CHAMBER | 2,007 | CASE OF OSINSKI v. POLAND | 4 | Violation of Art. 5-3;Violation of Art. 6-1 | Nicolas Bratza | 4. The applicant was born in 1973 and lives in Gdańsk. 5. On 31 March 1999 the applicant was arrested on suspicion of armed robbery. On 1 April 1999 the Gdańsk District Court remanded him in custody in view of the reasonable suspicion that he had committed armed robbery. It held that there was a reasonable risk that the applicant might abscond and attempt to induce witnesses to give false testimonies. 6. On 24 June 1999 the Gdańsk Regional Court prolonged the applicant's detention until 30 September 1999. It found that the prolongation was justified by the need to obtain and secure evidence from many sources and interrogate a number of other persons who could be charged together with the applicant. 7. On 15 September 1999 the Gdańsk Court of Appeal extended the applicant's detention until 31 December 1999. It found that it was highly probable that he had committed the offence in question. It also relied on the need to obtain various expert reports. Lastly, it held that the severity of the anticipated penalty justified the prolongation of the applicant's detention. 8. Later, several other persons were detained and charged in connection with the same investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor's Office. The applicant was charged with the commission of 35 robberies and armed robberies. 9. On 8 December 1999 the Court of Appeal ordered that the applicant be kept in custody pending investigation until 30 March 2000. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged. In that respect, it referred to evidence given by A.Ł., a member of the same criminal group, who acted as a witness against the other suspects. The Court of Appeal further relied on the need to obtain and secure evidence, in particular from experts in ballistics, biology and fingerprints. It stressed that it was also necessary to carry out a reconstruction of the crime and to confront the suspects with each other. It also considered that the scale and nature of the offences in question justified the applicant's continued detention. 10. On 30 March 2000 the Supreme Court prolonged the applicant's detention pending investigation – which had meanwhile exceeded the one-year time-limit set for detention pending the investigation under Article 263 § 2 of the Code of Criminal Procedure – until 30 June 2000. It considered that the case was “particularly complex” given the volume of evidence and the number of charges against the numerous suspects. It also held that there was a reasonable risk that the applicant and other suspects might obstruct the investigation. 11. On 24 May 2000 the Supreme Court ordered that that term should be prolonged further until 15 December 2000. It reiterated the previous grounds given for the applicant's detention and added that the case was very complex, given that six further suspects had in the meantime been charged and detained in the case and that several other potential suspects were still being sought. 12. Further prolongations of the applicant's detention pending the investigation were ordered by the Gdańsk Court of Appeal on 13 December 2000 (up to 31 March 2001) and 7 March 2001 (up to 31 May 2001). In its decision of 13 December 2000, the Court of Appeal reiterated the original grounds given for his detention. Taking into account the nature of the offences, the Court of Appeal added that the fact that the charges against all nine suspects were closely interrelated gave substance to the risk that, once released, they might obstruct the proceedings. It also referred to the particular complexity of the case. Furthermore, it noted that the prolongation of the investigation was due to the fact that new suspects had been identified in the course of the investigation. In its decision of 7 March 2001, the Court of Appeal added that the prolongation of detention was justified by the need to obtain DNA evidence. 13. On 15 May 2001 the prosecution filed a bill of indictment with the Gdańsk Regional Court. The applicant was charged with several dozen counts of armed robbery which had been committed in an organised armed criminal group. The bill of indictment specified that the applicant was subject to the rules on recidivism. It listed 118 charges brought against 19 defendants, who were all detained on remand. The case file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. 14. The trial began on 28 December 2001. However, as of April 2002 the reading out of the bill of indictment by the prosecution had still not been concluded. Initially, the trial court held three hearings per month. 15. During the trial, the Gdańsk Court of Appeal prolonged the applicant's detention several times. The relevant decisions were given on 23 May 2001 (extending his detention up to 31 October 2001), 24 October 2001 (ordering his continued detention until 31 March 2002), 13 March 2002 (prolonging that period until 30 September 2002), 11 September 2002 (extending his detention until 31 December 2002), 18 December 2002 (prolonging his detention until 30 June 2003), 25 June 2003 (prolonging his detention until 31 December 2003), 17 December 2003 (extending that term until 30 June 2004), 23 June 2004 (extending that term until 31 December 2004), 15 December 2004 (ordering his continued detention until 31 March 2005), 30 March 2005 (extending that period until 30 June 2005) and 22 June 2005 (prolonging his detention until 30 October 2005). 16. In all those decisions the Court of Appeal considered that the original grounds given for the applicant's detention were still valid. It stressed that the applicant's detention was the only measure which could secure the proper conduct of the proceedings in such a particularly complex case, given the nature of the charges, the number of defendants and the connections between them. In addition, it referred to the volume of evidence to be heard. 17. In its decision of 13 March 2002 prolonging the applicant's detention, the Court of Appeal considered that the trial could be terminated by 30 September 2002. In addition to the grounds previously invoked, it found that the prolongation of detention was justified under Article 263 § 4 of the Code of Criminal Procedure by the particular complexity of the case. It further observed that the delays in the trial were partly attributable to some of the defendants who had attempted to disrupt the proceedings and, consequently, had to be removed from the court room. It instructed the trial court to hold more than 3 hearings per month. Furthermore, it held that no other preventive measure could secure the proper conduct of the trial. In that respect, the Court of Appeal observed that there was a reasonable risk that the applicant and other defendants might interfere with the proceedings, given the nature of the charges, the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation. 18. On 15 January 2003 the Gdańsk Regional Court dismissed the applicant's and his 17 co-defendants' request for the judges and lay members of the trial court to withdraw. 19. In its decision of 25 June 2003 extending the applicant's detention, the Court of Appeal observed that the trial could not be terminated due to obstructiveness of the defendants who had filed numerous requests challenging the trial court. It further observed that although the applicant and other defendants were free to make use of their procedural rights, the abuse of those rights had undoubtedly led to delays in the trial. It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings. 20. In its decision on the applicant's detention of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence. It also observed that the trial could be concluded by the end of 2004 provided that the Regional Court endeavoured to organise the trial efficiently. 21. In its decision of 18 January 2005 dismissing the applicant's appeal against the decision of 15 December 2004 prolonging his detention, the Court of Appeal held that Article 258 § 2 of the Code of Criminal Procedure established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by concrete facts, but resulted from the above presumption. 22. In its decision of 22 June 2005 the Court of Appeal again referred to the presumption established by Article 258 § 2 of the Code of Criminal Procedure. In its decision of 27 July 2005 dismissing the applicant's appeal against the decision of 22 June 2005 prolonging his detention, the Court of Appeal held that that presumption alone justified the applicant's continued detention. It also held that keeping the applicant in custody was necessary in order to prevent him from interfering with the trial, given the reasonable risk of such interference which flowed from the fact that he had been charged with the commission of the offences in an organised criminal group. 23. During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and that the charges against him lacked a sufficiently strong basis. 24. On 21 March 2005 the Gdańsk Regional Court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released, were to be tried separately. 25. After 20 June 2005 no hearing was held due to the serious illness of the judge rapporteur. On 21 September 2005 the President of the Criminal Section IV of the Gdańsk Regional Court assigned a new judge rapporteur. Consequently, the trial had to commence de novo. 26. On 20 September 2005 the Court of Appeal prolonged the applicant's detention until 31 January 2006. The applicant appealed against that decision. On 18 October 2005 a different panel of the Court of Appeal quashed the impugned decision and ordered the applicant's release under police supervision. It also imposed on him a prohibition on leaving the country. The Court of Appeal had regard to the fact that the trial had to commence de novo and that the applicant had already spent a few years in pre-trial detention. 27. The applicant was released on 19 October 2005. 28. On 24 November 2005 the trial court made a further severance order and split the case into eleven separate cases. 29. By March 2006 the trial court had held some 135 hearings of the 162 which had been scheduled. It heard more than 400 witnesses. 30. It appears that the proceedings are still pending before the first-instance court. 31. On 19 November 2004 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). 32. The applicant submitted that the charges against all the defendants had been unjustifiably joined in one set of proceedings. He claimed that numerous hearings had been cancelled and that the process of taking evidence from witnesses had been lengthy. He also submitted that he had been detained on remand throughout the proceedings and that his applications challenging the trial court had been made in accordance with the provisions of criminal procedure. 33. On 12 January 2005 the Court of Appeal dismissed his complaint as unfounded, having regard to the criteria set out in section 2 § 2 of the 2004 Act, namely the conduct of the court and of the parties, the nature of the case, its factual and legal complexity and what was at stake in the proceedings for the complainant. 34. Replying to the applicant's submissions, the Court of Appeal held that the joint examination of the charges against the defendants who had collectively committed a crime was justified under the domestic law. Furthermore, it considered that it could not be said that the exceptional cancellations of some hearings pointed to inactivity on the part of the trial court, bearing in mind the number of hearings held and the fact that they had been scheduled in advance. 35. The Court of Appeal also found that the applicant's complaint relating to the allegedly lengthy process of taking evidence from witnesses was unsubstantiated. It pointed out in this respect that the trial court had disciplined the witnesses who had failed to comply with the summons. The court further held that the defendants had contributed to the length of the proceedings by multiplying their applications in respect of procedural issues that had already been determined. It found that the fact that the applicant had been remanded in custody was not a relevant consideration for the determination of his complaint concerning the allegedly excessive length of proceedings. 36. In conclusion, having regard to the nature of the case and its complexity, the Court of Appeal held that delays in the proceedings could not be attributed to the trial court. On the contrary, the trial had been conducted in a diligent manner. 37. The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time 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. 38. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
train | 001-4920 | ENG | GRC | ADMISSIBILITY | 1,999 | STAMOULAKATOS v. GREECE | 4 | Inadmissible | Marc Fischbach | The applicant is a Greek national, born in 1932 and living in London. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 November 1993 the public prosecutor of Athens summoned the applicant to appear before the three-member first instance criminal court (trimeles plimmeliodikio) of Athens on 26 April 1994 to be tried for making a false criminal accusation and perjury. The applicant's trial took place in his absence on 12 February 1997. He was found guilty and given a commutable sentence of ten months. The applicant appealed on 5 June 1997 and the enforcement of the first instance decision was suspended. On 8 May 1998 the three-member Court of Appeal (trimeles efetio) of Athens decided to discontinue the proceedings against the applicant because the action had become time-barred. On 12 May 1998 the applicant applied for compensation for the proceedings instituted against him. On 29 June 1998 the Greek General Consulate in London sent the applicant a letter it had received from the Court of Appeal of Athens. This letter, dated 11 June 1998, was addressed to the General Consulate and stated the following: “In reply to your letter of 9 April 1998, which concerns a request by Nicholas Stamoulakatos, we inform you that, according to the law, he has no right to be compensated.” B. The applicant's previous application under the Convention On 25 August 1996 the applicant lodged application No. 32857/96 with the European Commission of Human Rights complaining, inter alia, of the length of the above criminal proceedings against him, which were at the time pending at first instance. On 3 December 1997 the Commission declared the applicant's complaint concerning the length of the first instance proceedings admissible. It declared the remainder of the application inadmissible. On 20 May 1998 the Commission expressed the opinion that the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time had been violated because of the length of the first instance proceedings. On 18 January 1999 the Committee of Ministers found that there had been a violation of Article 6 § 1 in the applicant's case. | 0 |
train | 001-76932 | ENG | FIN | ADMISSIBILITY | 2,006 | ANGELOV v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Ivan Angelov, is a Bulgarian national who was born in 1969. He is represented before the Court by Mr Mihail Ekimajiev, a lawyer practising in Plovdiv, Bulgaria. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows. In February 1997 the applicant arrived in Finland. On 20 August 1998 he was granted a residence permit on the grounds that he lived with a Finnish woman and they had had a child, born on 22 October 1997. The residence permit was valid until 20 August 1999. On an unspecified date the applicant and his partner separated. The applicant and his former partner agreed on access arrangements. On 4 February 2000 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) rejected the applicant’s application to renew his residence and work permit on the ground that he had repeatedly committed offences. He unsuccessfully appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) of Vaasa. On 27 April 2000 the Directorate of Immigration ordered the applicant to be deported as he was staying in Finland without the required residence permit. He was further made subject to a two years prohibition on entry into Finland. He appealed to the Administrative Court, requesting that the decision be rescinded. He stated that he had lived in Finland for four and a half years and that he had a child who had a right to visit his father. In Bulgaria he allegedly had no home or close relatives apart from a brother. On 8 June 2000 the access arrangements as previously agreed by the parents were confirmed by the Social Welfare Authority (sosiaalivirasto, socialbyrån) of Vaasa, and the following day by the Social Welfare Board (sosiaalilautakunta, socialnämnden). The applicant was granted a right to visit his child every other weekend and during holidays. On 27 June 2000 the Administrative Court rejected his appeal against the refusal of a residence permit. On 2 November 2000 the Supreme Administrative Court refused leave to appeal. On 10 November 2000 the Administrative Court rejected his appeal against the deportation order. It referred to Article 8 § 2 of the Convention and reasoned, inter alia, that the deportation of the applicant did not amount to an interference with his right to family life, and did not affect the rights of his child contrary to the Convention on the Rights of the Child. It concluded that when balancing the interests for and against his expulsion, and taking into account the reasons why his residence permit was not renewed, the applicant could be deported to Bulgaria. He applied for leave to appeal to the Supreme Administrative Court, claiming, inter alia, that he had not committed any recent offences and was capable of supporting himself and his child. On 5 March 2001 he married a woman who had a permanent residence permit in Finland. On 8 January 2002 the Supreme Administrative Court refused leave to appeal. In its written submissions to the Supreme Administrative Court the Directorate of Immigration noted that the applicant had been ordered to be deported as he had committed 10 petty offences. After the deportation order he had committed a further three offences, namely driving a motor-vehicle without a licence and was further suspected of misleading an official by using a false identity. According to the information provided by the Government, which was not denied by the applicant, the applicant re-entered Finland in May 2002. Subsequently he applied twice for a new residence permit on the basis of his new marriage, his son and his family ties. His applications were rejected. In its decision of 17 December 2002 the Directorate of Immigration found that the applicant endangered public order and security and considered that his marriage was a sham. On 17 December 2003 the Administrative Court agreed, noting, furthermore, that the spouses’ divorce was pending. Further, according to that information, the applicant’s prohibition on entry into Finland remains in force until 6 November 2006. Section 1, subsection 4 (179/1998) of the Aliens Act (ulkomaalaislaki, utlänningslagen; 378/1991, “the Act”), as in force at the relevant time, provided that the application of the Act should not restrict aliens’ rights any more than necessary. Section 40, subsection 1 (1) of the Act provided that an alien could be deported if he resided in Finland without the required passport or a residence permit. According to subsection 1 (3) an alien could be deported, inter alia, if he or she had committed an offence for which the minimum penalty was more than one year’s imprisonment, or if he or she had repeatedly committed criminal offences. Section 41 of the Act provided that circumstances such as the length of the alien’s stay in Finland, the existence of a parent-child relationship, family and other ties with Finland, or, in connection with section 40, subsection 1(3) of the Act, the nature of the offence or offences committed, had to be taken into account as a whole when deportation was being considered. Section 42 (154/1995) of the Act provided that an expulsion may be ordered by the Directorate of Immigration if so requested by the police. The Directorate of Immigration could in certain exceptional circumstances order an expulsion even if the measure had not been requested by the police. The person concerned had to be heard. Section 43 (154/1995) of the Act provided that an alien could be prohibited from entry into Finland for a maximum of five years or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by the Directorate of Immigration. Such an order could be revoked by the Directorate of Immigration, either entirely or for a limited period, owing to changed circumstances or for an important personal reason. The Government referred to the following decisions of the Supreme Administrative Court. KHO 1992 A 59: The applicant had repeatedly committed offences. After being informed of a deportation order, he had married a Finnish citizen. He had a child with another Finnish citizen. He also studied at a university. Considering all the facts of the case, the circumstances as a whole and especially the type of the offence, the applicant’s deportation did not violate his right. KHO 1992 A 63: The court found no sufficient reasons for deporting the applicant family from Finland on the ground that they had no visa or residence permits, given their long stay in Finland and their other circumstances and ties with the Finnish society. KHO 1993 A 26: The court did not find grounds for deporting the applicant, given his ties with Finland, including his marriage-like relationship with a Finnish citizen of the same sex. KHO 1997 A 96: The court did not find sufficient grounds for deporting the family, given the children’s interests and the family’s circumstances as a whole. In that case, the applicant had been granted a residence permit for his studies at a university. The residence permits of the applicant and his family members were not extended because the applicant had not pursued his studies. The Supreme Administrative Court found that the family had lived together in Finland more than six years, during which it had integrated into Finnish society and its way of life. The elder child went to a Finnish school and the younger child was at a kindergarten. The family members spoke Finnish and had relatives in Finland. The parents carried on business in Finland, and therefore their subsistence was secured at least partly. Decision No. 3103 of 27 November 2002: The court found no sufficient grounds for deporting the applicant, who had immigrated to Finland together with his mother in 1985 at the age of seven. The court stated, inter alia, that the then Finnish husband of the applicant’s mother had adopted him abroad in 1985. He had a child with a Finnish citizen, and they had joint custody of the child. He did not live together with the child or the child’s mother. The applicant had committed a number of offences, including an aggravated narcotics offence. He had also undergone narcotics detoxification. However, the applicant had a permanent residence permit for Finland since 7 October 1993. At the time of the court’s ruling he had lived in Finland for some 17 years. In the overall assessment of the case, the court paid particular attention to his long stay in Finland and to the fact that he had received his school education in Finland. He had integrated into Finnish society and had no ties with his home country. KHO 2004:124: The court found that the facts speaking against deportation of the applicant had more weight than the two aggravated narcotics offences, consisting of the smuggling of a large amount of hashish, which he had committed in 1996 and 1997. The court took into account, inter alia, the applicant’s family life with a Finnish citizen and their four children, the problems they would have if they had to settle in the applicant’s home country, the length of time taken to process the case and the fact that the applicant had not committed any other offences. | 0 |
train | 001-104064 | ENG | ARM | CHAMBER | 2,011 | CASE OF BOYAJYAN v. ARMENIA | 3 | No violation of Art. 6;Remainder inadmissible | Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 4. The applicant was born in 1935 and lives in Yerevan. 5. Starting from 1971 the applicant made various deposits in Soviet roubles with the Armenian branch of the USSR Savings Bank. These included: (a) sums of money deposited on three deposit accounts (ժամկետային ավանդ) opened in 1973-1974 amounting to a total of 19,795.30 roubles as of 1 January 1993, sums of money deposited on three 40% offset accounts (40% փոխհատուցման հաշիվ) opened in 1991 amounting to a total of 8,264 roubles as of 1 January 1993, and sums of money deposited on three on-demand accounts (ցպահանջ հաշիվ) opened in 1971, 1977 and 1988, the latter in the name of the applicant's grand-daughter, amounting to a total of 29,384.81 roubles as of 1 September 1993; (b) 23 State internal premium bonds of 1982 (1982 թ. պետական ներքին շահող փոխառության պարտատոմսեր), each worth 50 roubles; (c) four special-purpose State interest-free bonds of 1990 (1990 թ. պետական նպատակային անտոկոս փոխառության պարտատոմսեր): one worth 2,500 roubles entitling the applicant to receive a video recorder, one worth 1,000 roubles entitling her to receive a television set, and two others each worth 200 roubles entitling her to receive two sewing machines; (d) 11 certificates of the USSR Savings Bank obtained in 1990 (ԽՍՀՄ խնայբանկի սերտիֆիկատ), each worth 1,000 roubles. 6. On 5 July 1993 the Government decided to restructure the Armenian branch of the USSR Savings Bank into the State Specialised Savings Bank of Armenia (hereafter, the Savings Bank). Later that month the Soviet rouble was withdrawn from circulation. 7. On 22 November 1993 the Armenian currency, the dram, was introduced, at a rate of 200 roubles to 1 dram. 8. On 26 April 2002 the Convention and Protocol No. 1 entered into force in respect of Armenia. 9. On 21 June 2004 the applicant applied to the Savings Bank seeking to recover her deposits. 10. By a letter of 21 July 2004 the Savings Bank informed the applicant that: “...the question of compensation for deposits made with the Savings Bank in former USSR roubles prior to 1 January 1993 is currently at the centre of attention of the National Assembly and the Government of Armenia. The Decision no. 835 of the Government of Armenia of 8 September 2001, which states that '... the Republic of Armenia assumes responsibility for the future possible indexation of deposits made by citizens with the Savings Bank CJSC in former USSR roubles prior to the currency conversion of 1993', serves as proof of this. As to your inquiry concerning the former USSR State internal premium bonds of 1982 and the certificates, we would inform you that all operations in their respect were stopped by the decision of the Supreme Soviet of Armenia of 10 June 1993, until a final decision is adopted concerning their repayment by the CIS member States. However, no decision or directive was adopted thereafter. As to the redemption of the former USSR special-purpose interest-free bonds given to the Armenian population in 1990, which were planned to be converted into household and domestic goods starting from 1993, this was found not to be feasible by Decree no. 377 of the Government of Armenia of 29 June 1992. For purposes of compensation the Government of Armenia, in its Decree no. 345 of 5 July 1993, decided to index the nominal value of the above [special-purpose interest-free] bonds by 300% and to open a deposit account or to make payments by 1 August 1993, which you failed to do within the said period. As you see, in the above circumstances the Savings Bank has no obligation to make payments in respect of the deposits and securities. The Savings Bank will be able to serve citizens only after a decision is taken by the Government of Armenia concerning the choice of possible compensation alternatives for the deposits and the above securities and their payment.” 11. On 4 August 2004 the applicant lodged a claim with the Kentron and Nork-Marash District Court of Yerevan against the Government, seeking to recover her deposits and securities made with the Savings Bank. She requested, in particular, that her savings be returned to her in the currency in which the deposits were made. 12. On 6 August 2004 the Kentron and Nork-Marash District Court of Yerevan refused to admit the applicant's claim on the ground that: “... the dispute is not subject to court examination, since the National Assembly and the Government of Armenia have not yet adopted relevant laws and decrees concerning the procedure for returning to citizens their deposits made with the Savings Bank of Armenia.” 13. On 13 August 2004 the applicant lodged an appeal on points of law, arguing that the reasons for the refusal to admit her claim were groundless and seeking to reverse the decision of the District Court. 14. On 27 August 2004 the Court of Cassation decided to dismiss the applicant's appeal. In doing so, the Court of Cassation referred to the grounds for the refusal to admit the applicant's claim and found the District Court's decision to be well-founded. 15. Pursuant to this Decree the Government decided that, since the redemption of these bonds was not feasible due to the lack of goods, the repurchased bonds would be converted into deposit accounts. 16. Under Paragraph 1 the Government was allowed to restructure the Armenian branch of the USSR Savings Bank into the State Specialised Savings Bank of Armenia. 17. Under Paragraph 2 the Republic of Armenia guaranteed the preservation and the repayment of deposits and other values made with the Savings Bank of Armenia. 18. Under Paragraph 3 the Government was asked to come up with proposals on indexation of savings and other values made with the Armenian branch of the USSR Savings Bank within one month. 19. According to Paragraph 4, all transactions in respect of 1982 State internal premium bonds and USSR Savings Bank certificates were to be stopped until a final decision was taken on them by the member states of the Commonwealth of Independent States. 20. Under Paragraph 1 the Armenian branch of the former USSR Savings Bank was restructured into the State Specialised Savings Bank of Armenia. The Savings Bank of Armenia was the legal successor of the Armenian branch of the former USSR Savings Bank. 21. Under Paragraph 2 the Government guaranteed the preservation and the repayment of the deposits and other values made with the Savings Bank of Armenia. 22. Under Paragraph 4 the following types of savings were indexed: (a) the amounts left in the Savings Bank's deposit accounts as of 1 January 1993 by 100%; (b) the amounts left in the Savings Bank's special deposit accounts as of 1 January 1993 by 100%; (c) the nominal value of the 1990 special-purpose State interest-free bonds by 300%; and (d) treasury bonds owned by the population by 200%. 23. Pursuant to this Decree the Savings Bank of Armenia was sold to two private companies. The Ministry of Finance and Economy was instructed to conclude a privatisation agreement with the buyers, which was to contain guarantees on behalf of the Republic of Armenia. In particular, the Republic of Armenia was to assume responsibility for the future possible indexation of deposits made by citizens with the Savings Bank CJSC in former USSR roubles prior to the currency conversion of 1993. 24. Section 10 approved the 2006 annual programme for compensation of monetary deposits made with the Armenian branch of the USSR Savings Bank before 10 June 1993, which featured as an Annex to this Act. 25. Section 13 prescribed that the compensation activities of monetary deposits made with the Armenian branch of the USSR Savings Bank before 10 June 1993 shall be organised by the Armenian Government. The compensation of the said deposits was to be implemented on the basis of a State mid-term expenditure programme approved by the Armenian Government, within the limits of the budgetary allocations envisaged for that purpose as a separate budget line in each year's State budget. The Armenian Government, based on the above-mentioned 2006 annual programme, was to develop the procedure for such compensation and to specify the lists of individuals enjoying a priority right to receive such compensation. 26. Pursuant to Paragraph 1, those depositors, who are members of families which have been receiving family allowance continuously from 1 July 2005 until 1 April 2006, are entitled to receive compensation for their deposits. 27. Pursuant to Paragraphs 5 and 6, persons mentioned in Paragraph 1 were to submit an application in order to receive compensation. The deadline for submitting applications could not be later than 12 April and was to expire on 12 May 2006. 28. Pursuant to Paragraph 27, the depositors' right to claim compensation from the Republic of Armenia arises in such budgetary year (a) in respect of which an expenditure programme for payment of compensation prescribed by this procedure is envisaged by the State Budget Act; and (b) the depositor in question is included in the payment schedule for the year in question. 29. According to Article 91 §§ 1 (1) and 4, the judge refuses to admit a claim if, inter alia, the dispute is not subject to court examination. The decision refusing to admit a claim can be contested through cassation proceedings within three days from the date of its receipt. 30. According to Article 228 (1), as in force at the material time, a judicial act could be reviewed on the ground of newly discovered circumstances which have vital importance for the case and which the parties were not and could not be aware of. 31. According to Article 239, as in force at the material time, the decision of the Court of Cassation entered into force from the moment of its delivery and was not subject to appeal. | 0 |
train | 001-24008 | ENG | SVK | ADMISSIBILITY | 2,004 | VARGA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Štefan Varga, is a Slovakian national, who was born in 1963 and lives in Košice. He was represented before the Court by Mr A. Fuchs, a lawyer practising in Košice. The respondent Government were represented by Mr P. Kresák, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. From 27 May 1986 until 15 July 1988 the applicant served a prison sentence in the Dubnica nad Váhom prison. From 15 July 1988 until 1989 he continued to serve this sentence in the KošiceŠaca prison. Letters which he sent from the prison to his parents were opened, read and censored by the prison authorities. From 5 July 1990 to 31 December 1991 the applicant was detained on remand in the Košice detention centre. Letters which he sent from the detention centre to his parents were monitored by the detention centre authorities and opened and read by the police investigator in charge of his case. The applicant further served other prison sentences in the KošiceŠaca prison (from 1992 until 1994), in the Ružomberok prison (from 1994 until 1995) and in the KošiceŠaca prison (from 1995 until 1997). On 28 July 1997 the applicant addressed a petition (podnet) to the Constitutional Court in which he complained about interference with his correspondence in the period between January and 24 July 1997 while serving a prison sentence. On 27 August 1997 the Constitutional Court declared the petition admissible. The Constitutional Court informed the applicant several times that legal representation was mandatory in the proceedings before it and requested him to appoint a lawyer. On 8 October 1997 the Constitutional Court discontinued the proceedings as the applicant had failed to comply with the request. On 21 October 1998, for the second time, the applicant seized the Constitutional Court. He filed a petition alleging a violation of his right to respect for his correspondence. He referred to the monitoring of his correspondence between 1986 and 1989 in the Dubnica nad Váhom prison and the KošiceŠaca prison, between 1990 and 1991 in the Košice detention centre and between 1996 and 1997 in the KošiceŠaca prison. He apparently submitted copies of letters addressed by him to his father which bore the official stamps showing the date on which the letters had been read by the prison authorities. In a letter of 15 December 1998 a single Constitutional Court judge informed the applicant that the Constitutional Court had no jurisdiction ratione temporis to deal with his petition. He noted that all the letters which the applicant had submitted and all the official stamps showing that the prison authorities had read these letters dated back to the period prior to the establishment of the Constitutional Court on 15 February 1993. In the late 1998 and early 1999 the applicant addressed the Dubnica nad Váhom prison administration, the public prosecution service, the KošiceŠaca prison administration and the Ružomberok prison administration with complaints about interference with prisoners’ correspondence. In their respective letters of 30 November 1998, 8 January, 14 April and 15 April 1999 the director of the Dubnica nad Váhom prison, the Košice I District Office of Public Prosecution, the director of the KošiceŠaca prison and the director of the Ružomberok prison informed the applicant about the relevant provisions of the Prison Sentences Execution Act and the Prison Sentences Execution Orders governing monitoring of prisoners’ correspondence. They observed that the applicable legal rules had not been breached in the applicant’s case. In 2000 the applicant lodged an action against (i) the Ministry of Justice; (ii) the General Directorate of the Prison Administration (Generálne riaditeľstvo zboru väzenskej a justičnej stráže); (iii) the Director General of the Prison Administration; (iv) the Prison Administrations in Ružomberok, Dubnica nad Váhom and Košice–Šaca prisons; and (v) several officials of the Prison Administration. He sought protection of his personal integrity and compensation for moral damage in connection with the alleged violation of the secrecy of his correspondence while in detention and serving his prison sentences. On 11 February 2002 the Košice II District Court (Okresný súd) dismissed the applicant’s request for an exemption from the obligation to pay the court fee and for legal aid. On 31 May 2002 the Košice Regional Court (Krajský súd) upheld this decision. On 28 April 2003 the District Court discontinued the proceedings as, despite its five previous requests and warnings, the applicant had failed to pay the court fee. On 31 July 2003, on the applicant’s appeal, the Košice Regional Court upheld this decision. On 3 October 2003, for the third time, the applicant again seized the Constitutional Court with a complaint of an interference with his correspondence while in the KošiceŠaca prison between January and 24 July 1997 and of the discontinuation of the civil proceedings on his civil action of 2000. On 6 November 2003 the Constitutional Court declared the complaint inadmissible. It found that the applicant had raised his new complaint about the interference with his correspondence outside the two months’ timelimit pursuant to Article 53 (3) of the Constitutional Court Act. The Constitutional Court further found that the applicant had failed to exhaust legal remedies as regards his complaint about the discontinuance of his civil proceedings in that he had not lodged an appeal on points of law against the decision of the Regional Court of 31 July 2003. Article 22 provides as follows: “1. Secrecy of correspondence, other communications and written messages delivered by post and protection of personal information shall be guaranteed. 2. No one shall violate the secrecy of letters, other communications and written messages kept private or delivered by post or otherwise, except in cases specified by law. This provision applies to communications delivered by telephone, telegraph and other similar means.” Article 127, as in force from 1 January 2002, provides that: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference ... At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ... Article 130 (3), as in force until 30 June 2001, provided that: “The Constitutional Court may commence proceedings also upon a petition (podnet) submitted by legal entities or individuals claiming a violation of their rights.” The implementation of the above provision of Article 127 of the Constitution is set out in more detail in sections 49 to 56 of the Constitutional Court Act No. 38/1993 Coll., as amended. The relevant amendment entered into force on 20 March 2002. Pursuant to Section 53 (3): “A constitutional complaint shall be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period shall commence when the complainant could have become aware of them.” The lex generalis governing execution of prison sentences is the Prison Sentences Execution Act No. 59/1965 Coll., as amended. Its Section 12 deals with the correspondence of convicted prisoners. Paragraph 1, as amended from 1 July 1990 by Act 179/1990 Coll., provides that: “A convicted prisoner may receive and send correspondence without restriction. The prison director or other persons authorised by him may inspect (nahliadnuť) prisoners’ correspondence with the exception of petitions, complaints or requests addressed to public authorities and correspondence with prisoners’ lawyers sent to their professional address.” Further details concerning the execution of prison sentences are set out in the Prison Sentences Execution Orders issued by the Minister of Justice in the form of a Regulation published in the official Collection of Laws. The Prison Sentences Execution Order No. 332/1990 Coll. was in force from 21 October 1991 until 25 May 1994. Section 46 dealt with the correspondence of convicted prisoners. Its relevant part provided as follows: “1. Letters sent by or to convicted prisoners may be inspected (nahliadnuť) without their consent only by the prison director or by the prison’s social workers authorised by him. This authorisation shall be made public in the prison’s ordinance (ústavný poriadok). 4. In the event that letters sent to convicted prisoners are inspected, they must be handed over to them without delay. 6. The provisions of this Section do not relate to correspondence under Section 56 of the Prison Sentences Execution Order [dealing with the protection of convicted prisoners’ rights] which is sent to convicted prisoners by the authorities referred to in Section 12 (1) of the Prisons Sentences Execution Act [see above].” On 25 May 1994 the Prison Sentences Execution Order No. 125/1994 Coll. came into force. Convicted prisoners’ correspondence is governed by Section 41 which, insofar as relevant, provides as follows: “1. Incoming or outgoing correspondence of convicted prisoners can be inspected (nahliadnuť) without their consent only by the prison director or members of the prison staff authorised by him. In the event that letters sent to convicted prisoners are inspected, they must be handed over to them without delay with the exception of the correspondence referred to in Paragraph 2. 2. Letters with offensive content which damage the interests of the convicted prisoner or other persons or entities and letters encouraging criminal activity or containing unauthorised objects shall be placed in the convicted prisoner’s personal file. He or she shall be informed accordingly. Any further action shall depend on the nature of the information or object retained.” According to Article 11: “Any natural person shall have the right to protection of his or her personal integrity (osobnosť), in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics.” Pursuant to Article13: “1. Any natural person shall have the right to request that an unjustified infringement of his or her personal integrity be stopped, that the consequences of such an infringement be eliminated, and that he or she be provided appropriate satisfaction. 2. In cases when the satisfaction obtained under paragraph 1 [of that Article] is not sufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person shall be entitled to monetary compensation for nonpecuniary damage. 3. When determining the amount of the compensation under paragraph 2 [of that Article], the courts shall take into account the seriousness of the prejudice suffered by the person concerned and the circumstances under which the violation of that person’s rights occurred.” | 0 |
train | 001-76555 | ENG | POL | ADMISSIBILITY | 2,006 | WEGRZYN v. POLAND | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Bogdan Węgrzyn, is a Polish national, who was born in 1962 and lives in Tarnów, Poland. He was represented before the Court by Mr Z. Cichoń and subsequently by Mr. T. Jabłoński, lawyers practising in Kraków. The respondent Government were represented by Mr K. Drzewicki and subsequently by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 October 1995 the applicant and other suspects were arrested on suspicion of assault. By a decision of 11 October 1995 of the Tarnów District Prosecutor, the applicant was remanded in custody. His detention was ordered for a period of three months, i.e. until 10 January 1996.The prosecutor referred to the strong probability of the applicant’s guilt, the gravity of the charges against him and the high risk of his hindering the proper conduct of the proceedings by exerting pressure on witnesses. On 3 January 1996 the Tarnów Regional Court prolonged the applicant’s detention until 10 February 1996. The court noted that the investigation had not yet been completed since one of the co-accused had lodged a complaint concerning an anonymous witness and, in addition, some of the witnesses whose whereabouts were unknown had still to be heard. The court further noted that, in spite of the fact that the victims of the assault had changed their initial testimony, there were still serious grounds for believing that the applicant had committed the offences in question. The court also observed that the law did not require that the evidence in support of detention had to be such as to justify a conviction. On 7 February 1996 the bill of indictment was lodged with the Tarnów Regional Court. On 5 April 1996 the Ombudsman informed the applicant that he could not intervene in the pending proceedings because this might constitute an interference with judicial independence. On 19 August 1996 the applicant lodged a motion, requesting suspension of the criminal proceedings due to the fact that the whereabouts of the victims of the alleged assault were unknown and he was unable to put questions to them. The applicant relied on his right to be given an opportunity to question witnesses on his behalf on the same conditions as those against him, as guaranteed by the European Convention on Human Rights. On 23 August 1996 the Tarnów Regional Court refused to release the applicant, observing that he had failed to indicate any new circumstances justifying his request. By a decision of 6 September 1996 the Tarnów Regional Court dismissed the applicant’s motion for the suspension of the proceedings, finding that Article 337 § 1 of the Code of Criminal Procedure allowed for a possibility of using indirect testimony in case the witnesses could not be examined at a hearing. On 24 September 1996 the Tarnów Regional Court convicted the applicant and sentenced him to three years’ imprisonment. On the same date the court decided to uphold the applicant’s and other defendants’ detention, finding that all of them had been sentenced to at least three years’ imprisonment and that the grounds for release provided by Article 218 of the Code of Criminal Procedure were insufficient. In a letter of 28 March 1997 to the applicant’s lawyer, the Kraków Court of Appeal observed that the appeal against the first-instance judgment submitted by him was not entirely consistent with the appeal prepared by his client and asked him to respond to the applicant’s allegations that he had failed in his duties as a legal counsel by not discussing with him the issue of the appeal. On 27 May 1997 the Kraków Court of Appeal quashed the judgment of 24 September 1996 and referred the case back to the Regional Court, concluding that the reasoning of the first-instance court, which had led to the applicant’s conviction, contained a number of flaws regarding both fact and law and was thus not entirely satisfactory. The court also expressed its concern that the rights of the defence had been violated. On the same date the court decided to uphold the applicant’s detention on remand, considering that there was still a strong probability of his guilt and that it was necessary to ensure the proper conduct of the proceedings. The court found no circumstances justifying the applicant’s release under Article 218 of the Code of Criminal Procedure. On 9 July 1997 the Kraków Court of Appeal dismissed the applicant’s request for release, considering that his detention was necessary to ensure the proper conduct of the proceedings and finding no particular family circumstances requiring his release. The court observed that burdensome effects on a detainee’s family were inherent in detention. On 28 July 1997 the Tarnów Regional Court refused to release the applicant, invoking the same arguments as above. In a letter of 4 August 1997 the President of the Tarnów Regional Court confirmed the view expressed in his letter of 11 July 1997 to the applicant concerning the question of determining the period of detention on remand once a first-instance judgment had been rendered. The fact that the first-instance judgment had been quashed did not affect his opinion. He further stated that it was not his function to assess the evidence gathered in the proceedings. Concerning the complaint about the excessive length of the proceedings, the President noted that the case file had been transferred back to the Tarnów Regional Court and that the case would be allocated to a judge rapporteur after he was back from holidays. On 8 August 1997 the Tarnów Regional Court, referring to the resolution I KPZ 23/97 of 2 September 1997 by the Supreme Court, informed the applicant that the period of detention on remand was limited only until the delivery of the first-instance judgment even though it was to be quashed by the second-instance court. On 19 August 1997 the Supreme Court informed the applicant that it examined complaints concerning detention on remand only in accordance with the procedure prescribed under the Code of Criminal Proceedings On 12 September 1997 the Tarnów Regional Court dismissed the applicant’s request for release. The court expressed the opinion that the applicant’s concerns as regards his family’s situation were premature. On 19 September 1997, in reply to the applicant’s letter of 5 August 1997, the Tarnów Regional Prosecutor observed that all the applicant’s motions with regard to quashing his detention on remand could be only examined by the court at the disposal of which he was placed. On 22 September 1997 the President of the Tarnów Regional Court sent an explanatory letter to the Ministry of Justice. It transpires from this report that the courts refused to quash the applicant’s detention on remand on 12 February 1996, 28 February 1996, 20 March 1996, 16 April 1996, on 3 and 23 July 1996, 23 August 1996 and 6 September 1996, 16 January 1997, 3 April 1997, on 9 and 28 July 1997 and on 12 September 1997. The President admitted that the problem of the indefinite time-limit of the detention on remand after the delivery of the first-instance judgment, until it was decided by the Supreme Court, might be a controversial one. In his view, the notion of “the judgment” under Article 222 § 3 of the Code of Criminal Procedure covered the notion of “the judgment quashed by a second-instance court” since “lege non distinguente nec nostrum est distinguere”. The phrase “delivery of the first-instance judgment” must have been used by the legislator knowingly and clearly indicated the date until which the court was obliged to determine the time-limit of the detention on remand. At the hearing of 2 October 1997 the Tarnów Regional Court refused to release the applicant, considering that in view of the seriousness of the charges, his detention was warranted. The court also noted that the time-limits for detention on remand set out in Article 222 § 4 of the Code of Criminal procedure did not apply to the applicant’s case. As regards the applicant’s family’s situation, difficult as it might be, it was not so critical as to justify his release. On the same date the president of the Kraków Court of Appeal informed the applicant that the detention order given by the prosecutor was in compliance with the then (i.e. in 1995) applicable provisions of procedural law. The entry into force of the new provisions on 4 August 1996 did not result in the unlawfulness of the detention orders issued prior to that date. In addition, the preventive measure imposed on the applicant had been repeatedly examined by the courts, i.e. on 20 October 1995, 3 January 1996, 24 January 1996, 28 February 1996, 26 April 1996, 17 June 1996, 23 July 1996, 4 November 1996, 24 September 1996, 14 October 1996, 24 January 1997, 27 May 1997, 9 and 28 July 1997 and 12 September 1997. He further stated that he was not in a position to interfere with the decisions of independent courts, including those concerning the imposition of preventive measures and determining the time-limit of the detention on remand. He finally observed that the applicant could at any time apply to the court to be released. On 3 October 1997 the Chancellery of the President explained to the applicant that the President could not interfere with court proceedings since, in accordance with the constitutional principle of division of powers, the judicial authorities were independent of the executive organs. At a hearing of 15 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, considering that his detention was justified by the strong evidence of his guilt. The court reiterated that the obligation to determine the period for which detention could be prolonged existed only until the judgment of the first-instance had been given. In a letter of 21 October 1997 the Minister of Justice shared the view put forward by the President of the Tarnów Regional Court in his letter of 4 August 1997, as regards the interpretation of the notion of “the judgment” in the phrase: “until the date of the delivery of the first-instance judgment”, arguing that it also referred to “the judgment quashed by a higher instance”. He further stated that he was not empowered to review the grounds on which the courts ordered detention on remand and that the applicant could at any time file a request for release. In a letter of 23 October 1997 the applicant complained about the refusal of the Tarnów Regional Court at the hearing on 22 October 1997 to allow his request for his release and the suspension of the proceedings. He observed that the alleged victims had given contradictory testimony and had left Poland. Further, the applicant stated that the proceedings served mainly the purpose of establishing the truth and therefore, reading out the indirect evidence at the hearing would be in breach of his defence rights and contrary to the requirements of a fair trial. The applicant relied on his rights guaranteed by the Polish Constitution and the European Convention on Human Rights. At the hearing of 22 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, which had been submitted by his lawyer, reiterating its position as regards the time-limits for the detention on remand after the delivery of the first-instance judgment. The court invoked the resolution no. I KPZ 435/96 OSNKW of 6 February 1997 of the Supreme Court. On 28 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, considering that he had failed to indicate any new circumstances justifying his request. In a letter of 4 November 1997 the President of the Tarnów Regional Court informed the applicant that on 27 May 1997 the Kraków Court of Appeal had quashed the first-instance judgment of 24 September 1996 and upheld the applicant’s detention without fixing the date up until which the detention was to last. On 10 October 1997 the applicant had been in detention for two years. The case had been referred to the Tarnów Regional Court for re-examination. The Regional Court had not found it necessary to determine the point until which the detention should last or to file a request with the Supreme Court to prolong the applicant’s detention on remand, considering that there were no time-limits for the detention on remand after the delivery of the first-instance judgment. The court admitted that there was a legal problem as regards the interpretation of Article 222 § 3 of the Code of Criminal Procedure, which should be resolved by the Supreme Court in order to establish common practice. The court maintained its position on this matter, declaring that the period of detention on remand was limited only until the delivery of the first-instance judgment even though it was quashed by the second-instance court. On 19 November 1997 the Tarnów Regional Court dismissed the applicant’s request for release, relying on the grounds invoked in the previous decisions. By a judgment of 10 December 1997 of the Tarnów Regional Court, the applicant was found guilty of the charges against him and sentenced to three years’ imprisonment. On the same date the court decided to release the applicant, observing that the judgment had been pronounced and there was no further need for the applicant’s continuing detention. The court observed that the family situation of the applicant and the co-accused was difficult and that they had been already detained for over two years. On 22 December 1997 the Ombudsman informed the applicant that the stance on the issue of time-limits for detention on remand taken by the President of the Tarnów Regional Court as well as the Ministry of Justice was in line with the jurisprudence of the Supreme Court at that time. As regards the preventive measure imposed on the applicant, he did not consider it contrary to Article 5 § 1 of the European Convention on Human Rights. In addition, under Article 214 of the Code of Criminal Procedure, the applicant could at any time apply to have a preventive measure quashed or altered. As to the applicant’s complaint relating to the length of the proceedings, the Ombudsman had requested the Tarnów Regional Court to inform him about the state of the proceedings. Apparently on 28 April 1998 the applicant was again detained on remand in connection with certain investigative proceedings concerning unspecified charges. On 17 June 1998 the Kraków Court of Appeal, having examined the applicant’s appeal against the judgment of 10 December 1997 acquitted him of all charges. The prosecutor filed a cassation appeal against this judgment. At the hearing of 24 April 2002 the Supreme Court decided not to examine the cassation appeal due to the fact that the public prosecutor had withdrawn it. At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997 (currently referred to as the “New Code of Criminal Procedure”). The Code of Criminal Procedure of 1969 listed detention among the so-called “preventive measures” (those measures were, inter alia, detention on remand, bail and police supervision). Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) a prosecutor was empowered to order all preventive measures as long as the investigation lasted. Also, at the material time the national law did not set out any statutory time-limits concerning the length of detention on remand in court proceedings; however, under Article 210 § 1 of the Code of Criminal Procedure a prosecutor was obliged to determine in his decision the period for which detention was ordered. That Article stated (in the version applicable at the material time): “Preventive measures shall be ordered by the court; before a bill of indictment has been lodged with the competent court, those measures shall be ordered by the prosecutor.” Article 222 of the Code of Criminal Procedure (in the version applicable until 4 August 1996), insofar as relevant, stated: “1. The prosecutor may order detention on remand for a period not exceeding three months. (1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year; (2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigations.” Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided, insofar as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” The courts, when ruling on a prosecutor’s request under Article 222 § 2 of the code, were obliged to determine the precise period for which detention should be prolonged. If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order (regardless of whether it had been made by him or by a court), the detainee had to be released immediately. Article 213 § 1 of the Code of Criminal Procedure provided: “1. A preventive measure (including detention on remand) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.” Article 217 § 1 (2) and (4) (in the version applicable at the material time) provided: “1. Detention on remand may be imposed if: ... (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means; ... (4) an accused has been charged with an offence which creates a serious danger to society.” In its resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court stressed that: “... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first-instance judgment is rendered in his case ... It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...” Also, at the time, the code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor; and proceedings relating to a detainee’s application for release. On 1 September 1998 the Code of Criminal Procedure of 1997 replaced the 1969 Code. Article 263 of the 1997 Code, insofar as relevant, provides: “§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months. § 2. If the special circumstances of a case make it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by: the trial court – for up to 6 months, the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months. § 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years. § 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome. ” | 0 |
train | 001-102816 | ENG | RUS | COMMITTEE | 2,011 | CASE OF KARTASHEV v. RUSSIA | 4 | Violation of Art. 6-1 | Anatoly Kovler;George Nicolaou;Sverre Erik Jebens | 4. The applicant was born in 1955 and lives in Kostroma. 5. On 20 January 1999 the applicant lodged an action before the Sverdlovskiy District Court of Kostroma (“the District Court”) against the Kostroma Regional Military Commissariat seeking compensation for damage caused to his health. 6. The first hearing scheduled for 17 March 1999 did not take place due to the parties' failure to appear. 7. On 14 May and 3 June 1999 the applicant informed the court that he would not be available for a short period of time and requested that any scheduled hearings be postponed. 8. On 29 June 1999 the applicant amended his claims, following which the hearing was adjourned to obtain additional evidence. Upon arrival of the respondent's comments on the claim, on 16 September 1999 the hearing was again adjourned to collect evidence. 9. On 20 September 1999 the court granted the applicant's request for assistance in obtaining certain documents from his former military unit and sent an inquiry. 10. On 3 May 2000 the court postponed the hearing pending the applicant's convalescence. 11. On 20 June 2000 the applicant again amended the claims, following which the hearing was adjourned to obtain evidence from certain State bodies. 12. On 16 February 2001 the court granted the respondent's motion for adjournment of the proceedings pending the outcome of an inquiry at the Constitutional Court of Russia that concerned compliance of relevant legal provisions with the Constitution. On 23 October 2001 the Kostroma Regional Court (“the Regional Court”) dismissed the applicant's application for supervisory review of the above decision. 13. The Government submitted that the Constitutional Court had ruled on the relevant issues on 19 June 2002 and 25 March 2003. 14. The proceedings were resumed on 14 April 2005. Following the parties' failure to appear at two hearings, on 29 April 2005 the court left the claims without consideration. On 21 June 2005 this decision was quashed for lack of proper notification of the parties, and the proceedings were resumed. 15. The proceedings were stayed from 6 July to 17 November 2005 pending the outcome of another inquiry with the Constitutional Court of Russia, which was resolved on 7 October 2005. 16. After resumption of the proceedings the parties did not appear at two hearings, and on 28 December 2005 the court again left the claims without consideration. 17. In April and May 2006 the applicant requested that the above decision be quashed and amended his claims. The proceedings resumed on 19 May 2006. 18. Between 22 June and 31 August 2006 three hearings were adjourned at the initiative of the respondent and for the public prosecutor's default in appearance. The applicant in the meantime supplemented his claims and motioned for examination of the case in his absence. 19. On 14 September 2006 the District Court granted the applicant's claims in part awarding him 1,008,083 Russian roubles (RUB) in damages and RUB 14,049 in monthly payments of disability pension. 20. On 29 November 2006 the Regional Court overturned the judgment for errors of fact and ordered a new hearing. The appeal court also issued a decision in respect of the president of the District Court to reprimand him for breaches of procedural law and excessively long examination of the case. In particular, the appeal court pointed out that the applicant, or both parties, had not been duly notified of the hearings of 17 March 1999, 14 and 21 April, 17 November and 28 December 2005. It also noted the large interval between the hearings held in September 1999 and May 2000. 21. In December 2006 and February 2007 the applicant motioned for examination of the case in his absence. 22. On 25 December 2006 the court adjourned the hearing to allow the respondent to obtain certain evidence. 23. On 1 March 2007 the District Court again granted the claims in part, awarding the applicant RUB 1,475,149 in damages and RUB 19,858 as monthly payments. 24. On 4 June 2007 the Regional Court upheld the judgment on appeal after correcting an arithmetical error. 25. Federal Law № 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation. 26. Section 6.2 of the Federal Law № 68-ФЗ provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to the domestic courts. | 1 |
train | 001-101970 | ENG | HUN | CHAMBER | 2,010 | CASE OF HESZ v. HUNGARY | 4 | Violation of Art. 6-1 | András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. The applicant was born in 1951 and lives in Budapest. 5. On 10 September 1992 the applicant brought an action against several respondents before the Budapest XX/XXI/XXIII District Court, requesting it to establish the invalidity of a contract and to order the respondents to vacate the house in which they lived. 6. Subsequently, several hearings took place and the opinion of an expert was obtained. Between 4 February 1997 and 20 May 1999 the case was suspended pending a related procedure before the land registry. 7. After several further hearings, on 30 June 2004 the District Court dismissed the action. On appeal, the Budapest Regional Court upheld the essence of the first-instance decision on 13 April 2005. On 4 April 2006 the Supreme Court dismissed the applicant’s petition for review. | 1 |
train | 001-91740 | ENG | RUS | CHAMBER | 2,009 | CASE OF KALINICHENKO v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1979 and lives in Ryazan. 5. He is a former military serviceman. From 22 August 2000 to 15 October 2001 he served in the Russian peacekeeping contingent in Bosnia and Herzegovina, the former Republic of Yugoslavia. 6. Upon his return, the applicant brought proceedings against the head of his military unit to secure payment of his daily allowance for his service abroad. 7. On 25 July 2003 the Military Court of the Ryazan Garrison granted the applicant’s claim and ordered the military unit to pay the applicant 400,164.75 Russian roubles (RUB) in remuneration and RUB 1,000 in expenses for legal advice. 8. The military unit did not lodge an ordinary appeal, and on 22 August 2003 the judgment became binding and enforceable. 9. However, following the respondent’s request, on 19 November 2003 the Presidium of the Military Court of the Moscow Command quashed the judgment of 25 July 2003 by way of supervisory review and dismissed the applicant’s claims in full. The reason given for the quashing of the judgment was the “wrongful application of substantive law by the first-instance court”. 10. The Code of Civil Procedure of the Russian Federation provides as follows: “1. The grounds on which appeal courts may quash or alter judicial decisions are: ... (4) a violation or incorrect application of substantive or procedural law.” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may ... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for fresh examination ... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for fresh examination, if the substantive law has been erroneously applied or interpreted.” | 1 |
train | 001-61755 | ENG | NLD | CHAMBER | 2,004 | CASE OF BRAND v. THE NETHERLANDS | 2 | Violation of Art. 5-1;Non-pecuniary damage - financial award | null | 9. The applicant was born in 1956 and lives in Eindhoven. 10. On 23 June 1994 the ’s-Hertogenbosch Regional Court (arrondissementsrechtbank) convicted the applicant of participation in robbery with violence resulting in grievous bodily harm and sentenced him to fifteen months’ imprisonment, with deduction of the time spent in pre-trial detention. In addition, having found that the applicant was suffering from a mental disorder and was dangerous, the Regional Court further ordered the applicant’s confinement in a custodial clinic (hereafter a “TBS order” - terbeschikkingstelling met bevel tot verpleging van overheidswege). 11. On 10 October 1994, when the applicant had served his prison sentence, the TBS order took effect. However, the applicant was not transferred to a custodial clinic as there were no places available. He therefore remained in pre-placement detention in the ’sHertogenbosch ordinary remand centre. 12. In order to expedite his admission to a custodial clinic, the applicant instituted summary civil proceedings (kort geding) against the Netherlands State. He withdrew these summary proceedings after his transfer to a custodial clinic in Nijmegen on 28 December 1995. 13. On 8 February 1996 the applicant took civil proceedings against the Netherlands State before the Hague Regional Court, claiming compensation in tort (onrechtmatige daad) in an amount of 29,200 Netherlands guilders (NLG), i.e. NLG 50 for each day during the first ten months of his pre-placement detention after 10 October 1994 pending transfer to a custodial clinic and NLG 100 for each subsequent day until 28 December 1995. 14. In its judgment of 24 July 1996 the Regional Court held that a delay of six months was acceptable for a transfer to a custodial clinic and that the Netherlands State had only acted unlawfully in so far as this delay had exceeded six months. It awarded the applicant compensation in the amount of NLG 50 for each day spent in pre-placement detention between 6 and 10 months after 10 October 1994 and NLG 100 for each subsequent day until 28 December 1995, i.e. a total amount of NLG 20,100. It rejected the applicant’s claim for the remainder. 15. The Netherlands State filed an appeal with the Hague Court of Appeal (Gerechtshof). The applicant filed a cross-appeal (incidenteel beroep) in which he reduced his claim for damages to NLG 24,900 in that he no longer sought compensation for the first three months of his pre-placement detention, i.e. the period between 10 October 1994 and 28 December 1995. 16. In its judgment of 20 March 1997 the Court of Appeal rejected the principal appeal filed by the Netherlands State. It did, however, quash the judgment of 24 July 1996 on the basis of the cross-appeal filed by the applicant in so far as the applicant’s claims in excess of NLG 20,100 had been dismissed in this judgment. It ordered the Netherlands State to pay a further amount of NLG 4,800 to the applicant. The Netherlands State filed an appeal in cassation with the Supreme Court (Hoge Raad). 17. On 5 June 1998 the Supreme Court quashed the judgment of 20 March 1997 and referred the case back to the Amsterdam Court of Appeal. It held, inter alia: “3.3 Article 9 § 1 (b) of the [1951] Prisons Act (Beginselenwet Gevangeniswezen) reads: ‘Remand centres are intended: (b) for the accommodation of all others lawfully deprived of their liberty by a judicial decision, court order or public authority, in so far as there is no other suitable place for their accommodation or for as long as admission to another suitable place is not possible.’ The point of departure for the examination ... must therefore be that the [applicant’s] continued stay in the remand centre ‘for as long as admission to another suitable place is not possible’ is in principle lawful as being based on the law. Moreover, the parties and the Court of Appeal have taken this approach. However, where it can no longer reasonably be held that the failure to admit a person to a custodial clinic is justified by the circumstances, the continuation of detention in the remand centre must be regarded as unlawful (Supreme Court, 28 June 1963, Nederlandse Jurisprudentie 1963, 480). Also, the parties and the Court of Appeal have taken this as their point of departure. Part 1 [of the cassation complaint] thus lacks a factual basis. 3.4.1 The Court of Appeal, faced with the question from what moment the situation referred to in the last paragraph of 3.3 arises, has held that ‘apart from exceptional circumstances, the stay of a [person awaiting admission to a custodial clinic] should not exceed three months’ and, further, that, in the absence of exceptional circumstances, the [applicant’s] stay in the ’s-Hertogenbosch remand centre was unlawful after a period of three months had elapsed. Parts 2-9 [of the cassation complaint] are directed against these findings and the reasons given by the Court of Appeal. 3.4.2 In the examination of these parts, it must be stated in the first place that the impugned findings of the Court of Appeal concern a situation prior to the entry into force of Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden). ... this provision entered into force on 11 July 1997. The Supreme Court’s considerations hereafter will thus address the legal situation until 11 July 1997. 3.4.3 In 1963 the Minister of Justice gave an undertaking to the Upper House of Parliament that the admission to a custodial clinic of persons in respect of whom a TBS order had been given and in respect of whom a custodial clinic had been selected would be carried out within eight weeks after the TBS order had taken effect. ... In a letter to the Lower House of Parliament of 3 June 1986, the State Secretary of Justice ... stated that she was unable to maintain this undertaking, given the growth in waiting lists. Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order reads: ‘1. The admission [to a custodial clinic] of a person in respect of whom a TBS order has been issued takes place within a period of six months after the date on which the TBS order has become effective. 2. When Our Minister, taking account of the requirements mentioned in Article 11 § 2 [of this Act], considers that admission is not possible within the period set out in the first paragraph, he may extend this period by three months each time. 3. A decision to extend within the meaning of the second paragraph shall be equated to a refusal to decide within the period mentioned in the first paragraph.’ In the Explanatory Memorandum to this Article it is stated, inter alia: ‘... in the proposed first paragraph of Article 12 a time-limit of six months is set out within which the admission must in general be carried out. This time-limit has been chosen on the basis of the fact that, in addition to the previously accepted guideline for a maximum duration for a TBS admission of twelve weeks, the time needed for the selection examination, the consultation with the envisaged institution of admission and the decision-making at the Ministry must also be taken into consideration. In 1986 my predecessor abandoned the above-mentioned time-limit of twelve weeks since, as a result of the lack of capacity of the custodial clinics including the [forensic psychiatric observation] Dr F.S. Meijers Institute, this time-limit could no longer be observed. It cannot be expected for a foreseeable time that all persons in respect of whom a TBS order has been issued can be admitted to the custodial clinic selected for them within the stated time-limit. The proposed second paragraph of Article 12 therefore opens the possibility of an extension of the six-month period by three months each time.’ 3.4.4 The following must be derived from the statements of the Minister and the State Secretary of Justice. After 1963 the Government apparently assumed that the undertaking made in 1963 concerned the time needed for selection and admission of persons awaiting admission to a custodial clinic and that this period would not exceed a maximum of twelve weeks. The State Secretary ‘abandoned’ this undertaking in 1986 on grounds of ‘the lack of capacity of the custodial clinics, including the Dr F.S. Meijers Institute’. It follows from this that, where the above-mentioned lack of capacity is not taken into consideration, the point of departure is that the procedure of selection and admission of persons subject to a TBS order does not, in principle, need to take more than three months. The consequences of this lack of capacity and other circumstances that might influence the delay in admission will be addressed in considerations nos. 3.4.5 – 3.4.10. In the light of the presupposed standard in 3.3 it cannot be said, however, that the mere exceeding of the three-month time-limit in itself renders a lawful detention in a remand centre unlawful under Article 9 § 1 (b) of the [1951] Prisons Act. This situation only arises where it can no longer reasonably be held that the failure to admit a person to a custodial clinic remains to be justified by the circumstances. Only then can it be said that, although there is a legal basis for the continued detention in a remand centre of a person subject to a TBS order, the further duration of that detention is contrary to what is fitting conduct in society according to unwritten (customary) law (in strijd is met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt). 3.4.5 For cases like the present one, this unwritten law is as follows. It must be stated first that the TBS order in cases like the present one starts to run from the date of early release and that the Minister of Justice, pursuant to Article 4 of the TBS Execution Rules (Reglement tenuitvoerlegging TBS) (as in force until 2 October 1997), had to decide ‘as soon as possible on the admission to a custodial clinic intended to execute the confinement order’. This did not, however, mean that the Minister of Justice was obliged to ensure that the required capacity for persons subject to a TBS order was available at any given point in time. A certain friction between available and required capacity is indeed acceptable from the point of view of efficient expenditure of financial resources. It has already become clear in 3.4.3 that the Minister of Justice, when he allowed a delay of twelve weeks in 1963, took into account beforehand the fact that this delay would not be sufficient in all cases. It further needs to be noted that Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order entered into force on 11 July 1997. In this provision, identical wording to which was already included in the Bill submitted on 12 October 1993, the point of departure is an admission delay, continuously subject to extension, of six months. The views of the Government and Parliament during the history of the adoption of the aforementioned Act are relevant to the examination of the question as to the period of delay in a remand centre awaiting admission to a custodial clinic intended for the person concerned which can be considered, in general, justified by the circumstances and thus acceptable in society. Noting the above, and with due regard for the considerations set out in 3.4.4, the Supreme Court is of the opinion that, after the end of the prison sentence, the preplacement detention in a remand centre for a period of six months of a person subject to a TBS order awaiting admission to a custodial clinic intended for him cannot be regarded as unlawful. A period longer than six months would be unlawful, unless there were special circumstances, as referred to in 3.4.7 below. 3.4.6 3.4.7 In part 6 [of the grounds of appeal in cassation] the complaint is made that the Court of Appeal has not accepted that it is incompatible with the standard given in the Supreme Court’s judgment of 28 June 1963 (NJ 1963, 480) that a distinction be made between general circumstances, which could be relevant for a waiting period for admission to a custodial clinic of three months, and special circumstances which could be relevant for the period after three months. ... The complaint fails. Only on grounds of special circumstances to be submitted by the State and in the event of a proven dispute relating to the person concerned and/or the State – such as, for instance, incidental and serious friction between available and required capacity for persons subject to a TBS order – can the exceeding of the maximum duration of an admission delay be justified. 3.4.8 3.4.9 3.4.10 Since the State has not adduced any of the special circumstances referred to in 3.4.7, it follows from the foregoing that the detention of [the applicant] in the ’s-Hertogenbosch remand centre must be considered unlawful from the moment when a period of six months had passed following the beginning of his stay there awaiting admission [to a custodial clinic]. 3.4.11 3.4.12 The complaint set out in part 10 [of the grounds of appeal in cassation] about the reasons [given by the Court of Appeal for rejecting the State’s argument in relation to the determination by the Regional Court of the amount of compensation of respectively NLG 50 and NLG 100 per day] is well–founded. The State has disputed ... on grounds that cannot immediately be refuted that the end date of the TBS would change when the starting date had been postponed. By ignoring this, the Court of Appeal has not given sufficient reasons for its impugned finding. 3.4.13 Part 10 further contains a complaint that the Court of Appeal has used an incorrect standard in the determination of compensation by assuming that the stay of [the applicant] in the remand centre can at best be compared to the case of a suspect who has spent more time in pre-trial detention than was justified. This complaint is also well–founded. The unlawfulness of detention in a remand centre after six months does not arise from the continued deprivation of liberty but from the failure to start treatment in a timely manner in a custodial clinic intended for this purpose. The comparison used by the Court of Appeal does not fit the nature of this form of unlawfulness and the non-pecuniary damage resulting therefrom 18. On 10 January 1999 the TBS order against the applicant expired. The public prosecutor had not sought a prolongation of the order. 19. In a judgment of 25 February 1999 the Amsterdam Court of Appeal quashed the judgment of the Hague Regional Court of 24 July 1996 in so far as it had awarded compensation to the applicant in an amount of NLG 20,100. It awarded the applicant compensation in an amount of NLG 11,250, rejected the rest of his claim and upheld the remainder of the judgment of 24 July 1996. 20. The Amsterdam Court of Appeal found it established that the delay in the admission of the applicant to a custodial clinic constituted an unlawful act in so far as this delay had exceeded a period of six months. It held that the applicant had been unable to demonstrate that there were special circumstances in his case for holding that a delay of more than three months constituted of itself an unlawful act. It agreed with both parties to the proceedings that it could not be determined what had been, in concrete terms, the effect of the applicant’s lengthy stay in the remand centre on his treatment. Relying on a report of 5 December 1996 by the National Ombudsman, the Court of Appeal further held that no general conclusive findings could be made on that issue. It did not find it established that, in the applicant’s case, the delay in admission had had a major and serious impact on treatment possibilities. 21’s feelings of uncertainty and frustration. Having found it established that the applicant’s feelings of unrest had become more intense with the passage of time pending admission to a custodial clinic, it further held that he had sustained increasing non-pecuniary damage with the passage of time. As to this aspect, it considered that a three-monthly increase of the basic amount by NLG 250 per month on each occasion was, in the present case, in accordance with the requirements of equitable compensation. It consequently fixed the total amount of compensation at NLG 11,250. 22. It rejected the applicant’s argument that the compensation should be calculated on a daily basis. The Court of Appeal agreed with the State that the use of a daily compensation amount in cases like the present one, where the unlawfulness did not arise from the deprivation of liberty as such, suggested a degree of precision for which there was no basis in reality. 23. The relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht), as in force at the relevant time, read as follows: “Article 13 1. A person sentenced to imprisonment who, on grounds of the inadequate development or pathological disturbance of his mental faculties, is eligible for this, may be placed in a judicial institution (justitiële inrichting) for the treatment (verpleging) of persons subject to a TBS order; in that case Articles 37c, 37d and 37e shall apply by analogy. ... Article 37 1. The judge may order that a person who, owing to the inadequate development or pathological disturbance of his mental faculties, cannot be held responsible for an offence, shall be committed to a psychiatric hospital (plaatsing in een psychiatrisch ziekenhuis) for a period of one year, but only if he represents a danger to himself, to others, or to the general safety of persons or property. ... Article 37a 1. The judge may impose a TBS order (terbeschikkingstelling) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if: 1o the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more or if the offence is defined in Articles 132, 285 § 1, 318, 326a or 395 of the Criminal Code, Article 175 § 2 of the 1994 Road Traffic Act (Wegenverkeerswet), Article 11 § 2 of the Opium Act (Opiumwet), or Article 432, under 3o, of the Criminal Code, and 2o the said measure is necessary in the interests of the safety of others or the general safety of persons or property. 2. In applying paragraph 1, the judge may refrain from imposing a penalty, even if he finds that the suspect may be held criminally responsible for the offence. 3. In making an order referred to in paragraph 1, the judge shall take account of the statements contained in the reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences. 4. Paragraph 1 of this Article and Article 37 § 1 may be applied in conjunction with regard to the same offence. Article 37b 1. The judge may order that a person who is subject to a TBS order shall be confined to a custodial clinic (verpleging van overheidswege) if this is necessary in the interests of the safety of others or the general safety of persons or property. ... Article 37c 1. Treatment shall be provided in custodial clinics for persons subject to TBS orders in accordance with rules to be laid down by Order in Council (algemene maatregel van bestuur). 2. The Minister of Justice shall ensure that persons subject to TBS orders who are confined to a custodial clinic receive the necessary treatment. In respect of specific patients, the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or property. 3. The rules to be laid down pursuant to paragraph 1 shall make provision for persons subject to TBS orders to appeal against decisions which restrict their freedom of movement or correspondence or their right to receive visitors. Article 37d 1. Persons subject to TBS orders may be confined to the following institutions, on condition that the institutions have been designated for this purpose by the Minister of Justice: a. private institutions managed by legal persons established in the Netherlands; b. State institutions. 2. Treatment shall preferably take place in a private institution. ... Article 37e The costs of the confinement of persons subject to TBS orders shall be borne by the State in so far as no other provision is made for them by or pursuant to any Act of Parliament. Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in State institutions.” 24. A TBS order with confinement to a custodial clinic is not intended to have a punitive effect, but to protect society from any risk posed by the person concerned. In practice, it is imposed in cases concerning murder, manslaughter, rape and other serious violent crimes or sexual offences. TBS orders are initially imposed for a period of two years and may be prolonged by a judge for further periods of one or two years where the safety of others or the general safety of persons or property so require (Article 38d of the Criminal Code). The total duration of a TBS order may not exceed four years, unless it has been imposed on the ground of an offence directed against, or constituting a danger to, the physical integrity of one or more persons. In the latter case, there is in principle no restriction on the number of extensions that can be granted by a judge (Article 38e of the Criminal Code). 25. The provisions relating to the proceedings on the extension of a TBS order are set out in Articles 509o – 509x of the Code of Criminal Procedure (Wetboek van Strafvordering). Article 509o § 1 provides that the public prosecutor’s office (openbaar ministerie) may submit a request (vordering) for the prolongation of a TBS order no sooner than two months and no later than one month before the date on which the order is due to expire. The request must be accompanied by a recent and reasoned recommendation prepared by the custodial clinic where the person concerned is receiving treatment (Article 509o § 2 CCP). The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the TBS order (Article 509p). 26. According to the TBS Execution Rules (Reglement tenuitvoerlegging terbeschikkingstelling; “RTTBS”) as in force at the relevant time, the prosecution department must inform the Minister of Justice as soon as possible of any judicial decision imposing a TBS order with confinement to a custodial clinic (Article 3 RTTBS). Under Article 4 RTTBS, the Minister must decide as soon as possible in which specific custodial clinic the person concerned is to be placed, taking into account the available information on the psychological examination and observation of the person concerned, advice on mental treatment, the case file on the criminal proceedings, the available possibilities for treatment, security requirements and the personal wishes of the person concerned. 27. The custodial clinics, of which there were seven at the relevant time, are top-security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves. The purpose of treatment provided in these clinics is to reduce this danger and to prevent recidivism. The treatment is geared to individual disorders and personalities and is aimed at helping persons subject to a TBS order to gain insight into and control over their disorders, to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society. 28. The decision on the selection of the most appropriate custodial clinic – given the differences between the various institutions as regards security levels, patient population (gender, psychiatric diagnosis of the patients and their ability to function in a group setting etc.), methods of treatment and average stay of patients – is in most cases preceded by a seven-week period of psychiatric observation in the Dr F.S. Meijers Institute, a forensic psychiatric observation institution specialised in this field. 29. The legal basis for pre-placement detention is provided for in Article 9 of the 1951 Prisons Act (Beginselenwet gevangeniswezen). This provision, as in force at the relevant time, reads: “Remand centres are intended: a. for the accommodation of those who must undergo punishment by imprisonment or military detention; b. for the accommodation of all others lawfully deprived of their liberty by a judicial decision, court order or public authority, in so far as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible.” 30. In a judgment given on 28 June 1963 the Supreme Court held that Article 9 § 1 (b) of the 1951 Prisons Act also covered situations in which persons subject to a TBS order entailing confinement to a custodial clinic were detained in a remand centre pending a decision as to the specific custodial clinic in which they were to be placed, and that such a detention in a remand centre was in principle lawful as being based on the law. It did, however, add that it did not follow from this interpretation that such – in principle – lawful detention would remain lawful where it could no longer reasonably be held that the failure to admit the person to a custodial clinic remained justified by the circumstances (Nederlandse Jurisprudentie (Netherlands Law Reports) 1963, 480). 31. In the National Ombudsman’s report no. 96/575 of 5 December 1996, it was stated that, in principle, taking into account the seven-week observation period and a margin of some weeks for the administrative processing of the selection application and the admission procedure, a delay of three months between the date on which a sentenced person became eligible for early release and the date of admission to a custodial clinic was acceptable. Acknowledging that incidental friction between the available and necessary capacity of custodial clinics could not be wholly excluded, the National Ombudsman further held that an additional delay of no longer than three months at the very most might still be acceptable. However, given the responsibility of the Minister of Justice for adequate capacity planning, the Ombudsman did emphasise that reliance on force majeure would only be acceptable if the Minister could demonstrate unforeseen circumstances that indeed rendered a longer period of pre-placement detention unavoidable. 32. On 1 October 1997 Articles 1–11 and 13–80 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden) entered into force. Article 12 of this Act had already entered into force on 11 July 1997. 33. Article 12 of this Act provides that a person subject to a TBS order must be admitted within six months to a custodial clinic after the TBS order has taken effect. This period can be extended by the Minister of Justice by further periods of three months each time if placement proves impossible. 34. In the report of 15 July 1993 of the European Committee for the Prevention of Torture and Inhuman Treatment (the “CPT”) on its visit to the Netherlands from 30 August to 8 September 1992 (CPT/Inf (93)15), it is stated: “130. ... the delegation also met (for instance, in the De Schie Prison, the De Singel Prison and the FOBA) some male and female prisoners in respect of whom treatment measures (eg. a TBS placement) had been decided, in some cases a long time before, but who had not yet been transferred because of a lack of places. The CPT would like to receive the Dutch authorities’ comments on this subject.” 35. In their response to the CPT report (CPT/Inf (93)20), the Netherlands Government stated: “The increase in the number of persons under a TBS order has placed the existing capacity under severe strain, causing a rise in the number of prisoners awaiting transfer to a TBS clinic. The Netherlands Government shares the CPT’s view that such prisoners should be placed in an appropriate hospital facility within a reasonable length of time. The situation has changed, however, since the delegation’s visit. A programme has been set up to increase the capacity through building projects and the creation of more places in existing establishments, and outpatient departments for part-time treatment have been added to some TBS clinics, widening the prospect for earlier probationary leave. These measures will reduce waiting times considerably.” 36. In the CPT report of 29 September 1998 on its second visit to the Netherlands from 17 to 27 November 1997 (CPT/Inf (98)15), it is stated: “111. Since the beginning of the 1990s, the Dutch authorities have been confronted by a significant increase in TBS orders, a problem which has been exacerbated by the prolonged stays – for more than six years – of some 160 persons within the TBS system. As a result, the number of persons waiting in prisons for admission to TBS establishments rose from 26 in 1991 to over 200 at the time of the CPT’s second periodic visit. In response to this situation, the Dutch authorities have decided to increase the number of TBS places, in order to reach a capacity of 1,000 in 1999. However, the CPT notes that, in a letter sent to the Lower House of Parliament on 2 April 1998, ... the Minister of Justice indicated that the shortage of TBS places in 2002 is estimated at 340. Concern has been expressed in the Netherlands about the position of inmates waiting in prison for admission to a TBS institution. During this waiting period, currently averaging 9 months, the persons concerned do not receive the treatment they require, a situation which, it has been pointed out, is likely to provoke feelings of anxiety, self doubt and anger in the persons concerned. Further, as they are considered dangerous, those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held.” 37. In their response to the CPT report (CPT/Inf (99)5), the Netherlands Government informed the CPT of the measures taken by the Dutch authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a custodial clinic and of the steps taken to ensure that such prisoners received at least minimally adequate treatment whilst awaiting admission. According to the Netherlands Government, efforts were being made to improve/accelerate the outflow of TBS patients to mainstream psychiatric facilities and the new statutory provision for the conditional lifting of TBS orders was expected both to increase the outflow of TBS patients as well as to reduce the number of patients entering custodial clinics. 38. The Government further informed the CPT that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem, but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons. In these experiments, therapists attached to forensic outpatient departments offered a form of preparatory therapy designed to alleviate anxiety about the eventual TBS treatment and to reduce the growing hostility felt by these people towards the justice system. According to the Government, the initial results of these experiments were encouraging in that the persons involved – therapists, prison staff and inmates – had all responded positively and there was a growing demand among prisoners awaiting admission to a TBS institution for this kind of support (pp. 40-41). | 1 |
train | 001-69204 | ENG | SVK | CHAMBER | 2,005 | CASE OF HEFKOVA v. SLOVAKIA | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1970 and lives in Snina. 5. On 9 January 1997 the applicant gave birth to a girl. She stated to the authorities that the father of the child was a Yugoslav national living in Switzerland. 6. On 18 April 1997 the Humenné District Court heard the applicant on the issue of the paternity of her child. 7. On 22 December 1997 the Prešov District Court appointed the Snina District Office as guardian to the child for the purpose of bringing paternity proceedings on her behalf and representing her in such proceedings. The decision stated that it had been taken as the applicant had not filed a paternity action. The District Office received the decision on 23 December 1997, but it did not bring paternity proceedings. On 3 June 1999 the Prešov Regional Office admitted, in reply to the applicant’s complaint, that the Snina District Office by its failure to file an action had delayed the case. 8. On 17 August 1998 paternity proceedings were instituted, at the applicant’s request, before the Prešov District Court. On 17 September 1998 the applicant paid the court fee. 9. On 25 January 1999 the Prešov District Court heard the applicant and decided to transfer the case to the Humenné District Court for reasons of jurisdiction. The file was submitted to the latter court on 8 March 1999. 10. A hearing before the Humenné District Court was held on 28 June 1999. 11. On 6 October 1999 the case was assigned to a different judge. 12. On 1 December 2000 the District Court ordered an official translation of the relevant documents as it was necessary to seek the assistance of Swiss authorities. The request for assistance was sent to the competent Swiss court on 21 January 2001. 13. The District Court received the reply from the Swiss court on 26 March 2001. According to it, the defendant had denied the paternity of the applicant’s child. He declared himself ready to undergo a DNA test. The defendant had also explained that he had been granted asylum in Switzerland and that he could not travel abroad. 14. On 23 May 2001 the District Court held a hearing at which the applicant maintained her claim. On the same day the District Court appointed an expert in genetics. On 9 July 2001 the expert informed the applicant that he had not yet made a blood analysis of her daughter as the District Court had failed to pay an advance on his costs. The letter further stated that the expert had informed the District Court how to obtain a blood sample from the alleged father in Switzerland. The District Court sent the relevant request to the Swiss court on 29 June 2001. 15. On 31 January 2002 the expert informed the District Court that he had not yet received the blood sample from his Swiss counter-part. On 6 December 2002 the District Court informed the applicant that the Swiss authorities had not yet obtained a blood sample from the alleged father of the child. 16. After having made an inquiry from the expert on 11 February 2003, the District Court again requested the Swiss authorities for assistance on 13 March 2003. In a reply delivered on 14 April 2003 the competent Swiss court informed the Humenné District Court that the files relating to its request had already been sent to it. The Swiss court enclosed copies of those documents to its reply. It was later established that the original mail from the Swiss court had been lost prior to its delivery. 17. On 18 June 2003 the District Court scheduled a hearing for 10 September 2003. It unsuccessfully attempted to have the defendant summoned. On 10 September 2003 the case was adjourned as the defendant’s whereabouts were unknown. 18. On 16 September 2003 the Humenné District Court again requested the competent Swiss court for assistance in establishing the defendant’s whereabouts and in obtaining a blood sample from him. It further authorised the expert to proceed with the analysis of samples from the applicant and the child. 19. On 27 October 2003 the District Court received information about the new address of the defendant. 20. On 9 December 2003 the District Court again asked the Swiss court for assistance in obtaining a blood sample as well as further information about the defendant’s situation. 21. On 19 December 2003 the expert submitted a DNA analysis of the applicant and her daughter. 22. On 6 July 2004 the District Court received a reply from the Swiss court. It stated that the Swiss court had heard the defendant on 15 March 2004 who had agreed to an analysis of his blood. However, the defendant subsequently had not complied with repeated requests to this effect and had failed to appear for a sample to be taken from him. Under Swiss law the defendant could not be obliged to submit a blood sample without his consent. According to the letter, the Swiss court could take no further action in that respect. The Humenné District Court obtained a translation of the above reply on 31 August 2004. 23. A hearing before the District Court was scheduled for 1 December 2004. 24. On 25 September 2002 the applicant complained about the length of the paternity proceedings before the Constitutional Court. 25. On 2 July 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision stated that the complaint concerned the proceedings before the Humenné District Court. The Constitutional Court found undue delays in the proceedings between November 1999 and November 2000. However, after that period the District Court had proceeded with the case in an appropriate manner. In particular, it had sent several requests to a court in Switzerland on 29 January 2001, 19 June 2001, 12 June 2002 and on 13 March 2003. It had further ordered an expert opinion, sent a request for a blood sample to be obtained from the defendant and had the documentary evidence translated. In addition, it had encountered difficulties resulting from the loss of files abroad and the fact that summonses could not be served on the defendant. 26. The Constitutional Court concluded that the overall length of the proceedings could not be imputed to the District Court as its proceeding with the case had depended on co-operation with the Swiss authorities. | 1 |
train | 001-72789 | ENG | ALB;BGR;HRV;CZE;DNK;EST;HUN;IRL;ISL;ITA;LTU;LVA;NLD;POL;PRT;ROU;SVK;SVN;TUR;GBR;UKR | ADMISSIBILITY | 2,006 | HUSSEIN v. ALBANIA, BULGARIA, CROATIA, CZECH REPUBLIC, DENMARK, ESTONIA, HUNGARY, ICELAND, IRELAND, ITALY, LATVIA, LITHUANIA, THE NETHERLANDS, POLAND, PORTUGAL, ROMANIA, SLOVAKIA, SLOVENIA, TURKEY, UKRAINE AND THE UNITED KINGDOM | 3 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Mr Saddam Hussein, is an Iraqi national who was born in 28 April 1937. He is the former President of Iraq and is currently detained in Iraq. On 20 March 2003 coalition forces, led by a US General, invaded Iraq. While the greater part of the forces and support came from the United States (“US”) and the United Kingdom (“UK”), it will be assumed for current purposes that the coalition forces included support from each of the respondent States during the relevant period. The coalition forces were composed of Divisions, each with military responsibility for a particular zone of Iraq. The US divisions controlled the North and Central zones (the latter including the Baghdad and Tikrit regions) and the two multi-national divisions, one commanded by the UK and the other by Poland, were charged with the south zone and south central zone, respectively. In early April US forces captured Baghdad. On 16 April 2003 a US General issued a “Freedom Message” announcing the creation of the Coalition Provisional Authority (CPA), a civilian administration that would exercise powers of government temporarily in Iraq. On 13 May 2003 the US Secretary for Defence appointed Ambassador Bremer as Administrator of the CPA. On 13 July 2003 the Iraqi Governing Council (“IGC”) was formed: the Administrator of the CPA could veto all decisions of the IGC. The CPA was to co-ordinate with the ICG on all matter involving the temporary governance of Iraq. On 13 December 2003 the applicant was captured near Tikrit by US soldiers (the 4th Infantry Division and members of Task Force 121) during an operation called “Operation Red Dawn”. On 8 June 2004 the UN Security Council adopted Resolution 1546 (2004) whereby it endorsed the formation of a sovereign interim Government of Iraq which would assume, by 30 June 2004, full responsibility and authority for governing Iraq; it welcomed the end of the occupation and the cessation of the CPA (also by 30 June 2004) when Iraq would reassert its full sovereignty; and it noted that, pending the assumption of full security responsibility by the Iraqi security forces, the presence of the multinational force in Iraq was at the request of the incoming Interim Government of Iraq (Articles 1, 2, 8 and 9 of the Resolution). Two days earlier than foreseen, on 28 June 2004 all CPA authority was transferred to the new Iraqi Interim Government. On 30 June 2004 the applicant was transferred by US troops to the Iraqi Government for trial. | 0 |
train | 001-96147 | ENG | UKR | CHAMBER | 2,009 | CASE OF VASILCHUK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 5. The applicant was born in 1940 and lives in Chornobayivka. 6. On 16 August 1999 the applicant was dismissed from his job at the Dzherelo enterprise (Чорнобаївське сільське комунальне господарство «Джерело»), a subsidiary of the municipal entity Oblsilkomungosp (Херсонське обласне виробничо-кооперативне об'єднання сільського комунального господарства «Облсількомунгосп»). 7. In August 1999 the applicant challenged his dismissal and sought compensation before the Dniprovsky District Court of Kherson. 8. On 22 August 2001 the court allowed the applicant's reinstatement claim and ordered Oblsilkomungosp to pay him 4,800 Ukrainian hryvnias (UAH). 9. On 3 September 2001 the State Bailiffs' Service instituted enforcement proceedings. 10. On 6 November 2001 the Kherson Regional Court of Appeal upheld that judgment. 11. On 7 December 2001 the Dzherelo enterprise was formally reorganised into a private company, D. 12. On several occasions the enforcement proceedings were discontinued for various reasons and reopened following complaints by the applicant that these decisions were unfair. It is unclear from the parties' submissions whether the debt under the judgment was paid. 13. In October 2005 the debtor entity was fined for failure to enforce the judgment of 22 August 2001. Additionally, the State Bailiffs' Service requested the local prosecutor to institute criminal proceedings against the managers of Oblsilkomungosp, which request was subsequently rejected. 14. On 7 October 2005 a decision was taken to initiate liquidation of Oblsilkomungosp. 15. On 17 October 2005 the Bailiffs' Service returned the enforcement writ to the applicant unenforced. 16. On 3 July 2006 the Kherson Regional Commercial Court instituted insolvency proceedings against Oblsilkomungosp and on 17 July 2006 declared the company insolvent. 17. On 4 March 2008 the Commercial Court further approved the liquidation balance sheet and declared Oblsilkomungosp liquidated, following which declaration on 19 March 2008 the company was deleted from the State Company Register. 18. On 5 April 2002 the applicant instituted proceedings in the Suvorovskiy District Court of Kherson against Oblsilkomungosp, seeking compensation on account of its prolonged failure to reinstate him. 19. On 4 February 2005 the court, finding that the judgment of 22 August 2001 in the part concerning reinstatement had still not been enforced, awarded the applicant UAH 8,081.70. 20. On 24 May 2005 the Kherson Regional Court of Appeal increased this sum to UAH 17,206. 21. On an unspecified date the State Bailiffs' Service instituted enforcement proceedings. On 23 December 2005 the State Bailiffs' Service terminated the enforcement proceedings as the debtor had been liquidated. 22. The judgment of 4 February 2005, as amended by the judgment of 24 May 2005, remains largely unenforced. 23. In September 2005 the applicant instituted proceedings in the Dniprovskiy District Court of Kherson against Oblsilkomungosp, seeking compensation for its failure to reinstate him after 5 February 2005. 24. On 14 June 2006 the court, finding that the judgment of 22 August 2001 in the part concerning reinstatement had still not been enforced, allowed his claim and awarded the applicant UAH 9,495.75. The court also found that the applicant had resigned on 14 June 2006 as a result of his employer's liquidation and ordered the liquidation commission to prepare documents for the applicant's pension. 25. On 2 November 2006 the Kherson Regional Court of Appeal quashed that judgment in the part concerning the applicant's resignation and the liquidation commission's obligation to prepare documents for the applicant's pension and gave a new judgment dismissing these claims. The court further upheld the remainder of the judgment. 26. The judgment at issue remains unenforced. 27. In October 2005 the applicant instituted proceedings in the Dniprovskiy District Court of Kherson against the local department of justice and two local departments of the State Bailiffs' Service, seeking compensation for non-pecuniary damage incurred as a result of the lengthy non-enforcement of the judgment of 22 August 2001. 28. In a judgment of 23 December 2005 the court ordered the defendants jointly to pay the applicant the total amount of UAH 6,000. 29. On 8 June 2006 the Kherson Regional Court of Appeal quashed that judgment in the part concerning the obligation of the local department of justice to pay the applicant compensation and rendered a new one dismissing this claim and reducing thereby the amount awarded to UAH 4,000. 30. On an unspecified date the State Bailiffs' Service instituted enforcement proceedings. 31. On 23 November 2006 it returned the writs of enforcement to the applicant owing to the debtors' lack of funds. 32. On 14 December 2006 the Dniprovskiy District Court of Kherson amended its previous judgment, awarding the applicant an additional amount of UAH 40 in court fees. 33. The judgment of 23 December 2005 as amended, remains unenforced. 34. In February 2002 the applicant instituted proceedings in the Dniprovsky District Court of Kherson against Y. and G., the manager and his deputy, of Oblsilkomungosp, seeking compensation for non-pecuniary damage incurred as a result of the lengthy non-enforcement of the judgment of 22 August 2001. In a final decision of 9 December 2003 the Supreme Court of Ukraine dismissed his claim. Later, the applicant requested the courts to review the impugned judgment under the extraordinary procedure, but in vain. 35. The applicant also requested a local prosecutor to institute criminal proceedings against the above-mentioned persons. However, on 7 October 2002 the prosecutor found no prima facie case for instituting the proceedings as requested. The applicant appealed against that decision but in a final decision of 20 April 2004 the Supreme Court of Ukraine dismissed his appeal. Subsequently, the applicant requested the courts to review the impugned decision under the extraordinary procedure, but to no avail. 36. The applicant further claimed compensation from the local prosecutor's office for its failure to enforce the judgment of 22 August 2001. On 20 December 2002 the Suvorovskiy District Court of Kherson found against the applicant. On 27 March 2003 the Kherson Regional Court of Appeal upheld that judgment. 37. In November 2002 the applicant instituted proceedings in the Komsomolskiy District Court of Kherson against Oblsilkomungosp and the local State Administration, seeking to have the reorganisation of Dzherelo declared void. On 5 August 2004 the court dismissed his claim. On 10 November 2004 the Kherson Regional Court of Appeal upheld that judgment. Subsequently, the applicant requested the courts to review the impugned judgment under the extraordinary procedure, but to no avail. 38. In January 2003 the applicant instituted proceedings in the Suvorovskiy District Court of Kherson against Oblsilkomungosp, seeking the annulment of the reinstatement orders of 17 September 2001 and 24 April 2002. On 6 August 2003 the court dismissed his claim. On 3 December 2003 the Kherson Regional Court of Appeal upheld that judgment. Later, the applicant unsuccessfully requested the courts on several occasions to review the impugned judgment under the extraordinary procedure. 39. On an unspecified date the applicant instituted proceedings in the Suvorovskiy District Court of Kherson against the local department of justice, seeking compensation for non-pecuniary damage incurred as a result of the lengthy non-enforcement of the judgment of 22 August 2001. In a judgment of 15 May 2003 his claim was dismissed. The applicant did not appeal against that judgment. 40. On an unspecified date the applicant instituted proceedings in the Supreme Court of Ukraine against the State of Ukraine and its President. On 13 October 2006 the court dismissed his claim, stating that it should have been lodged with a relevant district court. 41. In December 2007 the applicant instituted proceedings in the Dniprovskiy District Court of Kherson against Oblsilkomungosp and other persons, seeking, inter alia, to have the judgment of 22 August 2001 reviewed under the extraordinary procedure. It appears that the proceedings are still pending before that court. 42. The relevant domestic law is summarised in the judgment of Vasylyev v. Ukraine, (no. 10232/02, §§ 19-22, 13 July 2006). | 1 |
train | 001-61833 | ENG | TUR | CHAMBER | 2,004 | CASE OF LESKER ACAR v. TURKEY | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award | null | 9. The applicant was born in 1966 and lives in Silopi. 10. On 28 April 1992 the applicant was taken into police custody on suspicion of having been involved in the terrorist activities of the PKK (Workers' Party of Kurdistan), proscribed as a terrorist organisation under Turkish law. 11. On 25 May 1992 the applicant was brought before the Diyarbakır Public Prosecutor. He denied the allegations against him. On the same day, a judge at the Şırnak Magistrates' Court (sulh ceza mahkemesi) ordered the applicant's detention on remand. 12. On 1 September 1992 the public prosecutor filed an indictment charging the applicant with treason under Article 125 of the Criminal Code. 13. On 12 October 1994 the public prosecutor filed a new indictment, charging the applicant under the same provision of the Criminal Code with involvement in other terrorist activities. 14. On 28 May 1995, upon the request of the public prosecutor, the applicant's case was joined to another case which was being considered in a different chamber of the Diyarbakır State Security Court. 15. On 3 July 1998 the Diyarbakır State Security Court convicted the applicant under Article 125 of the Criminal Code of treason and sentenced him to life imprisonment. 16. The applicant's sentence was automatically referred to the Court of Cassation for appeal. The applicant's request for a hearing on his appeal was granted. On 27 October 1999 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court. 17. The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003). | 1 |
train | 001-81996 | ENG | GEO | CHAMBER | 2,007 | CASE OF FC MRETEBI v. GEORGIA | 3 | Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed | null | 5. The applicant club was founded on 3 February 1988 in Tbilisi. Subsequent to the last changes in its corporate structure, on 10 February 1999, the Vake District Court in Tbilisi incorporated the applicant as a branch of a German limited liability company, “BAUML GmbH”. 6. Under contracts of 11 May and 5 December 1990, the applicant engaged Mr Giorgi Kinkladze (“the footballer”) as a professional player until 30 June 1993. 7. On 11 July 1992 the applicant and the football club Dinamo FC, both members of the Georgian Football Federation (“the GFF”), entered into an agreement on the footballer's transfer to Dinamo FC. It was arranged that the footballer would play for the new club after the latter had paid the applicant 1,000,000 Soviet roubles (the equivalent of 6,000 euros (EUR), according to the applicant). In addition, if the footballer was later transferred abroad, the applicant was to receive 50% of the international transfer fee owed to Dinamo FC. If Dinamo failed to fulfil that obligation, the agreement between it and the footballer would become null and void. 8. On 13 August 1992 Dinamo FC paid the applicant the sum agreed in roubles and the domestic transfer took effect. 9. Under a contract of 11 July 1995, Dinamo FC transferred the footballer to Manchester City FC for a lump sum of USD 1,750,000 (EUR 1,380,000). In the event of the footballer's further transfer by the English club for a fee in excess of USD 3,000,000 (EUR 2,370,000), Dinamo FC was entitled to receive 10% of the excess amount. Subsequently, Manchester City FC indeed transferred the footballer to AFC Ajax, and Dinamo FC thus received around GBP 1,250,000 (EUR 1,820,000) from the English club. 10. Having received the lump-sum transfer fee from Manchester City FC, Dinamo FC never remitted to the applicant the percentage agreed under the contract of 11 July 1992. Seeking to obtain the amount owed to it, the applicant complained to the GFF. 11. On 2 January 1997 the Disputes Committee of the GFF decided that Dinamo FC owed the applicant USD 875,000 (EUR 691,000), corresponding to one half of the transfer fee paid by Manchester City FC. Dinamo FC was ordered to pay this sum in three instalments. 12. On 14 April 1997 the applicant referred the matter to the Fédération Internationale de Football Association (the “FIFA”) requesting its intervention to secure enforcement by the GFF of its decision of 2 January 1997. 13. The FIFA reminded the GFF on 28 April, 12 June, 29 July and 28 August 1997 of its obligation to enforce decisions and thus to settle the dispute between the Georgian clubs, warning that non-compliance with FIFA directives might result in disciplinary proceedings against the GFF. 14. On 1 September 1997 the GFF Emergency Committee decided that Dinamo FC was liable to pay the total amount of USD 875,000 (EUR 691,000) to the applicant immediately and that, in case of failure to comply with this decision, Dinamo FC would be relegated to the Second Division of the Georgian Championship. That sanction would not, however, release the debtor from its obligation to fulfil its financial commitments visà-vis the applicant. In addition, the GFF warned both clubs that they were barred, under the GFF and FIFA Statutes, from referring the dispute to a court of law. 15. Following the applicant's complaints, on 16 April and 6 June 1998, that the dispute had still not been settled, the FIFA again notified the GFF, requesting the enforcement of the latter's decisions at the latest by 31 August 1998, on pain of international sanctions. 16. In the meantime Dinamo FC had taken the matter to a civil court. In a judgment of 13 July 1998, the Vake-Saburtalo District Court in Tbilisi declared the transfer agreement signed by both parties on 11 July 1992 to be null and void. Subsequently, the decision of the Disputes Committee of the GFF of 2 January 1997 was also annulled. During the hearing, the applicant pointed out that the District Court had no right to examine the issue, since the clubs, as GFF members, enjoyed immunity from the jurisdiction of the ordinary courts. That argument was left unanswered. The judgment, not having been appealed, became binding. 17. On 17 September 1998, in view of that judgment, the GFF decided to annul its decision of 1 September 1997 and thus to terminate the dispute. 18. On 24 August 1999 the applicant appealed to the Bureau of the FIFA Players' Status Committee (“the Bureau”), a disputes resolution organ. In a decision of 6 September 1999, the Bureau considered that the FIFA should intervene since it was clear that one of the parties “was not behaving properly and that the GFF was not able to settle the matter by itself”. 19. Without challenging the findings of the Vake-Saburtalo District Court in Tbilisi on 13 July 1998 about the nullity of the contract of 11 July 1992, the Bureau stated on 6 September 1999 that the footballer's transfer from the applicant to Dinamo FC had nevertheless taken place and that no compensation had been paid in return. It therefore concluded that: “There had been a transfer of possession of the federative rights to the player between two clubs, without any contract binding them (since the transfer contract had been declared null and void by the court) and, since one of the parties had indeed performed its obligation, it was logical for that party to be properly indemnified for having done so in good faith.” 20. In the light of its findings, the Bureau decided that compensation for the training and development of the footballer had to be paid to the applicant; both clubs were instructed to negotiate the amount. In the event of further disagreement, the FIFA Special Committee would resolve the issue for them. Furthermore, noting that Dinamo FC had severely breached Article 59 § 1 of the FIFA Statutes by submitting the dispute to a court of law, the Bureau fined that club CHF 20,000 (EUR 12,824). 21. The applicant lodged an appeal against this decision with the FIFA Executive Committee (“the Executive Committee”), which delivered its final decision on 24 March 2000. The appeal having been lodged out of time, the Executive Committee rejected it. However, in view of the fact that the clubs had failed to negotiate an amount of compensation, it determined that Dinamo FC had to pay the applicant USD 300,000 (EUR 236,000). 22. Dinamo FC complied with this decision and fully paid the debt in January 2001. 23. Considering that the amount fixed by the FIFA was insufficient to compensate for the loss sustained, the applicant brought an action for damages in the amounts of USD 9,600,000 and GBP 2,812,500 (totalling EUR 11,750,000) against the GFF before a court of law. It argued that the respondent, contrary to its Statutes, had failed to abide by its positive obligation to protect the rights of its member clubs. As a result of this negligence, the unjust enrichment of Dinamo FC had occurred at the expense of the applicant's property rights. 24. The applicant also requested leave to defer payment of the court fees (known as State fees) until after examination of the case. On 11 April 2003 the Tbilisi Regional Court refused to defer payment on the ground that the applicant's request was not substantiated by evidence of insolvency. The value of its claim being high, the applicant eventually paid the court fees, in the maximum amount of GEL 5,000 (EUR 2,200) under Article 39 §§ 1 and 2 of the Code of Civil Procedure (“the CCP”), on 5 May 2003. 25. The Tbilisi Regional Court, as the court of first instance, examined the action on 13 November 2003 and dismissed it as manifestly ill-founded. 26. On 5 January 2004 the applicant lodged a cassation appeal with the Supreme Court of Georgia. Referring to the fact that it had suspended its activities because of financial problems (near bankruptcy) caused by the respondent's wrongful acts, the applicant requested exemption from the court fees for cassation proceedings. In case this motion for total exemption was rejected, the applicant also requested leave to pay the court fees either in a reduced amount or with deferment. It referred to the right of access to a court guaranteed by the Constitution. 27. On 30 January 2004 the Supreme Court refused to grant the applicant's request for partial or full exemption from the court fees. Without referring to any specific circumstances, it bluntly stated that no ground for exemption, under Articles 46 to 49 of the CCP, existed in the case at hand. The court invited the applicant to pay the GEL 5,000 fee within fourteen days. When it failed to do so, the Supreme Court, in a final decision of 15 March 2004, declared the cassation claim inadmissible. This decision, adopted under the written procedure, was communicated to the applicant on 26 April 2004. 28. According to the applicant, its inability to receive from Dinamo FC proper indemnification in return for the footballer's transfer, as well as the high costs which it had incurred in the domestic and international proceedings against Dinamo FC and the GFF, constituted the main reasons for its financial collapse. The auditor's report of 15 March 2005 confirmed the applicant's insolvency and the resulting cessation of its activities in the sphere of football. The report stated that, due to the inability to pay the participation fee, the applicant had been excluded from the national football championship since 2002. Among other outstanding debts, the report noted arrears of interest on a loan which the applicant had obtained in order to pay the court fee of GEL 5,000 for the proceedings before the Regional Court (paragraph 24 above). “...the Regional Court shall hear a case at first instance if the value of the claim exceeds GEL 500,000 [EUR 224,000] ...” “Court fees (sasamarTlo xarjebi) shall be composed of the State fee (saxelmwifo baJi) and the costs incurred for purposes of the proceedings.” “The State fee shall be payable in accordance with the State Fees Act when: a) Lodging a claim...; ... f) Lodging an appeal; g) Lodging a cassation appeal...” “The amount of the State fee shall depend on the value of the claim and is calculated as follows: a) [For lodging a claim, the State fee] ... shall represent 2.5% of the value of the claim; b) For lodging an appeal – 3% of the value of the claim; c) For lodging a cassation appeal – 4% of the value of the claim...; The amount of the State fee shall not however exceed 5,000 Georgian laris.” “The value of the claim shall be indicated by the claimant. If the amount specified by the claimant is manifestly incompatible with the actual value of the disputed property, it shall be re-assessed by the judge.” “The value of a pecuniary claim shall be calculated as follows: a) For claims of monetary arrears, it shall be represented by the amount claimed...” “With due regard to the financial situation of the party concerned, the court can exempt that party in whole or in part from the court fees to be paid in favour of the State budget.” “With due regard to the financial situation of the parties, the court may grant both or one of the parties the right to pay court fees either by instalment, or to defer payment, or to pay a reduced amount.” “Court fees shall be reduced by one half: ... c) if the judgment is delivered by default.” Pursuant to Article 102 § 1, the claimant and respondent are each expected to prove the circumstances on which they base their arguments in the adversarial proceedings. Pursuant to Articles 185 and 396 § 3, if the State fee is not paid when the cassation appeal is lodged, the court would order the party concerned to pay it within a fixed time limit. If the party does not comply with the deadline, the claim would not be examined and the proceedings would be discontinued. | 1 |
train | 001-75698 | ENG | BGR | CHAMBER | 2,006 | CASE OF BONEV v. BULGARIA | 3 | Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 5. At the material time the applicant was a vagrant, without a permanent place of abode. It seems that he had several convictions for various offences and had served jail time. 6. On an unknown date in the end of September or in early October 1998 criminal proceedings were instituted against the applicant for having heavily beaten up an acquaintance of his, Mr S.K. (“the victim”) at a construction site on 26 September 1998, and thus having caused his death on one of the following days. 7. On an unspecified later date the investigator in charge of the case questioned Mr L.A., an eyewitness to the incident. The applicant was not present. Mr L.A. died a few days later, in early October 1998. 8. On 6 October 1998 the applicant was arrested. 9. On 10 October 1998 the investigator interviewed Mr I.Y., a witness. The applicant was not present. 10. On 21 October 1998 the applicant was charged with intentionally murdering the victim in an especially cruel manner and with extreme ferocity, while being a dangerous repeat offender, contrary to Article 116 § 1 (6) and (11) of the Criminal Code of 1968, as in force at that time, and placed in pretrial detention. 11. On 28 October 1998 the investigator questioned Mr Z.T., another eyewitness to the incident. The applicant was not present. 12. On 16 November 1998 the applicant was questioned in the presence of an ex officio counsel. It seems that he admitted to having beaten the victim with a wooden board. 13. On 26 November 1998 the charges were diminished. The applicant was accused of intentionally causing severe bodily injury to the victim and thus negligently bringing about his death, while being a dangerous repeat offender, contrary to Article 124 §§ 1 and 3 of the Criminal Code of 1968. His pretrial detention was continued. 14. The Bourgas Regional Prosecutor’s Office subsequently filed an indictment against the applicant with the Bourgas Regional Court. 15. The trial took place in the morning of 2 February 1999 at the Bourgas Regional Court. The applicant did not have counsel and was acting pro se. 16. The court first heard the applicant, who admitted to having beaten the victim with a wooden board, but stated that the next day he had seen him in good health. He had learned that the victim had died only on 6 October 1998, when arrested by the police. 17. The court then questioned two expert witnesses and admitted their reports in evidence. The first expert, a psychiatrist, gave an opinion on the applicant’s mental state at the time of the commission of the alleged offence and on his fitness to stand trial, on the basis of documents in the investigation case file and an examination of the applicant on 12 November 1998. The second expert, a forensic medical doctor, who had carried out an autopsy on the victim’s body on 30 September 1998, gave an opinion on the cause of the death, the extent of the injuries found on the body, the possible timing of their inflicting and the causal link between the injuries and the death. 18. After that the court heard the victim’s sons, who testified about their father’s character. 19. As Mr I.Y. and Mr Z.T. had not been found at the addresses which they had indicated during the preliminary investigation and had thus not been called at the trial, and as Mr S.V. did not appear despite being subpoenaed, the prosecution requested that their statements made during the preliminary investigation be read out before the court. The applicant agreed. The court, acting in pursuance of Article 279 § 1 (4) of the Code of Criminal Procedure of 1974 (see paragraph 31 below), observing that the first two witnesses had not been found at the addresses which they had indicated and were permanently changing their places of abode, and noting that the applicant agreed to the reading out of their statements, decided to admit these statements in evidence. The court also read out the statement of Mr S.V. on the basis of Article 279 § 1 (5) of the Code (see paragraph 32 below). 20. The court then questioned Mr S.V., who showed up later that morning. He testified that he had heard from Mr Z.T. and Mr L.A. that the applicant had beaten up the victim and that on the day after the incident he had seen the victim who could not stand up. 21. At the end of the trial the court heard the parties’ closing statements. The applicant said that he considered himself guilty, expressed his regrets for his act, and pleaded for a minimal sentence. 22. In a judgment of the same day the Bourgas Regional Court found the applicant guilty as charged. It sentenced him to ten years’ imprisonment. On the basis of the statements of Mr L.A. and Mr Z.T., the eyewitnesses, the testimony of Mr S.V., who had learned about the incident from them, and the statements of the applicant made during the preliminary investigation and at the trial, the court found that during the early hours of 26 September 1998 the applicant had heavily beaten up the victim with a wooden board at a construction site, after consuming a considerable amount of alcohol and having had a quarrel and a fight with him and the eyewitnesses several hours earlier. The court went on to find, on the basis of the statements of Mr L.A. and Mr Z.T. and the testimony of Mr S.V., that the victim had been in a very bad state of health the following day, when the three had visited him at the construction site. The court relied on the opinion of the forensic expert to determine that the death had occurred in all probability on 28 September 1998 and could be the result of a beating as the one described by the applicant and the eyewitnesses. It relied on the other expert’s opinion to conclude that the applicant had not been as heavily intoxicated by alcohol as to be unable to control his actions. 23. After delivering its judgment, the court ordered that the applicant be maintained in custody pending any appeals against it. 24. The applicant appealed to the Bourgas Court of Appeals. He complained, inter alia, that the Bourgas Regional Court had convicted him on the basis of the statements of persons who had not been present during the trial. He specifically requested the court to call Mr I.Y. and Mr Z.T. as witnesses. 25. In a decision of 16 April 1999 the Bourgas Court of Appeals rejected the applicant’s request to call Mr I.Y. and Mr Z.T. It held that both were vagrants and had no permanent place of abode where to be subpoenaed. The subpoenas sent out before the trial to the addresses which they had indicated during the preliminary investigation had been returned with a mention that neither of them lived at the respective address. The court went on to state that it was impossible for it to locate and subpoena Mr I.Y. and Mr Z.T. 26. After holding a hearing on 18 May 1999, in a judgment of the same day the Bourgas Court of Appeals upheld the lower court’s judgment. It fully confirmed its findings of fact and went on to state that it had not erred by reading out the statements of Mr Z.T. and Mr L.A. made during the preliminary investigation and admitting them in evidence. These two witnesses were vagrants, did not have a permanent place of abode and could not be found in order to be subpoenaed. Moreover, the applicant had acquiesced to the reading of their statements and did not dispute that he had beaten up the victim and had said that he was guilty. The court held that the applicant’s guilt had been established beyond doubt on the basis of the statements of the witnesses, the admissions of the applicant and the findings made during the victim’s autopsy. 27. The applicant appealed on points of law to the Supreme Court of Cassation. The counsel representing him argued, inter alia, that he had been convicted on the basis of the statements of persons whom the court had not heard personally and whom the applicant had not been able to crossexamine. The courts below had not made any effective efforts to locate Mr Z.T. and Mr I.Y. and there was no indication that Mr L.A. had indeed deceased. He relied on Article 6 § 3 (d) of the Convention. 28. The Supreme Court of Cassation held a hearing on 17 September 1999. 29. In a final judgment of 8 November 1999 the Supreme Court of Cassation upheld the lower court’s judgment, fully confirming its findings of fact. It held that the applicant’s complaint that Mr L.A. had not been called by the lower courts was unfounded, because the applicant had not requested that. In any event, it had been established that Mr L.A. had died before the trial. As regards the reading of the statements of Mr Z.T. and Mr I.Y., the court found they could not have been called at the trial because they did not have permanent places of abode and were vagrants. The subpoenas sent to the address indicated by them during the preliminary investigation had been returned with the notes that one of them was unknown at that address and the other had left that address and his current address was likewise unknown. In these circumstances, their statements had been properly read out, to which the applicant had agreed. The court further noted that the lower courts’ findings of fact rested also on the applicant’s statements made during the preliminary investigation and at the trial. 30. At his trial the applicant stood accused of an offence under Article 124 §§ 1 and 3 of that Code, which, as in force at the relevant time, provided that whoever negligently caused the death of another by intentionally inflicting him bodily injury while being a dangerous repeat offender was punishable by a term of imprisonment ranging from five to fifteen years in the case of serious bodily injury, from three to ten years in the case of intermediate bodily injury, and up to five years in the case of light bodily injury. 31. Article 279 § 1 (4) of that Code, as in force at the relevant time, provided that the statement of a witness given at the preliminary investigation could be read out at the trial if the witness could not be found in order to be called or had died. The Supreme Court has said that statements made by a witness during the preliminary investigation may be read out at the trial and admitted in evidence only if the court expressly finds that, after a thorough effort to locate the witness, it is impossible to find him or her (реш. № 301 от 19 юни 1981 г. по н.д. № 292/1981 г., ВС, II н.о.; реш. № 674 от 16 януари 1991 г. по н.д. 765/1990 г., ВС, ІІ н.о.). 32. By Article 279 § 1 (5) of the Code, as in force at the material time, a witness’ statement made during the preliminary investigation could also be read out at the trial if the witness, despite being duly subpoenaed, did not appear and the parties agreed to this. The same provision, amended effective 1 January 2000 (after the proceedings in issue), added the requirement that the court had to explain to an accused acting pro se that the statements thus read out will be used in reaching the verdict. 33. Article 95 § 1 of the Code provided that a recalcitrant witness could be fined and brought for questioning by force. By Article 157 § 2 of the Code, a witness could be brought by force even without being previously subpoenaed if he or she did not have a permanent place of abode. The authority responsible for bringing a witness by force was the Ministry of Internal Affairs (Article 157 § 4 of the Code). 34. Article 91 § 1 of the Code provided that the conviction could not rest solely on the admission of the accused. | 1 |
train | 001-118573 | ENG | BGR | CHAMBER | 2,013 | CASE OF FAZLIYSKI v. BULGARIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public judgment);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1962 and lives in Sofia. 6. In 1995 the applicant was appointed as an inspector at the National Security Service of the Ministry of Internal Affairs. In 2002 he was transferred to the Ministry’s National Security Directorate (the Ministry’s internal structure had been altered in 1997). At that time he had the rank of major. His duties included counterintelligence, the recruitment and managing of secret agents, the gathering and dissemination of information from secret sources, secret surveillance, etc. 7. In November 2002 a proposal was made for the applicant’s disciplinary dismissal. The proposal was prompted by an internal investigation which found indications that the applicant had engaged, aside from his duties at the Ministry, in fish farming, and that he had sought to resolve disputes with the persons employed by him by threatening them with his position. It was felt that these activities were incompatible with the duties of an officer of the National Security Directorate and tarnished the reputation of the service. 8. The proposal was not upheld due to the lack of sufficient evidence. 9. On 6 March 2003 the Director of the National Security Directorate sent a letter to the head of the Ministry’s Psychology Institute (see paragraph 33 below). He referred in detail to the above facts and suggested that the applicant be subjected to psychological assessment on the basis of Instruction no. I37 (see paragraph 32 below). 10. On 19 March 2003 the Director of the National Security Directorate ordered the applicant to present himself for assessment at the Ministry’s Psychology Institute. 11. The applicant underwent a psychological assessment on 16 April 2003. It consisted of a psychological test, an interview and a polygraph test. 12. The results of the assessment were available on 9 May 2003. The psychologist who had carried it out described the results of his observations and of the polygraph test, and expressed the opinion that the applicant was mentally unfit to work at the Ministry of Internal Affairs. The document was classified and the applicant was not allowed to see it. 13. On 5 June 2003 the Director of the National Security Directorate proposed to the Minister of Internal Affairs to dismiss the applicant from his post under section 253(1)(5) of the Ministry of Internal Affairs Act 1997 and regulation 251(1)(6) of the Act’s implementing regulations (see paragraphs 30 and 31 below). In his proposal he described in detail the attempt to dismiss the applicant on disciplinary grounds and the results of the psychological assessment. The applicant was allowed to have sight of the proposal the same day. 14. In an order of 27 June 2003 the Minister of Internal Affairs dismissed the applicant by reference to the legal provisions mentioned in the proposal. 15. The applicant was acquainted with the order on 13 August 2003 and noted his disagreement with the grounds for issuing it. 16. On 26 August 2003 the applicant sought judicial review of the Minister’s order. He argued, inter alia, that it had not been duly reasoned and that the psychological assessment on the basis of which it had been issued had not been objective. 17. In the course of the proceedings before the Supreme Administrative Court the Ministry presented a copy of the applicant’s psychological assessment. The proceedings as a whole were then classified, apparently because the case file contained a classified document. 18. The applicant was initially represented by two lawyers. The first of them withdrew from the proceedings because he could not obtain the requisite security clearance to be able to have access to the documents in the case file. The second also withdrew because she did not have enough legal experience to be granted rights of audience before the Supreme Administrative Court. The applicant accordingly retained another counsel who had the requisite experience and security clearance. 19. In her written pleadings counsel for the Ministry submitted, inter alia, that after the applicant had been found mentally unfit for work, under section 253(1)(5) of the Ministry of Internal Affairs Act 1997 (see paragraph 30 below), the Minister had been bound to dismiss him from his post. 20. A threemember panel of the Supreme Administrative Court heard the case on 4 October 2004. Counsel for the applicant argued, inter alia, that the psychological assessment had not been correctly carried out and that its results could not be trusted. Counsel for the Ministry argued, inter alia, that the assessment could not be subjected to judicial scrutiny. 21. In a judgment of 11 October 2004 (реш. № 50 от 11 октомври 2004 г. по адм. д. № С65/2003 г., ВАС, V о.), the threemember panel rejected the applicant’s claim, finding that no breaches of the rules of procedure had occurred in the course of the dismissal procedure. It went on to say that it was not competent to review the results of the psychological assessment carried out by the Ministry’s Psychology Institute. Under the terms of regulation 251(1)(6) of the implementing regulations of the Ministry of Internal Affairs Act 1997 (see paragraph 31 below), such assessments amounted to incontrovertible proof of unfitness for work at the Ministry, and the Ministry’s Psychology Institute was the only body competent to determine that issue. The panel also found no indication that the dismissal order was not in line with the purpose of the law. 22. The applicant appealed on points of law. He challenged, inter alia, the psychological assessment procedure and the independence of the experts who had carried it out. He also contested the threemember panel’s ruling that the Ministry’s Psychology Institute was the only body competent to carry out such an examination and that the court could not scrutinise the correctness of the Institute’s opinion. In an additional memorial filed on 9 March 2005 he pointed out that in a judgment of 8 February 2005 (see paragraph 35 below) another panel of the Supreme Administrative Court had stated that the assessment of mental fitness for work at the Ministry should be amenable to judicial scrutiny. 23. In a final judgment of 17 May 2005 (реш. № 12 от 17 май 2005 г. по адм. д. № С4/2005 г., ВАС, петчл. св), a fivemember panel of the Supreme Administrative Court dismissed the appeal. It held, inter alia, that the psychological assessment procedure had been duly followed, and that the threemember panel had been correct to find that it could not scrutinise the assessment. Its judgment had been given before the judgment of 8 February 2005 which had partly struck down regulation 251(1)(6) of the implementing regulations of the Ministry of Internal Affairs Act 1997 (see paragraph 35 below) and had been based on the wording of that regulation in force before the judgment of 8 February 2005. 24. As the proceedings were classified, the applicant could not obtain copies of the Supreme Administrative Court’s judgments. On 5 December 2005 he asked the court to issue certificates containing the judgments’ operative provisions and indications as to the subject matter of the case. The president of the fivemember panel which had dealt with the case acceded to the request, and on 7 December 2005 the applicant was issued two certificates, one in relation to the threemember panel’s judgment and another in relation to the fivemember panel’s judgment. 25. In the meantime, on 7 November 2005 the applicant requested the reopening of the proceedings. 26. In a judgment of 4 April 2006 (реш. № Я63 от 4 април 2006 г. по адм. д. № С108/2005 г., ВАС, петчл. св) the Supreme Administrative Court rejected the request. 27. On 30 August 2006 a commission appointed by the president of the Supreme Administrative Court declassified the minutes of the hearings before the threemember and fivemember panels, as well as their judgments. It did so by reference to regulation 50(3)(2) of the Regulations for the implementation of the Protection of Classified Information Act 2002, which provides that the level of classification must be changed if it has been set incorrectly. 28. Article 120 of the Constitution of 1991 provides: “1. The courts shall review the lawfulness of the administration’s acts and decisions. 2. Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.” 29. Section 2(1) of the Ministry of Internal Affairs Act 1997 (“the 1997 Act”), in force until the end of April 2006, provided that the Ministry’s activities were subject to “civic control [exercised] through the authorities set out in the Constitution and this Act”. 30. Section 253(1)(5) of the Act provided that civil servants employed by the Ministry were to be dismissed from their posts if they were unfit to carry out their duties. Section 253(2) provided that unfitness of work within the meaning of section 253(1)(5) was to be established in the manner laid down in the Act’s implementing regulations. The dismissal order was subject to judicial review (section 258). 31. Regulation 251(1) of the Act’s implementing regulations, which came into force in September 1998 and were repealed in June 2006, specified that unfitness within the meaning of section 253(1)(5) of the Act could result from: (a) a final conviction and effective sentence of imprisonment; (b) the inability to carry out one’s duties effectively, as established by an internal audit; (c) the systematic or repeated commission of disciplinary offences which were not of a level of gravity warranting disciplinary dismissal; (d) a failure to complete the initial professional qualification course; (e) a failure to submit a conflict-of-interest declaration or an incompatibility established on the basis of such a declaration; (f) mental unfitness for work at the Ministry, as established by the Ministry’s Psychology Institute (regulation 251(1)(6)); and (g) a court order preventing the person concerned from holding certain types of employment as a punishment in a criminal case. 32. On 5 March 2001 the Minister of Internal Affairs issued Instruction no. I37 on “the psychological selection and psychological aspects of the appraisal (reselection) of the civil servants (officers, sergeants and civilian staff) employed by the Ministry”. The instruction was issued under, inter alia, regulation 171 of the 1997 Act’s implementing regulations, which provided that the mental and physical fitness of the Ministry’s staff was to be assessed periodically in a manner laid down by the Minister (this regulation was repealed in April 2003). Section 6 of the Instruction provided that those assessments were to be carried out by the Ministry’s Psychology Institute (see paragraph 33 below). By virtue of section 16, the purpose of the psychological assessment of the Ministry’s staff was to determine (a) their current mental condition, (b) diminished motivation, behavioural or emotional inadequacy, or general deadaption leading to low professional effectiveness, or (c) abuse of position for financial gain. In carrying out the assessment of staff suspected of abusing their posts, the Institute’s experts could resort to a polygraph test (section 17(3)(a)). Such persons could be subjected to sporadic assessments with a view to protecting the Ministry from “staff members who ha[d] lost their mental or emotional stability or other professional qualities and [could] cause damage to themselves, the [Ministry] or society through actions or omissions” (section 19(1)). The conclusion of the assessment could be “mentally fit for the post”, “mentally unfit for the post” or “mentally unfit for work at the Ministry of Internal Affairs” (section 24(3)). The results of the assessment could, inter alia, constitute grounds for dismissal under section 253(1)(5) of the 1997 Act and regulation 251(1)(6) of the Act’s implementing regulations (section 26(5)). The conclusion that a person was “mentally unfit for work at the Ministry of Internal Affairs” was final and not subject to review (section 27(3)). 33. The Ministry’s Psychology Institute was set up by the Government in February 1998 for the purpose of carrying out initial and followup psychological examinations of the staff of the Ministry of Internal Affairs, drawing up psychological expert reports, and training the Ministry’s staff (point 1 of Decree no. 25 of 2 February 1998 of the Council of Ministers). At the relevant time its structure and activities were governed by Regulations no. I263 issued by the Minister of Internal Affairs on 13 November 2001 (in May 2010 they were superseded by Regulations no. I1137). Its director was appointed and dismissed by the Minister. 34. In its early caselaw under section 253(1)(5) of the Act and regulation 251(1)(6), the Supreme Administrative Court consistently held that the Institute’s assessment of a person’s mental fitness for work at the Ministry was not subject to judicial review and could not be contested through any means, and that a conclusion that a person was mentally unfit for work at the Ministry required the Minister to dismiss that person (see реш. № 722 от 28 януари 2002 г. по адм. д. № 8056/2001 г., ВАС, петчл. св; реш. № 4441 от 5 септември 2002 г. по адм. д. № 10880/ 2001 г., ВАС, V о.; реш. № 2819 от 25 март 2003 г. по адм. д. № 11276/2002 г., ВАС, V о.; реш. № 11347 от 8 декември 2003 г. по адм. д. № 6483/2003 г., ВАС, V о.; реш. № 1745 от 26 февруари 2004 г. по адм. д. № 9591/2003 г., ВАС, V о.; реш. № 4093 от 5 май 2004 г. по адм. д. № 375/ 2004 г., ВАС, V о.; and реш. № 5890 от 22 юни 2004 г. по адм. д. № 1318/2004 г., ВАС, V о.). 35. In 2004 several persons brought a legal challenge to regulation 251(1)(6) (see paragraph 31 above). In a judgment of 8 February 2005, which came into force on 18 February 2005 following its publication in the State Gazette (реш. № 1219 от 8 февруари 2005 г. по адм. д. № 4773/2004 г., ВАС, петчл. св, обн., ДВ, бр. 16 от 18 февруари 2005 г.), a fivemember panel of the Supreme Administrative Court partly upheld the challenge and decided to strike out the wording “established by the [Ministry’s] Psychology Institute”. It noted, inter alia, that the Institute was directly subordinate to the Minister, and that its assessments of a person’s mental fitness for work at the Ministry were not subject to any form of review. There was therefore no guarantee that in carrying out those assessments the Institute’s experts would not commit errors, abuse their powers or deprive those concerned of their rights. That was important because if the Institute’s experts assessed a member of staff to be mentally unfit for work at the Ministry, the Minister had no discretion and was bound to dismiss him or her. Although the member of staff concerned could seek judicial review of the Minister’s order, such a challenge would be futile because the assessment, which formed the basis of the Minister’s order, was not amenable to judicial scrutiny. The court acknowledged that the employment of the Ministry’s staff touched upon national security. Nonetheless, it went on to hold that considerations relating to national security had to yield to a person’s right under Article 120 of the Constitution (see paragraph 28 above) to judicial review of all administrative decisions affecting his or her rights. The court said that the assessment of a person’s mental fitness for work at the Ministry of Internal Affairs should be amenable to “the same control for lawfulness, [namely] by several independent experts and by the court, as in the case of assessing health conditions [for the purpose of granting disability benefits]”. Therefore, in as much as it provided that the Ministry’s Psychology Institute was the only body authorised to assess mental fitness for work at the Ministry, regulation 251(1)(6) ran counter to section 2 of the 1997 Act (see paragraph 29 above) and the Health Act 2004. It was in addition contrary to the purpose of the law. 36. Following the delivery of that judgment, a panel of the Supreme Administrative Court held that, as a result of the partial strikedown of regulation 251(1)(6), the Institute’s assessments could, even if predating the strike-down, be subjected to judicial scrutiny in proceedings for judicial review of a dismissal order (see реш. № 3483 от 18 април 2005 г. по адм. д. № 9378/2004 г., ВАС, V о.). 37. However, other panels of the court abided by the old caselaw, holding that the lawfulness of dismissals which preceded the entry into force of the judgment of 8 February 2005 was to be judged by reference to the wording of regulation 251(1)(6) before its partial strikedown because the strikedown did not have retroactive effect (see реш. № 30 от 18 юли 2005 г. по адм. д. № С-27/2005 г., ВАС, петчл. св; реш. № 3949 от 12 април 2006 г. по адм. д. № 9213/2005 г., ВАС, VI о.; реш. № 401 от 10 януари 2006 г. по адм. д. № 5420/2005 г., ВАС, V о.; реш. № 4967 от 11 май 2006 г. по адм. д. № 7006/2005 г., ВАС, VI о.; № Я9 от 11 януари 2007 г. по адм. д. № 3С310/2006 г., ВАС, V о.; and № Я23 от 7 февруари 2007 г. по адм. д. № 5С312/2006 г., ВАС, петчл. св). In one judgment a panel stated that the effect of that judgment had been to make it possible to challenge the Institute’s psychological assessment in cases where the dismissal had taken place after the judgment (see реш. № 6251 от 9 юни 2006 г. по адм. д. № 961/2006 г., ВАС, V о.). 38. A panel of the court also held that the order that a member of staff should submit to a psychological assessment was merely a preparatory act and was not itself amenable to judicial review (see реш. № 7102 от 27 юни 2006 г. по адм. д. № 11119/2005 г., ВАС, V о.). 39. In a number of judgments given between May 2005 and 2008 panels of the court found that the psychological assessment procedure had been used to circumvent the rules governing disciplinary liability, and on that basis quashed the dismissal orders (see реш. № 4919 от 30 май 2005 г. по адм. д. № 10069/2004 г., ВАС, V о.; № 5385 от 10 юни 2005 г. по адм. д. № 8856/2004 г., ВАС, V о.; № 7449 от 27 юли 2005 г. по адм. д. № 6496/2004 г., ВАС, V о.; № 7450 от 27 юли 2005 г. по адм. д. № 11291/2004 г., ВАС, V о.; реш. № 10324 от 23 ноември 2005 г. по адм. д. № 9377/2004 г., ВАС, V о.; реш. № 1401 от 7 февруари 2006 г. по адм. д. № 6239/2005 г., ВАС, VI о.; реш. № 5215 от 16 май 2006 г. по адм. д. № 10715/2005 г., ВАС, V о.; реш. № 5216 от 16 май 2006 г. по адм. д. № 10717/2005 г., ВАС, V о.; реш. № 6787 от 21 юни 2006 г. по адм. д. № 11228/2005 г., ВАС, V о.; реш. № 7410 от 4 юли 2006 г. по адм. д. № 2367/2006 г., ВАС, V о.; реш. № 7449 от 5 юли 2006 г. по адм. д. № 12068/2005 г., ВАС, V о.; and реш. № 7505 от 5 юли 2006 г. по адм. д. № 10746/2005 г., ВАС, V о.; and реш. № 2819 от 12 март 2008 г. по адм. д. № 8881/2007 г., ВАС, III о.). In some of those cases the panels also held that, as far as it provided that the psychological assessment could determine whether the member of staff had abused his or her position for financial gain, Instruction no. I37 (see paragraph 32 above) ran counter to the Act: mental fitness for work was not to be confused with the commission of disciplinary offences (see реш. № 7724 от 11 юли 2006 г. по адм. д. № 3038/2006 г., ВАС, V о., and реш. № 7726 от 11 юли 2006 г. по адм. д. № 772/2006 г., ВАС, V о.). 40. Section 245(1)(3) of the Ministry of Internal Affairs Act 2006 (“the 2006 Act”), which superseded the 1997 Act in May 2006, provides that a civil servant employed by the Ministry must be dismissed on health grounds if he or she cannot perform his or her duties as a result of a health condition which has led to a permanent disability or as a result of medical contraindications. 41. Section 245(3) (until the end of 2010 section 245(2)) of the 2006 Act provides that the circumstances under section 245(1)(3) are to be determined by a Central Medical Expert Commission, whose assessment may be challenged before the Sofia City Administrative Court. Regulation 259(1) of the Act’s implementing regulations, adopted in June 2006, specifies that that Commission is attached to the Medical Institute of the Ministry of Internal Affairs. 42. When dealing with challenges to dismissal orders issued by reference to section 245(1)(3), some panels of the Supreme Administrative Court have stood by the position that the assessment whether a person is fit for work at the Ministry of Internal Affairs was not amenable to judicial scrutiny in proceedings directed against the dismissal order (see реш. № 7170 от 16 юни 2008 г. по адм. д. № 12426/2007 г., ВАС, III о.; реш. № 11138 от 27 октомври 2008 г. по адм. д. № 5095/2008 г., ВАС, III о.; and реш. № 2289 от 19 февруари 2009 г. по адм. д. № 15361/2008 г., ВАС, петчл. св). However, another panel examined the validity of such an assessment by reference to the conclusions of medical experts appointed in the course of the judicial review proceedings (see реш. № 8940 от 6 юли 2009 г. по адм. д. № 5836/2009 г., ВАС, петчл. св). 43. The administrative courts have on several occasions examined direct challenges to assessments of the abovementioned Central Medical Expert Commission. In doing so, they have sought the assistance of medical experts, and have taken into account the opinions of those experts (see реш. № 8753 от 1 юли 2009 г. по адм. д. № 5224/2009 г., ВАС, VІ о.; реш. № 3468 от 22 юни 2012 г. по адм. д. № 7227/2011 г., АССГ; and реш. № 4214 от 19 юли 2012 г. по адм. д. № 3664/2012 г., АССГ). | 1 |
train | 001-57645 | ENG | PRT | CHAMBER | 1,990 | CASE OF MOREIRA DE AZEVEDO v. PORTUGAL | 3 | Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Just satisfaction reserved | null | 11. Mr Manuel Moreira de Azevedo, who is a Portuguese national and resides at Vila Nova de Famalicão, is a bus driver. 12. On 23 January 1977 one of his brothers-in-law, Mr Bernardo Gonçalves de Sousa, shot him in the head following a family quarrel. The applicant was rushed to the São João de Porto hospital where he remained until 2 February 1977. 13. On the same day the police arrested the suspect and communicated the facts to the Public Prosecutor, who requested the investigating judge of the First-Instance Court of Vila Nova de Famalicão to question him. 14. Since there was insufficient evidence to establish the offence of attempted murder, the investigating judge ordered, on 24 January 1977, the provisional release of Mr Gonçalves de Sousa, subject to the lodging of a security of 10,000 escudos. He also decided to transmit the file to the Public Prosecutor for the inquiry to be continued. 15. On 17 February a court medical officer examined the applicant and asked that the medical report drawn up by the São João de Porto hospital be communicated to him. 16. This report was supplied to him on 21 March and the Public Prosecutor fixed the date of the medical examination for the 28th. On that occasion the court medical officer noted that the injuries resulting from the attack had led to Mr Moreira de Azevedo’s being unfit for work for a period of 90 days. On 28 April he expressed the opinion that the applicant required another 30 days’ sick leave. On 26 May he pronounced the applicant to be recovered, but prescribed other specialist examinations. 17. On 2 June 1977 the applicant stated that he wished to intervene as an assistant (assistente) of the prosecuting authority in the preliminary investigation. The investigating judge allowed his application on 18 June 1977. 18. On 18 October and 7 November the applicant was examined by an ear, nose and throat specialist and an opthalmologist. 19. On the recommendation of the opthalmologist he underwent a neurological examination on 24 October 1978. This was followed on 11 June 1979 by an electroencephalogram and on 23 August by a further medical examination ordered by the Public Prosecutor. 20. On 3 October 1979 the Public Prosecutor decided, at the request of the court medical officer, to arrange for a further neurological examination. 21. As the Oporto Medical Faculty informed him that the applicant could not be examined until 1981, the Public Prosecutor entrusted this task to the court medical officer, who was invited to express an opinion in particular as to whether the assailant had acted with "the intention of causing death". 22. In a report dated 8 May 1980, the medical officer concluded that the applicant had recovered and that the period during which he had been unfit for work was the period already established. He also expressed the opinion that the assailant had indeed intended to kill. 23. In the light of this report, the Public Prosecutor communicated the file to the investigating judge on 21 May 1980, requesting him to open the preliminary investigation. 24. On 26 May 1980 the investigating judge asked the Council of Forensic Medicine (Conselho médico-legal) to examine the various medical reports (Article 200 of the Code of Criminal Procedure), but to no avail. The file was transferred to the Criminal Investigation Court (tribunal de instrução criminal) of Santo Tirso where it was registered on 1 July 1982. 25. On 8 March 1982 the applicant wrote to the investigating judge of Vila Nova de Famalicão seeking a further examination by the court medical officer and criticising the length of the proceedings. 26. On 6 July 1982 the judge of the Criminal Investigation Court of Santo Tirso sought the opinion of the Public Prosecutor as to whether an amnesty law was applicable. 27. In a letter of 13 October 1982, the applicant complained that his letter of 8 March 1982 (see paragraph 25 above) had not been added to the file; he repeated his request. 28. On 19 October 1982 the judge of the Criminal Investigation Court of Santo Tirso, in his turn, instructed the Council of Forensic Medicine to examine the medical reports and, on 4 November, asked the court medical officer to clarify some points in his report of 8 May 1980. 29. On 19 November 1982 the court medical officer recommended a further neurological examination, which the judge ordered on 23 November. 30. In the meantime, by a letter of 13 November 1982 received at the Criminal Investigation Court on 2 February 1983, the Council of Forensic Medicine had asked the court medical officer to specify the number of days during which the applicant had been unfit for work and also to indicate the after-effects of the attack. On 23 February 1983 the medical officer described the injuries and stated that the applicant had been unfit for work for 120 days and still suffered from disability. He had lost a part of his skull and was deaf in the left ear. 31. On 8 March 1983 Mr Moreira de Azevedo was examined by a neurologist who sent his report to the judge on 5 July. 32. On 21 March 1984 the judge requested the court medical officer to submit his report. He did so on 5 April 1984 and on the same day the document was sent to the Council of Forensic Medicine. 33. On 26 April 1984 that body approved the findings of the court medical officer’s report, adding that the attack had resulted in a disability and a total incapacity. 34. On 14 May 1984 the judge ordered that the applicant and the accused be questioned on 24 May 1984. The applicant was questioned on that date but the accused was unwell and did not appear. 35. On 25 May 1984 the applicant asked for five witnesses to be heard. 36. On 28 May the judge decided that the accused should be questioned on 7 June 1984. However, as the latter had absented himself for an indefinite period, the bailiff was unable to serve this order on him. 37. On 5 June 1984 Mr Moreira de Azevedo submitted a report by the Public Health Department dated 15 April 1981 and drawn up following a medical examination. According to this document he suffered from a 64% incapacity. 38. On 6 June 1984 the judge issued a warrant for the accused’s arrest and, on 14 June, questioned the witnesses named by the applicant. 39. On 1 July 1984 the police officer assigned to the case informed the judge that Mr Gonçalves de Sousa had disappeared. 40. On 5 July 1984 the judge closed the preliminary investigation and forwarded the file to the Public Prosecutor. On 10 July the latter requested the opening of adversarial investigation proceedings and drew up the prosecution submissions (acusação). He sought the accused’s arrest, contending that provisional release was not available to persons charged with attempted murder. 41. On 16 July 1984 the judge declared the adversarial investigation proceedings open and ordered the accused’s arrest, but the latter could still not be traced. 42. On 27 July the judge closed the investigation and forwarded the file to the Public Prosecutor, who drew up the prosecution submissions on 8 October 1984. 43. The accused was committed for trial on 16 November 1984 and on 26 November 1984 was arrested and remanded in custody. 44. On 12 December 1984 the court scheduled the hearing for 5 February 1985. 45. On 21 December the applicant asked for evidence to be taken from two witnesses. 46. On 5 February 1985, at the beginning of the hearing, the applicant’s lawyer submitted an oral request to the First-Instance Court of Vila Nova de Famalicão that the fixing of the amount of any compensation be deferred until the subsequent enforcement proceedings ("liquidação em execução de sentença"), in accordance with Article 34 para. 3 of the Code of Criminal Procedure. 47. On 18 February 1985 the court acquitted the accused on the charge of attempted murder. However, it sentenced him to 14 months’ imprisonment for causing grievous bodily harm and ordered him to pay damages to the applicant in an amount to be fixed in the enforcement proceedings. 48. The applicant and the accused filed appeals. 49. On 30 October 1985 the Oporto Court of Appeal (tribunal de relação) allowed Mr Gonçalves de Sousa’s appeal. At the same time it declared the criminal prosecution out of time (five-year limitation period). 50. Mr Moreira de Azevedo then appealed to the Supreme Court (Supremo Tribunal de Justiça) which, on 7 May 1986, upheld the appeal court’s judgment. The letter of notification was sent to the applicant on the following day. He was deemed to have received it on the third day after its despatch (Article 1 para. 3 of Legislative Decree No. 121/76). 51. In Portugal criminal proceedings are in principle brought by the Public Prosecutor. According to Article 1 of Legislative Decree No. 35007 of 13 October 1945 "criminal proceedings are the responsibility of the authorities; they shall be brought by the Public Prosecutor subject to the restrictions provided for in the following Articles". These restrictions relate to the cases in which the police or administrative authorities or other State organs may bring criminal proceedings, but they apply in general only for petty offences. Legislative Decree No. 605/75 of 3 November 1975 also states, in Article 1 thereof, that "except as provided for by law, criminal proceedings shall be conducted by the Public Prosecutor who shall open the preliminary inquiry or communicate the file to the investigating judge, as the case may be". 52. In certain cases, private persons may participate in the criminal proceedings as assistentes. Article 4 of Legislative Decree No. 35007 provides as follows: "The following may participate in proceedings as assistentes: 1o Those persons without whose accusation or complaint the Public Prosecutor cannot bring a prosecution; 2o The victims, namely those whose interests the criminal law sought especially to protect by prohibiting the offence; 3o The husband in trials concerning offences of which his wife has been the victim, unless she objects thereto; 4o The spouse, where there is no judicial separation or separation of property, or the surviving spouse or any ascendant, descendant, brother or sister, in cases where the victim is deceased or incapable of managing his or her own affairs; 5o Any person in trials concerning embezzlement, bribery, misappropriation of public funds or corruption. Para. 1o - The assistentes perform the function of assistants to the Public Prosecutor; their role in the proceedings is subordinate to that of the Public Prosecutor, except in cases provided for by the law. Para. 2o - However, the assistentes are entitled in particular: 1o to make prosecution submissions independently of those filed by the Public Prosecutor; 2o to intervene directly in the adversarial investigation proceedings by adducing evidence and requesting the judge to take the appropriate measures; 3o to appeal against the order committing the accused for trial, the judgment or the order terminating the proceedings, even if the Public Prosecutor has not done so. Para. 3o - ... (repealed) Para. 4o - In cases where the assistentes make prosecution submissions relating to facts different from those which are the subject of the prosecution submissions filed by the Public Prosecutor, they may not appeal against the decision of the court if it accepts the Public Prosecutor’s submissions. Para. 5o - The assistentes may intervene at any moment in the proceedings up to five days before the trial hearing and shall accept the state of the proceedings as they stand at that stage." The preamble to the Decree states as follows: "3. Criminal proceedings shall be brought by the Public Prosecutor in his capacity as a State authority. The right to punish an offender is a right that belongs exclusively to the State and consequently private individuals may, in accordance with the law, assist in bringing a prosecution, but have no personal right to bring one ... ." Article 70 of the Code of Criminal Procedure provides that the preliminary investigation is to be secret. However, according to paragraph 1 thereof the accused and the assistente may have access to certain documents in the file provided that this does not impede the discovery of the truth. 53. The Code of Criminal Procedure applicable at the material time - new provisions came into force with effect from 1 January 1988 - contained several provisions on the victim’s right to compensation: "A claim for damages resulting from a punishable offence for which the perpetrators are liable must be brought in the criminal proceedings in process and may be brought in separate proceedings in the civil courts only in the cases provided for by this Code". "Except in the cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party, civil proceedings may be instituted separately in the civil courts where the prosecution has not been brought by the Public Prosecutor within six months of the complaint being laid or where no action has been taken on the complaint for the same period, where the proceedings have been discontinued or where the accused has been acquitted. Para. 1o In cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party, the victim may bring civil proceedings, but if he does so, the criminal proceedings shall lapse. Para. 2o Where criminal proceedings have been instituted, civil proceedings may be brought separately only where no action has been taken in the criminal proceedings for six months or more through no fault of the assistente where the proceedings have been discontinued or where the accused has been acquitted." "The claim for damages may be lodged in criminal proceedings even by a person who has not intervened as an assistente. Para. 1o The Public Prosecutor shall seek damages on behalf of the State, where appropriate, and on behalf of bodies serving public interests or the legally incapacitated to whom compensation is payable, if they are not represented by a lawyer in the proceedings. Para. 2o The statement of claim for damages shall be set out in articles. Para. 3o The evidence relating to the award of damages shall be adduced within the time-limits applying for the criminal proceedings ..." "If the accused is convicted, the court shall decide the amount to be paid to the victims in respect of damages, even where no claim has been lodged. Para. 1o In cases where the law accords civil compensation to other persons the amount shall be determined for each party. Para. 2o The amount of compensation shall be determined at the discretion of the court which shall take into account the seriousness of the offence, the pecuniary and non-pecuniary damage and the financial and social position of the injured party and of the offender. Para. 3o The persons entitled to compensation may request, before judgment is pronounced at first instance, that the amounts of compensation be decided in enforcement proceedings. In such circumstances assessment and enforcement shall take place in the civil courts, the criminal judgment serving as the basis for enforcement. Para. 4o If, in the cases provided for by law, the civil action for damages is pending or has been judged in the civil courts, compensation shall not be determined in the criminal proceedings." Article 12 of Legislative Decree No. 605/75, cited above, states moreover as follows: "In cases where the accused is acquitted, the court shall order the accused to pay damages in respect of proven unlawful acts or liability based on risk, if established. In such cases Article 34 of the Code of Criminal Procedure shall apply, adapted as necessary." 54. In a "ruling" judgment (assento) of 28 January 1976 the Supreme Court held that the civil courts had no competence to award compensation if compensation had already been awarded in the criminal proceedings (Diário da República, Series 1, 11 March 1976). Although this decision concerned civil and criminal damages for road traffic infringements, it set out the following general considerations: "Article 29 [of the Code of Criminal Procedure] establishes the principle of the interrelation ... between the criminal and the civil proceedings but with greater emphasis on the priority of the criminal proceedings over the civil proceedings ... ... ... The formulation of prosecution submissions in the criminal proceedings, which are intended to secure the conviction of the accused, can therefore be seen as implying a request for compensation to be awarded to the victim, because according to the law such compensation is a consequence of a conviction. ... ... the amount of compensation is determined by the criminal judgment regardless of whether the victim has filed a civil claim ... ." | 1 |
train | 001-70304 | ENG | FIN | ADMISSIBILITY | 2,005 | SAVOLA v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Hannu Savola, is a Finnish national who was born in 1949 and lives in Hämeenlinna. He is represented before the Court by Mr Markku Vepsäläinen, a lawyer practising in Helsinki. The applicant’s firm had constructed chalk stabilisation machines for a construction firm P.. Concerning the first machine, they agreed that the costs up to 1,540,000 Finnish Marks (FIM; corresponding to 259,041 euros (EUR)) were to be financed by the latter. No formal agreements were entered into for the subsequent machines. Allegedly on 7 July 1989 the applicant and H., a managing director of a company M., which is a subsidiary company of P., concluded a rental agreement for the machines to be used in M.’s construction business in Sweden. One of the machines was rented to M.. On April and May 1989 H. paid the applicant rent amounting to 1,000,000 and 1,109,014.95 Swedish kronor (SEK), respectively. On 10 May 1990 the applicant allegedly removed one of the machines from the construction site, without returning it to P.. The following day P. filed a criminal complaint with the police of Vantaa, accusing the applicant, as the responsible partner of his firm, of having stolen it. On 15 May 1990 the applicant’s firm, P. and M. agreed that the civil dispute as to the ownership and the right of possession of the machines were to be resolved before the City Court (raastuvanoikeus, rådstuvurätten) of Helsinki. On 28 August 1990 the police in Sweden interrogated H. on suspicion of embezzlement (concerning the rental agreements). However, on 28 May 1991 the Swedish prosecutor decided not to lodge charges against him since there was insufficient evidence. At the time the applicant was not a suspect. On 31 January 1993 the police of Vantaa discontinued the pre-trial investigations concerning the applicant, finding the case to be a civil dispute. It appears that meanwhile a civil dispute between P. and the applicant was pending before the City Court of Helsinki, which decided on 15 April 1993 that the machines (and apparently also other similar machines) belonged to P.. It ordered the applicant to return the machines to P.. In an another civil dispute, the then District Court (kihlakunnanoikeus, häradsrätten) of Espoo on 25 October 1993 ordered H. to reimburse to M. the rental costs of the machine amounting to SEK 2,213,762.95. According to the applicant, on 2 September 1993 a demand for an investigation (tutkintapyyntö, begäran om förundersökning) to be opened against him was made to the police of Vantaa. Another demand for an investigation was made to the police of Hämeenlinna on 23 May 1996. Following this, on 5 June 1996 an offence by the applicant was reported to the police. He was suspected of aggravated embezzlement relating to the non-delivery of the constructed machine to P. (“first embezzlement”). On 16 September 1996 the pre-trial investigation was assigned to the economic crime investigation group of the province of Häme. At that time H. was a suspect as well. It is unclear when the applicant was interrogated by the police. Apparently criminal investigations against the applicant and H. relating to an alleged embezzlement committed in Sweden concerning the rental agreement (“second embezzlement”) were opened in Finland in February 1997. The applicant was arrested and detained between 4 February 1997 and 2 April 1997. On 6 March 1997 the provisional indictment was served on him. On 15 September 1997 the pre-trial investigation was concluded. Charges were lodged in October 1997. Following the request by the Swedish public prosecutor, he was also charged with the alleged embezzlement committed there. On 15 October 1997 the criminal proceedings before the District Court (käräjäoikeus, tingsrätt) of Hämeenlinna began. On 30 December 1999 the District Court issued its judgment, acquitting the applicant and other defendants. The court further ordered P. and M. to pay the defendants’ legal costs. The prosecutor, the complainants, the applicant and co-defendants appealed to the Court of Appeal (hovioikeus, hovrätt) of Turku. In one of the four oral hearings before the appellate court the applicant, among others, requested the court to dismiss the charges alleging that the proceedings had been excessively lengthy. On 24 April 2001 the Court of Appeal issued its judgment, upholding by two votes to one, the judgment of the District Court concerning the alleged first embezzlement, but quashing the judgment concerning the second embezzlement. It convicted the applicant of aggravated embezzlement in this respect. The court admitted that the period from the lodging of criminal complaint until the Court of Appeal proceedings, i.e. 11 years, had exceeded the period at issue in cases before the Strasbourg Court, relied on by the applicant’s company. The court nevertheless rejected the request to dismiss the charges ruling, inter alia, that: “These proceedings were already pending in 1997. The handling of the case at issue began on 21 April 1999. The proceedings before the District Court took one year and eight months and the proceedings before the Court of Appeal will have taken approximately one year and three months, i.e almost three years in all. As from the reporting of the offence until the end of the proceedings before the Court of Appeal the time elapsed has been almost 11 years. ... The interests at stake are exceptionally wide, including, inter alia, the civil proceedings. ... The Court of Appeal notes that the court proceedings have not been excessively lengthy taking into account the nature and extent of the case ... However, the pre-trial proceedings have been lengthier than on average. ... The Court of Appeal concludes that ... the proceedings have not exceeded the reasonable length–requirement as provided in the European Convention on Human Rights. Conclusion The request to rule inadmissible or dismiss the charges is rejected.” The appellate Court took the long time which had elapsed since the incriminated conduct into account when imposing the sentence. Instead of an unconditional term of imprisonment, the applicant was sentenced to a suspended sentence of one year and three months. He was further ordered to pay FIM 4,000 by way of supplementary fines and, jointly with H., the other defendant, M.’s legal costs. The appellate court ruled, inter alia, that: “The sentences for [the applicant] and [H.] have to be severe taking into account the amount of embezzled property and the premeditation of the offences ... [thus] the reprehensible conduct warrants that [the applicant] and [H.] be sentenced to imprisonment. For the same reason, the general obedience to the law would require that the sentences be ones of imprisonment. [The complainants] became aware of the offences committed by [the applicant] and [H.] on 10 May 1990. The effective criminal investigation began, however, on 7 February 1997 in respect of [the applicant] ... The proceedings before the District Court began on 15 October 1997. The lapse of time since the acts were committed until the initiating of the criminal proceedings was not caused by the [applicant] and [H.] covering up the acts. The fairly lengthy period which elapsed before the courts was not to any major extent caused by [the applicant] or [H.]. Taking into account the exceptionally long pre-trial period and the proceedings ... the punishment shall be a suspended sentence ...” The applicant and the other defendants applied for leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), which was rejected on 19 September 2001. Section 2, subsection 1 of the Criminal Investigations Act (esitutkintalaki, förundersökningslag; 449/1987) provides that the police or another investigation authority shall carry out a pre-trial investigation where, on the basis of a report made to it or otherwise, there is a reason to suspect that an offence has been committed. Section 6 of the said Act provides that a pre-trial investigation shall be carried out without undue delay. Section 21 of the Constitution of Finland (perustuslaki, grundlagen 731/1999) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority. This section is equivalent to section 16 of the repealed Constitution Act of Finland of 1918 (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time. Chapter 28, section 5 of the Criminal Code (rikoslaki, strafflagen) prescribes a maximum penalty of four years’ imprisonment for aggravated embezzlement. | 0 |
train | 001-101264 | ENG | HUN | ADMISSIBILITY | 2,010 | FAZEKAS v. HUNGARY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | The applicant, Mr Tibor Fazekas, is a Hungarian national who was born in 1972 and lives in Hosszúpályi. He was represented before the Court by Mr I. Barcsi, a lawyer practising in Debrecen. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 August 2005 criminal proceedings were initiated against the applicant and six co-accused on account of various offences which they had allegedly committed in their capacity as police officers. The applicant and another suspect retained Mr Barcsi as defence counsel. On 23 August 2005 the Győr District Court excluded Mr Barcsi from the proceedings. It held that because his two clients' interests conflicted, he was not eligible. This decision was later quashed by the Győr-Moson-Sopron County Regional Court. Subsequently, the other suspect retained another lawyer. On 9 May 2006 a bill of indictment was preferred in the case. On 17 January 2008 the District Court again excluded Mr Barcsi from the applicant's defence. On 3 March 2008 the Regional Court dismissed an appeal lodged by the applicant and Mr Barcsi. The courts observed that during the preliminary investigation Mr Barcsi had been retained by two defendants; however, since their testimonies had been contradictory, the double retainer had amounted to conduct against those defendants' interest. The court held that the conflict of interest between these defendants had a significant bearing on the outcome of the case, in that the defence of one might be to the detriment of the other. They applied section 45(1c) of the Code of Criminal Procedure, according to which a person acting against the interests of a defendant cannot act as defence counsel. Mr Barcsi's complaint to the Attorney General was to no avail. Subsequently, a legal-aid lawyer was appointed for the applicant. On 21 March 2008 he complained to the District Court that, in his view, the legal-aid lawyer had not prepared his case adequately. Hearings were held on 1 April, 8 May, 6 June and 18 September 2008. Closing statements were heard on 22 September 2008. The District Court delivered a judgment on 6 October 2008. The applicant was found guilty of various charges and sentenced to three years and six months' imprisonment, to five years' prohibition from public affairs and to a fine of 500,000 Hungarian forints. The lapse of time since the commission of the offences was taken into account as a mitigating factor. On appeal, the Regional Court scheduled a hearing for 1 March 2010. According to the information available in the case file, the case is still pending before the appellate court. Act No. XIX of 1998 on the Code of Criminal Procedure provides as follows: “(1) The defendant, the defence counsel ... are entitled to file a written complaint with the trial court complaining about an omission ... allegedly committed by that court, requesting that the omitting court be instructed to perform the omitted procedural act or adopt a decision or ... take an appropriate action in the case within a reasonable time limit. (2) Such a complaint may be filed if: a) the law prescribes a time-limit for a court within which to perform a procedural act or to pass a decision and the time-limit has elapsed without any result, b) a court has set a time-limit for [a participant of the procedure] within which to perform a procedural act, the time-limit has elapsed without any result, and the court has failed to impose on the one responsible the measures allowed by the law... (1) Except for the case specified under subsection (2), the trial court shall, within eight days, directly forward the files to the court competent to decide on the complaint. In an enclosed document, it shall set out the reasons which – according to its assessment – made impossible the performance of the procedural act or the passing of a decision. (2) If the trial court itself finds the complaint well-founded, it shall, within thirty days counted from the receipt of the complaint, take or order to take appropriate measures in order to terminate the situation complained of. It shall inform the complainant of the manner in which the complaint has been settled... (4) If the [superior] court determining the complaint admits the complaint, it shall, by setting a time-limit, instruct the [trial] court to take ... the action required for the proper progress of the case .... If it finds the complaint ill-founded, it shall dismiss it in a reasoned decision. No further appeal shall lie against this decision...” | 0 |
train | 001-86471 | ENG | GBR | ADMISSIBILITY | 2,008 | CLARKE v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr William Clarke, is a British national who was born in 1946 and lives in Sheffield. 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 16 January 2000. In October 2000, the applicant made a claim for widows’ benefits. On 26 January 2001 the applicant was informed that his claim had been disallowed as he was not a woman. 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 | 001-92961 | ENG | FIN | CHAMBER | 2,009 | CASE OF RUOTSALAINEN v. FINLAND | 2 | Remainder inadmissible;Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage) | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1969 and lives in Lapinlahti. 6. While driving his pickup van on 17 January 2001, the applicant was stopped by the police during a road check. The police discovered a more leniently taxed fuel than diesel oil in the tank of the van. 7. On 26 February 2001 the applicant was fined for petty tax fraud through a summary penal order. The form stated, inter alia: “Misdemeanour, modus operandi: Petty tax fraud (motor vehicle tax misdemeanour). [The applicant] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax (lisävero, tilläggsskatt). Footnote: he had filled the tank himself.” The fine amounted to 720 Finnish marks (FIM, or 121 euros (EUR)). The summary penal order indicated that Chapter 29, Article 3, of the Penal Code (rikoslaki, strafflagen; Act no. 769/1990) and sections 20 and 33 of the Motor Vehicle Tax Act (laki moottoriajoneuvoverosta, lagen om skatt på motorfordon; Act no. 722/1966, now repealed) had been applied. As the applicant did not contest the imposition of the fine, it became final on 6 March 2001. 8. In separate proceedings, and having received the applicant’s submission in writing on an unspecified date, on 17 September 2001 the Vehicle Administration (ajoneuvohallintokeskus, fordonsförvaltningscentralen) issued the applicant with a fuel fee debit amounting to FIM 90,000 (equivalent to EUR 15,137) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to the Vehicle Administration or Customs. The decision indicated that sections 2-7 of the Fuel Fee Act (laki polttoainemaksusta; lagen om bränsleavgift; Act no. 337/1993, now repealed) had been applied. The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount. 9. The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned, arguing, inter alia, that the fuel fee should have been claimed at the same time as the summary penal order was issued. As it had not been claimed at that time, it was no longer possible to debit the fuel fee in the light of Article 7 of the Convention. 10. On 10 October 2001 the National Board of Taxes (verohallitus, skattestyrelsen) rejected the application for a reduction of the fee. It reasoned: “No special reasons provided for by law to grant a reduction have been put forward.” 11. The decision indicated that section 15 of the Fuel Fee Act had been applied. No appeal lay. 12. On 28 August 2002 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), having received the observations of the Tax Ombudsman (veroasiamies, skatteombudet) and the Vehicle Administration and the applicant’s observations in reply, rejected the appeal. It reasoned: “Section 4 of the Fuel Fee Act provides that a fuel fee (polttoainemaksu, bränsleavgift) is collected for the number of days the vehicle has been continuously located in Finland prior to the noted use, but not for more than 20 days at a time. Section 5 provides that the fuel fee for a pickup van is FIM 1,500 [some EUR 252] per diem. Section 6 provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given, the fuel fee collected is treble the [normal] amount. The pickup van owned by Pertti Jukka Tapio Ruotsalainen, [registration no.] KJM-327, has been noted to have been used during the year 2001 using fuel more leniently taxed than diesel oil. Ruotsalainen had not informed the Vehicle Administration or the Customs thereof [in advance]. In the pre-trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle. The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax. What is in issue is not the imposition of a criminal punishment or a sanction in lieu. The imposition of a fuel fee ... is not in breach of the Constitution of Finland or the Convention. Despite the reasons for the use submitted by Ruotsalainen and despite his financial status, the Vehicle Administration was entitled to impose a fuel fee. The fuel fee amounts to FIM 1,500 per diem, it was to be imposed in respect of 20 days and it was to be trebled. The fuel fee FIM 90,000 has been imposed in accordance with the law. There is no reason to amend the debiting decision.” 13. The decision indicated that sections 1, 3, 7 and 15 of the Fuel Fee Act and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention had been applied. 14. The applicant requested leave to appeal, alleging a breach of Article 4 of Protocol No. 7. 15. On 26 February 2003 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused leave to appeal. 16. The Finnish system relating to the use as motor fuel of more leniently taxed oil than diesel oil is based on two main elements. First, the owners or users of motor vehicles are obliged to give prior notice to the authorities of their intention to use such fuel as motor fuel, and to pay additional tax (section 20 of the Motor Vehicle Tax Act, which has since been repealed) and/or a fuel fee (section 1 of the Fuel Fee Act as amended by Act no. 234/1998). Second, the authorities ensure compliance with those conditions by means of road checks. Tax evasion or attempted tax evasion was punishable under the Penal Code and failure to comply with the notification obligation was punishable as a motor vehicle tax offence (section 33 of the Motor Vehicle Tax Act). 17. The Fuel Fee Act’s provisions of interest for the present case read: A vehicle referred to in section 1 shall be subject to a fuel fee as a tax corresponding to fuel tax if a more leniently taxed fuel than diesel oil is used in the vehicle. A fuel fee shall not be collected on the fuel contained in the tank of a vehicle when the vehicle is imported. A fuel fee shall, however, be collected if the fuel contained in the tank of the imported vehicle has been made identifiable as provided by virtue of the Excise Duty on Fuels Act (Act no. 948/82). A vehicle in respect of which a notification within the meaning of section 20 of the Motor Vehicle Tax Act has been given for collecting additional tax shall not be subject to a fuel fee during the tax period of the additional tax. If a more leniently taxed fuel than diesel oil is used in a vehicle referred to in section 1, the owner or holder of the vehicle shall be obliged to notify the Vehicle Administration of such use before using it. In respect of a vehicle imported to Finland, the notification may also be given to the customs authorities. A fuel fee shall be collected for the number of days on which, according to a notification, a more leniently taxed fuel than diesel oil is used in a motor vehicle. If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle during a time in respect of which no prior notification has been given, a fuel fee shall be collected for the number of days on which the vehicle has been continuously located in Finland prior to the use, but not for more than 20 days at a time. If a fuel fee has been imposed on the vehicle, the time shall be counted from the first day following the previous tax period at the earliest. If the date of importing the vehicle to Finland cannot be established, the fuel fee shall be collected for a minimum of 10 days. The fuel fee for a pickup van is FIM 1,500 [equivalent to EUR 252.28] per diem. ... If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notification under section 3 has been given, the fuel fee collected shall be three times the normal amount. The fuel fee shall be collected from the person who was the owner of the vehicle at the time when a more leniently taxed fuel than diesel oil was used in the vehicle. If another person holds the vehicle permanently in his or her possession, the fuel fee shall be collected from this holder. ... ... The use of a fuel other than diesel oil shall be presumed if a tank belonging to the fuel system of a vehicle contains a fuel which has been made identifiable pursuant to the legal provisions on light fuel oil. A fuel fee shall be collected irrespective of the amount of such fuel in the vehicle. ... For particularly weighty reasons the Ministry of Finance may, on application and on conditions set by the Ministry, grant exemption from the payment of a fuel fee, penal interest or arrears, and interest due because of deferral of payment. The National Board of Taxes shall make a decision on the application referred to in subsection 1 if the sum whose removal or return is requested does not exceed FIM 300,000 [equivalent to EUR 16,818.79]. The Ministry of Finance may, however, take the case up for decision if it is of particular significance. The National Board of Taxes may, on application, defer the payment of a fuel fee. The provisions on the additional tax on the motor vehicle tax shall apply to the conditions of such deferral. The Ministry of Finance may take a case concerning deferral of payment up for decision. In such cases, the Ministry shall determine the conditions of deferral in its decision concerning the application. A decision made by virtue of this section shall not be subject to appeal. Illegal evasion of a fuel fee, and attempted evasion thereof, are punishable under Chapter 29, Articles 1-3, of the Penal Code.” 18. According to the Government Bill for the enactment of the Fuel Fee Act and amendment of section 6 of the Excise Duty on Fuels Act and section 16 of the Motor Vehicle Tax Act (no. HE 329/1992), the fuel fee is intended to correspond to the fuel tax which would have accrued if diesel oil had been used as fuel in the vehicle. 19. Government Bills nos. HE 329/1992 vp and HE 234/1998 vp note that section 4 of the Fuel Fee Act is based on the presumption that the same fuel is used in the vehicle continuously. Since it is usually impossible to provide evidence of the type of fuel used in the vehicle before it is observed by the authorities, or to provide evidence of the extent to which the vehicle has been used, the imposition of the fuel fee has to be based on the time during which the vehicle has been used in Finland. For reasons of equity, however, the period is restricted to 20 days at a time. 20. With regard to section 15, the Government submitted that in most cases where a tax appeal is pending the National Board of Taxes refuses tax relief. This also concerns the application of section 15 of the Fuel Fee Act. If an application for tax modification has been rejected for this or another reason, the applicant may, notwithstanding the existing decision, file a new modification application with the same authority after the decision on taxation has become final. The Government did not refer to any such decision. 21. The Fuel Fee Act in force at the relevant time was replaced by a new Fuel Fee Act (Act no. 1280/2003, with effect from 1 January 2004, which was not therefore applicable to the present case). Section 3 provides that a fuel fee is imposed for the purpose of preventing the use of a fuel which gives rise to the imposition of a fuel fee, and that the use in vehicles of a fuel which gives rise to the imposition of a fuel fee is prohibited. Section 9 lays down the sums of the fuel fees imposed on different types of cars. Section 10 provides that if a notification has not been made to the competent authority, the fuel fee shall be increased by 30% at most. The fuel fee may also be increased by 50% at most if the use of the fuel which gives rise to imposing the fuel fee is repeated, or doubled at most if the use of the fuel which gives rise to imposing the fuel fee is particularly aggravated. 22. The Government Bill for the enactment of the new Fuel Fee Act (HE 112/2003, p. 7) noted that the use of more leniently taxed fuel led to the issuing of a fuel fee debit and an additional motor vehicle tax and that the aim of this was effectively to prevent the use of fuel other than fuel intended for traffic. Formally, the use of more leniently taxed fuel was not forbidden, but it was subject to fairly severe financial sanctions. The basic structure of the Fuel Fee Act and the Motor Vehicle Tax Act was identical to, for example, the Penal Code, which does not specifically forbid certain unwanted acts but only provides for the consequences of such acts. The only difference was that the sanction applicable to the use of fuels was an administrative sanction collected as a tax. The basic aim of the provisions on additional tax and fuel fee is well established in Finland. The provisions are well-known among motorists and the consequence is that, compared with other countries, more leniently taxed fuel is hardly ever used in road traffic in Finland. The Government Bill considered that the high level of the fuel fee was necessary with regard to the preventive effect of the sanctions system. 23. Chapter 29, Articles 1-3, of the Penal Code provide: A person who (1) gives a taxation authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently, and thereby causes or attempts to cause a tax not to be assessed, a tax to be assessed too low or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for at most two years. If in the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for at least four months and at most four years. (1) If the tax fraud, when assessed as a whole, with due consideration to the amount of financial benefit sought and the other circumstances connected with the offence, is to be deemed petty, the offender shall be sentenced for petty tax fraud to a fine. (2) If a punitive tax increase is deemed a sufficient sanction, the report of, or prosecution or punishment for, petty tax fraud may be waived.” | 1 |
train | 001-98583 | ENG | UKR | ADMISSIBILITY | 2,010 | KOTSARENKO v. UKRAINE | 4 | Inadmissible | Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Eduard Fedorovich Kotsarenko, is a Ukrainian national who was born in 1938 and lives in the village of Andreevka, Donetsk Region, Ukraine. The respondent Government were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 October 1999 the Slavyansk Court awarded the applicant 2,178 Ukrainian hryvnyas (UAH) in salary arrears, to be paid by his former employer, a private company, S. (“the company”). The judgment in the applicant's favour was not appealed against, became final and the State Bailiffs' Service instituted enforcement proceedings. The judgment remains unenforced. | 0 |
train | 001-93849 | ENG | RUS | ADMISSIBILITY | 2,009 | SANKOV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Oleg Valeryevich Sankov, is a Russian national who was born in 1969 and lives in Novocherkassk. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. The local police organised an undercover drug purchase operation targeting the applicant, who was suspected of involvement in drug dealing. On 17 April 2002 a plain clothes police officer came to the applicant’s flat and asked if he could purchase opium. The applicant allegedly agreed and asked for 150 roubles (RUB) for a sachet of opium. The police officer presented the applicant with RUB 150 in marked bills, took the sachet and went down to a lower landing in the building where he handed the sachet with the opium to the other police officers in the presence of three attesting witnesses B., K., and Ya. The police officers and the said witnesses went to the applicant’s flat. The police conducted a search and found the marked bills and more opium. The applicant was arrested and detained pending investigation and trial. On 29 April 2002 the investigator dismissed the applicant’s lawyer request for a dactylographic expert examination of the banknotes found at the applicant’s flat. In particular, the investigator indicated as follows: “The fact that [the applicant] was guilty of selling 0.17 grams of opium to L. has been fully and objectively proven by the [evidence collected].” During the trial the applicant maintained his innocence, alleging that the police had set him up. According to him, on 17 April 2002 an acquaintance, M., came to his flat to see his wife. As his wife was not home, M. left. The applicant was about to close the door after her when several policemen burst into the flat. One of them handcuffed him. Another one put three fifty-rouble bills on the cupboard. When the police checked them, they turned out to be marked. Then another policeman “found” opium in the breadbin. The opium was shown to B., K. and Ya., the three witnesses who had come with the police. The court granted the prosecutor’s request to read out the records of the testimonies given by B., K. and Ya in the course of the investigation. The court overruled the applicant’s objection, noting that those persons did not live at the addresses they had indicated and that their current whereabouts were unknown to the authorities. On 1 November 2002 the Novocherkassk Town Court of the Rostov Region found the applicant guilty of drug dealing and sentenced him to five years’ imprisonment. The court based its findings on the following evidence: testimonies given in court by three policemen who had been involved in the undercover drug purchase, the applicant’s arrest and the search of his flat; records of the testimonies given by B., K. and Ya., who had been questioned in course of the criminal investigation and confirmed the policemen’s account of the events of 17 April 2002; records concerning the organisation of the undercover operation by the police, including the marking of the money bills, photocopies of the bills, and the report on the search of the applicant’s flat; and reports on forensic examination of the money bills, opium, and wipe samples from the applicant’s hands. The court also heard evidence from M., who confirmed the applicant’s version of the events. The court, however, found her testimony unreliable, having regard to the fact that she was a friend of the applicant’s wife. The applicant appealed. He complained, inter alia, that the money bills had not been subject to fingerprint examination and that he had not had the opportunity to confront witnesses B., K. and Ya. On 4 March 2003 the Rostov Regional Court upheld the applicant’s conviction on appeal. As regards the fingerprint examination requested by the applicant, the court noted that it could not be performed because the bills had already been subjected to a series of other expert examinations that would render the results unreliable. As for the trial court’s failure to obtain the attendance of three witnesses, the court noted that the witnesses could not be found at the addresses they had indicated. On 10 June 2004 the Pervomaiskiy District Court of Rostov-on-Don reviewed the applicant’s conviction to take account of recent amendments to the Russian Criminal Code and reduced his sentence to four years and six months’ imprisonment. On 14 October 2004 the Presidium of the Rostov Regional Court reclassified the charges against the applicant and reduced his sentence to four years and five months’ imprisonment. On 30 November 2006 the Deputy General Prosecutor of the Russian Federation asked the Supreme Court of the Russian Federation for the supervisory review of the applicant’s conviction. The prosecutor argued, inter alia, that the trial court had failed to duly obtain the attendance of witnesses B., K., and Ya. On 18 January 2007 the Presidium of the Supreme Court of the Russian Federation quashed the judgments of 1 November 2002 and 4 March 2003 by way of supervisory review and remitted the matter for fresh consideration. As regards the trial court’s use of the statements made by B., K. and Ya. the Supreme Court acknowledged that the trial court’s failure to obtain the witnesses’ attendance amounted to a violation of the applicant’s right set out in Article 6 § 3 (d). The Supreme Court noted that the authorities’ attempts to find the missing witnesses had not been satisfactory. According to the Supreme Court’s findings, all three witnesses had been students at the material time and had been residing in Novocherkassk temporarily. They had also provided the police with the addresses of their permanent residence. However, the trial court had kept on serving process on them at their old temporary addresses, and no attempt had been made to locate them at the permanent addresses they had indicated. On an unspecified date the Novocherkassk Town Court of the Rostov Region opened a new trial. The court requested the bailiffs to obtain the attendance of witnesses B., K. and Ya. by serving process on them at their permanent residence. On 21 May 2007 a bailiff in the town of Belaya Kalitva certified that witness B. could not be found at the address he had indicated and that his whereabouts were unknown. On 22 May 2007 a bailiff in Novocherkassk certified that witness Ya. could not be found at his permanent place of residence. According to Ya.’s family, he had been working abroad since 2006 and they did not know when he was coming back. On 21 September 2007 the Novocherkassk Town Court of the Rostov Region found the applicant guilty of drug dealing and sentenced him to four years and four months’ imprisonment. The court based its findings, as before, on the testimonies of the police officers and witnesses B., K. and Ya., records concerning the undercover operation, as well as forensic evidence. Witness K. testified in court, while witnesses B. and Ya. could not attend. The court read out statements obtained from them in the course of the investigation. Both the applicant and the prosecutor appealed. The applicant maintained his innocence, claiming that the trial court had based its findings on contradictory evidence; that the investigator had failed to inform him of the decisions to commission forensic expert reports; that the trial court had failed to promptly examine M., who had later died and been unable to testify on his behalf. On 27 November 2007 the Rostov Regional Court upheld the applicant’s conviction on appeal dismissing the applicant’s arguments as unsubstantiated. | 0 |
train | 001-111422 | ENG | HUN | COMMITTEE | 2,012 | CASE OF SZENTESI 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. The applicant was born in 1935 and lives in Budapest. 5. On 31 August 1999 the Budapest and Pest County Regional Pension Insurance Directorate established the applicant’s service years and the amount of his old age pension. The applicant appealed, challenging the amount of service years recognised. The second-instance administrative authority accepted the claim in part on 6 January 2000. This decision was later modified slightly ex officio to the applicant’s advantage on 23 February 2000. 6. On 13 April 2000 the applicant sought judicial review against the Pension Insurance Directorate’s decision before the Budapest Labour Court. The court dismissed his action on 25 March 2004. 7. The applicant lodged a petition for review with the Supreme Court, which quashed the Labour Court’s judgment and remitted the case to the first-instance court on 1 February 2005. 8. In the resumed proceedings the Labour Court again dismissed the applicant’s action on 16 November 2007. The Supreme Court upheld the first-instance judgment on 24 November 2008, which was served on the applicant on 7 January 2009. 9. The domestic courts relied on documentary evidence, the opinion of two forensic accountant experts and testimonies of the parties. | 1 |
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